Plaintiff: Sun Youli, male, Han nationality, born on September 9, 1950, countryman, living at Sunzhuang Village, Wangtan Town, Yueting County, Hebei Province.
Plaintiff: Gao Weihua, male, Han nationality, born on February 6, 1956, countryman, living at Yangjiao Village, Wangtan Town, Yueting County, Hebei Province.
Plaintiff: Xu Shutian, male, Han nationality, born on April 10, 1955, countryman, living at Qijiasi Village, Xinkaikou Town, Yueting County, Hebei Province.
Plaintiff: Wang Guicheng, male, Han nationality, born on June 20, 1959, countryman, living at Qijiasi Village, Xinkaikou Town, Yueting County, Hebei Province.
Plaintiff: Gao Jianfu, male, Han nationality, born on April 26, 1961, countryman, living at Yangjiao Village, Wangtan Town, Yueting County, Hebei Province.
Plaintiff: Lu Yuebo, male, Han nationality, born on June 24, 1946, countryman, living at Wangzhuangshang Village, Chengguan Town, Yueting County, Hebei Province.
Plaintiff: Sun Youyi, male, Han nationality, born on August 5, 1949, countryman, living at Sunzhuang Village, Wangtan Town, Yueting County, Hebei Province.
Plaintiff: Han Yuming, male, Han nationality, born on August 18, 1957, countryman, living at Yangjiao Village, Wangtan Town, Yueting County, Hebei Province.
Plaintiff: Sun Yougang, male, Han nationality, born on June 17, 1960, countryman, living at Sunzhuang Village, Wangtan Town, Yueting County, Hebei Province.
Plaintiff: Gao Weichun, male, Han nationality, born on December 26, 1961, countryman, living at Yangjiao Village, Wangtan Town, Yueting County, Hebei Province.
Plaintiff: Gao Wei??an, male, Han nationality, born on December 20, 1968, countryman, living at Yangjiao Village, Wangtan Town, Yueting County, Hebei Province.
Plaintiff: Wang Guixiang, male, Han nationality, born on April 28, 1962, countryman, living at Qijiasi Village, Xinkaokou Town, Yueting County, Hebei Province.
Plaintiff: Gao Jianliang, male, Han nationality, born on August 23, 1968, countryman, living at Yangjiao Village, Wangtan Town, Yueting County, Hebei Province.
Plaintiff: Xu Shucheng, male, Han nationality, born on June 5, 1962, countryman, living at Qijiasi Village, Xinkaikou Town, Yueting County, Hebei Province.
Plaintiff: Gao Yinchun, male, Han nationality, born on August 7, 1950, countryman, living at Touyangjiao Village, Wangtan Town, Yueting County, Hebei Province.
Plaintiff: Gao Sheng, male, Han nationality, born on April 4, 1954, countryman, living at Yangjiao Village, Wangtan Town, Yueting County, Hebei Province.
Plaintiff: Wang Weihua, male, Han nationality, born on June 20, 1962, countryman, living at Qijiasi Village, Wangtan Town, Yueting County, Hebei Province.
Plaintiff: Qi Liancheng, male, Han nationality, born on July 30, 1950, countryman, living at Qijiasi Village, Wangtan Town, Yueting County, Hebei Province.
Authorized Deputy: Sun Youli, countryman, living at Sunzhang Village, Wangtan Town, Yueting County, Hebei Province.
Authorized Attorney: Feng Xiuhua, attorney-in-law of Zhongzi Law Firm, Beijing.
Authorized Deputy: Gao Weihua, countryman, living at Yangjiao Village, Wangtan Town, Yueting County, Hebei Province.
Authorized Attorney: Sun Junbao, attorney-in-law of Zhongzi Law Firm, Beijing.
Authorized Deputy: Xu Shutian, countryman, living at Qijiasi Village, Xinkaikou Town, Yueting County, Hebei Province.
Authorized Attorney: Sun Junbao, attorney-in-law of Zhongzi Law Firm, Beijing.
Authorized Deputy: Wang Guicheng, countryman, living at Qijiasi Village, Xinkaikou Town, Yueting County, Hebei Province.
Authorized Attorney: Feng Xiuhua, attorney-in-law of Zhongzi Law Firm, Beijing.
Authorized Deputy: Lu Yuebo, countryman, living at Wangzhuangshang Village, Chengguan Town, Yueting County, Hebei Province.
Authorized Attorney: Xin Xiuming, attorney-in-law of Zhongzi Law Firm, Beijing.
Common Authorized Attorney: Xia Jun, attorney-in-law of Zhongzi Law Firm, Beijing.
Defendant: Qian??an First Paper Mill
Address: Qian??an Town, Qian??an City, Hebei Province
Defendant: Qian??an Painting & Calligraphy Paper Ltd. (original Qian??an Painting & Calligraphy Paper Factory)
Address: Qian??an Town, Qian??an City, Hebei Province
Legal Representative: Hua Zhanhua, factory director
Authorized Attorney: Yan Changjiang, legal operator of Xinshiji Law Firm, Qian??an
Defendant: Qian??an Ruyuan Paper Mill (original Qian??an Fourth Paper Mill
Address: Qian??an Town, Qian??an City, Hebei Province
Defendant: Qian??an Huafeng Paper Mill
Address: Qian??an Town, Qian??an City, Hebei Province
Legal Representative: Li Xiangting, factory director
Authorized Attorney: Liu Jie, attorney-in-law of Minjian Law Firm, Qian??an
Authorized Deputy: Hou Zhong, clerk of Qian??an Huafeng Paper Mill
Defendant: Qian??an Qixin Paper Mill
Address: Qian??an Town, Qian??an City, Hebei Province
Defendant: Qian??an Youyi Chemical Plant
Address: Qian??an Town, Qian??an City, Hebei Province
Legal Representative: Guo Yurong, factory director
Authorized Deputy: Li Changzhi, clerk of Qian??an Youyi Chemical Plant
Defendant: Hebei Qian??an Chemistry Ltd.
Address: Malanzhuang Town, Qian??an City, Hebei Province
Legal Representative: Tian Shushan, general manager
Authorized Attorney: Chen Rong, attorney-in-law of Minjian Law Firm, Qian??an
Authorized Deputy: Dong Zhichang, clerk of Hebei Qian??an Chemistry Ltd.
Defendant: Tangshan Jiluan Paper Ltd.
Address: Xiangtang Town, Luan County, Hebei Province
Legal Representative: Chen Shenglong, manager
Authorized Attorney: Wang Cuilin, attorney-in-law of Tianyi Law Firm, Tangshan
Authorized Deputy: Wang Qinyu, deputy manager
Defendant: Hebei Huafeng Paper Co.
Address: Fengle Street No. 12, Qian??an Town, Qian??an City, Hebei Province
Legal Representative: Li Xiangting, manager
This Court, after filing the cases of the controversy over the compensation of aquaculture loss that Sun Youli and other 17 peoples (plaintiff) v. Qian??an First Paper Mill (defendant, hereinafter referred to as First Paper), Qian??an Ruyuan Paper Mill (defendant, hereinafter referred to as Ruyuan Paper) Qian??an Huafeng Paper Mill (defendant, hereinafter referred to as Huafeng Paper), Qian??an Qixin Paper Mill (defendant, hereinafter referred to as Qixin Paper), Qian??an Youyi Chemical Plant (defendant, hereinafter referred to as Youyi Chemical Plant), Hebei Qian??an Chemistry Ltd. (defendant, hereinafter referred to as Chemistry Ltd.), Tangshan Jiluan Paper Ltd. (defendant, hereinafter referred to as Jiluan Ltd.), Qian??an Painting & Calligraphy Ltd. (defendant, hereinafter referred to as Painting & Calligraphy Ltd.), Hebei Huafeng Paper Co. (defendant, hereinafter referred to as Huafeng Paper Co.) on May 23, 2001, has duly organized a collegial panel and held a public trial on December 17, 2001. Sun Youli, Gao Weihua, Xu Shutian, Wang Guicheng, Lu Yuebo, the authorized deputies of the plaintiffs, Xia Jun, Feng Xiuhua, Sun Junbao, Xin Xiuming, the authorized attorneys of the plaintiffs, Liu Jie and Hou Zhong, the authorized deputies of the defendant Huafeng Paper Co., Yan Changjiang, the authorized deputy of the defendant Painting & Calligraphy Ltd., Wang Cuilin and Wang Qinyu, the authorized deputies of the defendant Jiluan Ltd., Cheng Jufa and Chen Bijuan, the appraisers of Fishery Environment Inspection Center, Department of Agricultureappeared (hereinafter referred to as Fishery Environment Inspection Center) appeared at the trial for the hearing of the case. The defendants First Paper, Ruyuan Paper, Qixin Paper, Youyi Chemical Plant, Chemistry Ltd., Huafeng Paper Co. were summoned, but did not appear at the trial. In the course of the trial, the defendant Qian??an Painting & Calligraphy Factory was written off and the newly established Qian??an Painting & Calligraphy Ltd. took its all credit and debt agreed by Industry and Commerce Department. This court notifies the Painting & Calligraphy Ltd. to attend the trial in the light of law. On March 21, 2002, this court held the second trial. Gao Weihua, Xu Shutian, Wang Guicheng, Lu Yuebo, the authorized deputies of the plaintiffs, Xia Jun, Feng Xiuhua, Sun Junbao, Xin Xiuming, the authorized attorneys of the plaintiffs, Wang Cuilin and Wang Qinyu, the authorized deputies of the defendant Jiluan Ltd., Chen Rong and Dong Zhichang, the authorized deputies of the defendant Chemistry Ltd., Cheng Jufa and Chen Bijuan, the appraisers of Fishery Environment Inspection Center, appeared at the trial. The defendants First Paper, Ruyuan Paper, Qixin Paper, Youyi Chemical Plant, Chemistry Ltd., Huafeng Paper Co. were summoned, but did not appear at the trial. The case has now come to a close.
The plaintiffs allege: Since 1997, the plaintiffs opened and operated five seashell farms and one fish farm at the site where Luan River and Daqin River enter the sea along the Jinyingtan Outdoor Bathing Place to Erguoduan, Yueting County. The products were exported to Japan. In the first ten days of October, 2000, the industry sewage let out from First Paper, Painting & Calligraphy Ltd., Qixin Paper, Chemistry Ltd., Jiluan Paper Ltd., etc. into the sea area of Lu River and Daqin River, which resulted in the death of a great number of seashells and fishes and the numerous loss to the plaintiffs. Being inspected by Water Quality Inspection Center, the water quality of sewage let out by above defendants conforms to neither the state standard for sewage nor the water quality standard for fishery. It was concluded by experts that the pollutants let out by above defendants was the only reason to cause the death of seashells and fishes, and the loss arising from the serious environmental pollution was checked. The plaintiffs brought the litigation to the court and claimed to decide the defendants to stop letting out pollutants, eliminate the risk to aquaculture and compensate the loss of ?¤30,000,000 in accordance with Law of the People??s Republic of China on Maritime Environmental Protection and Law of the People??s Republic of China on the Prevention and Control of Water Pollution. The plaintiffs changed the sum of compensation into the sum of ?¤20,000,000 on the first trial.
The defendant First Paper did not answer the litigation.
The defendant Painting & Calligraphy Ltd. alleged on the court that it should not bear any liability for the plaintiffs?? loss because it had stopped producing since July of 2000 and did not let out sewage at all. At the same time, it doubted the plaintiff??s legal qualification for breeding aquatics.
The defendant Ruyuan Paper did not answer the litigation.
The defendant Huafeng Paper alleged on the court that it should not bear any liability for the plaintiffs?? loss because the sewage it let out did not consist of the molecules of heavy metal and conformed to the state standard for sewage.
The defendant Qixin Paper did not answer the litigation.
The defendant Youyi Chemical Plant alleged in written form that its leading products were not let out in general, especially after reconstructing the equipment of sewage. Its products had been confirmed to conform to relevant state standards by three authoritative organs.
The defendant Chemistry Ltd. alleged on the court that it had established special department on environmental protection and equipped with advanced inspection equipments. The sewage it let out had conformed to state standard that was confirmed by the inspection in October of 2000 and was issued the certificate on letting out sewage. It should not bear any liability for the plaintiffs?? loss.
The defendant Jiluan Ltd. alleged on the court that its sewage conformed to state standard that was confirmed by the inspection. It should not bear any liability for the plaintiffs?? loss.
The defendant Huafeng Paper Ltd. did not answer the litigation.
In the course of trial, the plaintiffs and the defendants mainly focus on the following issues: 1. Whether the plaintiffs are qualified to breed aquatics; 2. Whether the loss claimed by the plaintiffs are true and reasonable; 3. Whether the fact exists that the defendants let out pollutants into Luan River; 4. Whether the relation between the defendants?? sewage and the plaintiffs?? loss is causality.
Both the plaintiffs and those defendants who appeared on the trials submitted their own evidences and cross-examined the evidences submitted by the other party. To those defendants who did not appear on the trials, this court regarded that they gave up their rights to submit and cross-examine the evidences on the court.
1. Whether the plaintiffs are qualified to breed aquatics.
The plaintiffs submit following evidences in the course of first trial:
(1)The agreement on opening the aquatics farms in shares signed by the 18 plaintiffs on November 21, 1997;
( 2)Gao Weihua??s four licenses on the use of state sea area filed as Guo-Hai-Zheng-Zi No. 990200250, No. 990200246, No. 990200243 and No. 990200251;
(3)Sun Youli??s licenses on the use of state sea area filed as Guo-Hai-Zheng-Zi No. 990200242 and the contract for undertaking the beach signed by Sun Youli and Beach Exploitation Administration Office of Yueting County;
(4)Lu Yuebo??s licenses on the use of state land filed as Guo-Yong-Tan-Zi No. 51 and the contract for undertaking the beach signed by Lu Yuebo and Beach Exploitation Administration Office of Yueting County;
(5)The agreement signed by Lu Yuebo and Ocean Bureau of Yueting County on August 26, 1999;
(6)The agreement on undertaking the sea-route for aquaculture signed by Gao Weihua and Irrigation Engineering Administration Office of Yueting County on March 15, 2000, and attestation issued by Irrigation Engineering Administration Office of Yueting Office.
The plaintiffs submit following evidences in the course of second trial:
(7)The documents on the functions and department setting of Ocean Bureau issued by Yueting County Government;
(8)The attestation on the validity of Yueqi Seashell Farm issued by Ocean Bureau of Yueting County;
(9)The attestation on the validity of aquaculture issued by Ocean Bureau of Yueting County;
(10)The attestation of validity for Gao Weihua breeding in the sea-route issued by Aquatic Products Bureau of Yueting County;
(11)The explanation submitted by Aquatic Products Bureau of Yueting County that Yueting County has never issued the license on aquaculture and the explanation about the functions of Ocean Bureau of Yueting County on issuing licenses.
Those evidences mentioned above prove that the licenses on aquaculture and relevant contracts for five seashell farms and one fish farm that are operated by the plaintiffs are admitted by governments and they are legally qualified to aquaculture.
The defendant Painting & Calligraphy Ltd. alleges that the plaintiffs are unqualified because they have no special licenses for aquaculture. The licenses on the use of state sea area submitted by the plaintiffs are not checked in 2000 and shall be void. Gao Weihua does not have the license for aquaculture though he has a contract. Lu Yuebo has no right to sign on the contract with Beach Exploitation Administration Office of Yueting County because one party of the contract is Yueqi Seashell Farm instead of Lu Yuebo.
The defendant Huafeng Paper alleges that the plaintiffs violate the provisions of law to breed aquatics without obtaining the administrative permission. The plaintiffs shall have the licenses for aquaculture.
The defendant Jiluan Ltd. alleges that the evidences are void due to the lack of validity. The area for breeding aquatics shall be determined by government by issuing valid certificates.
The defendant Chemistry Ltd. alleges that the attestation issued by Irrigation Engineering Office is void because it is not entitled the function.
All defendants appearing the trial do not demur other evidences.
The court affirms all evidences that are not demurred. The court also affirms the validity of the licenses on the use of state sea area and state land because all these evidences are issued and admitted by local governments and the plaintiffs pay relevant charges on time.
2. Whether the loss claimed by the plaintiffs exists.
The plaintiffs submit following evidences:
(1) The 17 attestations that prove Shi Zhijin, Pan Guohua, Wang Jinji, Wang Yonggang and other 6 peoples sold the plaintiffs the fries from 1998 to April of 2000;
(2) A statistics on the loss of fries;
(3) The attestation issued by Fishery Administration Office of Aquatic Products of Yueting County on the charge to catch seashells;
(4) The price attestation issued by Fishery Administration Office of Aquatic Products of Yueting County;
(5) The report on investigating the pollution in the breeding areas involved and the statistics on the loss issued by Fishery Administration Bureau of Hebei Province and Aquatic Products Burea of Yueting County;
Those evidences mentioned above prove the plaintiffs?? loss arising from the pollution and detailed sum.
The defendants do not submit any evidence to rebut above evidences.
The defendant Jiluan Ltd. alleges that the authenticity of the attestation for purchasing fries shall not be affirmed because there are neither agreements for purchasing fries nor relevant receipts.
The defendant Chemistry Ltd. alleges that the evidences submitted by the plaintiffs cannot prove the fact of purchasing fries and lacks authenticity. Fishery Administration Office of Aquatic Products Bureau of Yueting County is unqualified to issue the price attestation which shall be issued by other relevant departments.
The plaintiffs allege that the fact shall be considered synthetically whether to purchase fries. The attestations for purchasing fries are authentic and the number of fries has been affirmed in the investigation report issued by relevant departments. Since both parties of the transactions for purchasing fries are individuals who have no receipts, the defendants shall submit evidences to rebut if they demur. The attestation issued by Fishery Administration Office is authentic because Fishery Administration Office has relevant function.
This court holds that the 17 attestations for purchasing fries issued by the plaintiffs tally with the substantive requirements of form of valid evidence and what they prove relates to this case. Since the defendants appearing on the trials fail to submit evidences to rebut, considering the 5th evidence, above attestations are authentic. Furthermore, this court affirms the evidence issued by Fishery Administration Office of Yueting County for the price of aquatic products because Fishery Administration Office is entitled to administer fishery.
In order to confirm the plaintiffs?? loss reasonably, this court entrusts Fishery Environment Inspection Center to evaluate the loss. Both plaintiffs and defendants affirm the report on the court.
The plaintiffs allege that, though the formula for evaluating the loss adopted in the report is the same with the fishery administration department, the rate of survival in the formula is only 25%, which is lower than 33% prescribed by Department of Agriculture. Moreover, the data issued by the fishery administration department that the charge for catching clams is ?¤0.1-0.5 per half a kilogram shall be affirmed. No other demurs are claimed to the course and the objectivity of evaluation.
The defendant Chemistry Ltd. alleges that, though the method to evaluate the loss is reasonable, there is no original data when counting the number of fries listed in the formula.
The defendant Jiluan Ltd. do not demur above report.
The appraisers hold that the rate of survival has decreased after the clams grow as big as 25 granules per kilogram when the pollution happens. It is reasonable to fix the rate of survival as 25% according to the practical experience. The charge for catching clams is also authentic by adopting the original data checked by Fishery Administration Bureau of Hebei Province.
This court holds that Fishery Environment Inspection Center, being the first-level organ of investigation and appraisal appointed by Department of Agriculture, is qualified to evaluate in term of Regulations on Procedure for Investigating Polluted Fishery Water. The appraisers are professional and the procedure of investigation is legal. It is reasonable when adopting original data and the formula for evaluating the loss. In term of above regulation, the result of evaluation is objective and fair, and this court affirms the report.
3. Whether the fact exists that the defendants let out pollutants into Luan River.
The plaintiffs submit following evidences:
(1) The video evidence made by relevant organs who are entrusted by the plaintiffs in June of 2001;
(2) The sketch map about the pollution in the water areas at Luan River and Xiaohezi River issued by investigation office;
(3) Eight photos about the pollutants;
(4) The qualification certificate of Water Quality Investigation Center and the report on the water quality;
(5) The report on investigation issued by Fishery Administration Bureau of Hebei Province and Aquatic Products Bureau of Yueting County on February 7, 2001;
(6) The report on investigation of another damage arising from polluting aquatics issued by Fishery Environment Inspection Center in April of 2001.
Above evidences prove the existence of the fact that each defendant let out sewage that do not conform to state standard into Luan River continuously even after causing the loss.
The defendant Painting & Calligraphy Ltd. submits the original certificate issued by Qian??an Economy & Trade Committee on October 10, 2001, in order to prove that the enterprise stopped producing from July of 2000 to January of 2001 due to the reform and cannot let out sewage.
The defendant Huafeng Paper submits 12 documents issued by Qian??an Environment Protection Bureau and the certificate issued by Qian??an Environment Inspection Office in order to prove that there are no heavy metals exists in the sewage that it let out.
The defendant Youyi Chemical Plant submits the certificate issued by Qian??an Environment Inspection Office, the certificate issued by the Office of Public Health of Hebei Province on its products, the report issued by the Office of Epidemic Prevention of Hebei Province on its products and the report issued by the Center of Illness Prevention of Tianjing City on its products in the course of second trial in order to prove that its product conforms to the state standard and is not harmful to the plaintiffs?? aquatic products.
The defendant Jiluan Ltd. submits the reports about the investigation result issued by the Office of Environment Inspection of Luan County in August of 2000, on September 13, 2000, on October 19, 2000, on November 23, 2000, and on December 15, 2000, in order to prove its sewage conforms to state standard.
The defendant Chemistry Ltd. submits the license for letting sewage issued by Environment Protection Bureau of Hebei Province and the report of investigation issued on October 10, 2000, in order to prove its sewage conforms to state standard.
This court, in the light of the plaintiffs?? requisition, obtains following evidences from Environment Protection Bureau of Tangshan City and Qian??an Notarization Bureau:
(1) The standard for the paper mills to let out sewage;
(2) The inspection data about the pollutants let out by paper mills and the surface water in Qian??an City in 2000;
(3) The inspection data about the pollutants recorded by Environment Protection Bureau from June of 2000 to June 2001;
(4) The record that Qian??an Environment Protection Bureau punishes First Paper and other five defendants from June of 2000 to June of 2001;
( 5) The contract for transferring the property right of Qian??an Huafeng Paper Mill.
Following written notes recorded in the course of trials are announced on the court:
(1) The written note for Sun Zhiqiang, deputy director of Water Quality Inspection Center, on February 28, 2002;
(2) The written note for Cai Youhua, director of Qian??an Economy & Trade Committee, on January 10, 2002;
(3) The written note for Qi Yuxiang, deputy director of Yueting Aquatic Products Bureau and member of Investigation Panel, on Januaru 8, 2002;
(4) The written note for Song Wenxiang, deputy director of Yueting Environment Protection Bureau, on January 8, 2002;
(5) The written note for Zhang Guofu, deputy head of Yueting County, on January 8, 2002;
(6) The written note for Li Fumin, factory director of the defendant Ruyuan Paper, on January 10, 2002;
(7) The written note for Cai Youhua, director of Qian??an Economy & Trade Committee, on January 10, 2002;
(8) The written note for Zhuang Xuegong, general engineer of the defendant Huafeng Paper, on January 9, 2002;
(9) The written note for Wei Wenna, general director of Tangshan Environment Protection Bureau, on January 11, 2002;
(10) The written note for Cai Youhua, director of Qian??an Economy & Trade Committee, on January 10, 2002;
(11) The written note for Li Meng, deputy director of Environment Branch, Fishery Administration Bureau of Hebei Province, on January 10, 2002.
After cross-examination, both plaintiffs and defendants do not demur at the evidences and written notes.
The plaintiffs hold that it can be proved that the certificate issued by Qian??an Economy & Trade Committee is false that proves the defendant Painting & Calligraphy Ltd. do not let out sewage when reforming in the light of the notice for stopping production issued by Qian??an government and the written notes. The evidences submitted by the defendant Huafeng Paper prove it lets out pollutants during the period involved in this case. The evidences submitted by Chemical Plant are not sufficient to prove that it do not let out pollutants. Since Water Quality Inspection Center issues the report to prove its sewage exceeds state standard, it must submit evidences to prove no pollutants exist in its sewage. The principal part on the evidence submitted by the defendant Jiluan Ltd. is not Jiluan Ltd. and the result of the evidence indicates the pollutants in its sewage exceed state standard, which tallies with the inspection data obtained by this court. The license submitted by the defendant Chemistry Ltd. shall not be affirmed because it has expired and is not original. The time of the inspection report submitted by the defendant Chemistry Ltd. is October 10, 2000, which shall not prove the sewage it let out before the pollution has conformed to state standard.
In the course of second trial, the defendant Chemistry Ltd. submits the certificate issued by Qian??an Environment Inspection Office, the certificate issued by Tangshan Environment Protection Bureau and the certificate issued by Qian??an Sea-route Administration Office in order to prove following facts: the report issued by Hebei Pollution Inspection Office is concluded according to the result of Qian??an Environment Inspection Office samples on September 25, 2000; Tangshan Environment Protection Bureau confirms its sewage to conform to state standard; Almost no water exists in the sea-route upwards Zhangguanying, Luan River, and it is impossible for the defendant to let out pollutants into the location involved in this case.
The plaintiffs do not demur at the authenticity of above evidences. However, they hold that the certificate issued by Qian??an Environment Inspection Office cannot prove the pollutants let out by the defendant Chemistry Ltd. always conforms to state standard, and the certificate issued by Qian??an Sea-route Administration Office cannot prove the pollutants let out by the defendant Chemistry Ltd. does not float toward lower reaches of the river.
This court holds that the fact shall be affirmed that the defendants First Paper, Painting & Calligraphy Ltd., Huafeng Paper, Huafeng Paper Ltd., Ruyuan Paper and Jiluan Ltd. let out sewage which does not conform to state standard during the period involved in this case in term of the evidences and written notes involved in this case. Therefore, this court affirms the validity of above evidences and written notes that both plaintiffs and defendants do not demur.
The court also holds that the video data and photos submitted by the plaintiffs are objective and reliable. The report issued by Water Quality Inspection Center that is objective and legal shall be affirmed as the direct evidence for the water quality of sewage let out by the defendants when sampling. The reports issued by Fishery Administration Bureau of Hebei Province and Aquatic Products Bureau of Yueting County shall be affirmed as the evidence for the pollution. The report issued by Fishery Inspection Office in April of 2001 relates to this case and proves that six defendants still let out pollutants.
The documents issued by Qian??an Environment Protection Bureau cannot indicate the pollutants let out by Huafeng Paper conforms to state standard. However, the inspection record issued by Tangshan Environment Protection Bureau indicates that Huafeng Paper let out pollutants for several times. Therefore, this court does not affirm 12 documents issued by Qian??an Environment Protection Bureau. This court affirms the certificate issued by Qian??an Environment Inspection Office because it can prove the pollutants let out by Huafeng Paper.
The report issued by Water Quality Inspection Center proves that the sewage let out the defendant Chemical Plant exceeds state standard. Therefore, this court does not affirm the evidences issued by Qian??an Environment Inspection Office. Other evidences submitted by the defendant Chemical Plant have nothing to do with this case and shall not be adopted.
Although the certificate submitted by the defendant Painting & Calligraphy Ltd. is issued by Qian??an Economy & Trade Committee, the report issued by Tangshan Environment Protection Bureau and the written notes for Cai Youhua, director of Qina??an Economy & Trade Committee prove that the defendant do not stop productions at all. Therefore, this court do no affirm the evidences submitted by the defendant because of the lack of authenticity.
The evidences submitted by the defendant Jiluan Ltd. fail to prove its sewage conforms to state standard. Nevertheless, the inspection data issued by Tangshan Environment Protection Bureau indicate the sewage let out by Jiluan Ltd. exceeds state standard for several times. In conclusion, the court does not affirm the evidences submitted by the defendant.
Since it is written on the license submitted by the defendant Chemistry Ltd. that ?°This license shall be checked every year, and would be cancelled without the record of annual check?± and there is only the record of annual checked in 1996, the evidence shall not be affirmed as valid evidence. The evidences issued respectively by Qian??an Environment Inspection Office, Hebei Pollutants Inspection Center and Tangshan Environment Protection Bureau are authentic and shall be affirmed. The certificate issued by Qian??an Sea-route Administration Office cannot prove that the sewage let out by the defendant does not run into the location involved in this case and shall not be affirmed.
4. Whether the relation between the defendants?? sewage and the plaintiffs?? loss is causality.
The plaintiffs prove their loss are caused by the pollutants let out by all defendants in the light of all evidences submitted in the course of second trial and the written notes obtained by this court. The pollutants let out by the defendants re the direct reason that results in the plaintiffs?? loss.
Nine defendants do not submit evidences to rebut above claim.
The defendant Jiluan Ltd. alleges that the sewage let out by the defendant conforms to state standard in term of Article 29 and Article 90 of Law on Ocean Environment Protection. To let out sewage does not certainly result in the pollution.
The defendant Chemistry Ltd. alleges that the report issued by Hebei Pollutants Inspection Center proves the sewage let out by the defendant conforms to state standard. The license also can prove that it is licensed for the defendant to let out sewage.
This court holds that the defendants shall bear the burden of proof in the case on the loss of pollution. The plaintiffs have submitted primary evidences for the causality between the sewage and the loss. The defendants shall submit evidences to prove that no causality exists between the sewage and the loss in accordance with the prescribed exception clauses. The evidences submitted by the defendants Jiluan Ltd. and Chemistry Ltd. fail to deny above causality. Other evidences that have nothing to do with the exception clauses shall be affirmed.
This court entrusts Fishery Environment Inspection Center to evaluate for the pollution involved in this case in order to confirm the reason accurately. The appraisers, Chen Bijuan and Chen Jufa, appear on the trials and read out the report for evaluation in public. Both plaintiffs and defendants cross-examine the report.
The plaintiffs hold the report shall be affirmed because its bases for evaluation are reliable, its procedures are legal and its conclusion is fair. The plaintiffs do not demur at the report.
The defendant Painting & Calligraphy Ltd. holds that the appraisers shall have the conclusion by taking the sample when the pollution happens. Thus, it is not authentic for the appraisers to take the sample in May of 2001. It claims not to affirm the conclusion in the report that the defendant let out pollutants that cause the plaintiffs?? loss.
The defendant Huafeng Paper holds that the report is void because its procedure does not tally with the provisions of law.
The defendant Jiluan Ltd. holds that the report cannot be the evidence for deciding the case because the report lacks validity and its conclusion is incorrect.
The defendant Chemistry Ltd. holds that the details in the report do not tally with the facts. The inspection report issued by Hebei Environment Inspection Center has proved that the sewage let out by the defendant conforms to state standard.
The appraisers hold that some pollutants, such as CODcr and so on, will influence the survival of aquatics. In term of the data inspected by Water Quality Inspection Center, above pollutants exceed state standards greatly. It is sure that the reason arising the loss is the serious pollution instead of technical lapsus. The basic principle to confirm the pollution source is the consistency between the pollutants resulting in the loss and the pollutants existing in the sewage. It has been affirmed that the sewage let out the defendants can run into the water areas through different sea-routes. The procedures are legal and it is reasonable to conclude that the sewage let out by the defendant Painting & Calligraphy Ltd. causes the pollution because no evidences prove that the defendant has not let out sewage or its sewage does not run into Luan River.
This court holds that Fishery Environment Inspection Office is qualified to investigate the fishery pollution and its staffs are professional. The bases for investigation are reliable and the methods of investigation and relevant procedures are objective. Considering the evidences submitted by plaintiffs and defendants, together with the evidences obtained by this court, the conclusion of the report shall be affirmed, excluding the part that the sewage let out by the defendant Chemistry Ltd. does not conform to state standard and has nothing to with the plaintiffs?? loss.
In sum, following facts are affirmed:
On November 12, 1997, the eighteen plaintiffs Sun Youli, Gao Weihua, Xu Shutian, Wang Guicheng, Gao Jianfu, Lu Yuebo, Sun Youyi, Han Yuming, Sun Yougang, Gao Weichun, Gao Wei??an, Wang Guixiang, Gao Jianliang, Xu Shucheng, Gao Yinchun, Gao Sheng, Wang Weihua and Qi Liancheng signed an agreement for operating six aquatic farms by shares. It is stipulated that the location and area are confirmed in the light of the certificates on the use of beach and land issued by government and relevant contracts. The plaintiff Gao Weihua has four certificates on the use of state sea area filed as Guo-Hi-Zheng No.990200250, No.990200246, No.990200243 and No.990200251. The plaintiff Sun Youli has the certificates on the use of state sea area filed as Guo-Hi-Zheng No.990200242. The plaintiff Lu Yuebo has the certificates on the use of state land filed as Guo-Yong-Tan-Zi No.51. Those plaintiffs who have above certificates signed contracts or agreements with relevant departments. The qualification of above six aquatic farms has been affirmed by Ocean Bureau and Aquatic Products Bureau of Yueting County. The plaintiffs have paid the charges for using relevant beach or land. The area of the seashell farms is 1,882 acres and the area of the fish farm is 300 acres, which have been affirmed by Aquatic Products Bureau of Yueting County and Fishery Administration Bureau of Hebei Province.
In October of 2000, serious pollution happened in the seashell farms and fish farms. A great number of seashells and fishes died, which resulted in enormous loss to the plaintiffs. The polluted area was 6,882 acres. Aquatic Products Bureau of Yueting County, Ocean Bureau of Yueting County, Environment Protection Bureau of Yueting Bureau, Fishery Administration Bureau of Hebei Province and Tangshan Environment Protection Bureau had inspected the polluted farms.
Water Quality Inspection Center sampled at 14 sites, including the water area for breeding aquatics and the sites of some defendants, and issued a report on which the inspected items including CODcr, PH (mg/1), dissolved oxygen, volatilizable hydroxybenzene, suspending materials and heavy metals. The results are listed as following: the mouth for letting out sewage at Shenzhuang, CODcr1433.30 and PH7.56; Chemical Plant, CODcr138.62, PH1.45 and volatilizable hydroxybenzene 0.005??Ruyuan Paper, CODcr394.34, PH8.67 and volatilizable hydroxybenzene 0.005??Chemistry Ltd., CODcr198.78, PH7.58 and volatilizable hydroxybenzene 0.006??Jiluan Ltd., CODcr1,708.00, PH7.44 and volatilizable hydroxybenzene 2.790??First Paper CODcr1,787, PH6.75 and volatilizable hydroxybenzene 3.57??Red House Sluice, suspending materials 316.3 and CODcr1,627.65??Erpaigan Sluice, suspending materials 538, CODcr6.45 and PH7.43??Erpaigan Aquatic Farm, CODcr1,176.93 and PH6.93??Huafeng Paper and Huafeng Ltd., CODcr2,024, PH6.76 and volatilizable hydroxybenzene 1.81. The suspending materials in all aquatic farms exceed state standard.
From January 4 to February 7, 2001, an investigation panel was established, including five experts on aquatic products and staffs of fishery departments of Yueting County. It was concluded in the inspection report that the pollution source comes from those paper mills and chemical plants lying Qian??an City. In the light of the report issued by Water Quality Inspection Center, the sewage let out by the defendants exceeded state standard and run into Luan River directly, which caused the death of seashells and fishes in great number, and the leading pollutants were organic pollutants. Compared with state standards for the sewage, the water quality of sea and the water quality of fishery, the pollutants existing in the eight aquatic farms and at the sites where the defendants lie exceeded state standards greatly. However, the conditions and method for breeding aquatics in each aquatic farm tallied with the rules of aquaculture. Therefore, it can be concluded that the death of seashells and fishes was caused by the pollutants let out by the defendants which exceeded state standard greatly.
During the period involved in this case, the defendants Huafeng Paper, First Paper, Painting & Calligraphy Ltd., Qixin Paper, Ruyuan Paper and Jiluan Paper were manufacturing and letting out sewage. In the light of the data inspected by Tangshan Environment Protection Bureau, from June of 2000 to June of 2001, the pollutants in the sewage let out by above defendants exceeded state standards. Tangshan Environment Protection Bureau punished Huafeng Paper for three times, respectively on August 31, September 13, and December 27, 2000; punished Painting & Calligraphy Ltd. for two times, respectively on August 31 and September 13, 2000; punished Ruyuan Paper for two times, respectively on March 10 and March 24, 2000; punished Qixin Paper for two times, respectively on October 15 and October 23, 2000; punished First Paper for four times, respectively on October 15, October 23, November 13 and December 17, 2000. It was written in the report on the pollution in Luan River that ?°The water in Luan River almost consists of industry sewage and living sewage because its own character and the current standard for enterprises letting out sewage, which results in serious conflict between the water quality of Luan River and the need for water in the range of lower reaches of Luan River. According to the original plan, the water quality in lower reaches shall be conform the five-sort standard for surface water in which CODcr is 40mg/1, the standard for irrigating fields is 300mg/1 to dry lands and 200mg/1 to wet lands. However, the water quality cannot conform to above standards after enterprises let out sewage into Luan River, which does not meet the requirement for breeding aquaculture.?± In addition, it is written in the report on the pollution in Luan River filed as Tang-Huan-Fa-2001-153 issued by Tangshan Environment Protection Bureau on November 2, 2001, that ?°It is the five paper mills in Qian??an City and one paper mill in Luan County who let out 90 percent of pollutants in Luan River, which makes it impossible to conform to state standards?± and ?°CODcr consists of 90 percent of the total sewage and is the leading source of pollution?±. It is stated about the situation of six paper mills in above report that ?°Huafeng Paper has eliminated the manufacture line at the end of June; First Paper is approved to manufacture at the end of September; the sewage let out by Painting & Calligraphy Ltd. still conforms to state standards though the project for processing the sewage in October of 2000; Ruyuan Paper is reconstructing relevant equipments; Jiluan Ltd. did not conform to state standards for two times when being inspected in May of 2001 and has been commanded to stop production again now.?± It is also pointed out in above report that Painting & Calligraphy Ltd. deceived.
Following facts are also affirmed: The pollutants in the sewage let out by the defendant Chemical Plant include PH1.45, CODcr138.62 and volatilizable hydroxybenzene0.005. Being sampled by Qian??an Environment Inspection Office on September 25, 2000, and inspected by Hebei Environment Inspection Center, the sewage let out by Chemistry Ltd. includes CODcr1,115.6 tons per year and is proved to conform to state standard by Tangshan Environment Protection Bureau. The defendant Huafeng Paper Ltd. let out sewage before the pollution.
In the course of trials, the name of Qian??an Fourth Paper Mill had been altered into Qian??an Ruyuan Paper Mill approved by Qian??an Industry and Commerce Bureau on November 23, 2001. The legal representative Huang Zhanhua and other 27 peoples purchased all assets of Qian??an Painting & Calligraphy Factory that was written off on November 29, 2001. On December 7, 2001, Qian??an Industry & Commerce Bureau approved the establishment of Painting & Calligraphy Ltd. who bears all original credits and debts.
This court entrusts Fishery Environment Inspection Center who is qualified to investigate the pollution to investigate the pollution involved in this case. In the light of the report on pollution at the mouth where Luan River and Daqing River run into the sea issued by panel organized by Hebei Fishery Administration Bureau and Aquatic Products Bureau of Yueting County and the report and relevant data issued by Water Quality Inspection Center in May of 2001, the appraisers investigate the reason for the death of seashells and fishes. They affirm the conclusion made by above panel and the fact that it is the sewage let out by the defendants that causes the pollution. In accordance with the regulations on sewage filed as GB8978-1996, the sewage let out in the water area for breeding aquatics shall conform to the first-level standards, among which CODcr is 100mg/1, volatilizable hydroxybenzene is 0.5mg/l, PH is 6~9, and suspending materials is 70mg/1. Compared with above standards, the value of CODcr exceeds 14.3 times at the site of Shengzhuang; Chemical Plant, the value of PH does not conform to above standard, and the value of CODcr exceeds 1.4 times; Ruyuan Paper, the value of CODcr exceeds 3.5 times; Huafeng Paper and Huafeng Ltd., the value of CODcr exceeds 19 times and the value of volatilizable hydroxybenzene exceeds 2.5 times; First Paper, the value of CODcr exceeds 17 times and the value of volatilizable hydroxybenzene exceeds 6 times; Chemistry Ltd., the value of CODcr exceeds 2.0 times; Jiluan Ltd., the value of CODcr exceeds 16 times and the value of volatilizable hydroxybenzene exceeds 5 times; Red House Sluice, the value of CODcr exceeds 16.3 times and the suspending materials exceeds 4.5 times; Erpaigan Sluice, the value of CODcr exceeds 16 times and the suspending materials exceeds 4.2 times; Erpaigan Seashell Farm, the value of CODcr exceeds 11.8 times. In accordance with above regulation, the suspending materials in the water areas for breeding aquatics shall not exceed 10mg/l and the suspending materials in the coastal water areas shall be below 20mg/l. Compared with above values, the suspending materials in the seashell farms at the mouth where Xiaohezi River and Daqing River run into sea exceed 2.5 to 8.7 times. In addition, the result shows that the values of heavy metals (such as Cu, Zn, Pb, Cd, Hg, Cr, etc.) in the samples are normal, which indicates that the water areas for breeding aquatics are not polluted by heavy metals.
The final conclusion of the report is: The conditions and methods for breeding aquatics in the seashell farms and fish farms involved in this case tally with the rules of aquaculture. Moreover, the seashells living in the farms nearby grow normally during the period the pollution happens. It can be concluded that it is the sewage let out by the defendants causes the pollution, which results in the death of seashells and fishes in great number in the aquatic farms of the plaintiffs, because the pollutants in relevant water areas exceed the prescribed first-level standards. In sum, the sewage let out by the paper mills and chemical plants along the Luan River, which does not conform to state standards, is the direct reason for the death of seashells and fishes in the water areas at the mouth where Daqing River, Xinchao River, Xiaohezi River and Chang River run into sea.
In term of the regulations prescribed in Regulations on Procedures for Investigating the Pollution in the Water Areas for Fishery issued by Department of Agriculture, the appraisers evaluate the plaintiffs?? loss arising from the pollution according to the method for counting the loss statistically prescribed in Regulations on Method of Counting the Loss Arising From Pollution. The conclusions are: the number of damaged clams is 1,059,023 kilograms and relevant sum of loss is ?¤13,458,800; the number of damaged fishes is 20,010 kilograms and relevant sum of loss is ?¤20,090,000. The sum of loss in total is ?¤13,659,700.
According to Article 11 of Law of the People??s Republic of China on Fishery, it is necessary for individuals to have the license issued by local county governments in order to breed aquatics in the water areas or beaches owned by the whole people, and the water areas or beaches owned by the collectives or owned by the whole people and used by agriculturally economic organs could be undertaken by individuals or the collectives for breeding aquatics. In this case, the reason that the plaintiffs do not have the prescribed licenses is because the government of Yueting County has not issued relevant licenses till now. However, the plaintiffs have the licenses on the use of state sea areas and the licenses on the use of state lands issued and affirmed by relevant departments. Moreover, the contracts also are valid to prove the fact that the plaintiffs are qualified for breed aquatics. The defendants?? claims lack sufficient evidences and shall not be supported.
The plaintiffs report the fact as soon as the pollution happens, and the panel organized by Aquatic Products Bureau of Yueting County and Hebei Fishery Administration Bureau investigates and evaluates the plaintiffs?? loss. It is affirmed that the loss exists according to the investigation reports and relevant evidences. Fishery Environment Inspection Office, being qualified to investigate the fishery pollution and its staffs are professional. The bases for investigation are reliable and the methods of investigation and relevant procedures are objective. Therefore, its report shall be affirmed as the basis to count the plaintiffs?? loss.
In term of the report issued by Water Quality Inspection Center and the original data issued by Tangshan Environment Protection Bureau, together the evidences obtained by this court, the fact can be affirmed that all defendants has let out industry sewage into Luan River before the pollution happens and there are a number of pollutants in the sewage. Among the defendants, First Paper, Huafeng Paper, Huafeng Paper Ltd., Painting & Calligraphy Ltd, Ruyuan Paper, Qixin Paper, Chemical Plant and Jiluan Ltd. let out the sewage that exceeds state standard. Only the sewage let out by Chemistry Ltd. conforms to state standard according to the attestation issued by Qian??an Environment Inspection Office, Hebei Pollution Inspection Office and Tangshan Environment Protection Bureau.
Being a controversy over the compensation for aquaculture loss, the plaintiffs has submitted sufficient evidences to prove the fact that the defendants let out pollutants, the plaintiffs?? loss arising from the pollution and the causality between the defendants?? sewage and the plaintiffs?? loss. Nine defendants shall bear the burden of proof for the exception clauses and the fact that above causality does not exist. In term of Law of the People??s Republic of China on Environmental Protection and Law of the People??s Republic of China on Maritime Environmental Protection, the defendants shall be exempted to bear the liability only if the environmental pollution or damage is caused by natural disaster or the fault of the third party or the victim itself. In this case, all evidences submitted by the defendants fail to prove the situations mentioned above. Furthermore, no evidenced submitted by the defendants prove that the sewage they let out runs into the water areas involved in this case or prove that the pollutants in the sewage would not result in the death of aquatic products.
Although the sewage let out by the defendant Chemistry Ltd. conforms to state standard, it does not indicate that the sewage would not cause the pollution. The sewage standards prescribed by state are only the bases to decide whether relevant charges shall be collected rather than deciding whether to bear the liability for civil compensations. The fact that the sewage let out by Chemistry Ltd. conforms to state standards merely indicates that it shall not be punished in term of Administrative Law. It is prescribed in Article 41 of Law of the People??s Republic of China on Environmental Protection: The party who pollutes the environment is obligate to eliminate the pollution and compensate the parties who surfer the loss. The evidences submitted by the defendant Chemistry Ltd. cannot prove that the sewage it let out would not run into the water areas for breeding aquatics, that is, the evidences cannot prove that no causality exists between its sewage and the plaintiffs?? loss. Thus, Chemistry Ltd. shall bear the civil liability for compensating the plaintiffs?? loss. The defendant??s claim that it shall not bear any liability cannot be supported.
Since the pollutants in the sewage let out by nine defendants which can cause the death of aquatic products are possible to run into the water areas for breeding aquatics, together with the report issued by Fishery Environment Inspection Office, it can be concluded that the pollutants in the sewage let out by the defendants are the direct reason for the death of aquatic products, and direct and certain causality exists between the defendants?? sewage and the plaintiffs?? loss.
In sum, the 18 plaintiffs are qualified to breeding aquatics and it is true that they surfer loss arising from the pollution. Nine defendants let out pollutants before the pollution happens. The causality exists between the plaintiffs?? loss and the defendants?? sewage. The defendants infringe the legal rights and interests of the plaintiffs, which violates the laws. Nine defendants shall bear the joint and several liability for the plaintiffs?? loss. Considering the sum of loss claimed by the plaintiffs, this court confirms the sum as ?¤13,659,700 and the sum exceeding the former shall not be supported. This Court hereby decides as follow pursuant to Article 130 of Civil Procedure Law of the People??s Republic of China, Clause 2 and Clause 3 of Article 117, Article 124, Article 130 of General Principles of Civil Law of the People??s Republic of China, Clause 1 of Article 41 of Law of the People??s Republic of China on Environmental Protection, and Clause 1 of Article 90 of Law of the People??s Republic of China on Maritime Environmental Protection:
1. The defendants First Paper, Painting & Calligraphy Ltd., Ruyuan Paper, Huafeng Paper, Qixin Paper, Chemical Plant, Chemistry Ltd., Jiluan Ltd. and Huafeng Paper Ltd. shall bear the joint and several liability for compensating the plaintiffs in the sum of ?¤13,458,800 for the loss of clams and the sum of ?¤200,900 for the loss of fish, in total ?¤13,659,700.
2. To command the defendants First Paper, Painting & Calligraphy Ltd., Ruyuan Paper, Huafeng Paper, Qixin Paper, Chemical Plant, Chemistry Ltd., Jiluan Ltd. and Huafeng Paper Ltd. to stop infringement at once, not to let out sewage into sea, and to eliminate the risk of polluting the plaintiffs?? water areas continuously.
3. The plaintiffs?? other claims shall not be supported.
Nine defendants shall pay above damages to the plaintiffs within 10 days after the judgement becoming effective. Otherwise, the defendants shall be fined in accordance with Article 232 of Civil Procedure Law of the People??s Republic of China.
The cost of this case is ?¤160,010 and the charge for evaluation is ?¤10,000, in total?¤170,010. The plaintiffs shall bear the sum of ?¤81,701.5 for the cost. The defendants First Paper, Painting & Calligraphy Ltd., Ruyuan Paper, Huafeng Paper, Qixin Paper, Chemical Plant, Chemistry Ltd., Jiluan Ltd. and Huafeng Paper Ltd. shall bear the sum of ?¤88,308.5 jointly, including a part of cost and the charge for evaluation.
If any party refuses to accept this judgement, it may submit its appeal petition to this court within 15 days after service of this judgement, together with 20 duplicated copies, and the appeal shall be filed with the Higher People??s Court of Tianjin. The appeal fee of ?¤160,010 shall be submitted in advance within 7 days since submitting the appeal petition (the account: New Technology Industry District Branch, China Agriculture Bank, the number of account is 394-9887000390), otherwise it would be regarded as withdrawing the appeal automatically.
Presiding Judge: Jian Yanjin
Deputy Judge: Chen Shunping
Deputy Judge: Xu Fubing
Date: April 12, 2002
Court Clerk : Li Zhen
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