Cheng Fengying,Pi Shuangkun,Tian Mingzhen,Pi Yueyu,Pi Yuelin,Wang Shuhua,Wang Panpan,etc. v. ICL Shipping Limited
2004-03-16
TIANJIN MARITIME COURT
PEOPLE’S REPUBLIC OF CHINA
CIVIL MEDIATION AWARD
No. HSC 20-27(2000)
Plaintiff 1 : Cheng Fengying, (spouse of the decedent Pi
Zhongrong) Female; born on 11 April 1960; Nationality:
Han; Occupation: fishing; Domicile: Qiantang Village,
Nanpaihe Town, Huanghua, Hebei Province.
Plaintiff 2 : Pi Shuangkun, (father of the decedent Pi Zhongrong)
Male; born on 10 May 1932; Nationality: Han; Occupation: fishing; Domicile: Qiantang Village, Nanpaihe Town, Huanghua, Hebei Province.
Plaintiff 3 : Tian Mingzhen, (mother of the decedent Pi Zhongrong)
Female; born on 6 September 1934; Nationality: Han; Occupation: fishing; Domicile: Qiantang Village, Nanpaihe Town, Huanghua, Hebei Province.
Plaintiff 4 : Pi Yueyu, (daughter of the decedent Pi Zhongrong, whose
guardian is Plaintiff 1 Cheng Fengying)
Female; born on 10 March 1992; Nationality: Han; Occupation: Student; Domicile: Qiantang Village, Nanpaihe Town, Huanghua, Hebei Province.
Plaintiff 5 : Pi Yuelin, (son of the decedent Pi Zhongrong, whose
guardian is Plaintiff 1 Cheng Fengying)
Male; born on 17 May 1984; Nationality: Han; Occupation: Student; Domicile: Qiantang Village, Nanpaihe Town, Huanghua, Hebei Province.
Plaintiff 6 : Wang Shuhua, (spouse of the decedent Wang Zhizhen)
Female; born on 7 October 1967; Nationality: Han; Occupation: fishing; Domicile: Zhangjuhe Village, Nanpaihe Town, Huanghua, Hebei Province.
Plaintiff 7 : Wang Panpan, (daughter of the decedent Wang Zhizhen,
whose guardian is Plaintiff 6 Wang Shuhua)
Female; born on 9 July 1993; Nationality: Han; Occupation: student; Domicile: Zhangjuhe Village, Nanpaihe Town, Huanghua, Hebei Province.
Plaintiff 8 : Wang Longqi, (son of the decedent Wang Zhizhen, whose
guardian is Plaintiff 6 Wang Shuhua)
Male; born on 4 April 2000; Nationality: Han; Child; Domicile: Zhangjuhe Village, Nanpaihe Town, Huanghua, Hebei Province.
Plaintiff 9 : (father of the decedent Wang Zhizhen)
Male; born on 1 October 1938; Nationality: Han; Occupation: Fishing; Domicile: Zhangjuhe Village, Nanpaihe Town, Huanghua, Hebei Province.
Plaintiff 10 : Liu Shuzhen, (mother of the decedent Wang Zhizhen)
Female; born on 1 October 1938; Nationality: Han; Occupation: Fishing; Domicile: Zhangjuhe Village, Nanpaihe Town, Huanghua, Hebei Province.
Plaintiff 11 : Wang Shumian, (spouse of the decedent Chen Xiuqiang)
Female; born on 17 March 1975; Nationality: Han; Occupation: Fishing; Domicile: Shenjiabao Village, Nanpaihe Town, Huanghua, Hebei Province.
Plaintiff 12 : Chen Jie, (daughter of the decedent Chen Xiuqiang,
whose guardian is Plaintiff 11 Wang Shumian)
Female; born on 12 December 1998; Nationality: Han; Child; Domicile: Shenjiabao Village, Nanpaihe Town, Huanghua, Hebei Province.
Plaintiff 13 : Chen Lianyi, (father of the decedent Chen Xiuliang)
Male; born on 27 February 1945; Nationality: Han; Occupation: fishing; Domicile: Shenjiabao Village, Nanpaihe Town, Huanghua, Hebei Province.
Plaintiff 14 : Wang Shulan, (mother of the decedent Chen Xiuliang)
Female; born on 6 June 1945; Nationality: Han; Occupation: fishing; Domicile: Shenjiabao Village, Nanpaihe Town, Huanghua, Hebei Province.
Plaintiff 15 : Liu Xiufang, (spouse of the decedent Chen Zhixia)
Female; born on 7 March 1959; Nationality: Han; Occupation: farming; Domicile: Fengzhuang Village, Zhangdazhuang Township, Ningjin County, Shandong Province.
Plaintiff 16 : Chen Kai, (son of the decedent Chen Zhixia)
Male; born on 21 October 1983; Nationality: Han; Occupation: student; Domicile: Fengzhuang Village, Zhangdazhuang Township, Ningjin County, Shandong Province.
Plaintiff 17 : Chen Shuling, (daughter of the decedent Chen Zhixia,
whose guardian is Plaintiff 15 Liu Xiufang)
Female; born on 16 April 1988; Nationality: Han; Occupation: student; Domicile: Fengzhuang Village, Zhangdazhuang Township, Ningjin County, Shandong Province.
Plaintiff 18 : Wang Fangyun, (mother of the decedent Chen Zhixia)
Female; born on 3 November 1932; Nationality: Han; Occupation: farming; Domicile: Fengzhuang Village, Zhangdazhuang Township, Ningjin County, Shandong Province.
Plaintiff 19 : Pi Zhonglan, (spouse of the decedent Chen Lianke)
Female; born on 21 May 1949; Nationality: Han; Occupation: fishing; Domicile: Shenjiabao Village, Nanpaihe Town, Huanghua, Hebei Province.
Plaintiff 20 : Chen Hongqiao,(daughter of the decedent Chen Lianke,
whose guardian is Plaintiff 19 Pi Zhonglan)
Female; born on 5 March 1988; Nationality: Han; Occupation: student; Domicile: Shenjiabao Village, Nanpaihe Town, Huanghua, Hebei Province.
Plaintiff 21 : Zhang Xiurong, (spouse of the decedent Chen Lianhe)
Female; born on 17 November 1955; Nationality: Han; Occupation: fishing; Domicile: Shenjiabao Village, Nanpaihe Town, Huanghua, Hebei Province.
Plaintiff 22 : Chen Xiuming, (son of the decedent Chen Lianhe)
Male; born on 13 March 1983; Nationality: Han; Occupation: fishing; Domicile: Shenjiabao Village, Nanpaihe Town, Huanghua, Hebei Province.
Plaintiff 23 : Chen Hongxia, (daughter of the decedent Chen Lianhe, whose
guardian is Plaintiff 21 Zhang Xiurong)
Female; born on 28 September 1987; Nationality: Han; Occupation: student; Domicile: Shenjiabao Village, Nanpaihe Town, Huanghua, Hebei Province.
Plaintiff 24 : Zhang Xiu’an, (mother of the decedent Chen Lianhe)
Female; born on 1 November 1924; Nationality: Han; Occupation: fishing; Domicile: Shenjiabao Village, Nanpaihe Town, Huanghua, Hebei Province.
Plaintiff 25 : Chen Lianyi, (owner of the ship “Ji Huang Yu 0824”)
Male; born on 27 February 1945; Nationality: Han; Occupation: fishing; Domicile: Shenjiabao Village, Nanpaihe Town, Huanghua, Hebei Province.
Agents ad litem for the above 25 Plaintiffs:
Fang Guoqin and Chen Biao, lawyers of Jiade Law Office.
Defendant : ICL Shipping Limited, shipowner of m/v “ICL Raja
Rajan”
Domicile : Dhun building 827, Anna Salai, Madras, India
Legal Rep. : Rekkunyatath Kumar Das, Director
Agent ad litem: Wang Hongyu, Lawyer of Wang Jing & Co. Tianjin
Office
Agent ad litem: Chen Xiangyong, Lawyer of Wang Jing & Co.
The above 25 Plaintiffs brought a suit for compensation for damages resulting from ship collision (case No. HSC 27 [2000]) and seven suits for compensations for death (cases Nos. HSC 20-26[2000]) against ICL Shipping Limited, the owners of m/v “ICL Raja Rajan” before this Court and filed the Application for Deferment in Paying Court Fees on 11 May 2000. After accepting the cases, this Court formed a collegial bench in accordance with law. After deliberations, the collegial bench made a verbal ruling allowing the Application. This Court summoned the agents ad litem for the Plaintiffs and the Defendant to exchange evidence on 25 April and 18 June, 2001 before the court hearing. Court hearings were held respectively on 10 July and 14 August, 2001 for the eight cases in a consolidated way. Fang Guoqing and Chen Biao, the agents ad litem for the 25 Plaintiffs, Wang Hong Yu and Chen Xiangyong, agents ad litem for the Defendant attended the court hearings. Fan Binghai, Xia Wenxi and Zhang Tangqing appeared before the court as witnesses. Sun Qing from Tianjin Maritime Safety Administration and Yang Jiarong from Nanpaihe Fishing Harbour Superintendency and Fishing Boat Inspection Station appeared as surveyors and Zheng Yufeng from Tianjin Public Security Bureau appeared as expert appraiser. Now the trial for the eight cases has been concluded.
Prior to litigation, on 16 April 2000, this Court made a ruling in accordance with law to arrest the Indian-registered m/v “ICL Raja Rajan” on the application of the Plaintiffs and asked the owners of “ICL Raja Rajan” to provide a security in an amount of USD1,000,000. On 18 April, 2000, China Re-insurance Company provided a credit security in an amount of USD1,000,000 to this Court on behalf the Steamship Mutual Underwriting Association (Bermuda) Limited for the owners of “ICL Raja Rajan”. The order for arrest of “ICL Raja Rajan” was lifted on the same day by this Court.
It was pleaded by the 25 Plaintiffs that:
The fishing boat “Ji Huang Yu 0824” set sail for No.7 Sub-district of No.36 Fishing District of Bohai Sea for fishing operation at about 1100 hours on 10 April, 2000. At around 0030 hours on 12 April, 2000, after casting net, “Ji Huang Yu 0824” rode at anchor in the position 38°39’.7N, 118°37’.2E. At about 1500 hours on 10 April, 2000, m/v “ICL Raja Rajan” owned by the Defendant departed from Rizhao Port for Tianjin Port in ballast. At about 0330 hours on 12 April, m/v “ICL Raja Rajan” sailing from east to west collided and sank “Ji Huang Yu 0824” lying in the position of 38°39’.7N, 118°37’.2E, whereby the fishing boat was cut into two halves. Her bow sank and then re-floated and her stern sank. Consequently, “Ji Huang Yu 0824” suffered total loss, and all the seven crewmembers were dead. What the Defendant did constituted a tortious act against the owners of the fishing boat “Ji Huang Yu 0824” as well as the 7 deceased crew members and their families, i.e. the 25 Plaintiffs. Therefore, the Plaintiffs brought the lawsuits before this Court, requesting the court to hold the Defendant fully liable for the sinking of “Ji Huang Yu 0824” and the death of the 7 crew members and to compensate for all the losses inflicted upon the Plaintiffs.
In Case No. HSC 20(2000), for the death of Pi Zhongrong, Plaintiff 1, Plaintiff 2, Plaintiff 3, Plaintiff 4 and Plaintiff 5 claimed: (1) RMB 302,500 for the loss of income of the decedent; (2) RMB 13,000 as funeral expenses; (3) RMB 500,000 as pacification cost; and (4) the Defendant shall bear all the litigation costs.
In Case No. HSC 21(2000), for the death of Wang Zhizhen, Plaintiff 6, Plaintiff 7, Plaintiff 8, Plaintiff 9 and Plaintiff 10 claimed: (1) RMB 424,000 for the loss of income of the decedent; (2) RMB 13,000 as funeral expenses; (3) RMB 500,000 as pacification cost; and (4) the Defendant shall bear all the litigation costs.
In Case No. HSC 22(2000), for the death of Chen Xiuqiang, Plaintiff 11 and Plaintiff 12 claimed: (1) RMB 1,294,16 0.66 for the loss of income of the decedent; (2) RMB 450 for medical expense of the decedent; (3) RMB 13,000 as funeral expenses; (4) RMB 200,000 as pacification cost; and (5) the Defendant shall bear all the litigation costs.
In Case No. HSC23 (2000), for the death of Chen Xiuliang, Plaintiff 13 and Plaintiff 14 claimed (1) RMB 1,401,910.13 for the loss of income of the decedent; (2) RMB 700 for medical expense; (3) RMB 13,000 as funeral expenses; (4) RMB 200,000 as pacification cost; and (5) the Defendant shall bear all the litigation costs.
In Case No. HSC 24(2000), for the death of Chen Zhixia, Plaintiff 15, Plaintiff 16, Plaintiff 17 and Plaintiff 18 claimed: (1) RMB 289,000 for the loss of income of the decedent; (2) RMB 16,000 as funeral expenses; (3) RMB 400,000 as pacification cost; (4) RMB 8,100 as other relevant expenses and (5) the Defendant shall bear all the litigation costs.
In Case No.25 HSC (2000), for the death of Chen Lianke, Plaintiff 19 and Plaintiff 20 claimed: (1) RMB 647,663.80 for the loss of income of the decedent; (2) RMB 2,200 as medical expense; (3) RMB 13,000 as funeral expenses; (4) RMB 200,000 as pacification cost; and (5) the Defendant shall bear all the litigation costs.
In Case No. HSC 26(2000), for the death of Chen Lianhe, Plaintiff 21, Plaintiff 22, Plaintiff 23 and Plaintiff 24 claimed: (1) RMB 1,006,828.74 for the loss of income of the decedent; (2) RMB 2,270 as medical expense; (3) RMB 13,000 as funeral expenses; (4) RMB 400,000 as pacification cost; (5) RMB 900 for other related expenses; and (6) the Defendant shall bear all the litigation costs.
In Case No. HSC 27(2000), as one of the owners of “Ji Huang Yu 0824”, Plaintiff 25 claimed that (1) the Defendant shall bear the full liability for the ship collision between “ICL Raja Rajan” and “Ji Huang Yu 0824”; (2) the Defendant shall compensate Plaintiff 25 RMB 2,395,334.99 plus interest at the interest rate of 6.825‰ per month for the damage of the fishing boat and the salvage expense; and (3) the Defendant shall bear all the litigation costs.
The Defendant ICL Shipping Limited defended that:
The registered owner of m/v “ICL Raja Rajan” was Infrastructure Leasing and Financial Services Limited in India who entered into a Bareboat Charter Party with the Defendant on 18 February, 1998. Under the Bareboat Charter Party “ICL Raja Rajan” was demise-chartered to the Defendant. In the present cases the Defendant was in charge of operation and safety management of the “ICL Raja Rajan” and in charge of manning her with the Master and the crewmembers. In accordance with the provisions of Article 144 of the Maritime Code of the P.R.C. and Article 6.8 of the Bareboat Charter Party, ICL Shipping Limited considered that the result of lawsuit brought by the Plaintiffs in respect of the personal injury and loss of lives arising from the alleged collision between m/v “ICL Raja Rajan” and “Ji Huang Yu 0824” should be borne by the Defendant. Thus ICL Shipping Limited was in a right position to respond to the actions initiated by the 25 Plaintiffs.
ICL Shipping Limited held that the cause of action of the eight cases was tort by nature and agreed that the cases should be governed by the law of the PRC. Under Chinese law, the Plaintiff should bear the burden of proof on the basis of the four essential conditions for constituting a tort action.
Upon perusal of the evidential documents pertaining to the alleged collision submitted by the Plaintiffs to the court, ICL Shipping Limited was of the opinion that the Plaintiffs were unable to prove that “Ji Huang Yu 0824” was collided by “ICL Raja Rajan” insomuch as not a single evidence adduced by the Plaintiffs relating the collision position, collision time, collided parts and scratches resulting from the alleged collision could support such allegation, despite the fact that those factors were indispensable for analyzing and handling the collision case.
ICL Shipping Limited maintained that the sinking of “Ji Huang Yu 0824” had nothing to do with “ICL Raja Rajan”. Even if it were established that m/v “ICL Raja Rajan” had collided “Ji Huang Yu 0824” (to which the Defendant did not admit), yet in accordance with the relevant provisions of the International Convention for the Unification of Certain Rules of Law with respect to Collision Between Vessels 1910, the liability for loss of the Plaintiffs should be borne by the Plaintiffs themselves or should be apportioned equally between the Plaintiffs and the Defendant.
Without prejudice to the foregoing arguments with regard to the facts of collision, ICL Shipping Limited contended that the amount claimed by the Plaintiffs had exceeded the reasonable limit and were legally baseless. Therefore it should not be admitted.
Two court hearings were held, during which the collegial bench made an emphatic investigation of the following core issues of the disputes between the Plaintiffs and the Defendant: (1) capacity of the Defendant; (2) whether the collision between “ICL Raja Rajan” and “Ji Huang Yu 0824” did occur, who the cause of collision and the damage; and (3) how the losses of the Plaintiff should be ascertained.
At the court hearings, the Plaintiffs and the Defendant adduced ample evidence to support their respective arguments around the said core issues of dispute. With permission of the court, the Plaintiffs downloaded the data of the registered ship and its members from the website of The Steamship Mutual Underwriting Association (Bermuda) Limited before the court. In order to verify the truthfulness and legality of the evidence to which the two parties contravened, this Court summoned the witnesses Fan Binghai, Xia Wenxi and Zhang Tangqing, the surveyor Su Qing from Tianjin Maritime Safety Administration and Yang Jiarong from Nanpaihe Fishing Harbour Superintendency and Fishing Boat Inspection Station and the expert appraiser Zheng Yufeng from Tianjin Public Security Bureau to appear before the court. At the court hearings, they gave detailed accounts of the sources of evidence as to how they were obtained and what were sought to prove by such evidence. They also answered the questions by the agents ad litem for the Plaintiffs and the Defendant and the collegial bench. During the course of cross-examination of evidence, the video tapes on the inspection of “ICL Raja Rajan” by Tianjin Maritime Safety Administration and that of the salvage of “Ji Huang Yu 0824” presented by the Plaintiffs were played before the court. To all the evidence before the court, both the agents ad litem for the Plaintiffs and the agents ad litem for the Defendant presented fully their comments and arguments and also made their final presentations.
The following were the evidence presented by the Plaintiffs and the Defendant to support their cases and the comment of this Court:
Ⅰ. Evidence regarding the capacity of the Defendant and the court’s ascertainment of facts:
The Plaintiffs presented 4 items of evidence with regard to the capacity of the Defendant.
Evidence 1: Ship’s particulars of “ICL Raja Rajan”, to prove that ICL Shipping Limited called itself “owner” of “ICL Raja Rajan” during the operations of the ship.
Evidence 2: Certificate of Nationality of “ICL Raja Rajan”. Being a statutory evidence to substantiate who was the shipowner, the Certificate did not show who was the owner of “ICL Raja Rajan”.
Evidence 3: Names of the operator, manager and owner of “ICL Raja Rajan” provided by the Master of “ICL Raja Rajan”. Being contradictory to Evidence 1, this evidence just proved what the Plaintiffs maintained that in ocean shipping industry, shipowner in the broad sense included the owner, operator and charterer of the ship.
Evidence 4: Data of the ships and members registered in website of The Steamship Mutual Underwriting Association (Bermuda) Limited, proving that ICL Shipping Limited joined the Mutual Underwriting Association in the name of the “owner” of “ICL Raja Rajan” and that it was for ICL Shipping Limited that China Re-insurance Company provided a credit security in the amount of USD1,000,000 to Tianjin Maritime Court on behalf of The Steamship Mutual Underwriting Association (Bermuda) Limited.
The Defendant also presented 4 items of evidence in respect of capacity of the Defendant.
Evidence 1: Certificate of Registry of “ICL Raja Rajan”, in which the owner of the vessel was not stated.
Evidence 2:Bariboat Charter Party, to prove that ICL Shipping Limited was the demise charterer of “ICL Raja Rajan” and that the owner of the vessel was Infrastructure Leasing and Financial Services Limited in India.
Evidence 3:Classification Certificate of “ICL Raja Rajan”, to prove that the owner of the vessel was Infrastructure Leasing and Financial Services Limited in India.
Evidence 4: Certificate of the Registered Owner of “ICL Raja Rajan”, to prove that the owner of the vessel was Infrastructure Leasing and Financial Services Limited in India.
The Plaintiffs submitted that: firstly, in accordance with the relevant provisions in Maritime Procedure Law of P.R.C., the claimant can directly apply for arrest of the offending ship for the claims arising from collision, irrespective of who is the owner of the ship or who has demise-chartered the ship. Such measure can force the person or company liable for the maritime claims to respond to the action. Therefore, it was consistent with the provisions of the Maritime Procedure Law of P.R.C. for the Plaintiffs to bring the suits against the owner of “ICL Raja Rajan”. In the present cases, from the information in the website of Steamship Mutual Underwriting Association which the vessel “ICL Raja Rajan” had entered, the Plaintiffs found out that ICL Shipping Limited joined the Steamship Mutual Underwriting Association in the name of the “owner” of “ICL Raja Rajan”. Thus it could be seen that the credit security in the amount of USD1,000,000 issued by China Re-insurance Company under the entrustment of the Steamship Mutual Underwriting Association for the owner of “ICL Raja Rajan” to Tianjin Maritime Court was issued for ICL Shipping Limited. The fact that ICL Shipping Limited voluntarily responded to the action showed that ICL Shipping Limited itself acknowledged that it shall be liable for the 8 cases. Therefore, it was correct for the Plaintiffs to bring the suits against the Defendant. Secondly, the term “shipowner” is a rather broad and informal term. An exact definition has not been given to “shipowner” under Chinese civil law. “Shipowner” was generally regarded as the owner of a ship. But according to Article 204 and Article 207 of Maritime Code of P.R.C., shipower also includes charterer and operator of a ship. Since ICL Shipping Limited admitted itself as a demise charterer of “ICL Raja Rajan”, obviously, it shall be the eligible Defendant in the eight cases. Thirdly, ICL Shipping Limited operated in the name of the “owner” of “ICL Raja Rajan”. However, when an accident occurred in the course of operation, it claimed to be the demise charterer of the vessel. Such an act to operate in two capacities was actually an act to evade the binding force of law, which is forbidden under Chinese law. To sum up, the Plaintiffs considered that ICL Shipping Limited was the right Defendant in the eight cases on the grounds that the Plaintiffs brought the suits against the shipowner of “ICL Raja Rajan”, which, although was generally understood as owner of the ship, included also the charterer and operator of the ship under the Maritime Code of the P.R.C., and that ICL Shipping Limited admitted that it was the demise charterer of “ICL Raja Rajan” and that it had joined the Mutual Underwriting Association and agreed to be bound by the judgment of the lawsuits, that the Mutual Underwriting Association provided security for ICL Shipping Limited and that ICL Shipping Limited voluntarily responded to the action.
The Defendant ICL Shipping Limited argued that the registered owner of m/v “ICL Raja Rajan” was Infrastructure Leasing and Financial Services Limited in India who entered into a Bareboat Charter Party with the Defendant on 18 February 1998. Under the Bareboat Charter Party, the “ICL Raja Rajan” was demise-chartered to the Defendant. In the present cases the Defendant was in charge of operation and safety management of the “ICL Raja Rajan” and manned her with the Master and the crewmembers. In accordance with the provisions of Article 144 of Maritime Code of P.R.C. and Clause 6.8 of the Bareboat Charter Party, ICL Shipping Limited considered that the outcome of the lawsuit brought by the Plaintiffs in respect of the loss of “Ji Huang Yu 0824” and personal injury and loss of lives arising from the alleged collision between m/v “ICL Raja Rajan” and “Ji Huang Yu 0824” should be borne by the Defendant, i.e. the Charterer. Thus ICL Shipping Limited was in a right position to respond to the actions initiated by the 25 Plaintiffs.
This Court held that the Certificate of Registry of “ICL Raja Rajan” only stated that the nationality of “ICL Raja Rajan” was India, but did not mention who was the owner of the vessel. It was unable to ascertain who was the owner of “ICL Raja Rajan” by the Certificate of Registry. Therefore, this Certificate could not serve as the evidence to ascertain who was the owner of “ICL Raja Rajan”. The information downloaded by the Plaintiffs from the website of the Mutual Underwriting Association before the court stated that the owner of “ICL Raja Rajan” was ICL Shipping Limited. The defendant did not object to the truthfulness of the information, and admitted at the court hearing that ICL Shipping Limited was a member of the Mutual Underwriting Association, thus further verifying the truthfulness of the information downloaded from the website. Therefore, this Court admitted the documentary evidence downloaded from the website of the Mutual Underwriting Association. This Court also admitted other evidence to the truthfulness of which the two parties did not raise objection and which was not self-contradictory in substance. The above evidence proved that the owner of ‘ICL RAJA RAJAN” was Infrastructure Leasing and Financial Services Limited and ICL Shipping Limited was the demise charterer of “ICL Raja Rajan”. But ICL Shipping Limited sometimes acted in the name of the owner of “ICL Raja Rajan” in its course of business and joined the Mutual Underwriting Association also in the name of the owner of “ICL Raja Rajan”. And it was ascertained that ICL Shipping Limited asserted that it was the demise charterer of “ICL Raja Rajan” only in the course of litigation.
Ⅱ. Ascertainment of evidence regarding the facts, causes of collision, damage resulted and analysis of facts:
The plaintiffs presented 26 items of evidence to support their cases. All the evidence was collected from Tianjin Maritime Safety Administration by this Court on application of the Plaintiffs. The evidence included:
Evidence 1. Deck Log Book of m/v “ICL Raja Rajan”;
Evidence 2. Engine Log Book of M/V “ICL Raja Rajan”;
Evidence 3. Record of Movement of M/V “ICL Raja Rajan”;
Evidence 4. GPS Record of M/V “ICL Raja Rajan” and the Navigation Course of m/v “ICL Raja Rajan”;
Evidence 5. Copies of Sea Charts of M/V “ICL Raja Rajan” used between 11-12 April;
Evidence 6. Written Records of Inquiries to the Master, the Second Officer and Duty Officer of m/v “ICL Raja Rajan”;
Evidence 7. Reports given by the Master and the Second Officer of m/v “ICL Raja Rajan”;
Evidence 8. Ship’s Particulars, Data of Circling, Address of Shipowner’s Company, Certificate of Ship’s Nationality, Weather Forecast, Crew List, Certificate of Competence of the Master, and of the Second Officer, Calculation of Blind Area of Radar;
Evidence 9. Distress Report on “Ji Huang Yu 0824” given by Fishery Superintendency Administration of Nanpaihe Port;
Evidence 10. Report on Distress and Salvage of “Ji Huang Yu 0824” given by Shenjiabao Villagers’ Committee of Nanpaihe Town;
Evidence 11. Inspection Certificate of Fishing Boat “Ji Huang Yu 0824”;
Evidence 12. List of Deceased Crew Members of “Ji Huang Yu 0824” and Conditions of their Families;
Evidence 13. Report given by the Witness Fan Binghai– the Master of the Fishing Boat “JI CANG 611”;
Evidence 14. Written Record of Inquiries to Xia Wenxi, the Master of “Ji Huang Yu 0831”;
Evidence 15. Written Record of Inquiries to Zhang Tangqing, the Master of “Ji Huang Yu 0320”;
Evidence 16. Written Record of Inquiries to Xia Wenxing, the Secretary of Communist Party Shenjiabao Village Branch;
Evidence 17. Written Record of Inquiries to Yang Jiarong of Nanpaihe Fishery Superintendence Administration
Evidence 18. Survey Report on Damage to Fishing Boat given by Nanpaihe Fishery Superintendency Administration;
Evidence 19. Information on Evidence collection and Survey Drawings dated 12 April (night);
Evidence 20. Inspection and Appraisal Report issued by Department No.5 of Tianjin Public Security Bureau;
Evidence 21. Weather Information provided by the meteorological service;
Evidence 22. Information on inbound vessels calling at Tianjin via Changshan Channels provided by Changshan Supervision Station of Yantai Harbor Superintendency;
Evidence 23. Documents furnished by China Offshore Oil North Shipping Company;
Evidence 24. Information of inquiry on other vessels calling at Tianjin;
Evidence 25. Videotapes on collection of evidence from m/v “ICL Raja Rajan”;
Evidence 26. Videotapes on the Wreck of the Fishing Boat.
The Defendant also presented 14 items of evidence respecting core issue No.2:
Evidence 1. Crew List;
Evidence 2. Sea Chart of “ICL Raja Rajan”;
Evidence 3. Deck Log Book of “ICL Raja Rajan”;
Evidence 4. Engine Log Book of “ICL Raja Rajan”;
Evidence 5. GPS Record of “ICL Raja Rajan”;
Evidence 6. Weather Forecast;
Evidence 7. Passage Plan of “ICL Raja Rajan”;
Evidence 8. Master’s Night Orders;
Evidence 9. Statement of the Master of “ICL Raja Rajan”;
Evidence 10. Statement of the Second Officer of “ICL Raja Rajan”;
Evidence 11. Master’s Comments on the Alleged Collision;
Evidence 12. Test record of Circling of “ICL Raja Rajan”;
Evidence 13. Test record of Crash Stopping distance;
Evidence 14. Photos of the hull of “ICL Raja Rajan”.
This Court collected two items of evidence:
Evidence 1. Investigation Report issued by Tianjin Maritime Safety Administration;
Evidence 2. Certificate of the Position of Platform A, Station 646.
The Plaintiffs contended that the above evidence sufficed to prove that “ICL Raja Rajan” had collided “Ji Huang Yu 0824”, resulting in the death of the seven crewmembers including Pi Zhongrong, and escaped from the spot. The Defendant shall bear the full liability for the collision and compensate for the losses of the Plaintiffs in the eight cases, “ICL Raja Rajan” shall not be exempted from liability since she deliberately ran away from the spot of accident.
The Plaintiffs pleaded that: there was irrefutable evidence to support the fact that “ICL Raja Rajan” collided “Ji Huang Yu 0824”. From the video tape played before the court with regard to collection of evidence by Tianjin Maritime Safety Administration from the bulbous bow of “ICL Raja Rajan”, it could be seen clearly that there was a piece of blue paint on the bulbous bow of “ICL Raja Rajan”, which was obviously different from the color of the bow of “ICL Raja Rajan”. Anyone without achromatopsia could distinguish the difference between such blue paint and the paint of “ICL Raja Rajan”: the paint was not of “ICL Raja Rajan” but from outside. The evidence was collected by Tianjin Maritime Safety Administration in company with the Master of “ICL Raja Rajan” and the correspondent of the P& I Club of “ICL Raja Rajan” in a boat. The paint, wood splinters and rope fibers were collected and bagged in the presence of the Master and the P& I correspondent. The bags were then sealed. The Master of “ICL Raja Rajan” signed on the mouths of the bags. It could be said that the whole process of evidence collection by Tianjin Maritime Safety Administration was open and just. During the court hearings, the Defendant did not raise any objection to the fairness of the process adopted by Tianjin Maritime Safety Administration in collecting evidence, or, to put it in another way, the Defendant itself also thought the evidence collection process was fair. The materials such as blue paint did come from the other ship. The samples taken by Tianjin Maritime Safety Administration were sent to Tianjin Public Security Bureau for inspection. The conclusions of criminal technical inspection and test were: (1) the color of the paint found on, but foreign to, “ICL Raja Rajan” was the same as the color of paint of “Ji Huang Yu 0824”; (2) the thickness of the paint coating found on, but foreign to, “ICL Raja Rajan” was the same as that of “Ji Huang Yu 0824”; (3) Inspected with cracked-gas chromatography, the chromatogram of the paint found on, but foreign to, “ICL Raja Rajan” was the same as that of the paint of “Ji Huang Yu 0824”; (4) the type of fiber structure of the wood splinters found on, but foreign to, “ICL Raja Rajan” was the same as that of fiber structure of the wood of “Ji Huang Yu 0824”; (5) the nature of rope fiber found on, but foreign to, “ICL Raja Rajan” was the same as the rope fiber of “Ji Huang Yu 0824”. The above evidence, in particular the identity of the color, thickness and chromatogram of the paint, the type of rope fiber and wood splinters to those of “Ji Huang Yu 0824”, sufficed to prove that “ICL Raja Rajan” did collide with “Ji Huang Yu 0824”. The Plaintiffs wish to draw the attention of the court that during the whole course of court hearings, the Defendant just stuck to and got entangled in some minor points but failed to adduce any evidence to rebut the crucial evidence, i.e., the appraised material evidence sufficient to prove the occurrence of collision between “ICL Raja Rajan” and “Ji Huang Yu 0824”. Besides the Defendant did not raise any objection to the fairness of the two important links: sample-taking and appraisal. In fact, the Defendant himself acquiesced in the occurrence of the collision. After the Plaintiffs had submitted the above evidence, their burden of proof under Chinese law had been discharged. The evidence collected by Tianjin Maritime Safety Administration and the appraisal conclusion based on the material evidence of Tianjin Public Security Bureau could sufficiently prove that “ICL Raja Rajan” did collide with “Ji Huang Yu 0824”. Thus the Plaintiffs had fulfilled their obligations to adduce evidence. The Defendant shall adduce evidence to prove that the collision between “ICL Raja Rajan” and “Ji Huang Yu 0824” did not take place, if the Defendant contended so. But so far the Defendant did not present any evidence to prove that no collision ever occurred. Therefore, the fact that the two ships did come into collision was undeniable.
So far as the position of the collision was concerned, the Defendant submitted that: Had “ICL Raja Rajan”, a ship of 50,000 D.W. T. sailing at a speed of 12.5 knots, indeed collided “Ji Huang Yu 0824”, a wooden fishing boat whose LOA was 24.6 meters, the collision would create a force much stronger than the holding power of the fishing boat’s anchor. Thus the anchor of the fishing boat would have been pulled up. The Plaintiffs took the view that such views of the Defendant were groundless. It was because m/v “ICL Raja Rajan” was a ship of 50,000 D.W. sailing at a speed of 12.5 knots, while the velocity of “Ji Huang Yu 0824” was zero, that m/v “ICL Raja Rajan” cut instantly through “Ji Huang Yu 0824” in the middle at an angle of blow of almost 90°. By the time her anchor chain was not fully under stress, “Ji Huang Yu 0824” had been cut up in the middle. Therefore, the stress exerted upon the anchor chain of “Ji Huang Yu 0824” was the inertial force exerted on the bow of “Ji Huang Yu 0824”. That was why the anchor chain of “Ji Huang Yu 0824” would not have been pulled up or broken. Hence, the views of the Defendant were baseless. In the second place, the Defendant alleged that “In the light of the customs of the fishermen, they usually report their positions by indicating a certain fishing area. Even if the fishing boats were equipped with GPS devices, the fishermen, unless required for special reason, would not record the positions in longitude and latitude of scores of digits”. The Plaintiffs had no idea from where the Defendant gained such information regarding the customs of the fishermen, but the Plaintiffs could be certain that what the Defendant alleged was entirely incorrect so far as the present conditions were concerned. Actually, given that nowadays the fishing boats are generally equipped with GPS, it is a common sense that fishermen fix positions with the aid of GPS, which are not only the means for recording the position, but more importantly for recording time and production, so as to be used as a guidance for production in the future. This was already a customary practice among the fishermen. The Defendant, who was utterly unaware of the customs of the fishermen in production, groundlessly alleged that fishermen fixed positions without the aid of GPS. Such an allegation was basically wrong. Therefore, the dubious allegation of the Defendant formed on groundless basis had no evidential effect in this case.
With regard to the time of the collision, the sole basis on which the Defendant purported that the time of collision was not 0330 hrs was the statement of Tianjin Maritime Safety Administration that the time of collision was 0300 hrs. However, the Defendant failed to produce any proof to show that Tianjin Maritime Safety Administration had ascertained that the time of collision was 0300 hrs. The Plaintiffs noted that the Defendant based all his views on groundless assumption. Under such premise, the views of the Defendant could not have been correct. For instance, the Defendant submitted first of all that the visibility of the anchor light was 1.6 nautical miles. Nevertheless, quite a number of fishermen attested at the court hearing that the visibility of an anchor light of fishing should range from 2 to 3 nautical miles under normal conditions. Thus it would be groundless for the Defendant to hold that “Ji Cang 611” and “Ji Huang Yu 0824”, which were 2 nautical miles apart, could catch sight of each other. Secondly, the Defendant’s view that the “Ji Cang 611” was unlikely to have noticed “Ji Huang Yu 0824” ex ante facto was a even more groundless assumption. At the court hearing, the master of “Ji Cang 611” clearly indicated that the reason why he had noticed “Ji Huang Yu 0824” was that the two boats were quite close, and that he was afraid that their fishing nets would be twisted together and resulted in an accident. In fishing, fishermen were usually attentive to the direction in which nets of the fishing boats nearby were cast, so as to avoid entangling of nets. It could be said that it was the common sense in terms of fishing operation. The allegation of the Defendant was essentially running counter to the customs of production of fishermen, and was thus meaningless. Furthermore, the Defendant took the view that “Ji Cang 611” was almost at the same latitude as “Ji Huang Yu 0824” and the “611” was to the east of the “0824”. While “ICL Raja Rajan” was steering a course of 270°; had “ICL Raja Rajan” indeed collided the “0824”, then she would certainly have collided with the “611” first. Such views were also entirely untenable. In the Statement of Second Officer of m/v “ICL Raja Rajan”, the Second Officer admitted that auto piloting was changed to manual piloting at 0315 hrs. Besides, the Second Officer also professed that there were approximately 150 fishing boats scattering at this area during that period, and that he kept altering courses to steer clear of the fishing boats. The Statement of the Master and the Engine Log Book of m/v “ICL Raja Rajan” also proved that the main engine of m/v “ICL Raja Rajan” did not reduce speed at 0100-0400 hrs on 12 April, 2000. Nor was the sailing speed reduced. According to calculation, the sailing speed of m/v “ICL Raja Rajan” was 12 knots at 0200-0300 hrs, 11.67 knots at 0300-0336 hrs, 12.67 knots at 0336-0345 hrs, and 12.6 knots at 0345-0400 hrs. Apparently, given that the number of revolution of the main engine was not reduced, m/v “ICL Raja Rajan” kept steering clear of those fishing boats by constantly altering her course. Under such circumstances, it was unlikely that m/v “ICL Raja Rajan” would always remain at a course of 270°, but kept altering courses instead. Therefore, m/v “ICL Raja Rajan” would not have collided with the “611”, but collided “Ji Huang Yu 0824” directly.
With respect to the Certificate of Fishing Boat, the expert examiner Yang Jiarong explicitly indicated at the court hearing that he made the inspection of “Ji Huang Yu 0824” whilst her aft part was towed to shallow water on the morning of 20 April, and gave an inspection report on the same day. The Plaintiffs were of the view that the statement of Yang Jiarong was absolutely true and reliable. The Plaintiffs would like to remind the court of a fact that although the Defendant kept attempting to find fault with this inspection report, he had also sent his personnel to inspect the fishing boat, but he had not adduced any evidence to deny one major fact proved therein, i.e., “Ji Huang Yu 0824” had been cut into two halves by a ship coming up from her port side at an angle of almost 90°. Alternatively, it may be said that the Defendant admitted that “Ji Huang Yu 0824” had been collided and caused to sink by a vessel sailing from east to west at an angle of almost 90°. It could well be proved that the boat had been collided and caused to sink by m/v “ICL Raja Rajan” in light of the specific circumstances in this case. The Plaintiffs reminded the court that the Defendant had never produced any proof in repudiation of the occurrence of the collision, but merely cast doubt over the evidence adduced by the Plaintiffs by recourse to the purported customs or practice, the source of which was known to nobody. The Defendant could not afford any persuasive basis for the doubts raised by him. Therefore, the Plaintiffs maintained that the views of the Defendant were groundless and worthless to this case.
The Plaintiffs also held that m/v “ICL Raja Rajan” had not only collided with “Ji Huang Yu 0824” and caused her to sink, but there were sufficient facts indicating that m/v “ICL Raja Rajan” deliberately escaped from the scene after contacting “Ji Huang Yu 0824”, thus “m/v ICL Raja Rajan” should be held fully responsible for the serious consequences resulting therefrom and should not be entitled to the benefit of limitation of liability. Based on the sea chart of m/v “ICL Raja Rajan”, her master had fixed the course and set down various points for altering courses. However, m/v “ICL Raja Rajan” turned to starboard sharply at 0336 hrs, about 10 nautical miles in advance of the point fixed by the master for altering course. Besides, the vessel’s alteration of course without the prior consent of her master was obviously very abnormal. It was particularly noteworthy that m/v “ICL Raja Rajan” passed a position less than half a mile from the dangerous obstacles marked on the sea chart of m/v “ICL Raja Rajan” after altering the course to starboard at about 0336 hrs. Furthermore, it could be clearly seen from the video tape on the inspection carried out by Tianjin Maritime Safety Administration that there were quite a number of fresh scrape marks on the bow of m/v “ICL Raja Rajan”, and the scrape marks were rather deep. It would be unlikely that the duty officer of m/v “ICL Raja Rajan” did not feel such serious collision as cutting “Ji Huang Yu 0824” into halves in the middle. Moreover, it was attested in the Statement of the Master of the “611” that m/v “ICL Raja Rajan” suddenly switched the lights on after the collision with “Ji Huang Yu 0824”, then switched them off and continued her voyage. This was the irrefutable evidence to verify the fact that m/v “ICL Raja Rajan” did become aware of the collision after contacting “Ji Huang Yu 0824”. Based on the foregoing evidence, it was certain that m/v “ICL Raja Rajan” deliberately escaped from the scene after colliding with “Ji Huang Yu 0824”, and it was after m/v “ICL Raja Rajan” collided with “Ji Huang Yu 0824” that the Second Officer switched the lights on, then switched them off and continued the voyage, and later turned to starboard 10 nautical miles in advance without sticking to the course fixed by the master, so that the vessel passed the position less than half a mile from the dangerous obstacles, then he called on the master to the bridge. The Plaintiffs were of the view that such act of the Defendant amounted to violation of the most fundamental principle of international law. Criminal punishment should be imposed on those committing such act. The acts of the crew of the Defendant did also aggravate the harmful consequences. They were punishable by law for their deliberate act of escape after they created the disturbance.
From the Plaintiffs’ perspective, the Defendant should be fully answerable for the collision. “Ji Huang Yu 0824” was at anchor at the material time, which had been corroborated by the statements of the “611” and the “0831”. Moreover, “Ji Huang Yu 0824” had exhibited her navigation lights in pursuance with the International Regulations for Preventing Collisions. What’s more, “Ji Huang Yu 0824” maintained a good lookout, which could be proved by the fact that six out of seven crew members on board were found dead in the cabin, while the captain Chen Lianhe fell into the sea afterwards. It was certain that the master Chen Lianhe was keeping a lookout at the material time, and was caused to fall into the sea as a result of the collision. However, m/v “ICL Raja Rajan” collided “Ji Huang Yu 0824”, which exhibited her navigation lights pursuant to the Regulations for Preventing Collisions, and caused the latter to sink in obvious violation of the relevant provisions of International Regulations for Preventing Collisions at Sea, 1972. Thus m/v “ICL Raja Rajan” should be held fully liable for making compensation in this case.
The fact that after colliding with “Ji Huang Yu 0824” and causing the latter to sink, m/v “ICL Raja Rajan” escaped without performing the obligation for salvage as prescribed in the international convention was an important cause attributable to serious consequence in this case. As “Ji Huang Yu 0824” was operated by a family, the accident brought about almost extermination of an entire family of the Plaintiffs. Seven people, namely, Chen Lianhe, Chen Lianke, Chen Xiuqiang, Chen Xiuliang, Wang Zhizhen, Chen Zhixia and Pi Zhongrong, were all dead. The Plaintiff Zhang Xiu’an lost four relatives (two sons and two grandsons) in this accident. Pi Zhonglan, the wife of Chen Lianke, lost her husband Chen Lianke, her son Chen Xiuqiang and her younger brother Pi Zhongrong. Wang Shulan, the mother of Chen Xiuliang, lost her son Chen Xiuliang and her younger sister's husband Wang Zhizhen. Among the male citizens of the whole Chen’s family, only Chen Lianyi, aged 55, and Chen Xiuming, aged 17, were left. This accident had brought about a disastrous extermination of an entire family of Chen. Such severe consequence was just a result of the escape of m/v “ICL Raja Rajan” after she created a disturbance. Had m/v “ICL Raja Rajan” rescued the fishermen in time after the collision pursuant to the international convention, the harmful consequences would not have become so serious as in this case. Chen Lianhe, who fell over board from the boat, would not have been killed if he had been rescued without delay at the material time. Moreover, after “Ji Huang Yu 0824” was split into halves by the collision, the forward half of the boat, instead of being sunk, was still floating on the sea surface. If m/v “ICL Raja Rajan” had rendered a salvage immediately at that time, the three crew members in the wreckage of forward half, where there was still air in the cabin, would hopefully have been rescued. However, it was just because m/v “ICL Raja Rajan” escaped after causing the accident, the best opportunity of rescue was lost. As a result seven fishermen on board “Ji Huang Yu 0824” were all doomed to death, resulting in the most mournful tragedy in the world and inflicting irretrievable damage upon the Plaintiffs. Therefore, the Defendant should be held fully answerable for compensation for all losses in this accident.
The Defendant held the view that none of the aforementioned evidence could prove that “Ji Huang Yu 0824” was indeed collided by “ICL Raja Rajan”, inasmuch as none of the evidence adduced by the Defendent relating to the collision position, collision time, collided parts and the scratches of the alleged collision may support such allegation. Nevertheless, those factors were indispensable for analyzing and handling the collision case. With respect to the position of collision, the Plaintiffs maintained that after the fishing boat “Ji Huang Yu 0824” was collided and split into two parts, the forward half capsized but was still linked with her anchor cable and kept floating at the collision position -38°39’.7N/118°37’.2E, and the aft part was discovered over 30 meters from the forward parts, the forward half capsized but was still linked with her anchor cable and kept floating at the position (i.e. 38°39’.7N/118°37’.2E). The aft half of the wreckage was found at the place more than 30 meters away from the forward half. In accordance with the statement of the witness of the Master of “Ji Huang Yu 0831”, he had ever communicated through VHF with “Ji Huang Yu 0824” at 0040 advising the anchor position of the wreckage. Thus it could be certain that the collision position was just where the wreckage of “Ji Huang Yu 0824” was found, i.e. 38°39’.7N/118°37’.2E . The foregoing allegations of the Plaintiffs did not correspond to the fact. Firstly, as far as the navigation experience and common knowledge were concerned, had “ICL Raja Rajan” indeed contacted “Ji Huang Yu 0824”, in consideration of a wide difference between “ICL Raja Rajan” and “Ji Huang Yu 0824” in respect of the building material, quality and velocity (“ICL Raja Rajan”: 50,000 D.W., velocity: 12.5 knots; “Ji Huang Yu 0824”: LOA: 24.6 meters, quality: wood, velocity: 0), the wide difference would create a force which would much stronger than the holding power of the fishing boat’s anchor (calculation showed the holding power of the anchor was approximately 1.7 tons). Under such circumstances, the anchor of the fishing boat would have been pulled up, or the anchor cable would have been broken off. It was hard to believe that the forward part of “Ji Huang Yu 0824” could remain at the anchor position. Besides, a wooden fishing boat would not sink right after the collision but would be drifting with the winds and waves for some time. Therefore, even if the Plaintiffs could fix the positions of the forward and aft parts of the fishing boat, those positions at most could show where the wrecks were found, but could not be used as the proof in support of the first scene of the alleged collision. Therefore, even if it was found that “ICL Raja Rajan” had passed or had been close to the position where the wreck of the fishing boat was found, it was uncertain that “ICL Raja Rajan” had collided with “Ji Huang Yu 0824”. Secondly, the Plaintiffs insisted the anchor position of “Ji Huang Yu 0824” prior to the accident was the position where the forward part of the boat’s wreck was found. The direct proof that the plaintiff relied on was the witness statement of the master of “Ji Huang Yu 0831”. The master’s witness statement was a fabrication basing on the following analysis: (1) Plotting made in accordance with the accurate anchor positions described by the master of “Ji Huang Yu 0831” showing the “Ji Huang Yu 0824” should have been anchored at 2.0 nautical miles northwest of “Ji Huang Yu 0831”. Whereas the two boats were 2.0 nautical miles apart, it would be difficult for them to clearly identify each other in consideration of the visibility and background lights at that material time. (2) In the light of the customs of the fishermen, they usually report their positions by indicating a certain fishing area. Even if the fishing boats were equipped with GPS devices, the fishermen, unless required for special reason, would not record the positions in longitude/latitude composed of scores of digits. What is more, when “Ji Huang Yu 0824” exchanged her information about position with “Ji Huang Yu 0831”, they were chatting in a usual and causal way. Even if the “0824” had reported to “0831” the accurate latitude and longitude position composed of 15 digits, under the circumstance that no evidence showed “Ji Huang Yu 0831” had taken record of the reported position in writing, it was unbelievable that the “0831” could recollect the digits accurately after the accident. As far as the navigation experience was concerned, in order to precisely keep the accurate latitude and longitude in mind in a short time, repeated training over a long period of time would be required. The Defendant did not think that the master of “Ji Huang Yu 0831” had undergone such special training. (3) If the master of “Ji Huang Yu 0831” had a clear memory of the latitude and longitude of the “0824”, he would not have wrongly assessed the distance between the two fishing boats to be only more than one mile while he was aware of the exact position of “Ji Huang Yu 0824”. (4) If the master of “Ji Huang Yu 0831” could remember the accurate latitude and longitude of the “0824” by heart, he would not have been indifferent and unconcerned upon hearing early in the morning a report from the master of “Ji Cang 611” that a wreck was found at the position of 38°39’.7N /118°37’.2E. He would not have arrived at that position until 1140 hrs. It was only after he had seen the boat’s name written in red paint on the foamed box rising from the wreck that he began to realize that the wreck was “Ji Huang Yu 0824”. His series of statements were self-contradictory. (5) The Defendants cited the witness statement of the master of “0831” in an attempt to prove the anchor position of “Ji Huang Yu 0824” before the alleged collision took place. But it could be seen apparently from the foregoing analysis that the alleged position of the “0824” witnessed by “0831” was fabricated after the accident. Such a statement could not be taken as a basis for ascertaining a fact. Therefore, given that the position of ship collision could not be ascertained, it was baseless for the Plaintiffs to allege “ICL Raja Rajan” had contacted the “Ji Huang Yu 0824”.
In regard to the time of the alleged collision, the Plaintiffs alleged the time of collision was 0330 hrs of 12 April, 2000. The major reason to say so was based on the witness statement of the master of “Ji Cang 611” (Evidence 1-13), who alleged that he saw a large vessel passing by at 0330 hrs and the anchor lights of “Ji Huang Yu 0824” went off later. Such witness statement was also fabricated. (1) Plotting shows the anchor position of “Ji Cang 611” (38°39’.8N /118°39’.17E) was almost at the same latitude as the alleged position of “Ji Huang Yu 0824” (38°39’.7N /118°37’.20E). That is, the distance between these two positions should be only 0.1 mile N-S and 1.6 miles W-E. Accordingly, the master’s statement was incorrect and obviously misleading in saying that the “0824” was at starboard bow of “Ji Cang 611”. (2) The anchor lights of fishing boats were usually powered by storage battery after the boats dropped anchor. So the anchor lights were usually very dim. At that time, there were numerous fishing boats operating in the vicinity, and the lights (mostly the net hauling operation lights) displayed by them would form very bright background. Under such circumstances it would be very difficult to catch sight of a dim anchor light from a distance of 1.6 nautical miles. It was impossible for “Ji Cang 611” to have observed the time when the anchor light of the “0824” went off. In practice, it was not necessary at all for the master of the “611” to keep watching the anchor light of a fishing boat in a far distance which was neither from the same village nor acquainted with each other. (3) As mentioned earlier, “Ji Cang 611” was almost at the same latitude as “Ji Huang Yu 0824” and the “611” was to the east of the “0824”, while “ICL Raja Rajan” was steering a course of 270° and proceeding at 12.5 knots (0.21 nautical miles/minute). Had “ICL Raja Rajan” indeed collided the “0824”, as determined by the Plaintiffs, then she would certainly have collided with the “611” first. But according to the master of the “611”, the vessel passed ahead of his boat safely. Suppose the “vessel” was “ICL Raja Rajan”, it was unlikely that she had collided the “0824”. Furthermore, the master of “611” said in his statement that the vessel did not pose any danger of collision to “611”, and the “611” did not give any signal warning the vessel of the danger of collision. This showed the witness statement of the master of “Ji Cang 611” was unbelievable. (4) Had the master of “611” noticed the anchor light displayed by “Ji Huang Yu 0824” disappeared after the vessel passed, he ought to have realized that the “0824” could have encountered an accident, and should have taken necessary action to rescue and called for rescue for the boat in distress instead of remaining idle until 0530 when he heaved up and reached the place where the anchor light disappeared and to rescue. (5) It was alleged in the witness statement of the “611” that the cargo vessel had “switched on all her lights, then all the lights went off, and the vessel continued proceeding”. This was even more unbelievable. In consideration of the relative positions of “Ji Huang Yu 0824” and “Ji Cang 611”, had “ICL Raja Rajan” indeed contacted the “0824” and caused disappearance of the latter’s anchor light, then “ICL Raja Rajan” would have been to due west of the “611” before altering her course. In other words, the “611” would only be able to see the right stern of “ICL Raja Rajan”. “ICL Raja Rajan” was an aft-engine bulk carrier. Her bridge was in the aft part. Cranes were equipped for cargo holds in front of the bridge. The ship had no big mast. Therefore, the lights on the deck were generally low. If those deck lights were switched on, the bridge would block off the light. On the other hand, the deck lights were set to illuminate the deck and her cargo holds. So it was impossible to see at the rear of the bridge if the deck lights were on. Therefore, it was not true that the “611” had sighted various lights displayed from the vessel. Moreover, the switch control panel of the deck lights of “ICL Raja Rajan” was not on the bridge but in each mast house on deck. It took approximately 10 minutes to switch on all the deck lights. Although the two mercurial lights on both wings of the bridge could be switched on and off from the bridge, it would take at least 6 minutes for them to warm up and work well. “ICL Raja Rajan” would have sailed 2-3 miles in the 10-more minutes. Under this circumstance, it was impossible that the master of “Ji Cang 611” could see the deck lights of “ICL Raja Rajan”. (6) According to the master of “Ji Cang 611”, he found the “Ji Huang Yu 0824” capsized when heaving up her anchor at 0530 hours on April 12. This was unlikely to happen, either. The “611” alleged that at 0330 hrs he saw the anchor light of “Ji Huang Yu 0824” going off, but he “did not think much about that”. It did not make any sense that the “611” should pay attention to the disappearance of anchor light and started searching even before dawn. When Tianjin Harbor Master boarded “ICL Raja Rajan” for the first time to carry out investigation into the marine accident, they told the master that the collision occurred at 0300 hrs on 12 April, and focused on inquiring and gathering information from the master and the second officer about the navigation of the ship between 0220 hrs and 0330 hrs on 12 April. Tianjin Daily News Report of 24 April, 2000 reported that the collision occurred at 0300 hrs on 12 April. The Written Record of Inquiry of Yang Jiarong of Nanpaihe Fishery Port Superintendency Administration and Report of Collision of “0824” furnished by the Plaintiffs revealed that the initial report time of collision was about 0300 hrs. In the Report on the Casualty and Salvage of “Ji Huang Yu 0824” furnished by the Plaintiffs, it was clarified that the professed collision occurred at 0300 hrs. The aforesaid on-site Report was more reliable than the statement of the master of “Ji Cang 611” made 6 days after the accident, and also proved from another angle that the master’s witness statement was a fabrication while he said that he saw the anchor lights of “Ji Huang Yu 0824” go off at 0330 hrs. On the other hand, at 0300 hrs, “ICL Raja Rajan” was at the position of 38°39’.50N /118°45’.50E, being 6.8 nautical miles away from the alleged anchor position of the “0824”. It was absolutely unlikely that “ICL Raja Rajan” had collided with “Ji Huang Yu 0824”. Tianjin Maritime Safety Administration admitted that it determined the time of collision to be 0330 hours based on the fact that the position of “ICL Raj Rajan” recorded in the Deck Log Book and Sea Charts at 0330 hours was nearest to the postion of the wreckage of the fishing boat. This was obviously a practice “of determining the result first and then look for a reason for it”, and was totally unfair to “ICL Raja Rajan”. In brief, the Plaintiffs failed to adduce effective evidence to show the time of the alleged collision and it was groundless for them to claim that “ICL Raja Rajan” was the collision maker.
With regard to the alleged parts collided, the Plaintiffs furnished an Inspection Report on the wreck of “Ji Huang Yu 0824” worked out by the Survey Society of Fishing vessels under the Ministry of Agriculture of the PRC, its conclusion was that the fishing boat was collided and cut off on her port side from 90° abeam. In the statement of the master of “Ji Huang Yu 0320”, it was asserted that the “Ji Huang Yu 0824” was heading southwards when anchored. In the Defendant’s opinion, neither of the aforesaid items of evidence the Plaintiffs relied on was authentic. Firstly, with reference to the Inspection Report the Defendant noted that the inspection date was 20 April, 2000. Nevertheless, the Report on the Casualty and Salvage of “Ji Huang Yu 0824” furnished by the Plaintiffs showed the fore part of the wreck of the fishing boat was towed back to Nanpaihe on the evening ofApril 14, and the aft part was towed to Nanpaihe on the morning of April 21. Under such circumstances, how could the survey Society of Fishing vessels inspect the two parts of wrecks and give a report on 20 April? Apparently, it was a fabricated document. Therefore, there was no valid evidence to show that the port side of “JI Huang Yu 0824” was struck and accordingly it was groundless to determine that “ICL Raja Rajan” sailing westward was the offending vessel. Under the circumstance that the possibility that the starboard side of “JI Huang Yu 0824” was struck could not be excluded, the possibility that a ship sailing eastward could be the offending ship could not be excluded either. In fact, according to the result of inspection conducted by our surveyors, the possibility that the starboard side of the fishing boat was struck was higher. Secondly, the witness statement of “Ji Huang Yu 0320” was untrue: (1) By the anchor position provided by “0320”, plotting showed the boat’s position was 4.0 nautical miles east of the alleged anchor position of the “0824”. Then there was an apparent difference of 4-5 nautical miles distance purported by the master of “0320”. Generally speaking, the range of anchor lights of a fishing boat does not exceed 2 nautical miles. Thus it was impossible that the “0320” could see the “0824” and told her heading, which was 4.0 nautical miles away from “0320”, especially in consideration of the numerous fishing boats in the vicinity and the background of bright light. (2) If the vessel sighted by the master of “0320” were m/v “ICL Raja Rajan”, he should have sighted the vessel while being 3-5 nautical miles away under the prevailing circumstances, rather than discovering the vessel at a distance of 0.5 nautical mile. This at least showed that “0320” did not keep a regular lookout and thus the statement of the master of “0320” was not trustworthy. (3) The anchor position of “Ji Huang Yu 0320” was almost on the same latitude as “Ji Huang Yu 0824”. If m/v “ICL Raja Rajan”, which was sailing due west had contacted “Ji Huang Yu 0824” (to which the Defendant did not admit), then it would at least have brought about a serious danger of collision to “0320”. In the Statment of the Master of “0320”, the large vessel (m/v “ICL Raja Rajan”), passed clear at 0.5 nautical mile to her south without giving rise to any danger of collision. Thus m/v “ICL Raja Rajan” would not have given rise to any danger of colliding with “Ji Huang Yu 0824” which was on the same latitude with “0320”.
With respect to the alleged expert evaluation of material evidence, the Defendant raised the following objections to the On-Site Survey Report made by Tianjin Harbor Master and the Report on Analysis and Expert Evaluation of Material Evidence issued by Tianjin Public Security Bureau: (1) The Defendant still dissented from the legality of the source of the samples drawn for analysis and expert evaluation, as follows: a. When Tianjin Harbor Master made an inspection of and drew samples from the bow of “ICL Raja Rajan”, they refused to leave a sample to the ship. Therefore, the Defendant was of the view that there was scanty evidence to verify that the samples were taken from “ICL Raja Rajan” as claimed in the said report. b. Tianjin Harbor Master indicated in its On-Site Survey Report that 13 samples were taken from the bulbous bow of “ICL Raja Rajan” above the water
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