1.Preface
    Since as early as 1855, Preliminary Acts has been applied in England in trial of claims for damages, loss of life or personal injury resulting from ship’s collision. As such Acts may ensure a more impartial trial, Canada, Australia etc. followed suit one after another. Section 1: Provisions for Trial of Collision Case of the Maritime Procedure Law of PRC taking legal effect on 1 July, 2000(“MPL”) have drawn on the experience in many respects of the legal system in Anglo-American law. Compared with Civil Procedure Law of PRC (“CPL”), the MPL made a break-through in the provisions regarding filling in “Investigation Form for Maritime Accident”, discovery of evidences and estoppel and have been consistent with the usual practices in the trial of ship’s collision in the world and represent a fresh development of CPL. The “Provisions for trial of collision Cases” are rules for evidences and are also rules for procedures. With a purpose to help readers have a deeper understanding of the newly-formulated provisions, the writers give a detailed introduction to the contents of those provisions and also give our own understanding of them.
2.Necessity for formulating the Provisions for Trial of Collision Cases
(1)Conducive to solution of scarcity of evidences in collision cases
    In comparison with other civil cases, evidences with regard to ship’s collision cases are scarce. This is because ships are sailing on sea. Unlike vehicles, after occurrence of collision ship’s tracks may disappear promptly. It makes procurement of evidences extremely difficult. If the ship sinks as a result of severe damages from the collision, the deck log, working charts etc material evidences relative to the accident would be lost together with the sunken ship. Therefore, in comparison with cases of other nature, evidences of ship collision cases are more likely lost. Furthermore, as ship’s collision is a sudden occurrence, position of collision is on a vast sea and it is almost impossible to have on the spot any witness who has no interest in the casualty. This makes it difficult for the party concerned to collect any oral statements of witness other than ship’s crew or other types of direct evidences. Scarcity of evidences originating from collision cases leads to lack of such evidences.
    For purpose of solution of this problem, Article 82 of the MPL provides that “An Investigation Form for Maritimes Accident shall be faithfully filled in by the plaintiff when bringing an action and the defendant when submitting a defence”.
(2) Conducive to solution of difficulties resulting from tampering with material evidences by party in an attempt to mitigate liability in judicial practices.
  
As mentioned above, as material evidences in a collision cases are scarce, in most cases, the court cannot but rely on the ship’s particulars and crew’s witness oral statements provided by parties in a collision cases to try the collision case. In case that the parties and their crew involved in the collision attempt to mitigate their liabilities and tamper with the material evidences before they are submitted to the court, or even more to amend their evidences against the material evidences having been submitted by the opponent party, it would undoubtedly increase the difficulties of the maritime court in charge to try the case in unbiased manner and would likely lead to an unjust judgment.
   
    In order to solve this difficulty, the MPL provides for a procedure of discovery of evidences, requesting the parties to fill in the Investigation Form back to back to each other. Before submitting explanations in writing as to the discovery of evidences, the party concerned is not allowed to read over the opponent’s evidences so as to prevent them from comparing the opponent’s evidences with their own evidences.
 
(3) Formulation of the provisions for trial of collision cases represents a supplement and development of the corresponding provisions in the Civil Procedure Law
    In view of the specific features intrinsic in collision cases as well as the problems existing in judicial practices, if trial of a collision case is conducted in compliance with provision of the CPL, it would be difficult to ensure to arrive at a just judgment. Therefore, formulation of specific provisions for trial of collision cases, thus breaking through the corresponding provisions in the CPL may settle disputes in a more just manner and it will be beneficial to ensure judicial authority and impartiality.
3. Contents of the Provision for Trial of Collision Cases and How to understand them
(1)Filling in the Investigation Form
    Article 82 of the MPL provides that an Investigation Form for Maritime Accident shall be faithfully filled in by the plaintiff when bringing an action and the defendant when submitting a defence. This provision is formulated with reference to provision regarding Preliminary Act as formulated in the law of common law countries for trial of maritime cases.
a. Time and Subject of filling in the Form
   Article 82 has made an explicit provision with regard to when and by whom such Form is to be filled. The subjects who shall fill in the Form are plaintiff and defendant in the collision cases. The time of filling in the Form is when an action is brought or when a defence is made. The provision has not specified what are to be filled in the Form. That would be left to be specified by the Supreme People’s Court in the judicial interpretation. We believe, in case that the Form eventually appears in a standardized form, it would be well welcomed by the shipping industry in China, as shipping companies or each vessel would likely keep such Investigation Form constantly on board. Whenever a collision occurs, shipmaster and crew may fill in the Form in the first instance the true exact or detailed conditions and circumstances they sight or encounter prior to or at moment of collision in accordance with the requirement or questionnaire of the Form, so as to give full play to the functions of the Form designed to facilitate bringing to light the truth of the case.
    Worthy of attention is the main purpose of adopting such Form i.e. to keep confidential the evidences filled in the Form. Therefore, when the party is filling in the Form, court personnel should not be in the presence. Furthermore, plaintiff and defendant referred to in the Article 82 of the MPL should be explained or understood in an extended way, i.e. covering lawyers, agents ad litem and crew of the parties involved in a collision case.
b. How to understand “faithfully filled in”
    “Faithfully filled in” means the Form is to be filled with what are witnessed by the crew on duty. Person filling in the Form should never tamper with, fabricate or forge the evidences, information or date in an attempt to mitigate liabilities. As crews in a collision cases are witnesses of the accident, their recollections and reports would be very important. Whether their recollections are in tally with facts remain to be verified after trial. Whenever it is ascertained that a party in the collision case has not faithfully filled in the Form on basis of facts leading to the collision or even intentionally forge facts in order to reduce liabilities, this party should be held legally liable for the collision.
c. Time Requirement for Making Defence by the Defendant
    Pursuant to the provisions of Article 84 of MPL, the plaintiff may produce additional proofs starting from the time the proceedings are commenced and the Investigation Table is filled in until the hearing. Having adduced proofs and given an explanation for the proofs so adduced, the plaintiff may apply for having an access to the documents relating to the facts of ship collision. The procedure for the plaintiff’s burden of proof set forth above in the MPL is not improper, but it is worthwhile to explore the procedure for making defence by the defendant. CPL stipulates, inter alia, that “The Defendant shall submit a bill of defence within 15 days upon receipt of the copy of Statement of Complaint. Failure of the Defendant to do so shall not prevent the court from hearing the case”. On basis of the foregoing stipulation, the defendant may refrain from submitting the bill of defence to the court within 15 days upon receipt of the copy of Statement of Complaint, and may make the defence as late as the moment prior to the hearing. In this respect, MPL does not provide for any contrary or additional stipulation. Subject to Article 82 of MPL, the defendant may not fill in the Investigation Form until he raises defence at the hearing. In a comprehensive analysis of the above stipulation, the defendant’s entitlement to fill in the Investigation Form when he raises defence at the hearing under the existing law is against the legislative intention of providing for the procedure of investigation form and cannot reflect the value of the investigation form. Given the above situation, from the writers’ opinion, it should be stipulated in the judicial interpretation of MPL that if the defendant fails to fill in the Investigation Form within the time limit for defence (15 days for the Chinese defendant and 30 days for the foreign defendant, counting from the day of the Defendant’s receipt of the copy of the Statement of Complaint), the court may enter a judgment in default.
(2)Procedure for discovery of evidences 
    The CPL of PRC has not provided for time-limit for discharge of burden of proof. For purpose of remedy of this flaw, some higher people’s courts in China have boldly carried out experiments or researches and subsequently formulated legal provisions regarding time-limit for discharge of burden of proof. The MPL first provides for the time-limit for discharge of burden of proof in collision cases and formulated clear provisions of “serving without enclosure with evidences” and “consulting opponent’s litigation file only after fulfilling burden of proof ”, thereby establishing a principle of “timely fulfillment of burden of proof in evidence” in the procedural law for trial of collision cases. 
    The MPL has provided for the following concrete regulations with regard to discovery of evidences:
a.“Serving without enclosure with evidences”
    Article 83 of the MPL has provided that “The Maritime court, when serving the bill of claim or the bill of defence on the parties, shall not enclose the relevant evidential materials”. Reason of formulating such a principle as referred to above is mainly for elimination of amending evidential materials of one party by taking into consideration of evidential materials of opponent party with a view to reducing the former’s liabilities, a phenomenon appearing from time to time in the judicial practices, so as to ensure the court in charge may ascertain the truth of a case quickly and precisely and give a just judgment.
    Article 83 of the MPL has not referred to requirements with regard to contents of a bill of claim and bill of defence. The writers hold that as Article 82 of the Law has provided for the requirement to faithfully filling in the Investigation Form by plaintiff and defendant, the details leading to the collision would have been filled in the Investigation Form. Therefore, it is not necessary to require those details leading to the collision to be included again in the bill of claim and bill of defence, so as to avoid duplication of contents in those legal documents. For the sake of keeping secret, contents of the bill of claim and bill of defence should not be excessive in details. They will be OK if they may serve the purpose of identifying who are the opponents in the collision case.
b.Time limitation for discharge of burden of proof.
    Article 84 of the MPL provides that “the parties shall discharge the burden of proof before a hearing. Any party who has discharged the burden of proof and furnished the maritime court with a statement to that effect may apply to consult the evidential material concerning the ship collision.”
   
    The time period for discharge of burden of proof is the period preceding the court hearing. As to what concrete date for this purpose, it would be subject to the decision of the court taking into consideration of the existing conditions. After submitting the evidential materials to the court while filling in a bill of claim or a bill of defence, both the plaintiff and defendant may go on with their efforts to collect evidences and to submit them to the court later till the date of expiry as stipulated by the court. The writers hold that in order to play fair and to guard against fake evidences, the evidential materials submitted by the parties during the period of discharge of proof should be preserved in sealed conditions. That can be done by the parties themselves first and then be handed over to the court, or, the court seals them after receipt.
c.Letter for discharge of burden of proof 
 
    After discharge of burden of proof, the parties shall submit a letter to the effect to the court. Submitting such a letter would give rise to the following legal effect: (1) Fulfillment of discharge of burden of proof. Usually, the parties may not be allowed to adduce any evidential materials further to the court. (2) The party fulfilling discharge of burden of proof may apply for consultation of the evidential materials concerning the ship collision. (3) Estoppel. Should there be no extraordinary reason, the party concerned may not be allowed to reverse their statement made in the Investigation Form and the evidences adduced.
d.Consultation of evidential materials
    The Party, who has submitted the letter indicating having discharged burden of proof, may apply to consult the evidential materials concerning the ship collision including the evidential materials adduced by the opponent party as well as those collected by the court. After consultation of those evidential evidences, the Party may not be allowed to adduce any evidential materials relating to liabilities of ship collision on basis of the evidential materials adduced by the opponent party. He is neither allowed to go on with adducing further evidential material on the excuse that the opponent party, who has not submitted the said letter, is still in the process of furnishing evidential materials. The writers hold that out of consideration for efficiency of suit, maritime court had better fix a certain date to disclose the sealed evidential materials (such as the Investigation Form and other evidential materials) and exchange consultation of them between the parties.
(3)Estoppel and principles of exceptions 
    Article 85 of the MPL provides that “The Party may not reverse the statement made in the Investigation Form for Maritime Accident and evidence adduced, unless new evidence has come to light and there are justifiable reasons for being unable to submit such new evidence within the period for submission of evidence.”
    
    “Estoppel” means that the Party is not allowed to deny the statement made to the court on any excuses. During process of trial of a collision case, after submitting the letter of fulfillment of burden of proof, the Party concerned may not go on with collection of any fresh evidences with purpose of reversal of his statement in The Investigation Form and the burden of proof discharged, i.e., the Party may not adduce any evidential evidences in his favors to reverse the facts stated.
    Exception to estoppel means the Party furnish to the court fully justifiable reasons why he is unable to submit such new evidence within the period of submission of evidence so as to enable them to reverse his claim or admission made in the legal documents or in the evidential materials, which are not in his favor.
    Fresh evidences referred to in the MPL are somewhat different to the fresh evidences as referred to in the CPL. The CPL does not provide for time-limit for adducing evidences. Such fresh evidences referred to in the CPL means “evidences which have not been submitted to court have been obtained before hearing. ‘Fresh evidences’ referred to in the Provisions for Trial for collision cases” means those evidences which are not possessed by the party (such as data from satellite, evidences from third party vessels, or from the opponent as well as from parties or individuals with certain relations to the case) and not including those evidences which can be furnished but not furnished within the period for submission of evidences.
    The writers hold that the maritime court should strictly apply the principle of exception to estoppel and should not rashly accept or adopt the so-called ‘fresh evidences’ from the Party. Any fresh evidential evidences adduced subsequent to submitting the said letter and after consultation of the opponent party’s evidence should be cross-examined during hearing, no matter the ‘fresh evidences’ are adduced before hearing or after hearing. Attention should be paid to sources from which the fresh evidence is derived and date on which the evidence was obtained as well as degree of eagerness of the Party to obtain the evidences ( to see whether there is any indolence on the part of the party which prevented him from obtaining the ‘fresh evidences’ within the period for submission of evidences).
    It is noteworthy that there was ever a provision in the 6th draft of the MPL that “Trial of a collision case by a court of second instance shall try only the issue of application of law and technical particulars involved in the hearing of first instance court”. Basing on this provision, the court of second instance would not examine factual issues which are outside the issues of law and technical particulars. Why the MPL has not retained the above drafted provision, that is because the Chapter for trial procedure does not provide for trial of second instance. If retaining the above–mentioned drafted provision, the rigorousness of structure of the law would be affected. On the other hand, that is because of the fact that in the provisions for trial of collision cases in the first instance provisions of principle of estoppel and its exception have been included therein. As a result it limits in a high degree the trial of factual issues in a collision case by the court of second instance.
(4) Provisions for report on ship survey and appraisal 
 
    Usually, after occurrence of collision of ships, the parties concerned would carry out survey, appraisal and repairs to the damaged ships. In practice, it frequently appears that estimations of repairing costs and the actual repairing costs may not be in conformity with the actual degree of damages suffered. In order to reflect truly the damages, to avoid exaggeration of the degree of damages and to protect the legitimate rights of the parties Article 86 of the MPL provides that “survey and appraisal of a ship shall be conducted by institutions or individuals that have been duly authorized by the state or professionally qualified. A maritime court shall not accept any survey or appraisal report made by institutions or individuals without authorization of the state or professional qualifications.”
    Basing on the above provision, any survey or appraisal made by institutions or individuals without authorization by the state or professionally qualified would be without any legal effect and can not be accepted by a maritime court as evidences. Any survey and appraisal reports made by institutions or individuals professionally qualified must also be cross-examined before they can be used as evidences.
(5) Provision regarding time-limit for trial of collision cases
    Time-limit for cases tried in application of ordinary procedure in the first instance is different depending on whether foreign element is involved. The CPL provides that time limit for trial of a case without involvement of foreign elements is 6 months. However, there appears no provision in the CPL for time-limit for the trial of a case with foreign elements.
    Article 87 of the MPL provides that “collision case shall be tried and concluded by a maritime court within 1 year after placing on file of the case. Where an extension of the period is necessary under special circumstances, such an extension shall be subject to approval of the president of the court.” Although this provision extends the time-limit for trial from 6 months to 1 year for a collision case without foreign element, However when considering the peculiarity of a collision case (i.e. complexity in respect of merits of the case, difficulties in collection of evidences, necessity to arrange survey, technical appraisal and estimation of costs etc), appropriate extension of the time-limit of trial would surely be beneficial to ensure good quality of the trial. Such provisions at the same time limit time for trial of collision case of foreign element. While taking into consideration of the last sentence in Article 87 “Where an extension of the period is necessary, such extension shall be subject to approval of the president of the court”, such limit would be flexible and proper. It not only takes into consideration of the requirement for litigating efficiency in trial of a collision case of foreign element, but also of the quality of trial of a case. 
4. Concluding Remarks
    To sum up, in accordance with the peculiarity of collision cases, in the light of the practical experiences in trial of collision cases and on basis of absorbability of and drawing lessons from foreign advanced legislating techniques, China’s MPL has established a judicial system of own special features for trial of ship’s collision case. We trust that following incessant deep-going and development of judicial practices, this provision for trial of collision case shall give its full play to its positive role and provide a powerful and legal assurance for China’s maritime courts to try collision cases justly and efficiently.