QINGDAO MARITIME COURT

PEOPLE??S COURT OF CHINA

CIVIL JUDGMENT


                                                 No.Qing-Hai-fa-Zai- 2(2001)


Plaintiff for Trial of First Instance : (plaintiff for short) Changhong Fishery Ltd., Zeku Town, Wendeng City, Shandong Province, China.

Domicile: Changhuikou Village, Zeku Town, Wendeng City.

Legal Representative: Jiang Haoyao, manager.

Agent ad litem: Yin Longfei, lawyer of the Legal Service Centre, Weihai City, Shandong Province.

Agent ad litem: Fan Kaifeng, lawyer of the Legal Service Centre, Weihai City, Shandong Province.

Defendant for Trial of First Instance  (defendant for short): Jinghai Fishery Ltd., Rongcheng City, Shandong Province, China.

Domicile: Jinghai Town, Rongcheng City.

Legal Representative: Xiang Weiyuan, Board Chairman.

Agent ad litem: Zhang Keliang, adviser to Jinghai Fishery Ltd.

Agent ad litem: Guo Junling, employee of Jinghai Fishery Ltd.

The cases concerning a ship collision dispute between the plaintiff Changhong Fishery Ltd., Zeku Town, Wendeng City, Shandong Province and the defendant Jinghai Fishery Ltd., Rongcheng City, Shandong Province was adjudicated by Qingdao Maritime Court which made the Civil Judgment of No.Qing-Hai-fa-Hai-shi-Cu- 49(1998) on Dec. 4, 1998. The plaintiff did not accept the judgment of the first instance and appealed to the Higher People??s Court of Shandong Province (the Higher Court for short). The Higher Court made the civil judgment of No. Lu-Jing-Zhong-114(1999). The plaintiff still did not accept the judgment and appealed to the Supreme People??s Court which instructed the Higher Court to review the case. The Higher Court made the civil award No.Lu-Jing-Jian- 91(1999), in which it held that the judgment of the court of first instance was mistaken and recalled the judgments of No.Qing-Hai-fa-Hai-shi-Cu- 49(1998) and No.Lu-Jing-Zhong- 114(1999). The case was turned back to Qingdao Maritime Court (this Court for short) for rehearing. This Court duly organized another collegial bench and held public trials. Jiang Haoyao, the legal representative of the plaintiff, Yin Longfei, Fan Kaifeng, the agents ad litem of the plaintiff, Zhang Keliang, Guo Junling, the agents ad litem of the defendant, appeared at the trails for the hearing of the case. The case has now been concluded.

After the rehearing, the following facts were affirmed: the plaintiff??s fishing boats ?°Lu-Wen-Yu-2385?± and ?°Lu-Wen-Yu-2386?±(hereinafter referred to as 2385 and 2386), were made of wood on Feb. 20, 1995. The rated power was 29 kilowatts, the gross tonnage was 20 tons, the length was 17.2 meters, the width was 3.80 meters and the depth was 1.40 meters. The defendant??s fishing boats ?°Lu-Rong-Yu-1463?± and ?°Lu-Rong-Yu-1464?± (hereinafter referred to as 1463 and 1464) were made of steel on Apr. 1, 1994. The length of the ship was 31.26 meters, the width was 5.40 meters, the depth was 1.40 meters, the rated power was 163.9 kilowatts and the gross tonnage was 84.0 tons. 

On Jan. 10, 1998, the pair boats 2385 and 2386 went to sea from Changhuikou Dock at Zhangjiagang Town, Wendeng City for fishing. At about 16:00, Jan. 17, the boats returned to the base from 87/9 fishing zone because of the strong wind, where the compass course was 340º. At that time, the northeastern wind force was force 6-7 and the visibility was good. The head boat 2385 sailed in front of the second one , being about 0.5 sea mile apart. Both boats exhibited the sailing lights according to the rules. Qi Zhijiang, the captain of 2385, proved that Mao Cunjiang, the captain of the head boat, found the overtaking boat and told this to Qi through interphone. Mao Cunjiang warned Qi: be careful of the twin large boats sailing after your starboard. Qi Zhijiang opened the right window of the rudder house, and found that the twin large boats were sailing behind. Then, he confirmed this to the head boat. When he turned portside, the twin large boat sailed toward the head boat and the second boat. At the time the first large boat sailed by 2385, the lights on 2385 were still on. But when the second large boat sailed by, the lights were invisible. After the second boat called through interphone several times but not answered, it was realized that maritime accident had happened to the head boat. So they immediately waked the crew of 2386 and sailed to the spot of accident, only to find that the injuring boat had sailed away to the north. The stern of 2385 had been flooded, the rudder house came out of the sea by about 2-3 feet. They searched for about 2 hours, but did not find any missing person in the water, only to find a piece of life jacket, a door and some pieces of torn board. No other boats were there, except 1463 and 1464 in the sea area near the accident spot. 2386 returned to the dock at 09:00, Jan. 18, and 2385 sank. Five seamen were missing and one survived. The plaintiff asked the defendant to compensate for the following losses: (1) hull loss of RMB 137,500 Yuan, equipment loss of RMB 76,450 Yuan, diesel oil loss of RMB 2,350 Yuan, fishing loss of RMB 27,104.70 Yuan, indirect loss for two months of RMB 160,920 Yuan, loss of interest from Mar. 18, 1998 to Apr. 10, 2001 RMB 115,636.86 Yuan, (2) attorney fee of RMB 72,120 Yuan, (3) traveling expenses plus communication fee and the photocopy fee of RMB 13,166.90 Yuan, (4) personal belongings of the five lost seamen of RMB 5,000 Yuan, (5) death compensation already paid to the close relatives of the lost seamen RMB 334,295 Yuan, (6) the legal cost of the case No.Qing-Hai-fa-Hai-shi-Cu- 50-54(1998) totaling RMB 9,384 Yuan.

The case sent back by the Higher Court for retrial was No.Qing-Hai-fa-Hai-shi-Cu-49(1998), concerning compensation for damage arising from ship collision dispute. Therefore, this Court heard the case concerning the plaintiff??s claims about the boat and the damage to the boat, not the one concerning the claims about the lost seamen and the damages connected therewith. Because of the dismissal of the plaintiff??s lawsuit petition, the court of first instance and the appeal court did not conduct investigation and verification of the damage. The case had been investigated and verified in the retrial: the hull loss was RMB 110,000 Yuan, the equipment loss was RMB 29,925.60 Yuan, the diesel oil loss was RMB 1,000 Yuan, the fishing loss was RMB 8,350 Yuan, and the indirect damage RMB 75,000 Yuan.

On Jan. 16, 1998, 1463 and 1464 went to sea from Shawo port at Jinghai to 118/4 fishing zone. At about 06:00, Jan. 17, 1464 towed by 1463, returned to the base. The towing line was made of steel and the length was about 100m. The course was 340º. After 2 hours?? hauling, the towing line was broken. An hour later, the hauling resumed. At about 04:00, Jan. 18, the ship sailed 6-7 sea miles southeast from Sushan Island. Ren Guangqi, the sailor of 2385, climbing to 1464, was too cold to speak. According to the seamen of 1464, Ren Guangqi wrote down the words: ?°I was infomed that 2385 had a maritime accident at Changhuikuo port. About 10 minutes later, I saw a big iron-shelled boat and climbed up there ,where I happened to meet two warm-hearted people who rescued me?±. At 05:30, Jan. 18, 1463 and 1464 returned to the port. On the morning of Jan. 18, the Shawo station of the Rongcheng City Police Bureau and Rongcheng   Fishing Supervision and Administration Station investigated Ren Guangqi separately. In both of the investigation notes, Ren Guangqi proved that at 03:00 Jan. 18, he found that the boat rolled suddenly when he was off duty in bed, then he ran out from the bed. Because of the rapid sinking of the boat, the cabin was full of water. Ren Guangqi was bitten to the water by the storm (another note said that he himself hurried to the water), after he saw a big iron-shelled boat sailing slowly, he climbed on 1464 through the shipboard when the wave pushed him to it.

After Ren Guangqi came back to the city of Wendeng, the Changhuiko Frontier Defence Police Station of Zeku town of Wendeng City investigated him at 15:20 hrs of Jan.18. Ren Guangqi made such witness?? ?°I was still in bed when the boat rolled violently. I fled from the bed and at the first sight I saw the lights of the second boat, the stern of our boat was out of sight. I could only see the rudder house. No other person was in sight. I found a big iron-shelled boat drifting and fluctuating. Then I held the shipboard and climbed to the iron-shelled boat. After boarding 1464, I found the hull of 2385 was submerged into the sea about 1 meter deep. No other boat was in the spot.?± Zhang Yiya, the engine driver of 1464, proved that ?°when Ren Guangqi came in, he could not say a word. We asked him to put off his wet clothes. He was in three woolen sweaters and two cotton sweaters, only a small part of the last one remaind dry.?± Zhang Yiya changed for dry clothes for Ren Guangqi and gave him a glass of drink as well as a smoke. It was about after ten minutes at 00:04 that Ren Guangqi could speak. When the Fishing Police of Rongcheng City investigated the seamen on duty in 1463 and 1464, they all proved that no other boat sailed around their boat except a pair of boats on their left. When the case was reheard, this Court investigated Ren Guangqi and he proved that ?°2385 sank with hull upward. He said: ?°When I got on 1464, my hair was dry and I found 2385 sink so quickly while it was rolling. I did not find anyone crying for help in the rudder house and the rudder house did not roll in the same way as the front part of the boat. At that time the stern of the boat had already disappeared?±.

On Aug. 14, 1998, Qingdao Maritime Court entrusted CCS Qingdao (CCS) for the appraisal of the collision. The items for the appraisal were: 1.Whether the hole in 1464 was caused by the collision with 2385? if it was so , then which part of 2385 made the hole? 2. Whether there was a touch and what was the extent of the collision according to the on-the-spot photos and the scene of the accident. On Aug. 19, CCS made out the appraisal (at the time the maritime accident had taken place for eight months). Through technical analysis, the surveyor considered that the hole of 1464 was hit by sharp-edged steel material. Such factors as the size, the shape and the height of the steel material in 2385 were difficult to make the hole. According to the iron mark, the hole was made before the scraping of the paint. The check-out conclusion was that:?¨1??1464 and 2385 had a collision, which resulted in the scraping of the paint. ?¨2??The collision between the two boats could not result in the sinking of 2385 and the damage to the hull structure. Yet, the surveyor stated that amendments to the said technical analysis could not be excluded should any potential, concealed or undiscovered damage come to light in the future.

On Apr. 12, 2001, Shidao Observatory Station proved that: on Jan. 17, 1998, the maximum wind speed was 15.4m/s, the wind direction was northward; on Jan. 18, the maximum wind speed was 16.5m/s?? the wind direction was north northwest. It snowed in those two days (13.9m/s-17.1m/s, grade 7 ).

On Apr. 18, 2001, Shidao Observatory Station analyzed the concrete data. Before 24:00 Jan. 17, the wind force was 6-7 and the wind direction was north to northeast around Sushan Island. On Jan. 18, from 00:00 to 4:00, the wind direction was north to northeast and the wind force was 7-8. The flurry force was 9-10. From 5:00 to 12:00, the wind direction was north to northeast and was force 6-7,while the flurry was force 8.

According to the tide table of Shidao in the year 1998, the height of the tide was 064cm. on Jan. 18, 1998, and at 5:23 Jan. 18, 1998, the height of the tide was 253cm. All this proved that it was tide flow when the maritime accident happened.

Referring to the ocean current on the chart, around Sushan island, the direction of the flow was 238ºand the velocity of the flow was 0.7 sea mile.

The spot of the collision was 79/6 fishing zone, 6-7 sea miles in the southeast of Sushan Island. It was at about 3:50 that the maritime accident took place.

The track course of 2385 was about 328º. It took 11 hours and 50 minutes for the boat to sail 46 sea miles from the accident spot to the base, about 3.9 sea miles in one hour. 1463 towed 1464 whose track course was 335º. It took 50 minutes and 21 hours to sail 133 sea miles from the accident spot to the base, about 6.1 sea miles in one hour.

The sailing situation of 2385 and that of 1463 and 1464 as shown in the diagram, proved that the course angle of 2385 and that of 1463 and 1464 was 7º.The two pair boats were in overtaking situation. 2385 was the overtaken boat (the stand-on boat). 1463 and 1464 were the overtaking baots (the give-way boats). The pair boats 1463 and1464 overtook from the portside and collided with 2385.

The first instance court considered that though 1464 had scraping mark with the other boat, the collision did not result in the sinking of 2385.

When 1463 was sailing while towing 1464, the course was 340ºand the speed was six knots. It was impossible for 1463, towing 1464, to overtake and collide with 2385 whose course was 340º, and speed was 4 knots. It was also impossible that 1464 sailed in between 2385 and 2386. The plaintiff protested that 1463 collided 2385 and made it sink. This opinion could not be accepted because it had no sufficient evidence to support. Therefore, this court shall dismiss the plaintiff??s claim about the compensation for the loss. The legal cost of the case at RMB 8,561 Yuan shall be borne by the plaintiff.

The plaintiff did not accept the judgment of the first instance and appealed. The trail by the court of second instance held that CCS, as the legitimate authority for survey of vessels in china, entrusted by this court, measured 1464 and the  hole at the same time. They studied the structure of 2386,the twin boat of 2385, and studied the on-the-spot photos of 1464 submitted by the appellant. The conclusion was that it was a chafing and this could not damage 2385. The problem about the hole of 1464 had been mentioned in the ship appraisal report. As to the broken wood pieces and that no other ship was on the spot, these could not negate the appraisal conclusion. Especially, in the second trial, because both the appellant and the appellee agreed to the conclusion, the conclusion of CCS could be taken as the basis for judgment. When Ren Guangqi, the only survivor of 2385, got aboard 1464, he did not identify 1464 as the injuring boat. When investigated by Rongcheng Fishing Organization and the Frontier Defence Station, he did not identify it either in the statement he gave to 1464. But, when he was taken back to Wendeng City and investigated by the Frontier Defence Station, he identified 1464 as the injuring boat. This court doesn??t adopt his words because he changed his original statement without any other proof. According to these, the appeal was turned down and the original judgment was maintained. The legal cost of the case at RMB 8,561 Yuan shall be borne by the plaintiff.

To sum up the previous investigation, this Court affirmed that: Ren Guangqi was dry in the hair and was not all soaked in his clothing when he came to the room of the engine driver Zhang Yiya. All this proved that Ren Guangqi did not jump into the sea, but was beaten to 1464 by the billow. If in so great storms, the billow could have beaten Ren Guangqi to 1464 and at the same time 1463 and 1464 were sailing 180m per minute, he should have been injured, and his whole body shouldn??t be dry. Just because Ren Guangqi had not the slightest injury, his hair was not wet, and his clothes weren??t all wet, it proved that Ren Guangqi climbed to 1464 when the two boats collided together. 

   2385 sank with the hull upward. This could get rid of the possibility that the billow overturned 2385. Where a boat was sunk entirely, there could not possibly be any survivor. The sinking was not understood as that the hull was burst into much water. 2385 burst into water to sink upward. Ren Guangqi could survive while he was sleeping, the other seamen should have survived too. The fact that the other 5 seamen in the case couldn??t survive proved that the sinking of 2385 was not due to the effect of the storms, but due to the water beaten into the boat by the storm. If the sinking of 2385 was due to the effect of the storm, the other seamen should have survived as Ren Guangqi did at least. They should have fled out of the cabin to survive and Ren Guangqi should have heard the cry for help. However, Ren Guangqi, the only survivor, proved that he could see nobody running out of the cabin and could hear no cry for help. Such result proved that 2385 and other seamen were facing or restrained by uncontrollable and invincible limitations to survive. Therefore, the serious result was the sinking of the boat and the death of the 5 seamen. This analysis eliminated the possibility that the sinking of 2385 was due to the effect of the water beaten into the boat by the storm. Except this, under such situation, only the effect of the collision with another boat could have sunk 2385.

According to the findings of the investigation by this court, at the time when the pair boat 1463 and 1464 collided with 2385, Ren Guangqi climbed up to 1464, while 2385 sank into the sea due to the collision. Yet, the defendant claimed that the two boats?? chafing couldn??t result in the sinking of 2385. Still, the appraisal report proved that it couldn??t result in the sinking of 2385. Therefore, both the trail of first instance and second instance made the judgments according to the impossibility of the sinking of 2385 by the chafing (from the uncertainty of the accident appraisal to the certainty of the judgment). On earth, whether or not the chafing could result in the sinking of 2385? This court considered that if the sinking of 2385 was not due to the pair boats 1463 and 1464, there surely was another boat around the accident spot, and, after collision with 2385, 2385 collided with the pair boats. According to the analysis of the collision situation described by the plaintiff and the defendant, the boat collided with 2385 was only in front beam of 2385 or before the starboard side. It was impossible that the boat was behind the portside or the starboard side of the pair boats 1463 and 1464.The pair boats 1463 and 1464 sailed for 185m in one minute and the towing length between the two boats was 100m. It only took 40 seconds for the towing length to pass the sea area. In order to prove there was another boat which collided with 2385(except 1463 and 1464) before the pair boats 1463 and 1464 collided with it, it must be proved that there was a boat collided with 2385 and the boat was within 100m before the starboard of 1464. Otherwise, though there was a boat collided with 2385, 2385 couldn??t collide with 1464. The pair boats 1463 and 1464 could have sailed away from the sea area before 2385 sailed to the accident spot. Both the plaintiff and the defendant in this case proved that except the four boats, there were no other boats, and the defendant proved that there was a boat sailing along before his boat??s portside, and no boat sailed in starboard side. All this proved that 2385 had no collision with other boats until collided with the pair boats 1463 and 1464. The pair boats 1463 and 1464 were the injuring boats. This could result in the sinking of 2385 and the loss of its seamen.

This Court investigated the sailing situation and data submitted by the plaintiff and the defendant by the diagram, which proved that 1463 and 1464 were the overtaking boats (the give-way boat), 2385 was the overtaken boat (the stand-on boat). In accordance with provisions in Article 13 of Convention of the International Regulations for Preventing Collision at Sea (1972)(the Rule in short), each ship should give way to the overtaken ship when it overtook the other ship. The pair boats 1463 and 1464 should have given way to 2385. In this case, when investigated by the responsible department, the seamen on duty of the overtaking boat said that they could only see one pair of boats sailing in the same direction along the portside, and couldn??t find a stand-on boat sailing in front of or along the starboard. What was more important was that when investigated by the responsible department, all the seamen on duty on 1463 and 1464 proved that they had no sense of the collision and did not find a person aboard their own boat. All this proved that the seamen on duty on 1463 and 1464 seriously neglected their duty of keeping proper outlook.

A pair of towing ships, in accordance with the Rule, shall exhibit the sailing lights at night and whistle the bugle to other ships for warning. Thus, other ships could avoid the collision with the towed ship or the tow line when they sailed across the stern of the ship. The pair boats 1463 and 1464 did not exhibit the sailing lights in accordance with the Rule, on the contrary, they violated the Rule. All this misled the coming boat to neglect its proper attention and to make the normal and timely avoidance. This was what resulted in the collision between 2385 and the pair boats 1463 and 1464. This was also one of the reasons why 2385 collided with the pair boats 1463 and 1464.

The pair boats 1463 and 1464 were the overtaking boats, and in the course of overtaking, collided with 2385. According to the proofs submitted by the parties to the trials of first instance and second instance, the pair boats 1463 and 1464, as the give-way boats, did not whistle a burgle or exhibit the lights, not only when they overtook the other boats, but also at the time of the close quarters situation with the two boats had taken shape. The pair boats 1463 and 1464 did not make it clear that they were going to overtake and exceed 2385 or warn 2385 thereof. The fact was that they overtook and exceeded 2385 in silence. After the imminent danger had taken shape, at the time when the two boats sailed close, 1463 and 1464 still sailed at the former course and the former speed, without any attention to the situation of imminent danger and the threatening accident of collision. All this resulted in the collision of the two boats. In the collision accident, the main reason of the collision was that the pair boats 1463 and 1464 did not sail at safety speed, or, in accordance with the Rule, the overtaking boat shall give way at a large angle. The defendant shall bear the main legal liability for the collision accident.

In the course of the collision, though 2385 belonging to the plaintiff was the privileged boat (the stand-on boat), in order to have a proper understanding of and a positive response to the imminent situation, it should look attentively at the coming boat and the situation around, keep highly visual and audible sense to the surroundings, and keep a normal outlook. Especially, after the imminent situation and the danger of collision had been shaped, in order to avoid the collision and the worsening of the damage, the privileged boat should take active and positive measures to avoid collision. If necessary, the privileged boat should even violate the Rule to rescue herself and the other boat. In this case, though the evidence proved that before the collision occurred , 2385 had found the pair boats 1463 and 1464 overtaking from behind, yet no evidence could prove that before the urgent situation took shape, whether 2385 had taken any measures for avoiding the collision. Perhaps, 2385 could not submit such evidence. Nevertheless, in this case, through the analysis of the result that 2385 sank and five seamen died, it was likely that 2385 did not take any measures to avoid the collision, or, it did not get an obvious and expected result even if such measures had been taken. Therefore, the serious result was that 2385 sank and the seamen lost their lives. The plaintiff shall bear relevant legal liability for the collision. 

According to the first item of article 14 of Regulations for Ocean Fishery Production Safety Administration of Shandong Province, when the wind is over force 6 , fishing boats under 60 horsepower shall not set sail to sea; if the wind force is over 7, fishing boats under 400 horsepower shall not sail out, and, if over 8, no fishing boats may sail out by all means. Shidao Observatory Station proved that on Jan. 18, in Sushan sea area, the northeastern wind was force 7-8, and the flurry was force 9-10. According to what this court had investigated and analyzed, 2385 should not sink by the hit of the storm. The facts affirmed by the two parties proved that 2385 sank after colliding with the pair boats. The defendant??s allegation that 2385 sank under the influence of the storm could not get the support of this court because the defendant was unable to submit sufficient evidence.

The survey report was the scientific, objective analysis and the conclusive opinion made by the appraiser who made it out on the expert problems in a case with his expert knowledge and professional experience. In this case, to regard the result of the examination and consultation as the decisive factors for the appraiser to judge whether 1464 could collide 2385 and sink it, only on the basis of the fact that whether the scrape on the photo could result in the damage of the hull structure of 2385 is obviously not objective nor comprehensive. In this case, there were so many factors and issues which should be examined and inquired into including the evidence submitted by the parties, the findings of the investigation by this court and CCS, and including those not submitted but should be collected by this court. In addition, the facts about the weather, storm, tide, and the situation of the accident spot should also be taken into consideration. It is incorrect and one-sided to draw a comprehensive conclusion only on the basis of independent, isolated factors of the case. What was more important was that it was incorrect to take the problem of whether any part of 2385 could make the hole on 1464 as the sole basis on which to judge whether the pair boats 1463 and 1464 could collide and sink 2385. Well-founded and truthful conclusion should be drawn from comprehensive and objective understanding of the case. The Survey Report affirmed that 1464 collided 2385, meanwhile, the report also said the collision could hardly result in the hull damage of 2385. A conclusion is to make an appraisal on the fact. The words and the expressions as ?°possible?± and ?°impossible?± should not be used in a conclusion. Therefore, this court does not adopt the uncertain conclusion.

This Court decides that under the provisions of Article 117 of the General Principles of the Civil Law of the People??s Republic of China, and Article 169 of Maritime Code of the People??s Republic of China:

1.The plaintiff shall bear 20% legal liability for the collision. The defendant shall bear 80% legal liability for the collision.

2.The defendant shall compensate the plaintiff for the total sum of RMB 179,420.48 Yuan and the interest in respect of the collision (according to the corresponding bank interest rate of China, where the bank interest shall be paid from Jan. 18, 1998 to the day on which the defendant fulfills the compensation after the judgment becomes effective).

3.The plaintiff ??s other claims shall be dismissed.

4.The legal cost of the first instance trail is RMB 8561 Yuan, of which the defendant shall bear RMB 5098 Yuan and the plaintiff shall bear RMB 3463 Yuan.

The defendant shall pay off to the plaintiff in ten days after the judgment becomes effective. If overdue, the defendant shall pay off double to the plaintiff according to the rules of law.

If any party refuses to accept this judgment, it may submit its appeal petition to this court within 15 days upon service of this judgment, together with a sufficient number of duplicates for each member of the opposing party to have one copy, and the appeal shall be filed with the Higher People??s Court of Shandong Province.





                                          Presiding Judge: Pan Xinsu

                                 Judge: Fen Zhili

                                         Deputy Judge: Zhou Daina

           Court Clerk: Wang Jingyuan


Certified true copy


                                        Date: December 28, 2001