Guangzhou Maritime Court of the People??s Republic of China
Civil Judgment
(2007)Guang Hai Fa Chu No.184
Plaintiff : Nanjing Channel Engineering Bureau of Changjiang River
Address : #9, Jiangbian Road, Xiaguan District, Nanjing, Jiangsu
Legal Rep. : Yuan Yakang, director
Agent ad litem : Chen Longjie, attorney-at-law, Greenleaf Law Firm Shenzhen Office
Liu Yun, attorney-at-law, Greenleaf Law Firm Shenzhen Office
Defendant 1 : Guangdong Yudean Shipping Co., Ltd.
Address : Room 1388, 13/F, Labor Building, Hong Hua Yuan, Nanshan District, Shenzhen, Guangdong
Legal Rep. : Liang Jian, Chairman of the board
Agent ad litem : Zhu Weikang, attorney-at-law, Yang & Lin Co. Law Firm
Chen Haojie, attorney-at- law of Everwin Law Firm
Defendant 2 : Hiro Shipping Co. Ltd. / Hiro Shipping INC.
Address : 80 Broad Street Monrovia, Liberia
Legal Rep. : Yusuke Hashiguchi, director and general manager
Agent ad litem : Chen Xiangyong, attorney-at-law, Wang Jing & Co. Law Firm
Cao Yanghui, attorney-at-law, Wang Jing & Co. Law Firm
Defendant 3 : Yuma Maritime S.A.
Address : 53rd Street, Urbanizacion Obarrio, Torre Swiss Bank 16th Floor, Panama, the Republic of Panama
Legal Rep. : Masaki Hara, director and deputy general manager
Agent ad litem : Chen Xiangyong, attorney-at-law, Wang Jing & Co. Law Firm
Cao Yanghui, attorney-at-law, Wang Jing & Co. Law Firm
With regard to the litigation filed by the Plaintiff, Nanjing Channel Engineering Bureau of Changjiang River, against Defendant 1, Guangdong Yudean Shipping Co., Ltd. (hereinafter referred to as Yudean), Defendant 2, Hiro Shipping Co. Ltd. / Hiro Shipping INC. (hereinafter referred to as Hiro), and Defendant 3, Yuma Maritime S.A. (hereinafter referred to as Yuma) for dispute over damages arising out of ship collision, this Court formed a collegial panel according to law convening the parties involved to exchange evidence prior to the hearing on 22 January, 19 March and 23 April in the year of 2008 respectively, holding pretrial conference on 3 and 4 June, and hearing in public session on 6, 7, 8 and 12 August. The agents ad litem of the Plaintiff, Chen Longjie and Liuyun, agents ad litem of Yudean, Zhu Weikang, Chen Haojie, and agents ad litem of the Defendants, Hiro and Yuma, Chen Xiangyong and Cao Yanghui, participated in the pretrial evidence exchange and conference, and appeared in court for the trial. The surveyors Lu Daonan, Huang Guangming and Xu Jiangping appeared in court for court examination as requested by the Plaintiff, the same as the accountant Tang Qiujin as requested by Defendant 1, Yudean, as well as the surveyor Zhang Jindao as requested by Defendant 2 and Defendant 3, Hiro and Yuma. The hearing of this case has now concluded.
The Plaintiff claims as follows:
On 14 March 2007, M/V ?°YUE DIAN 2?± owned by Yudean, M/V ?°SUMIRE?± owned by Hiro and bareboat chartered by Yuma, and M/V ?°HANG JUN 11?± owned by the Plaintiff encountered a collision accident in Lingding, Shuidao of the Pearl River. This collision accident was due to the faults of M/V ?°YUE DIAN 2?± and M/V ?°SUMIRE?±, the aforesaid three Defendants shall bear joint and several liabilities for damages against the Plaintiff. The losses suffered by the Plaintiff arising from this accident include: 1, Cost of repair of M/V ?°HANG JUN 11?± in sum of RMB 38,577,903; 2, Charges for emergency measures taken by MSA in sum of RMB 337,126; 3, Salvage charges in sum of RMB 8,030,000; 4, Losses of materials and components in sum of RMB1, 503,725; 5, Cost of purchasing clutch in sum of RMB 317,722.54; 6, Cost of oil consumed by trial voyage in sum of RMB 225,900; 7, Losses of personal belongings of seamen in sum of RMB 63,780; 8, Post wages of seamen in the course of repair in sum of RMB 816,074.17; 9, Merit pay of seamen in the course of repair in sum of RMB 337,464; 10, Accommodation fee of seamen in the course of repair in sum of RMB 285,975; 11, Operating loss in sum of RMB 17,912,748.11; 12, Examination fee in sum of RMB 150,000; 13, Costs of accounting and auditing support in sum of RMB 50,000; 14, Accident management fee in sum of RMB 213,328.40; 15, Other supporting costs in the course of repair in sum of RMB 31,635.90. 16, Unexpired insurance premium in sum of RMB 55,616.20. The total amount is RMB 68,908,998.32. The Plaintiff requested this Court to order the three Defendants to jointly and severally indemnity the Plaintiff for loss in amount of RMB60, 000,000.00 and the interests hereof (computed from 15 March 2007 on basis of the loan interest of circulating fund for the same period as published by the bank), and to order the three Defendants to jointly and severally undertake the litigation fees, application fee and enforcement fee for property and evidence preservation prior to litigation and other relevant court fees.
The Plaintiff submitted the following evidence within the term of adducing evidence:
1, Certificate of Vessel??s Nationality, Classification Certificate for Hull, Certificate of Vessel??s Inspection, Certificate of Load Line, Certificate of Oil Pollution Prevention, Certificate of Tonnage, Certificate of Seaworthiness of M/V ?°HANG JUN 11?±; 2, Certificate of Competency of Master Chen Wu, Certificate of Competency of Master Chen Xiping, Certificate of Competency of 2nd Officer Yu Gang, Certificate of Competency of Duty Officer Chen Chunhai, Certificate of Competency of Chief Engineer Qian Ming, Certificate of Competency of Second Engineer Dai Yongqing; 3, Permits for operation above and under water, Notice to Mariners; 4, Log book; 5, Accident Report, Table of Investigation of Marine Accidents, Nautical Chart; 6, Contract of Salvage, Payment Voucher for Salvage Fee, Invoice of Salvage Fee; 7, Settlement Agreement stipulating the costs for handling emergency, Invoice and Receipts hereof; 8, Charter Party, Off-hire Notice dated 11 February 2007, On-hire Notice dated 12 March 2007, Off-hire Notice dated 16 March 2007, Statement of Account; 9, Daily Reports of Dredging Operation, Accounting Voucher, Telegraphic Transfer Voucher, Specific Audition Report; 10, Repair Contract and Quotation and Instruction, Work-Done List, Statement of Account, Payment Voucher of Repair Cost, Statement of the Period of Repair, Correspondence in Respect of the Repair; 11, Court??s Receipt of Payment for arresting M/V ?°SUMIRE?±, Court??s Receipt of Payment for arresting M/V ?°YUE DIAN 2?±, Court??s Receipt of Payment for preserving evidence of M/V ?°YUE DIAN 2?±, Court??s Receipt of Payment for filing the case with the Court; 12, List of the Damaged Materials in the Warehouse of M/V ?°HANG JUN 11?±, Table of the Stocks before and after the Accident, Breakdown of Losses of Personal Belongings Onboard M/V ?°HANG JUN 11?±; 13, Insurance Policy, Receipt of Premium, Vouchers of Payment for Premium; 14, No.5, No.6, No.25, No.32, No.34, No.36, No.38, No.41, No.43, No.46, No.47, No.55, and No.58 Payment Vouchers of crew wage, bonus and cost of meals and of handling the accident and expense for the maintenance of vessel during the period of repair; 15, No. 13 and No. 23 Payment Vouchers, Payment Instrument, Notice of Requisition of Merit Pay and Cost of Meal in Sep. Oct. Nov. and Dec; 16, Jindan Hotel??s Statement of Account and Invoices hereof; 17, Memorandum of damage to the clutch provided by Department of Ship Repair of CSSC Guangzhou Shipbuilding Co., Ltd. (hereinafter referred to as CSSC), Telegraphic Transfer Voucher for Payment of purchasing clutch, Price List, Invoices hereof (2 pages), Commercial Invoice; 18, Memorandum of fuel oil used for trial voyage after repair provided by Department of Ship Repair of CSSC, Contract of Fuel Supply, Payment Voucher of Refuel Costs; 19, Table of Crew??s Basic Wage; 20, Inspection Report of M/V ?°HANG JUN 11?± as well as the Appendices, Payment Vouchers of Inspection Fee, Invoice of Cost of Inspection carried out by CCSI; 21, Special Examination Report of Operating Losses of M/V ?°HANG JUN 11?±, Invoice of payment for examination fee.
Defendant 1 Yudean made the following defense:
I. After the accident, Guangzhou MSA conducted investigation hereof and issued the Investigation Report of the Collision Accident which ascertained that M/V ?°YUE DIAN 2?± should bear major liability and M/V ?°HANG JUN 11?± should bear secondary liability for the first collision, and M/V ?°SUMIRE?± should bear major liability and M/V ?°HANG JUN 11?± should bear secondary liability for the second collision. Yudean agreed at the aforesaid ascertainment made by Guangzhou MSA. Accordingly, M/V ?°YUE DIAN 2?± should bear liability in the proportion of 55% for the first collision, and M/V ?°HANG JUN 11?± should bear that in the proportion of 45%. In addition, M/V ?°YUE DIAN 2?± should not be liable for the second collision. II. Although M/V ?°YUE DIAN 2?± misestimated M/V ?°HANG JUN 11?± as an outbound vessel, M/V ?°HANG JUN 11?± also misestimated M/V ?°YUE DIAN 2?± as an inbound vessel and agreed to let her overtake which led to a close-quarter situation. At the time when M/V ?°HANG JUN 11?± and M/V ?°YUE DIAN 2?± was approaching each other, M/V ?°HANG JUN 11?± failed to alter course to port and the two vessels came in to collision thereafter. The master of M/V ?°HANG JUN 11?± was not onboard so that the vessel was not seaworthy. III. The losses claimed by the Plaintiff were not reasonable. As per the Survey Report and Supplementary Appraisal Report of Statement of Repair Cost provided by Yudean, the repair cost of M/V ?°HANG JUN 11?± for the first collision amounts to RMB 271,497, and 20 days of repair were required; and that for the second collision amounts to RMB 29,215,283, and 170 days of repair were required, the reasonable salvage fee is RMB 5,000,000. The Defendant hereby requests the court to overrule the unreasonable claims filed by the Plaintiff against Yudean and to order the Plaintiff to bear the relevant litigation fees.
The Defendant 1 Yudean submitted the following evidence within the term of adducing evidence:
1, Business License; 2, Certificate of Vessel??s Nationality, Certificate of Ownership, Interim Classification Certificate, Cargo Ship Safety Construction Certificate, Cargo Ship Safety Equipment Certificate, International Tonnage Certificate, International Load Line Certificate, Cargo Ship Safety Radio Certificate, International Oil Pollution Prevention Certificate, Interim International Ship Security Certificate, Certificate of Compliance, Certificate of Exemption, and Minimum Safe Manning Certificate of m/v ?°Yue Dian 2?±; 3, Crew List of m/v ?°Yue Dian 2?±, Certificates of Competency of Crew onboard m/v ?°Yue Dian 2?±, Seaman??s Record Books of Crew onboard M/V ?°Yue Dian 2?±; 4, Marine Accident Report; 5, Deck Logbook, Engine Logbook, Deck Bell Book, Engine Bell Book of m/v ?°Yue Dian 2?±; 6, Survey Report of M/V ?°HANG JUN 11?±; 7, Supplementary Appraisal Report of Statement of Repair Cost of M/V ?°HANG JUN 11?±.
The Defendants Hiro and Yuma jointly made the following defense:
I. Hiro is not the proper defendant of this case. With regard to this collision accident, it is the bareboat charterer who should bear the collision liability. Hiro is the registered owner of M/V ?°SUMIRE?± and Yuma is the bareboat charterer of this vessel. The flag state of M/V ?°SUMIRE?± is Panama. Therefore, according to law of Panama, no registration is required for bareboat chartering, i.e. such bareboat chartering shall have the same legal effect as that with registration as required by the other countries. Accordingly, Hir should not bear any collision liability. II. The liabilities borne by each vessel are as follows: 1. There are two collisions involved in this case. Prior to the occurrence of the first collision, M/V ?°HANG JUN 11?± was operating along the approach channel so that her manipulating and avoidance capability was limited. However, M/V ?°YUE DIAN 2?± misestimated M/V ?°HANG JUN 11?± as an outbound vessel and mistakenly and abruptly altered her course to port substantially when she was very close to M/V ?°HANG JUN 11?±, which led to a close quarter situation and made the first collision unavoidable. As a result, M/V ?°HANG JUN 11?± quickly moved astern crossed the channel and blocked the channel completely. When M/V ?°SUMIRE?± was aware of the occurrence of the first collision, she was very close to M/V ?°HANG JUN 11?± so that M/V ?°HANG JUN 11?±??s crossing of the channel directly caused the another close quarter situation which made the second collision unavoidable. The conducts of M/V ?°YUE DIAN 2?± is the primary cause of the aforesaid two collisions. Accordingly, M/V ?°YUE DIAN 2?± should bear major liability hereof; 2. M/V ?°SUMIRE?± and M/V ?°HANG JUN 11?± expressly agreed that M/V ?°SUMIRE?± overtook from the port side of M/V ?°HANG JUN 11?±. M/V ?°HANG JUN 11?± as the overtaken vessel should have kept steady course. Even though she moved astern for the purpose of avoiding collision, she failed to stop engine in time and blocked the channel violating the agreement and navigation rules. The fault of M/V ?°HANG JUN 11?± was the primary cause of the second collision. Therefore, M/V ?°HANG JUN 11?± should bear major liability for the second collision and bear secondary liability for the whole accident; 3. M/V ?°HANG JUN 11?±?? abrupt crossing of the channel directly led to the close quarter situation with M/V ?°SUMIRE?±. However, M/V ?°SUMIRE?± complied with the agreement and navigation rules and avoided collision with her best endeavor, even though she was still unable to avoid the second collision. M/V ?°SUMIRE?± was free of any fault and should not bear any liability for the whole accident. Even though she should bear part of liabilities, such liability should be no more than the proportion of 10%. III. Each vessel involved in the collision shall be liable in proportion to the extent of her fault. It is groundless in law for the Plaintiff to claim for joint and several liabilities against the three Defendants. IV. The losses claimed by the Plaintiff are unreasonable. As per the appraisal of the Respondent, the reasonable repair costs should amount to RMB 30, 000, 000; 2. The operation loss calculated by the Plaintiff is not reasonable. It should be calculated on the basis of the complete hire period including the period of repair and maintenance; 3. The salvage fee in sum of RMB 8, 030, 000 as claimed by the Plaintiff is obviously far more than an reasonable amount which should be no more than RMB 5, 000, 000; 4. The charges for dealing with the case, inspection fee and accounting and auditing fee should be apportioned equally; 5. There is no effective evidence proving the losses of other materials and components. Therefore, it is impossible that all the materials and components were lost or damaged due to the sinking of M/V ?°HANG JUN 11?±; 6. There is no effective evidence proving the rationality and necessity of purchasing clutch and oil for trial voyage. In conclusion, the Defendants Hiro and Yuma request the court to order Yudean to bear major liability, and the Plaintiff should bear corresponding liability as per the extent of fault, to overrule the claims filed by the Plaintiff against Hiro and Yuma, and to order the Plaintiff to bear the relevant litigation fees.
The Defendants Hiro and Yuma submitted the following evidence within the term of adducing evidence:
1. Certificates of M/V ?°SUMIRE?±, including Statutory Certificate of Register, International Tonnage Certificate, International Loading Certificate, International Oil Pollution Prevention Certificate, Cargo Ship Safety Radio Certificate, Cargo Ship Safety Equipment Certificate, Cargo Ship Safety Construction Certificate, Certificate of Minimum Manning, Safety Management Certificate, and Statutory License for Radio; 2. Bareboat Charter Party, Time Charter Party, Rent Statement; 3. Deck Logbook, Engine Logbook, Bell Book and Pilot Card of M/V ?°SUMIRE?±; 4. Crew List of M/V ?°SUMIRE?±; 5. Maritime Accident Investigation Form; 6. Survey Report on damage of M/V ?°SUMIRE?± arising from the collision, Appraisal Report of Salvage Fee; 7. Legal Opinion from a lawyer in Panama.
This Court has obtained the following evidential materials from Guangzhou MSA: 1. Collision Accident Investigation Report issued by Guangdong MSA; 2. Maritime Traffic Accident Report (two pieces) and Maritime Accident Report of M/V ?°YUE DIAN 2?±; 3. Deck Logbook, Engine Logbook, Deck Bell Book, and Engine Bell Book of M/V ?°YUE DIAN 2?±; 4. Interview records taken by Guangzhou MSA of some crews of ?°Yue Dian 2?±, including interview records of Master Jiang Feng, of second officer Cao Junlong, of third officer Qiu Weizhong, of chief engineer Chen Wenqiang, of first engineer Xu Weihe, of third engineer Li Huaxu (two pieces), of A/B Huang Jingqing, of A/B He Jianming; 5. Logbook, Engine Logbook and Maritime Traffic Accident Report of M/V ?°HANG JUN 11?±; 6. On-the-spot Accident Investigation Records on M/V ?°HANG JUN 11?± produced by Guangzhou MSA; 7. Interview records taken by Guangzhou of some crews of M/V ?°HANG JUN 11?±, including interview records of chief officer Chen Xiping (two pieces), of second officer Chen Jiesong, of second officer Yu Gang, of chief engineer Qian Ming, of first engineer Dai Yongqing, of A/B Chen Haichun, of A/B Xielei, of machinist on duty Wang Daohai, of machinist Qi Fei; 8. Interview records taken by Guangzhou MSA of Song Gentong, the project manager of Guangzhou Seaward Passage Project of Nanjing Channel Engineering Bureau; 9. Certificate of Register, Safety Manning Certificate, and Certificate of Competency of crews of M/V ?°SUMIRE?±; 10. Marine Accident Report of M/V ?°SUMIRE?±; 11. Ship Manoeuvring Parameter List and Side View of Bow Structure of M/V ?°SUMIRE?±; 12. Average Survey Report of M/V ?°SUMIRE?± produced by Classification society; 13. Interview records taken by Guangzhou MSA on pilot Zhao Bingxun (two pieces); and 14. Interview records taken by Guangzhou MSA of the Master (two pieces), of the third officer, of the chief engineer, and of the A/B of M/V ?°SUMIRE?±.
Based on the joint application filed by the Plaintiffs and Defendants, this Court organized parties to this case to watch VTS video at Guangzhou MSA, and to copy the sound recordings of conversations, and the written records thereof were submitted by the parties to this case. : At the pre-trail conference, both the Plaintiffs and the Defendant Nanjing Channel Engineering Bureau believed that the written record of the sound recording of conversations in VTS submitted by the defendant Yudean Co. is comparatively accurate and confirmed the authenticity of the said written record.
Upon hearing and cross-examination, and in combination of the evidences and opinions on cross-examination submitted by parties to the case and statement of accounts, the Collegial Panel ascertains the following facts through investigation:
I. Particulars of Ships involved in the Accident
M/V ?°HANG JUN 11?±: Gross Tonnage 2,691 tons, Net Tonnage 807 tons, Deadweight Capacity Indication 2,457 tons, Length overall 84.75M, Breadth 15M, Depth 5.5M, Full Load Draft 4.5M; Kind of Vessel: Dredger; Material of Shell: Steel; Navigating Area: Offshore; Number of Watertight Transverse Bulkhead: Six; Port of Registry: Nanjing; Signal Letters: BTYS; Number of Registry: 060102000138; Classification society: CCS; Kind of Main Engine: Diesel Engine/6L28/32; Horse Power of Main Engine: 1,320KW??2; main engine manoeuvring being controlled by the navigation bridge. Where and when built: Hudong Zhonghua Shipbuilding Co.,Ltd, completed on October 26, 1998.
M/V ?°YUE DIAN 2?±: Gross Tonnage 36,559 tons, Net Tonnage 23,279 tons, Deadweight Tonnage 70,182 tons, Length overall 225M, Breadth 32.26M, Depth 18.3M, Speed of Vessel 14 Knots. King of Vessel: Bulk Carrier; Material of Vessel: Steel; Port of Registry: Shenzhen; Signal Letters: BRWL; IMO No.: 9077240; Classification society: CCS; Kind of Main Engine: Internal-combustion Engine/SULZER 6RTA62; Horse Power of Main Engine: 8,826KW; main engine manoeuvring being controlled by the engine room; Where and when built: Japan, SUMITOMO HEAVY INDUSTRIES, LTD., completed on July 14, 1994. The Defendant Yudean Co. is the registered ship owner and operator of the ship.
M/V ?°SUMIRE?±: Gross Tonnage 14,089 tons, Net Tonnage 7,023 tons, Deadweight Tonnage 17,732 tons, Length overall 163.6M, Breadth 26M, Depth 13.4M; Departure Draft: fore 5.78M, aft 6.82M; Kind of Vessel: Container Ship; Material of Hull: Steel; Speed of Vessel: 18.5 Knots; Port of Registry: Panama; Signal Letters: 3FTA7; IMO No.: 9153070; Kind of Main Engine: Internal-combustion Engine/SULZER 6RTA62; Horse Power of Main Engine: 8,826KW; main engine manoeuvring being controlled by engine room; Classification society: NK (Nippon Kaiji Kyokai); Where and When built: Japan, IMABARI SHIPBUILDING CO. LTD., completed on October, 1997. The Plaintiff Hiro is the registered owner of this ship. The Plaintiff Hiro and Yuma concluded a Bareboat Charter and a Purchase Contract on March 24, 1997, therein it was agreed that the Plaintiff Yuma hired M/V ?°SUMIRE?± in the way of bareboat charter, however, no registration of bareboat charter of M/V ?°SUMIRE?± had been conducted.
II. Details of the Accident
At 1910 hrs on 14 March 2007, M/V ?°YUE DIAN 2?± departed Guangzhou port in ballast condition, bound for Huang Ye Port. The draft at departure was: fore 3.4m, after 6.3m. Master, Jiang Feng, was in charge of commanding the vessel, the Third Officer was in charge of the engine bell operation and assisted in look-out, while two A/B took turn to operate the rudder and assisted in look-out. At 2228 hrs, M/V ?°YUE DIAN 2?± reported to VTS Guangzhou through VHF that she had passed Humen Bridge, and later this vessel entered into Lingding Channel and sailed full ahead. At 2335 hrs, M/V ?°YUE DIAN 2?± passed Buoy No.36. When passing between Buoy No.33 and No.34, the Master, by observing the radar, detected a vessel (namely M/V ?°HANG JUN 11?±) sailing before M/V ?°YUE DIAN 2?± along the channel. At that time M/V ?°HANG JUN 11?± was 4nm away from M/V ?°YUE DIAN 2?± with the speed of about 3knots. The Master judged that M/V ?°HANG JUN 11?± was an outbound dredger. The monitoring materials of VTS Guangzhou indicated that at 2340 hrs, M/V ?°YUE DIAN 2?± had already passed Buoy No.34, with the course at 162??, the speed of 16.5knots, and the position at the middle of the channel alongside the red buoy. The Master, by observing the radar, detected another ship (namely M/V ?°SUMIRE?±) sailing at the middle of the channel, with the distance of about 6.5nm away from M/V ?°YUE DIAN 2?± and the speed of about 15knots. At 2344 hrs, M/V ?°YUE DIAN 2?± just passed Buoy No.32, with the course at 163?? and the speed of 17knots, sailing alongside the red buoy. At 2345 hrs, the A/B took the shift, one person in charge of rudder operation and the other assisting in look-out. At about 2347 hrs, M/V ?°YUE DIAN 2?± just passed Buoy No.30, and the course and the speed of the vessel did not change. At 2348 hrs, M/V ?°YUE DIAN 2?± contacted M/V ?°HANG JUN 11?± through VIF for three times to communicate on the overtaking. M/V ?°HANG JUN 11?± made a reply to M/V ?°YUE DIAN 2?± and agreed M/V ?°YUE DIAN 2?± to overtake her from the port side. At about 2349 hrs, the Master of M/V ?°YUE DIAN 2?± order the vessel to make hard to port, and reported through VHF that she was turning to port. At 2350 hrs, M/V ?°YUE DIAN 2?± passed Buoy No.28 with the speed of 17knots. At about 2351 hrs, M/V ?°YUE DIAN 2?±, on the position of the back side of the starboard draft marks at the bow, collided with the bow of M/V ?°HANG JUN 11?± almost at a right angle. The GPS position of M/V ?°YUE DIAN 2?± at the time of collision was: 22??31??N, 113??44??.5E, heading about 136??, and speed at about 10knots. After collision, M/V ?°YUE DIAN 2?± clashed out of the channel, and grounded at the eastern side of the channel at about 0003 hrs in 15 March. The GPS position of M/V ?°YUE DIAN 2?± at the time of grounding was: 22??30??.7N, 113??45??.E. At about 0600 hrs, M/V ?°YUE DIAN 2?± was relieved from grounding by taking the chance of tide and under the assistance of two tugs.
At 2320 hrs on 14 March 2007, M/V ?°HANG JUN 11?± was carrying out dredging operation at Lingding Channel, the Second Officer, Yu Gang and the A/B went to the bridge for taking the duty. At 2325 hrs, the Second Officer ordered the A/B in charge of harrow operations to lift up the harrow, and sailed the vessel out of the eastern side of the channel, checked and cleaned the harrow tools for shift taking. After completion of shift turning outside the channel, the Second Officer, Yu Gang, who took the duty, was in charge of the manoeuvring of the vessel and the dredging operation. One A/B was in charge of rudder operation, and the other A/B was in charge of harrow operations. Two sets of ARPA radars at the bridge platform had been turned on, with the presentation of comparative movement, and the heading upward, and with the measurement distance separately set up at 1.5nm and 3nm. One set of depth sounder, AIS, GPS, and one set of DGPS, and 4 sets of VHF had been turned on. 2 sets of VHF were set up at Channel 9, while the other 2 sets of VHF were set up at Channel 16. The sailing lights had been turned on, displaying the sidelights on the starboard side and the port side, and the fore and after masthead lights, and stern lights, and vertically displacing three all-round lights of red, white and red colors. The two illuminative lights at deck had been turned on. At 2339 hrs, the Second Officer instructed M/V ?°HANG JUN 11?± to sail into the channel, and carried out operations along the channel at the place between the Green Buoy No.25 and No.27. Soon after the vessel carried out operation within the channel, the Second Officer first saw a coming vessel sailing near Buoy No.36 alongside the red buoy, displaying red and green side lights, and fore and after masthead lights. In accordance with the monitoring record of VTS Guangzhou, at about 2343 hrs, the course of M/V ?°HANG JUN 11?± was about 321?? with the speed of about 1.5knots. At 2346 hrs, the course of M/V ?°HANG JUN 11?± was about 341?? with the speed of about 2knots. At 2348 hrs, the course of M/V ?°HANG JUN 11?± was about 342?? with the speed of about 2knots. At this time M/V ?°HANG JUN 11?± receive the calling from M/V ?°YUE DIAN 2?± through VHF, and later the Second officer made a reply to M/V ?°YUE DIAN 2?±, agreeing M/V ?°YUE DIAN 2?± to overtake her from the port side. M/V ?°HANG JUN 11?± immediately lifted up the harrow, and stop the main engine to observe the movement of the coming vessel. At about 2349 hrs, the course of M/V ?°HANG JUN 11?± was about 342?? with the speed unchanged, and at this time, M/V ?°YUE DIAN 2?± called M/V ?°HANG JUN 11?± through VHF to inform that she was turning to port. The Second Officer on duty, Yu Gang, after knowing the coming vessel had already taken the action to turn to port, immediately ordered to move slow astern both then full astern both. Soon after the orders to move astern were given, at 2351 hrs, the starboard side at the bow of M/V ?°YUE DIAN 2?± collided with the bow of M/V ?°HANG JUN 11?±, with the collision angle at about 90??. The two vessels immediately separated from each other after collision, and the bow of M/V ?°HANG JUN 11?± turned to starboard and went astern to the port side of the entering channel. At about 2354 hrs, M/V ?°HANG JUN 11?± collided with an approaching vessel, M/V ?°SUMIRE?±, in the middle between the red buoy No.26 and No.28., to the edge of the channel. The bow of M/V ?°SUMIRE?± clashed into the part slightly before the midship at the starboard side of M/V ?°HANG JUN 11?±. The heading of M/V ?°HANG JUN 11?± at the time of collision was about 40??, and the vessel was moving astern at the speed of about 7knots.
At 1245 hrs on 11 March 2007, M/V ?°SUMIRE?±, laden with the container No.822TEU (7,282.7tons of cargos), departed from KOBE, Japan, and proceeded to Xinnansha Port in Guangzhou. At 2210 hrs in 14 March, M/V ?°SUMIRE?± arrived at Guishan Anchorage in Guangzhou for the pilot to embark the vessel. The pilot, Zhao Bingxun, embarked the vessel. After acquiring information on the engines and rudders from the Master, the pilot discussed with the Master and then decided to instruct the vessel to enter into the port by making the main engine stand by with the speed of rotation at 100RPM, and the speed of 15knots. The Master told the pilot that the maximum draft of the vessel was 6.8m. The pilot thought the channel was comparatively clean, and hence started to pilot the vessel to enter into Nansha Port, while the Master, the Third Office and one A/B in charge of rudder operation were all at the bridge. The pilot, Zhao Bingxun, gave instructions on the operation of the engine bell and the rudder to pilot the sailing, and the Third Officer was in charge of engine bell operation and assisted with look-out, while the A/B was in charge of rudder operation. Two sets of radar, GPS, AIS had been turned on. The pilot used the ARPA radar to observe the situation by alternating the range between 1.5nm and 3nm. The speed of the vessel was maintained at about 15knots. At 2240 hrs, the Master left the bridge. At about 2340 hrs, M/V ?°SUMIRE?± was near Buoy No.21 and No.22, with the speed of about 14knots and the course at 351??. The pilot saw a vessel in front near Buoy No.25 and No.26, placing three lights with the color of red, white and red in a vertical line. The pilot got the information through AIS that the name of the vessel in front was M/V ?°HANG JUN 11?±. The course of M/V ?°HANG JUN 11?± was 340??, and the speed was very slow, while M/V ?°HANG JUN 11?± was about 3.2nm away from M/V ?°SUMIRE?±. The pilot also detected through radar M/V ?°YUE DIAN 2?± near the position between Buoy No.31 and No.33, sailing towards the exit and alongside the red buoy at the main channel and with the distance of about 6.5nm away from M/V ?°SUMIRE?±. At about 2342 hrs, M/V ?°SUMIRE?± passed Buoy No.21 and No.22, with the course at 352?? and the speed of 15.1knots. The pilot visually saw that there was no obvious change in the sailing movement of both M/V ?°HANG JUN 11?± and M/V ?°YUE DIAN 2?±. At 2344 hrs, the pilot ordered M/V ?°SUMIRE?± to lower the speed. The monitoring material of VTS Guangzhou showed that the speed of the vessel was about 14knots. The Master immediately went to the bridge after he felt that the speed of the vessel had changed. At 2347 hrs, M/V ?°SUMIRE?± was sailing near Buoy No.23, and the course was changed into 343??, and at this time the speed was about 14knots, while M/V ?°SUMIRE?± was about 1.7nm away from M/V ?°HANG JUN 11?±. The pilot considered to come across first with M/V ?°YUE DIAN 2?±, which was sailing toward the exit, and then passed M/V ?°HANG JUN 11?± from her port side. At about 2349 hrs, M/V ?°SUMIRE?± informed M/V ?°HANG JUN 11?± through VHF of her overtaking intention, and requested M/V ?°HANG JUN 11?± to maintain her course. M/V ?°HANG JUN 11?± replied and expressed her agreement. Soon after the VHF communication, the pilot saw the bow of M/V ?°YUE DIAN 2?± obviously turn to port, and the pilot found that there was a collision risk between M/V ?°YUE DIAN 2?± and M/V ?°HANG JUN 11?±. At the same time, the pilot heard through VHF that M/V ?°YUE DIAN 2?± kept changing her order between hard to port and hard to starboard. The pilot felt that M/V ?°YUE DIAN 2?± was quite nervous. At that time, the distance between M/V ?°SUMIRE?± and M/V ?°HANG JUN 11?± was about 1.2nm. VTS Guangzhou had reminded M/V ?°SUMIRE?± to slow the engine for 4 times within one minute, and to pay attention to the vessel sailing towards the exit and the dredger in front. At about 2351 hrs, M/V ?°YUE DIAN 2?± collided with M/V ?°HANG JUN 11?±, while M/V ?°YUE DIAN 2?± clashed out of the channel. At such time, the course of M/V ?°SUMIRE?± was 343??, with the speed of 15.3knots, and M/V ?°SUMIRE?± had already approached Buoy No.26, about 0.8nm away from the position where the aforesaid two vessels collided, while M/V ?°HANG JUN 11?± did not stop moving astern, and M/V ?°SUMIRE?± intended to overtake M/V ?°HANG JUN 11?± from the stern of M/V ?°HANG JUN 11?±. At about 2352 hrs, when finding M/V ?°HANG JUN 11?± moving astern sideling at a high speed towards the port side of the entering channel, the pilot immediately called M/V ?°HANG JUN 11?± through VHF, telling her not to move astern, and the pilot also ordered M/V ?°SUMIRE?± to make port 10??. When M/V ?°SUMIRE?± turned her course to 320??, the pilot found M/V ?°HANG JUN 11?± still moving astern, and then he ordered M/V ?°SUMIRE?± to make hard to port, later immediately changed the order to make hard to starboard, and to stop the main engine. At about 2353 hrs, the distance between M/V ?°SUMIRE?± and M/V ?°HANG JUN 11?± was already less than 0.2nm. At about 2354 hrs, the bow of M/V ?°SUMIRE?± clashed into the part slightly before the starboard midship of M/V ?°HANG JUN 11?±, with the collision angle of about 70??. The heading of M/V ?°SUMIRE?± at the time of collision was about 330??, and the speed was about 10.2knots. According to the monitoring record of VTS Guangzhou, the position where the two vessels collided was 22??31??N, 113??44??.4E. After collision, the two vessels did not separate from each other immediately and M/V ?°SUMIRE?± dispatched two cables to M/V ?°HANG JUN 11?± to fasten the two vessels. At about 0040 hrs in 15 March, water came into the fore hold and the engine room of M/V ?°HANG JUN 11?±. At about 0108 hrs, M/V ?°SUMIRE?± grounded. At 0410 hrs, M/V ?°SUMIRE?± separated from M/V ?°HANG JUN 11?±. At 0535 hrs, M/V ?°HANG JUN 11?± grounded at the western side of Buoy No.24 under the assistance of two tugs, with the grounding position at 22??28??.5N, 113??43??.5E. At about 0730 hrs, M/V ?°SUMIRE?± got refloated.
At the time of the occurrence of the accident: overcast, visibility 4 to 5nm, easterly wind with the force of 4, ebb tide, and current speed about 1.5knots.
After occurrence of the accident, Guangdong MAS carried out investigations thereto in accordance with the law, and issued the Investigation Report on the Collision Accident among M/V ?°YUE DIAN 2?±, M/V ?°HANG JUN 11?± and M/V ?°SUMIRE?±, which presented the following opinions: this was an accident involving three vessels respectively with two collisions under a special circumstance; for the first collision between M/V ?°YUE DIAN 2?± and M/V ?°HANG JUN 11?±, M/V ?°YUE DIAN 2?± shall bear the major liability, while M/V ?°HANG JUN 11?± shall bear the minor liability; for the second collision between M/V ?°HANG JUN 11?± and M/V ?°?±SUMIRE, M/V ?°?±SUMIRE shall bear the major liability, while M/V ?°HANG JUN 11?± shall bear the minor liability;
III. Losses claimed by the Plaintiff
After the collision, the Plaintiff concluded the Contract of Salvage with Guangzhou Salvage Bureau on 27 March 2007 entrusting Guangzhou Salvage Bureau to salvage M/V ?°HANG JUN 11?±. The vessel was refloated on 1 April. The Plaintiff concluded the Contract of Repair of M/V ?°Hang Jun 11?± on 2 April. The vessel was delivered to CSSC for repair on 4 April and was repaired and left the factory on 4 January 2008. With regard to all the losses claimed by the Plaintiff, the collegial panel decides as follows:
(I) Repair cost of M/V ?°HANG JUN 11?±
The Plaintiff provided the Inspection Report issued by CCSI, the Contract of Repair of M/V ?°Hang Jun 11?± concluded by and between the Plaintiff and CSSC, Quotation of M/V ?°HANG JUN 11?± and the Instructions hereof, Work-Done List, Statement of Repair Cost, Payment Voucher of Repair Cost, Statement of the Period of Repair and Correspondence in Respect of the Repair. The price for settlement as agreed by the Plaintiff and CSSC in the Settlement Agreement was in amount of RMB 44, 319, 385. According to the ascertainment specified in the Inspection Report issued by CCSI, the losses which were directly caused to M/V ?°HANG JUN 11?± include: 1. Salvage fee in sum of RMB 8, 030, 000; 2. Repair cost in sum of RMB 38, 577, 903. (Note: 1, The aforesaid amount of losses do not include the costs of spare parts for sea damage; 2. The Plaintiff provided at its own discretion a dredge pump pneumatic-tyre clutch which is not included in the repair costs; The price of the clutch claimed by the Plaintiff is RMB 317,722.54 which is reasonable and the clutch must be changed after the accident; 3, Consumption of the 30 tons of oils for trial voyage after repair is not included in the repair cost. 4. M/V ?°HANG JUN 11?± arrived CSSC on 4 April 2007 and left the factory on 4 January 2008. The period of repair is 274 days which is the reasonable period of repair.)
The Defendants Hiro and Yuma claim that the repair cost alleged by the Plaintiff is unreasonable, and the period of repair which lasted 274 days as alleged by the Plaintiff are too long. They provided the Inspection Report issued by China Marine Services Company Ltd. (hereinafter referred to as CMS) which ascertains that the reasonable amount of the repair cost for damage arising out of the accident should be about RMB 30, 000, 000.
Defendant 1 Yudean claims that the repair cost alleged by the Plaintiff is unreasonable and provided the Inspection Report issued by Guang Dong Marine Engineering Co., Ltd. specifying that the total costs of permanent repair of M/V ?°HANG JUN 11?± due to damage arising out of the sinking hereof should be no more than RMB 29,486,780 and that the losses caused by the aforesaid two collisions should be calculated separately as follows: with regard to the first collision, the period of repair was 20 days only so that the repair cost hereof should be RMB 271, 497; with regard to the second collision, the period of repair was 170 days so that the repair cost hereof should be RMB 29,215,283.
The collegial panel holds that although the Defendants Yudean, Hiro and Yuma challenged the repair costs alleged by the Plaintiff. However, the aforesaid Defendants have no objection about the items to be repaired due to damage arising out of the accident. Instead, they are challenging the costs of such repair. In view that M/V ?°HANG JUN 11?± actually suffered the damage due to the accident and paid for relevant repair. The payment amount hereof was ascertained as true and authentic and in amount of RMB 38,577,903 according to the Inspection Report issued by CCSI.
(II) Charges for emergency measures taken by MSA
The Plaintiff submitted the Settlement Agreement concluded by and between three Defendants and the Plaintiff, and Guangzhou MSA, Payment Voucher and Invoice as evidence to prove the payment for costs of clean-up and pollution prevention, salvage, emergency handling, tugboat are totally in sum of RMB 337,126. Three Defendants have no objection about such payment, and confirmed that such costs incurred by the accident is in amount of RMB 1, 011, 378 in total for which each party paid a average proportion in sum of RMB 337, 126 respectively. The collegial panel holds that the payment stipulated in Settlement Agreement concluded by and between three Defendants and the Plaintiff, and Guangzhou MSA was made before the apportionment of liability was determined. Therefore, such payment was not the confirmation of the proportion of liability for the collisions, and shall not affect the right to claim compensations from each other as per the determined proportion of liability. In view of that such costs were incurred by the emergency measures taken after the grounding of M/V ?°HANG JUN 11?±, such as costs of salvage, clean-up, pollution prevention and guarding, and the grounding of M/V ?°HANG JUN 11?± was due to the collision with M/V ?°SUMIRE?±, such costs shall be borne by the parties involved in the collision between M/V ?°HANG JUN 11?± and M/V ?°SUMIRE?± as per their corresponding proportion of liability.
(III) Salvage fee
The Plaintiff provided evidence such as the Contract of Salvage, Payment Voucher and Invoice of salvage fee as evidence to prove the payment for salvage of M/V ?°HANG JUN 11?± is in sum of RMB 8,030,000. The Defendants Yudean, Hiro and Yuma have no objection about the authenticity of the aforesaid evidence, but they claimed that the amount is too high. Hiro and Yuma submitted the Appraisal Report of the Plan and Budget for Salvage of M/V ?°Hang Jun 11?± claiming that the salvage fee should be no more than 5, 000,000. The collegial panel holds that the salvage fee as claimed by the plaintiff shall be ascertained as it is the actual payment made by the plaintiff for the salvage of M/V ?°HANG JUN 11?±.
(IV) Losses of materials and components
With regard to the losses of materials and components, the Plaintiff submitted some evidence including the Inspection Report issued by CCSI, List of the Damaged Materials in the Warehouse of M/V ?°HANG JUN 11?±, Table of the Stocks before and after the Accident. According to the appendices to the Inspection Report, losses of materials and components are calculated as RMB 1,503,725. The inspector, Wang Jie, stated in the course of review that the number specified in the aforesaid List is not obtained via inspection at the scene. However, the number is determined as per the list provided by the entrusting party and relevant photos, and the losses are estimated according to the new purchase price of the materials and components. Three Defendants raised objections to such losses. The collegial panel holds that as per the statement of the inspector, Wang Jie, he did not check the losses of materials and components. Instead, he estimated the losses sustained by the Plaintiff only as per the list provided by the Plaintiff and the new purchase price, which lack objectivity. In the course of hearing, this Court has already requested the Plaintiff to re-estimate the losses of materials and components. Nevertheless, the Plaintiff failed to submit relevant evidence for supplements. Therefore, such estimation of losses of materials and components shall not be adopted and the aforesaid amount hereof shall not be ascertained.
(V) Cost of purchasing clutch
With regard to the cost of purchasing clutch, the Plaintiff submitted some evidence such as Memorandum, Telegraphic Transfer Voucher and Invoices hereof as evidence to prove the cost is in amount of RMB 317, 722.54. The Memorandum issued by CSSC on 5 December 2007 specified that the pneumatic-tyre clutch of the dredge pump of M/V ?°HANG JUN 11?± corroded and such corrosion was beyond repair due to the accident, and thus a new clutch was required to be provided by the Plaintiff. The two telegraphic transfer vouchers indicate that the Plaintiff paid RMB 317, 722.54 to Tianjin Aiquxi Marine Technology Co., Ltd. (hereinafter referred to as Aiquxi) by two installments made on 8 July 2004 and 15 August 2005 respectively. Aiquxi issued the invoice on 4 April 2005 specifying the price of clutch in sum of RMB 317, 342.54, and another invoice on 27 April 2005 specifying the cost of transportation of the components in sum of RMB 380. Three Defendants raised an objection to the time of purchasing the clutch, and the Plaintiff explained that the clutch was a spare clutch. The collegial panel holds that as per the statement in the Memorandum issued by CCSI, the Plaintiff is obliged to purchase another clutch. Although the Plaintiff did not purchase another clutch but use the spare clutch instead, the Plaintiff actually suffered such loss which thus shall be ascertained.
(VI) Cost of oil consumed by trial voyage
With regard to the cost of oil consumed by trial voyage, the Plaintiff submitted Memorandum, Accounting Voucher, Telegraphic Transfer Voucher, Application Form for Advance Payment for purchase of goods and materials, and Contract of Oil Supply as evidence to prove that the cost is in amount of RMB 225, 900. The Memorandum issued by CSSC on 26 November 2007 specified that the 0# oil supplied by the shipyard was exhausted in the course of engine test, and the Plaintiff was required to supply 30 tons of oil for mooring trial and navigation test, and that if such oil is supplied by the shipyard, the cost of oil in sum of RMB 8,000/ton as well as 30% of management fee should be borne by the Plaintiff. The Plaintiff concluded with Guangzhou Guanghang Logistics Co., Ltd.(hereinafter referred to as Guanghang) the Contract of Oil Supply on 30 November 2007 stipulating that Guanghang supplies 30 tons of 0# diesel oil to the Plaintiff at the price of RMB 7,530/ton and the oil should be supplied to M/V ?°HANG JUN 11?± at CSSC shipyard. The Telegraphic Transfer Voucher shows that the Plaintiff paid RMB 225,900 to Guanghang for the purchase of diesel oil. Three Defendants raised an objection to the actual amount of oil consumed by the vessel in the course of trial voyage. The collegial panel holds that the oil required for mooring trial and navigation test is necessary for the repair, and it is reasonable for the Plaintiff to purchase diesel oil at a relevantly low price at its own discretion as per the statements in the Memorandum. Therefore, the cost of oil consumed by trial voyage shall be ascertained.
(VII) Losses of personal belongings of seamen
With regard to the losses of personal belongings of seamen, the Plaintiff provided the Breakdown of Losses of Personal Belongings Onboard M/V ?°HANG JUN 11?± as evidence to prove the losses are in amount of RMB 63,780. The collegial panel holds that in accordance with the provisions of Item 7 of Article 9 of the Provisions of the Supreme People??s Court on Compensations for Property Damage in the Trial of Cases of Ship Collision or Contact, losses of personal belongings of seamen shall be compensated according to the actual situation. However, M/V ?°HANG JUN 11?± grounded in this accident but not sunk, which would not necessarily cause the losses of personal belongings of seamen. Furthermore, the Plaintiff can not provide any evidence proving the losses of personal belongings sustained by seamen, or any evidence proving the compensation made by the Plaintiff against seamen involved. Therefore, such cost shall not be ascertained.
(VIII) Post wages of seamen in the course of repair
With regard to the post wages of seamen in the course of repair, the Plaintiff provided Wage List of Seamen as evidence to prove that the post wages are totally in amount of RMB 826,074.17. Three Defendants denied such amount by reason that the Plaintiff failed to provide relevant payment voucher. The collegial panel holds that the Plaintiff shall not request for compensation for post wages of seamen by reason that it has already claimed compensation for loss of hire in which the post wages of seamen are included. Therefore, the loss of post wages of seamen shall not be ascertained.
(IX) Merit pay of seamen in the course of repair
The Plaintiff alleged that the merit pay of seamen in the course of repair is in amount of RMB 337,464. The collegial panel holds that the vessel was not under any operation in the course of repair so that there should not be any merit pay. Furthermore, the Plaintiff has already claimed compensation for loss of hire, it shall not request for compensation for merit pay or boarding expenses. Therefore, the merit pay of seamen claimed by the repair in the course of repair shall not be ascertained.
(X) Accommodation fee of seamen in the course of repair
The Plaintiff alleged that the accommodation fee of seamen in the course of repair is in amount of RMB 285,975 and provided Jindan Hotel??s Statement of Account and Invoice hereof issued by the Guangzhou Xindan Service Co., Ltd. as relevant evidence. Three Defendants raised an objection to such expense. They claimed that the List of Seamen Accommodated does not comply with the Crew List, and the Plaintiff failed to provide any payment certificate. The collegial panel holds that the accommodation fee incurred in the course of repair is reasonable by reason that there were still some seamen stayed onboard the damaged vessel. Additionally, the Plaintiff provided the Hotel??s Statement of Account and Invoice hereof. Therefore, such expense shall be ascertained. Nevertheless, the accommodation fee of Huang Hailong was computed repeatedly which should be deducted by RMB 1,560. Such amount is calculated according to 12 days of accommodation which was repeatedly computed and the unit price of accommodation in sum of RMB 130/day. The accommodation fee of seamen in the course of repair is ascertained as RMB 284,415.
(XI) Loss of hire
The Plaintiff provided Charter Party, Off-hire Notice dated 11 February 2007, On-hire Notice dated 12 March 2007, Off-hire Notice dated 16 March 2007, Statement of Account; 9, Daily Reports of Dredging Operation, Accounting Voucher, Telegraphic Transfer Voucher, Specific Audition Report issued by Guangdong Golden Bridge Certified Public Accountants Co., Ltd. (hereinafter referred to as Golden Bridge) as evidence to prove that the operating loss is in amount of RMB 17, 912,748.11. On 1 November 2006, the Plaintiff concluded as the charterer with Nanjing Channel Engineering Bureau of Changjiang River (hereinafter referred to as Changjiang Channel Engineering Bureau) the Charter Party stipulating that Changjiang Channel Engineering Bureau hires M/V ?°HANG JUN 11?± from the Plaintiff, and the term of hire is tentatively fixed at 14 months computing from the day when M/V ?°HANG JUN 11?± arrives the operation site of DE section of the third stage of testing dredging operation in the outbound channel of Guangzhou Port to the 31st day of December in the year of 2007; that the monthly hire hereof shall be RMB 1,900,000; and that the fixed operation hours shall be 500 hours/month, and where the actual operation hours is less or more than the fixed operation hours, the monthly hire shall be decreased or increased as per the price of RMB 3,800/hour for every hour less or more than the fixed operation hours. On 11 February, Changjiang Channel Engineering Bureau issued an Off-Hire Notice for the purpose of suspending relevant hire due to equipment failure of M/V ?°HANG JUN 11?± which required long period of repair, and advised that the time of renewal of the hire shall be the date indicated in the On-Hire Notice after repair. On 12 March 2007, Changjiang Channel Engineering Bureau issued the On-Hire Notice notifying the renewal of the hire of M/V ?°HANG JUN 11?± on the same day, and agreed to perform the Charter Party as per the original agreements hereof. On 16 March 2007, Changjiang Channel Engineering Bureau issued an Off-Hire Notice specifying that it would not make any payment for the hire from the same day by reason that M/V ?°HANG JUN 11?± was damaged due to collision which required a long period of repair, and that the time of renewal of the hire shall be the date indicated in the On-Hire Notice after repair. According to the Statement of Account dated 17 December 2006, the time of hire was computed from the 15th day of November to the 14th day of December in 2006, namely, 604.63 hours of operation in total. Thus the hire hereof is in amount of RMB 2,297,594 calculated with the unit price of RMB 3,800/day which is originally stipulated in the Charter Party; According to the Statement of Account dated 18 January 2007, the time of hire was computed from the 15th day of December to the 14th day of January in 2006, namely, 624 hours of operation in total. Thus the hire hereof is in amount of RMB 2,371,200 calculated with the unit price of RMB 3,800/day; According to the Statement of Account dated 12 February 2007, the time of hire was computed from the 15th day of January to the 10th day of February in 2007, namely, 535.75 hours of operation in total. Thus the hire hereof is in amount of RMB 2,035,850 calculated with the unit price of RMB 3,800/day; According to the Statement of Account dated 17 March 2007, the time of hire was computed from the 13th day to the 14th day of March in 2007, and the hire hereof is in amount of RMB 155,800. As per the Telegraphic Transfer Voucher, Changjiang Channel Engineering Bureau had paid to the Plaintiff the hire of M/V ?°HANG JUN 11?± as well as the dispatching fee hereof totally in sum of RMB 7,010,444 of which RMB 150,000 is the dispatching fee. According to the aforesaid evidence, the Plaintiff holds that M/V ?°HANG JUN 11?± has actually operated for 91 days before the accident for which the hire is in amount of RMB 6,860,444. Therefore, the hire of M/V ?°HANG JUN 11?± is in amount of RMB 75, 389.49/day.
Pursuant to the Specific Audition Report issued by Guangdong Golden Bridge, the accumulated expenses relating to M/V ?°HANG JUN 11?± from 4 November 2006 to 14 March 2007 amount to RMB 3,937,636.17, namely, RMB 904,868.20 for each month and RMB 30,058.29 for each day. Accordingly, within the suspension of operation of M/V ?°HANG JUN 11?±, RMB 445, 281.95 was saved for each month and RMB 14, 791.56 was save for each day.
According to the Statement of the Period of Repair of M/V ?°HANG JUN 11?± issued by CSSC, M/V ?°HANG JUN 11?± entered into the shipyard on 4 April 2007 for repair. The repair project was settled with CSSC on 12 December 2007, and the project debugging, acceptance inspection and trial voyage were accomplished on 2 January 2008. The damaged vessel was repaired and left the shipyard.
The alleged operating loss sustained by the Plaintiff is calculated as per the following formula: Days off Hire ?? (Hire/Day ¨C Savable Expenses/Day). The off hire period of M/V ?°HANG JUN 11?± is computed from 00:03 on 15 March 2007 to 13:45 on 4 January 2008. Accordingly, the operating loss is calculated as follows: 295.6 days ?? (RMB 75,389.49 ¨C 14,791.56) = RMB 17,912.748.11
Three Defendants raised an objection to the aforesaid Specific Audition Report issued by Guangdong Golden Bridge and also claimed that such audition report involves many special issues so that the examination of professional organization is required. However, three Defendants did not apply for such examination thereafter.
The collegial panel holds that the accident happened during the time charter period of M/V ?°HANG JUN 11?±, it is reasonable for the Plaintiff to calculate the loss of hire by deducting the savable expenses on the basis of the actual average hire. Considering that the hire stipulated in the Charter Party relating to M/V ?°HANG JUN 11?± is not the fixed amount, the hire should be calculated as per the actual operation hours. Three Defendants raised an objection to the Specific Audition Report, but they failed to provide corresponding rebuttal evidence. Thus their objection was overruled. The loss of hire can be ascertained according to the losses sustained by M/V ?°HANG JUN 11?± during the repair appraised in the Specific Audition Report. The accident happened at 2351 hrs on 14 March 2007. M/V ?°HANG JUN 11?± was repaired on 4 January 2008, engine standby at 0900 hrs, across Humen Bridge and applied for dropping anchor at 1249 hrs, and anchor touched the seabed and anchor ball was hoisted at 1345 hrs. Accordingly, it is reasonable for the Plaintiff to calculate the off-hire period as 295.6 days, and the loss of hire as per the formula, 295.6 days ?? (RMB 75,389.49 ¨C RMB14,791.56). The loss of hire sustained by the Plaintiff is ascertained as RMB 17,912.748.11.
(XII) Inspection fee
The Plaintiff alleged that the inspection fee is in amount of RMB 150,000. However, it failed to provide any relevant evidence. The collegial panel overruls the claim for such expenses.
(XIII) Costs of accounting and auditing
The Plaintiff provided the invoiced issued by Golden Bridge as evidence to prove that the costs of accounting and auditing are in amount of RMB 50,000. Three Defendants had no objection hereabout. The collegial panel ascertains such costs.
(XIV) Costs of handling the accident
The Plaintiff provided the Statistical Table of the Costs of M/V ?°HANG JUN 11?± for handling the accident and relevant documents as evidence to prove that the costs of handling the accident are in amount of RMB 213,328.40. The costs include traveling expense, board expenses, cost of purchasing food, telephone rate, charges for mobile phone, charges for using vehicles, cost of mineral water, hospitality expenses, cost of cigarettes brought for hospitality, accommodation fee, etc. Three Defendants raised objection to the aforesaid expenses. The collegial panel holds that the aforesaid expenses claimed by the Plaintiff are not the reasonable and necessary costs for handling the accident. The claim for such costs shall be overruled.
(XV) Other maintenance costs in the course of repair
The Plaintiff provided the Statistical Table of the maintenance costs and relevant documents as evidence to prove that the other maintenance costs in the course of repair are in amount of RMB 31,635.90. Such costs include 26 items, such as gas fee, cost of ink box, cost of cigarettes brought for hospitality, telephone rate, working and living expenses onboard, travelling allowance, postage, cost of copies, cost of labor protection appliance, cost of computers and allowances for repairs and maintenance hereof, etc. The collegial panel holds that all the expenses claimed by the Plaintiff are not the reasonable and necessary costs for handling the accident. Therefore the claim for such costs shall be overruled.
(XVI) Unexpired insurance premium
The Plaintiff provided Insurance Policy, Receipt of Premium, and Vouchers of Payment for Premium as evidence to prove that the unexpired insurance premium is in amount of RMB 55, 616.20. As per the aforesaid evidence, the Plaintiff had insured against all risks for M/V ?°HANG JUN 11?± with the insurance period computed from 12 May 2006 to 0000 hrs on 11 May 2007, and paid the insurance premium in sum of RMB 350, 000. The collegial panel holds that the insurance premium is the operation cost which should be borne by the Plaintiff even though the accident did not happen, and that the Plaintiff was not required to reinsure for M/V ?°HANG JUN 11?± when the vessel was under repair after the accident. Therefore, the Plaintiff did not suffer any loss relating to the unexpired insurance premium, and thus the claim for such cost shall be overruled.
In conclusion, the losses sustained by the Plaintiff due to the collision accident include repair cost in sum of RMB 38, 577, 903, salvage fee in sum of RMB 8,030,00, loss of clutch in sum of RMB 317,722.54, cost of oil consumed in the course of trial voyage in sum of RMB 225, 900, accommodation fee in sum of RMB 284,415, loss of hire in sum of RMB 17,912,748.11, costs of accounting and auditing in sum of RMB 50,000, which totals RMB 65,398,688.65 (excluding the charges for emergency measures taken by MSA). Among the aforesaid costs, salvage fee, loss of clutch, cost of oil consumed in the course of trial voyage were directly incurred by the second collision and shall be apportioned by the parties involved in the second collision as per their proportion of liability, the same as the inspection fees; repair cost, operating loss, and accommodation fee incurred by the two collisions shall be apportioned by the parties involved as per their proportion of liability in each collision respectively. After the trial, this Court ordered the parties involved to attend the court and examined whether each party was willing to calculate and separate the losses caused by the two collisions. The Plaintiff and the Defendants, Hiro and Yuma, did not agree to recalculate the losses. The Plaintiff did not calculate losses by separating the two collisions; the Inspection Report provided by the Defendants, Hiro and Yuma, does not separate the repair cost and period of repair for the two collisions; Defendant 1 Yudean provided the Inspection Report issued by Guang Dong Marine Engineering Co., Ltd. specifying that the period of repair required by the damage due to the first collision is 20 days and thus the repair cost hereof amounts to RMB 271, 497, and that the period of repair required by the damage due to the second collision is 170 days and thus the repair cost hereof amounts to RMB 29,215,283, which are in amount of RMB 29,486,780 in total. According to relevant evidence and principle of justice, the collegial panel holds that the respective losses caused by the two collisions shall be ascertained on the basis of the losses sustained by the Plaintiff ascertained and also according to the corresponding proportion of liability specified in the Inspection Report issued by Guang Dong Marine Engineering Co., Ltd. The details are as follows: 1. Repair Cost. On the basis of the Plaintiff??s claim for repair costs and by referring to the respective proportion of repair costs incurred due to the two collisions specified in the Inspection Report issued by Guang Dong Marine Engineering Co., Ltd., the repair cost incurred by the first collision shall be ascertained as RMB 355,202.74 (RMB 271, 497 ?? RMB 29,486,780 ?? RMB 38,577,903), and the repair cost incurred by the second collision shall be ascertained as RMB 38,222,700.26 (RMB 29,215,283 ?? RMB 29,486,780 ?? RMB 38,577,903); 2. Loss of Hire. On the basis of the actual days of lay-up which was ascertained as 295.6 days and according to respective period of repair due to the two collisions specified in the Inspection Report issued by Guang Dong Marine Engineering Co., Ltd., the days of lay-up due to the first collision shall be 31.12 days (20 days ?? 190 days ?? 295.6 days), and the days of lay-up due to the second collision shall be 264.48 days (170 days ?? 190 days ?? 295.6 days). Accordingly, the loss of hire caused by the first collision shall be RMB 1,885,807.58,[(RMB 75,389.49 ¨C RMB 14,791.56) ?? 31.12 days], and the loss of hire caused by the second collision shall be RMB 16, 026, 940. 53 [(RMB 75,389.49 ¨C RMB 14,791.56) ?? 264.48 days]; 3. Accommodation Fee. The accommodation fee shall also be apportioned according to the respective period of lay-up due to the two collisions. The accommodation fee incurred by the first collision shall be RMB 29,942.47 (31.12 days ?? 295.6 days ?? RMB 284,415), and that incurred by the second collision shall be RMB 254,472.53 (264.48 days ?? 295.6 days ?? RMB 284,415). In conclusion, the losses sustained by the Plaintiff due to the first collision shall be RMB 2, 270, 952.79, and that due to the second collision shall be RMB 63, 127,735.86.
On 17 March 2007, with regard to the Application for Property Preservation Prior to the Litigation filed by the Plaintiff, this Court issued the Civil Ruling (2007) Guang Hai Fa Bao No. 29 -2 to arrest M/V ?°SUMIRE?± which was berthing at Guangzhou Port. The Plaintiff had paid to this Court the application fee in sum of RMB 5, 000 and execution fee in sum of RMB 30, 000. After the Defendants Hiro and Yuma provided to this Court the Guarantee of RMB 60, 000, 000 issued by China Reinsurance (Group) Co., this Court released the arrested M/V ?°SUMIRE?±.
On 23 March 2007, with regard to the Application for Property Preservation Prior to the Litigation filed by the Plaintiff, this Court issued the Civil Ruling (2007) Guang Hai Fa Bao No. 32-2 to arrest M/V ?°YUE DIAN 2?± which was berthing at Guangzhou Port. The Plaintiff had paid to this Court the application fee in sum of RMB 5, 000 and execution fee in sum of RMB 30, 000. On 30 March, this Court released the arrested M/V ?°YUE DIAN 2?± upon the application of the Plaintiff.
On 23 March 2007, with regard to the Application for Maritime Evidence Preservation Prior to the Litigation filed by the Plaintiff, this Court issued the Civil Ruling (2007) Guang Hai Fa Bao No. 34-2 to preserve the ship??s certificates, Logbook and Engine Logbook of M/V ?°YUE DIAN 2?±. The Plaintiff had paid to this Court the application fee in sum of RMB 5, 000 and execution fee in sum of RMB 30, 000.
On 7 June 2007, the Defendants Hiro and Yuma applied to this Court for constitution of the limitation fund for maritime claims. However, the Plaintiff raised the following objections to such application: the Defendants Hiro and Yuma have no evidence proving that the losses claimed by the Plaintiff fall to limited creditor??s right and thus they do not have the right to establish the limitation fund for maritime claims; the collision was due to act or omission done by M/V ?°SUMIRE?± with the intent to cause such loss or recklessly and with knowledge that such loss would probably result, the Defendants Hiro and Yuma shall not be entitled to limit their liability. The Defendants Hiro and Yuma made the following defense hereof: they, as the applicant for constitution of the limitation fund for maritime claims, are responsible to produce evidence proving whether the creditor??s right of the party involved in this accident falls to limited creditor??s right; The Plaintiff failed to provide any evidence support its claim that the collision was due to act or omission done by M/V ?°SUMIRE?± with the intent to cause such loss or recklessly and with knowledge that such loss would probably result. On the contrary, the accident was due to M/V ?°HANG JUN 11?±??s deliberate blocking in the channel even though she was aware of the heavy traffic, which constitute act or omission with the intent to cause the loss or recklessly and with knowledge that the loss would probably result. Accordingly, the Defendants Hiro and Yuma shall have the right to limit their liability for maritime claims. After examination, this Court issued on 3 September the Civil Ruling (2007) Guang Hai Fa Bao No. 258 to overrule the objections raised by the Plaintiff and grant the Defendants Hiro and Yuma 2,436,363 special drawing right of the limitation fund for maritime claims established in this Court (which amounts to RMB 28,133,228.86) as well as the interest computed from the day when the accident happened to the day of establishment of the limitation fund and calculated on basis of the loan interest of circulating fund for the same period as published by People??s Bank of China. On 25 September, the Defendants Hiro and Yuma submitted the Guarantee for the aforesaid limitation fund for maritime claims issued by China Reinsurance (Group) Co. On 31 October, with regard to the application filed by the Defendants Hiro and Yuma, this Court issued the Civil Ruling (2007) Guang Hai Fa Bao No. 184 to return the Guarantee of RMB 60, 000, 000 issued by China Reinsurance (Group) Co.
All members of the collegial panel believe that this case is a dispute over damage compensation arising from ship collision. Due to that the collision happened in China, according to Paragraph 1 of Article 273 of the Maritime Code of the People's Republic of China, laws of the People??s Republic of China shall be applied to deal with the substantive dispute. During the trial, parties to the case also agreed that laws of the People??s Republic of China shall be applied to deal with the dispute.
M/V ?°YUE DIAN 2?± was sailing outward alongside the channel in ballast condition while M/V ?°HANG JUN 11?± was conducting dredging operation as sailing inward alongside the channel at low speed, and the vessels were sailing in opposite directions along their respective starboard side, in a head on situation. With three all-round lights being hanged vertically, M/V ?°HANG JUN 11?± was a ship with limit maneuvering capacity. M/V ?°SUMIRE?± laden with 7,282.7 tons of cargos was sailing inward along the channel after M/V ?°HANG JUN 11?±, and when the pilot discovered M/V ?°HANG JUN 11?± after M/V ?°SUMIRE?± entered the irradiation scope of the taillight of M/V ?°HANG JUN 11?±, she still sailed at the speed of 14 to 15 knots, and the circumstance of overtaking had been formed between the two ships, under which M/V ?°SUMIRE?± was the overtaking ship and M/V ?°HANG JUN 11?± was the overtaken ship.
When sailing outward along the channel, M/V ?°YUE DIAN 2?± should have used sight, hearing and all other effective means suitable for the environment and situation of the time to maintain proper lookout so as to make sufficient assessment on the situation and the risk of collision. However, the said ship failed to maintain the proper lookout, and when she sailed between the 33# and the 34# buoy, the master discovered M/V ?°HANG JUN 11?± which was sailing ahead of her by radar but mistook her as a dredger sailing in the same direction and required to ?°overtake?± her, and thereby caused the collision. Such should be the main reason for the collision. Since M/V ?°YUE DIAN 2?± was sailing within the channel, where the density of ships was large and the environment was complicated, she should have sailed at safe speed so as to adopt proper and effective actions for preventing the collision so that she could stop the main engine within the distance suitable for the environment and situation at that time. However, the ship did not use safe speed but still sailed at the high speed of 17 knots after she discovered M/V ?°HANG JUN 11?± and when the distance between the two ships was shortened, with the result that, after the close-quarter situation having been formed, she failed to stop the main engine within safe distance. After the head-on situation being formed between her and M/V ?°HANG JUN 11?±, M/V ?°YUE DIAN 2?± should have exercised good seamanship and actively and timely adopted proper measures to prevent collision so that both the ships might sail within safe distance. However, due to M/V ?°YUE DIAN 2?±??s neglect of lookout and misjudgment and her wrongful alteration of course to port side by hard-a-port for overtaking M/V ?°HANG JUN 11?± as she was sailing at high speed, close-quarter situation was formed between the two ships, which finally led to the collision accident. The above-mentioned acts of M/V ?°YUE DIAN 2?± is in violation of Articles 5, 6, 8 and 14 of International Regulations for Preventing Collision at Sea, 1992 (hereinafter referred to as ?°Regulations for Preventing Collision?±).
Since M/V ?°HANG JUN 11?± was conducting dredging operation along the channel where ships were crowded, her operation ability was limited, therefore, she shall take full advantage of all effective means to strengthen her lookout, watch the movement of entering and departing ships and keep communication and contact with them to understand their real intentions. Especially for those vessels sailing in her vicinity, she should take necessary precautions to avoid any collision with them. However, M/V ?°SUMIRE?± did not maintain normal lookout, and without finding out the specific position of M/V ?°YUE DIAN 2?± which was communicating with her on VHF, she recklessly mistook M/V ?°YUE DIAN 2?± as a ship sailing inward after her and agreed the ship to ?°overtake?± her on her port side, thus misleading M/V ?°YUE DIAN 2?± to further believe that both ships were in the situation of ?°overtaking?±. When the close-quarter situation arose as M/V ?°YUE DIAN 2?± turned to port to ?°overtake?± the ship, M/V ?°HANG JUN 11?± failed to use good seamanship, and actively and timely adopted correct preventing measures to prevent collision, but just stopped engine and then reversed engine only when the two vessels were extremely close to each other and it was too late to prevent the collision. The above-mentioned acts of M/V ?°HANG JUN 11?± is in violation of Articles 5 and 8 of Regulations for Preventing Collision.
As a overtaking ship, M/V ?°SUMIRE?± shall perform the obligation of giving way, and shall take full advantage of all effective means to maintain proper lookout and keep a close eye on the movement of the overtaken ship and the changing of ship positions so as to make sufficient assessment on the situation and the danger of collision. During the overtaking, she shall sail at safe speed, especially when she overtook other ships at narrow channel and shall take into good consideration of the situations of crowded ships and complicate circumstances, and have the overtaking speed under control so as to adopt proper and effective collision preventing actions when danger of collision emerged and to stop the main engine within appropriate distance at the time. However, M/V ?°SUMIRE?± failed to maintain proper lookout or safe speed, and at about 2349 hrs, soon after she communicated with M/V ?°HANG JUN 11?± on VHF about the overtaking, the pilot had discovered that M/V ?°YUE DIAN 2?± was turning to port and that there was danger of colliding with M/V ?°HANG JUN 11?±, and VTS Guangzhou had warned her to slow down the engine and to pay attention to the ship and the dredger sailed outward before her for four times, however, M/V ?°SUMIRE?± did not pay enough attention thereto and failed to make full assessment of the danger of collision that may exist but still believed that it was able to overtake the ship and the dredger sailed before her and kept sailing at the speed of 15knots to overtake M/V ?°HANG JUN 11?±, thereby she failed to take the measures such as stopping engine or slowing down in ample time to reduce the speed, and finally led to the collision between her and M/V ?°HANG JUN 11?± . This should be the main reason for the accident. When M/V ?°YUE DIAN 2?± collided with M/V ?°HANG JUN 11?±, M/V ?°SUMIRE?± was 0.8 nm away from the position of collision. According to the environment at the time of the collision, if M/V ?°SUMIRE?± had adopted the collision-prevention measures such as stopping engine or moving astern in a prompt way, she would have prevented the collision between her and M/V ?°HANG JUN 11?± or have brought the loss of collision to the least. However, M/V ?°SUMIRE?± was so confident that she believed she might overtake M/V ?°HANG JUN 11?± on the port side, so she still sailed at high speed when she was obstructed by M/V ?°HANG JUN 11?± as the latter ship moved to port after by adopting measures of moving astern for the purpose of avoiding M/V ?°YUE DIAN 2?±, and adopted measures of turning to port for the purpose of overtaking M/V ?°HANG JUN 11?± on her port side. When she was in immediate danger, her adoption of collision-prevention measures such as hard starboard and stopping engine was useless for preventing the collision, so she finally collided with M/V ?°HANG JUN 11?± and brought serious damage to M/V ?°HANG JUN 11?±. The above-mentioned acts of M/V ?°SUMIRE?± are in violation of Article 5, 6, 8 and 13 of Regulations for Preventing Collision.
In order to prevent her collision with M/V ?°YUE DIAN 2?±, M/V ?°HANG JUN 11?± adopted measures such as stopping engine and moving astern, which is instinctive behavior for preventing collision and gives little cause for criticism. However, after M/V ?°YUE DIAN 2?± overtook her stern subsequent to the collision between them, M/V ?°HANG JUN 11?± shall be aware of the danger of collision with M/V ?°SUMIRE?± which was overtaking her from her port side as she continued to retire, so at that time, she shall adopt effective measures such as stopping engine and moving ahead to stop the main engine so as to prevent her further moving astern, and she shall pay special attention to the avoidance of her moving astern to the left back of the channel which may obstruct the overtaking route of M/V ?°SUMIRE?±. As M/V ?°HANG JUN 11?± paid all attention to how to keep clear of M/V ?°YUE DIAN 2?± without giving due consideration to the serious consequence that may emerge as she adopted the measure of moving astern, she failed to take actions in favor of preventing collision such as stopping engine and moving ahead so as to maintain her position, which results in the moving astern of the ship to the left back of the outward channel and finally leads to her collision with M/V ?°SUMIRE?±. The above-mentioned acts of M/V ?°HANG JUN 11?± are in violation of Articles 8 and 17 of Regulations for Preventing Collision.
The two collisions among the three ships are two independent but related accidents. In the second collision accident, though M/V ?°YUE DIAN 2?± did not directly collided with M/V ?°HANG JUN 11?± and M/V ?°SUMIRE?±, she did lead to the close-quarter situation between her and M/V ?°HANG JUN 11?± due to her default in adopting the measure of turning to port to overtake M/V ?°HANG JUN 11?±. To prevent her collision with M/V ?°YUE DIAN 2?±, M/V ?°HANG JUN 11?± adopted prevention actions such as stopping and moving astern to retire to the left back of the outward channel, thereby caused her collision with M/V ?°SUMIRE?±. Therefore, there is indirect relationship between the two collision accidents, that is, the first collision is one reason of the second collision and M/V ?°YUE DIAN 2?± shall also bear the minor responsibility for the second collision.
When M/V ?°SUMIRE?± was overtaking M/V ?°HANG JUN 11?± along the entry of the channel as M/V ?°YUE DIAN 2?± turned to port by adopting hard aport, the close-quarter situation between M/V ?°SUMIRE?± and M/V ?°YUE DIAN 2?± had not yet formed, and M/V ?°YUE DIAN 2?± just turned left for the purpose of overtaking M/V ?°HANG JUN 11?± but not for avoiding M/V ?°SUMIRE?±. Therefore, the overtaking action of M/V ?°SUMIRE?± has no consequence on the first collision accident and M/V ?°SUMIRE?± did not have to bear responsibility for the first collision.
The Investigation Report on the Collision Accident among M/V ?°YUE DIAN 2?±, M/V ?°HANG JUN 11?± and M/V ?°SUMIRE?± issued by Guangdong MSA confirms that M/V ?°YUE DIAN 2?± shall shoulder the major responsibility for the first collision, and M/V ?°HANG JUN 11?± shall shoulder the minor responsibility for the first and the second collisions, and M/V ?°SUMIRE?± shall shoulder the major responsibility for the second collision. Though both the Plaintiff and the Defendants Hiro and Yuma challenged the above-mentioned liability apportionment, they failed to present evidence to overturn the above-mentioned verdict. Taking into consideration the degree of fault of each ship in operating and collision preventing, the Collegial Panel ascertains that, M/V ?°YUE DIAN 2?± shall shoulder 80% responsibility for the first collision and 5% percent responsibility for the second collision, and M/V ?°HANG JUN 11?± shall shoulder 20% responsibility for the first collision and 10% percent responsibility for the second collision, while M/V ?°SUMIRE?± shall shoulder 85% responsibility for the second collision.
In accordance with provisions of Article 4 of the Provisions of the Supreme People??s Court on Some Issues about the Trial of the Cases of Ship Collision Disputes, the compensation liability resulted from ship collision shall be borne by ship owners, or shall be borne by the bareboat charterer if the ship collision occurs during the bareboat charter period and the bareboat charter is registered according to law. Defendant 1 Yudean is the registered owner of M/V ?°YUE DIAN 2?±, and Defendant 2 Hiro is the registered owner of M/V ?°SUMIRE?±. Therefore, the two Defendants shall be liable for damages and losses sustained by the Plaintiff arising out of the accident. Defendant 3 Yuma is the bareboat charterer of M/V ?°SUMIRE?±, but the relevant Bareboat Charter Party was not registered. With regard to this issue, Defendant 2 Hiro claimed that no registration is required for bareboat chartering as per the law of Panama which is the flag state of M/V ?°SUMIRE?± i.e. such bareboat chartering shall have the same legal effect as that registered as required by the other countries. Therefore, Hiro shall not be liable for the damages and losses arising out of the accident. However, Defendant 2 Hiro failed to provide evidence proving the aforesaid defense that unregistered bareboat charter shall have the same legal effect as the bareboat charter registered as required by the other countries as per the law of Panama. Accordingly, such defense fails and cannot exempt Hiro from corresponding compensation liability.
Although Defendant 3 Yuma is exempted from the liability of a bareboat charterer by reason that the bareboat charter was not registered, the parties have no objection to the fact that M/V ?°SUMIRE?± was bareboat chartered in by Yuma. Defendant 3 Yuma time chartered the vessel to Nippon Yusen Kaisha, and then with the consent of Nippon Yusen Kaisha assigned the charter party to Tokyo Senpaku Kaisha on 1 October 2002. Therefore, Defendant 3 Yuma is the disponent owner under the Time Charter Party relating to M/V ?°SUMIRE?± and the actual operator and manager of the vessel, hence Yuma shall be liable for the collision with M/V ?°HANG JUN 11?± in terms of operation and management. Therefore, Defendant 3 Yuma and Defendant 2 Hiro shall bear joint and several liability for the collision according to law.
This Court issued the Civil Ruling (2007) Guang Hai Fa Bao No. 258 to grant the Defendants Hiro and Yuma to establish limitation fund for maritime claims in this Court. The Plaintiff had raised objections to the application and the right to enjoy the liability limitation of the Defendants Hiro and Yuma, but it failed to provide any corresponding counterevidence. Except for costs of handling the emergency, such as costs of clean-up and pollution prevention, salvage, emergency operation and tugboat, the damage to and losses of M/V ?°HANG JUN 11?± due to the collision as claimed by the Plaintiff which are in direct connection with the operation of the vessel and fall into the scope of limitable creditor??s right as stipulated in Paragraph 1 of Article 7 of the Maritime Code of the People??s Republic of China. Defendant No. 2 Hiro and Defendant No. 3 Yuma as the persons liable for the collision shall be entitled to limit their liability for the related claim. In accordance with provisions of Article 209 of the Maritime Code of the People??s Republic of China, a person liable shall not be entitled to limit his liability, if the loss resulted from his act or omission done with the intent to cause such loss or recklessly and with knowledge that such loss would probably result. In this case, there is neither evidence proving that the losses were caused by the Defendants Hiro and Yuma deliberately, nor evidence proving that the losses were resulted from their act or omission done with the intent to cause such loss or recklessly and with knowledge that such loss would probably result. Therefore, the Defendants Hiro and Yuma shall have the right to limit their liability. Although the seamen and pilot of M/V ?°SUMIRE?± were employed by Defendant 3 Yuma, the defaults or faults committed by the seamen and pilot during the navigation shall not deprive the Defendants Hiro and Yuma of the right to enjoy the limitation of liability for maritime claims.
Pursuant to provisions of Article 9 of the Provisions of the Supreme People??s Court on Some Issues about the Trial of the Cases of Ship Collision Disputes, with respect to the compensation claim for the expenses arising from floating, removal and demolition of the submerged, damaged, stranded or abandoned ship and cargo on board resulted from ship collision or from making them harmless, the party liable shall not enjoy the limitation of liability for maritime claims according to Chapter XI of the Maritime Law. In accordance with the above provisions, in this case, the salvage fee and emergency handling fee as claimed by the plaintiff are not limitable creditor??s right, and the Defendants Hiro and Yuma shall not enjoy the right to limit their liability for these claims.
The losses sustained by the Plaintiff due to the first collision are in sum of RMB 2,270,952.79, and those due to the second collision are in sum of RMB 63,127,735.86. As per the aforesaid proportion of liability due to the two collisions, Defendant 1 Yudean shall compensate the Plaintiff for losses in sum of RMB 1,816,762.23 and the interests hereof due to the first collision, and for the losses in sum of RMB 3, 156, 386.79 as well as interests hereof due to the second collision, which amount to RMB 4, 973, 149.02 in total as well as the interests hereof (computed from the next day of the accident, namely, the 15th day of March in 2007 to the day of payment stipulated in this Civil Judgment, on basis of the loan interest of circulating fund for the same period as published by the People??s Bank of China). Among the losses in sum of RMB 63,127,735.86, RMB 55,097,735.86 is limitable creditor??s right and the rest RMB 8,030,000 (salvage fee) is unlimitable creditor??s right. As per the proportion of liability of the aforesaid second collision, the Defendants Hiro and Yuma shall jointly compensate the Plaintiff for limitable losses in sum of RMB 46,833,075.48 and the interests hereof (computed from the 15th day of March in 2007 to the day of payment stipulated in this Civil Judgment, on basis of the loan interest of circulating fund for the same period as published by the People??s Bank of China), and for unlimitable losses in sum of RMB 6,825,500 and the interests hereof (computed from the next day of the accident, namely, the 15th day of March in 2007 to the day of payment stipulated in this Civil Judgment, on basis of the loan interest of circulating fund for the same period as published by the People??s Bank of China).
With regard to the costs of emergency handling in sum of RMB 1,011,378, as per the proportion of liability due to collision between M/V ?°HANG JUN 11?± and M/V ?°SUMIRE?±, RMB 101,137.80 shall be borne by the Plaintiff, RMB 50,568.90 shall be borne by Defendant 1 Yudean, RMB 859,671.30 shall be borne by Defendant 2 Hiro and Defendant 3 Yuma. Each party has paid the emergency handling fee in sum of RMB337,126. Therefore, the Defendants Hiro and Yuma shall pay to the Plaintiff RMB 235,988.20 as well as the interest hereof (computed from the next day of the accident, namely, the 15th day of March in 2007 to the day of payment stipulated in this Civil Judgment, on basis of the loan interest of circulating fund for the same period as published by the People??s Bank of China).
The limitation of liability for maritime claims enjoyed by the Defendants Hiro and Yuma refers to the limitation of actual compensation liability borne by the Defendants Hiro and Yuma for losses arising from the collision. This Court issued the Civil Judgment (2007) Guang Hai Fa Bao No. 259 to rule that the Plaintiff shall compensate Defendant 2 Hiro for losses in sum of USD 33,517.80 and interests hereof, and compensate Defendant 3 Yuma for losses in sum of USD 16,489.09 and interests hereof, which amount to USD 50,006.89. The Defendants Hiro and Yuma shall enjoy limitation of liability for claims deducted by the aforesaid compensation liability borne by the Plaintiff. In respect of different currencies, the Plaintiff shall compensate the Defendants Hiro and Yuma losses in sum of USD 50,006.89 which shall be converted into RMB in a Dollar/Renminbi rate of 1: 7.742 on the next day of the accident, namely, the 15th day of March in 2007.
In accordance with provisions of Article 169 of the Maritime Code of the People??s Republic of China, with regard to ship collision, the ships in fault shall be liable for the damage to the ship, the goods and other property on board in the proportions to the extent of its faults. The Plaintiff??s claim that the Defendants Yudean, Hiro and Yuma shall bear joint and several liabilities does not comply with the law and shall be overruled.
In conclusion, in accordance with provisions of Paragraph 1 and 2 of Article 169, Article 170 and Article 207 of the Maritime Code of the People??s Republic of China, it is hereby judged as follows:
I. Defendant 1, Guangdong Yudean Shipping Co., Ltd., shall compensate the Plaintiff, Nanjing Channel Engineering Bureau of Changjiang River for losses in sum of RMB 4,973,149.02 as well as interests hereof (computed from the 15th day of March in 2007 to the day of payment stipulated in this Civil Judgment, on basis of the loan interest of circulating fund for the same period as published by the People??s Bank of China)
II. Defendant 2 and Defendant 3, Hiro Shipping Co. Ltd. / Hiro Shipping INC. and Yuma Maritime S.A. shall jointly compensate the Plaintiff, Nanjing Channel Engineering Bureau of Changjiang River for losses in sum of RMB 46,833,075.48 and interests hereof (computed from the 15th day of March in 2007 to the day of distribution of the limitation fund, on basis of the loan interest of circulating fund for the same period as published by the People??s Bank of China). Such amount shall be compensated from the limitation fund constituted by the defendants Hiro and Yuma according to law after deduction of the amount payable by the plaintiff to Hiro and Yuma as determined in the Civil Judgment (2007) Guang Hai Fa Bao No. 259.
III. Defendant 2 and Defendant 3, Hiro Shipping Co. Ltd. / Hiro Shipping INC. and Yuma Maritime S.A. shall jointly compensate the Plaintiff, Nanjing Channel Engineering Bureau of Changjiang River for losses of salvage fee in sum of RMB 6,825,500 and interests hereof, and reimburse the costs of emergency handling paid by the Plaintiff in sum of RMB 235, 988.20 and interests hereof (computed from the 15th day of March in 2007 to the day of payment stipulated in this Civil Judgment, on basis of the loan interest of circulating fund for the same period as published by the People??s Bank of China). Defendant 2 and Defendant 3, Hiro Shipping Co. Ltd. / Hiro Shipping INC. and Yuma Maritime S.A. shall make the aforesaid compensation to the Plaintiff, Nanjing Channel Engineering Bureau of Changjiang River, without drawing the limitation fund for maritime claims.
IV. The other claims filed by the Plaintiff, Nanjing Channel Engineering Bureau of Changjiang River, shall be overruled.
The litigation fee in sum of RMB 341.800 shall be apportioned by the parties, RMB 6, 450.27 of which shall be borne by the Plaintiff, RMB 28,330.37 of which shall be borne by Defendant 1Yudean, RMB 307,019.36 of which shall be borne by Defendant 2 and Defendant 3, Hiro and Yuma. RMB 335, 349.73 shall be returned to the Plaintiff on the basis of litigation fee prepaid by the same. The Defendants Yudean, Hiro and Yuma shall pay to this Court the litigation fee as per the aforesaid proportion.
Application fee and enforcement fee for property and evidence preservation prior to litigation arising from arrest of M/V ?°SUMIRE?± in sum of RMB 35, 000 shall be borne by Hiro and Yuma; application fee and enforcement fee for property preservation prior to litigation arising from arrest of M/V ?°YUE DIAN 2?± in sum of RMB 25, 000 shall be borne by Defendant 1 Yudean. The application fee and enforcement fee for property and evidence preservation in sum of RMB 10,000 shall be borne by the Plaintiff. The three Defendants shall directly pay to the Plaintiff the application fee and enforcement fee for property preservation prior to litigation as per the aforesaid proportion; no more such charges will be settled and returned by this Court.
The aforesaid charges shall be paid within ten (10) days upon the effectiveness of this Civil Judgment. If any party fails to fulfill such obligation of payment within the period specified herein, the charges of interest for delayed payment shall be doubled in accordance with Article 229 of the Civil Procedural Law of the People??s Republic of China.
In case of any dissatisfaction with this Judgment, the Plaintiff and Defendant, Nanjing Channel Engineering Bureau, may, within 15 days upon the service of this Judgment, while the Defendants, Hiro and Yuma, may within 30 days, submit a Statement of Appeal to this Court, and submit the copies according to the numbers of the relevant parties to the case filing an appeal to the Higher People??s Court of Guangdong Province.
Presiding Judge : Zhan Simin
Judge : Xiong Shaohui
Judge : Zhang Kexiong
11 June 2009
Assistant Judge : Gu Enzhen
Clerk : Liang Xiaolei
The translation is provided by Wang Jing & CO.
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