Guangzhou Maritime Court


Civil Judgement


(2002)GHFCZ No.340


Plaintiff: Zhou Hongru, male, born on October 8, 1951, Han Nationality, residing at No.23, first group of Hushan Cun, Shatian Village, Ningxiang County, Hunan Province

Plaintiff: He Chunxiang, female, born on March 12, 1953, Han Nationality, residing at No.23, first group of Hushan Cun, Shatian Village, Ningxiang County, Hunan Province

Plaintiff: Zhou Shuying, female, born on September 25, 1978, Han Nationality, residing at No.23, first group of Hushan Cun, Shatian Village, Ningxiang County, Hunan Province

Plaintiff: Chen Juxiang, female, born on September 19, 1927, Han Nationality, residing at No.23, first group of Hushan Cun, Shatian Village, Ningxiang County, Hunan Province

Agent ad Litem for the above four plaintiffs: Liu Shaobo, lawyer of Guangdong Hua Ye Law Firm


Defendant: Shi Tianfa, male, born on November 2, 1944, Hn Nationality, residing at No.299, Xiayu, Xiayu Cun, Lancheng Village, Pingtan County, Fujian Province

Agent ad Litem: yu Jianming, Xue Zeng, lawyers of Fujian Da Jia Law Firm


Defendant: Huang Yifan, male, born on August 24, 1970, Han Nationality, residing at No.64, Dong Xiang, Lang Dun Village, Gaochao Administrative Region, Xitou Town, Yangxi County, Guangdong Province


With respect to the case of dispute over maritime claim for death and injury, the Plaintiffs Zhou Hongru, He Chunxiang, Zhou Shuying, Chen Juxiang filed a claim against the Defendants Shi Tianfa and Huang Yifan with the People??s Court of Baoan District, Shenzhen on Jan. 21, 2002. The People??s Court of Baoan District, Shenzhen, after accepting the case, transferred it to this court on July 12. This court accepted the case on July 31 and constituted a collegiate bench according to law. This court summoned the relevant parties for prejudicial exchange of evidence on October 15, and held an open court hearing on the same day. The Plaintiffs Zhou Hongru and Zhou Shuying and the agent ad litem of the four plaintiffs Liu Shaobo, the Defendant Shi Tianfa and his agent ad litem Xue Zeng, attended the court hearing. The Defendant Huang Yifan refused to appear at court without justifiable reasons though he had received the summons. Now the case has been finalized. 


The Plaintiffs Zhou Hongru, He Chunxiang, Zhou Shuying, Chen Juxiang claimed that: at about 1900 hrs on Dec. 12, 2001, Zhou Yonglong, the husband of the Plaintiff Zhou Shuying, manually discharged red bricks from a vessel of the Defendant Huang Yifan at the Baole Terminal of Baoan District, Shenzhen. As there was not any lightings on the vessel of Huang Yifan, and the Defendant Shi Tianfa, as the buyer of the red bricks, engaged in the business of construction materials without license and did not provide any protective measure for the discharge of the red bricks, Zhou Yonglong fell into water and died unfortunately. After the accident, the two defendants evaded their liability and did not care about the aftermath of Zhou Yonglong. The death of Zhou Yonglong was caused by the wrongful acts of the two defendants, therefore they shall undertake the relevant compensation liability. Zhou Yonglong is the son of Zhou Hongru and He Chunxiang and the grandson of Chen Juxiang, and the four plaintiffs are the relatives of the dead, therefore they are entitled to file a claim against the two defendants for bodily death and damage. According to the Regulations of Guangdong Province Insurance Regulations for Injury and Death during Service, the two defendants shall be jointly and severally liable for compensating the four plaintiffs for the funeral expenses, pension for the family of the deceased, grant-in-aid for the life of the family members of the deceased. The fault of the two defendant has caused mental damage to the four plaintiffs. Considering that the two defendants are both individuals engaging in business and have good economic condition, they shall compensate the four plaintiffs in term of the spiritual consolation money. The court is requested to order that the two defendants jointly and severally compensate the four plaintiffs for the funeral expenses of RMB41,520, the pension for the family of the deceased of RMB92,160, the grant-in-aid for the life of the family member of the deceased in RMB86,256, the spiritual consolation money in RMB200,000, totaling RMB419,936, and undertake the court fees in this case.


The Plaintiff Zhou Hongru, He Chunxiang, Zhou Shuying, and Chen Juxiang provided the following evidences within the time limit for adducing evidence: 1. Medical Jurisprudence Certificate of Death; 2. Notice of Cremation; 3. Witness statement of Xiao Junfan and Liu Guoshan; 4. The permanent household registration cards for the four plaintiffs and the deceased Zhou Yonglong. 


The Defendant Shi Tianfa defended that: I. The Defendant Shi Tianfa never knew the deceased Zhou Yonglong. The Defendant Shi Tianfa, as the buyer of the red bricks, entrusted the foreman Xiao Junfan to carry the red bricks from the vessel to the bank. However, Zhou Yonglong was employed by Xiao Junfan, the porters and tools were not provided by the Defendant Shi Tianfa. In this case, between the Defendants Shi Tianfa and Xiao Junfan existed the undertaking relationship, between Xiao Junfan and Zhou Yonglong existed the employment relationship, but there was no legal relationship between the Defendants Shi Tianfa and Zhou Yonglong. The Defendant Shi Tianfa paid the price for the undertaken project to Xiao Junfan. The Defendant Shi Tianfa was not the beneficiary of the handling/moving performed by Zhou Yonglong, therefore he shall not undertake the compensation liability for the death of Zhou Yonglong. II. Whether Zhou Yonglong??s falling into water and death was because of disease, insufficient physical strength during the course of unloading or for other reasons, there is no direct evidence in this regard. The Plaintiff??s view that Zhou Yonglong??s falling into water due to lack of safety facilities lacks convincing supporting evidence. III. The claim in this case shall be handled by reference to the Methods for Handling Traffic Accidents in Roads. The funeral expenses and pension claimed by the Plaintiff are too high, and are without legal basis. The death compensation claimed by the Plaintiff already includes the spiritual consolation money, which should not be claimed again. The court is requested to reject the litigation requests filed by the four plaintiffs against the Defendant Shi Tianfa. 


The Defendant Shi Tianfa provided the following evidences within the time limit for adducing evidence: 1. Business License of Guanlan Guangqing Construction Materials Business Department of Baoan District, Shenzhen; 2. Certification issued by Guanlan Guangqing Construction Materials Business Department of Baoan District, Shenzhen. 


The Defendant Huang Yifan defended that: on December 11, 2001, M/V ?°Yue Yang Jiang 0019?± owned by the Defendant Huang Yifan carried a shipment of red bricks in about 200 tons to the Xinle Terminal, Baoan District, Shenzhen. The Defendant Shi Tianfa telephoned the Defendant Huang Yifan, requiring to buy all the red bricks carried on the vessel of Huang Yifan. The Defendant Huang Yifan agreed. After achieving a consensus regarding the sale price of the red bricks in telephone, the Defendant Shi Tianfa requested the Defendant Huang Yifan to berth the vessel at the terminal contracted by him. After Huang Yifan berthed the vessel at the terminal, four porters came to the terminal to manually discharge the red bricks from the vessel in the evening. At about 0800 hrs on December 12, more than ten porters boarded the vessel to discharge the bricks. Until evening, two porters still remained on board to continue the discharge. At about 1900 hrs, one of the porters went to the toilet and found the other one missing after he came back. More than one hour later, the Defendant Shi Tianfa had the porter dragged out of the water more than ten meters away from the vessel by fishing net, but the porter was already dead. When the Defendants Huang Yifan and Shi Tianfa negotiated for selling the red bricks, they agreed that the Defendant Shi Tianfa should be responsible for the discharge. Later, the Defendant Shi Tianfa sought a foreman and paid him the charge for discharging the red bricks. It was up to the foreman to seek someone else to discharge the bricks manually, and the porters should take the labor service fee from the foreman. During the course of the discharge, the vessel has fully provided the lighting facilities. No accident occurred to the porters when they discharged the bricks the previous night. The Defendant Huang Yifan held that the death after the porter??s falling into water was because of the reason that he worked for too long time so that he was exhausted and scatterbrained, and then stumbled and dropped into the water. The accident was nothing to do with the Defendant Huang Yifan.


The Defendant Huang Yifan provided the following evidences within the time limit for adducing evidence: 1. Witness statement of Liu Yunmei and Wei Yemin; 2. 2 pieces of photos.


At the application of the Defendant Shi Tianfa, this court collected the following evidences from the Xinle Police Station of Baoan District, Shenzhen (hereinafter referred to as ?°Xinle Police Station?±): 1. Submission for Immediately Handling of Zhou Yonglong??s Death Suffered at Work to the People??s Congress of Baoan District, Shenzhen by the Plaintiffs Zhou Hongru, He Chunxiang, Zhou Shuying; 2. Written Record of Inquiry made by Xinle Police Station to Shi Tianfa, Xiao Guoqiang, Huang Yifan, Zhou Shuying, Yu Lichang, Xiao Junfan; 3. Notice of Cremation; 4. Medical Jurisprudence Certificate of Death. The Defendant Shi Tianfa paid the investigation and evidence collection fee in amount of RMB500. 


The collegiate bench unanimously holds that: as the Defendant Huang Yifan has not attended the court hearing, it shall be deemed that he has waived the right of adducing evidence and cross-examination. The Defendant Shi Tianfa had no dissension from the evidences provided by the four Plaintiffs. The four Plaintiffs had no dissension from the evidences provided by the Defendant Shi Tianfa. The four Plaintiffs and the Defendant Shi Tianfa had no objection to the evidences collected by this court from Xinle Police Station. The said evidences, which the relevant parties have no dissension from and are related to this case, shall be accepted by this court. 


According to the said evidences that have been accepted and ascertained, the facts of this case are determined as follows:


At 1000 hrs on December 11, 2001, M/V ?°Yue Yang Jiang 0019?± owned by the Defendant Huang Yifan carried a consignment of red bricks from Zhongshan, Guangdong to Shenzhen. At 1800 hrs of that day, the vessel arrived at the Xinle Terminal of Bao??an District, Shenzhen. Later, the Defendant Huang Yifan contacted with the Defendant Shi Tianfa via telephone, and confirmed that the Defendant Huang Yifan should sell all the red bricks carried on the vessel to the Defendant Shi Tianfa, and the Defendant Shi Tianfa should be responsible for discharging the goods. The Defendant Huang Yifan berthed ?°Yue Yang Jiang 0019?± at the terminal hired by the Defendant Shi Tianfa. 


In order to discharge the red bricks, the Defendant Shi Tianfa contacted with the foreman Xiao Junfan. They agreed that: the Defendant Shi Tianfa would transfer the matter of discharging the red bricks to Xiao Junfan for handling; the labor service was fully paid to Xiao Junfan on basis of RMB0.007 for each red brick discharged, and it was up to Xiao Junfan to seek someone else to discharge the red bricks by himself. The porter??s labor service fee should be counted and paid by Xiao Junfan according to the quantity of the bricks actually discharged. Xiao Junfan would take 10% commission out of the payment. Later, Xiao Junfan arranged 15 porters including Zhou Yonglong to manually discharge the bricks from the vessel. 


At about 0700 hrs on December 12, Zhou Yonglong and other porters began to manually convey the red bricks from ?°Yue Yang Jiang 0019?± to the terminal stockyard designated by the Defendant Shi Tianfa. According to the statement of Yu Lichang, who was one of the porters discharging the bricks, each porter must accomplish the rated quota of about 10,000 bricks before they could leave. At about 1900 hrs of that day, other porters left the site after completing the rated quota. Zhou Yonglong and another porter Yu Lichang continued to manually discharge the bricks as they had not completed the rated quota. During the operation, Yu Lichang went to the toilet. After that, he met with the Defendant Shi Tianfa. The Defendant Shi Tianfa asked Yu Lichang why there was still a stow of red bricks on board undischarged. Yu Lichang then came back to the vessel to seek Zhou Yonglong and could not find him. However, he found that one plank linking the vessel and the terminal fallen into the water and one shoulder pole floating on the water nearby. The Defendant Shi Tianfa suspected that Zhou Yonglong had fallen into water. Then he asked the fishermen in the vicinity to recover Zhou Yonglong by fishing net. After Zhou Yonglong was netted up to the bank, he was already dead. There was no witness when Zhou Yonglong fell into the water. 


The plank used at the time of discharge was provided by the Defendant Huang Yifan. As the porter Yu Lichang said: In the evening there were lights at the time of discharge, and the wooden plank linking the vessel and the bank was 3-4 meters long and about 1 chi wide. The Defendant Shi Tianfa stated that: when the operation was carried out in the evening at his terminal, there were neither lighting facilities nor other safety protective measures provided for the discharge.


According to the Medical Jurisprudence Certificate of Death issued by Shenzhen Public Security Bureau Bao??an Branch Office: Zhou Yonglong died from drowning at Anle Terminal at the seashore of the 38th Quarter of Baocheng on December 12, 2001. Shenzhen Public Security Bureau Bao??an Branch Office issued the Notice of Cremation on December 17, 2001, informing that Shenzhen Funeral Parlor was allowed to cremate the corpse of Zhou Yonglong. On December 17, when inquiring the Plaintiff Zhou Shuying, Xinle Police Station informed her that she could handle cremation of Zhou Yonglong??s corpse against the Notice of Corpse Cremation. At the court hearing, the four Plaintiffs claimed that: due to economic difficulty, the corpse of Zhou Yonglong was still lying in Shenzhen Funeral Parlor without cremation, and corpse storage cost at RMB100/day should be paid. 


The household register provided by the four Plaintiffs state that: Zhou Yonglong was born on May 24, 1976. The Plaintiff Zhou Hongru is the father of Zhou Yonglong, the Plaintiff He Chunxiang is his mother, the Plaintiff Zhou Shuying is his wife, the Plaintiff Chen Juxiang is his grandmother. 


It is otherwise found out that: the Defendant Shi Tianfa was affiliated to Guanlan Guangqing Construction Materials Business Department of Bao??an District, Shenzhen and engaged in the business of construction materials at the Xinle Terminal. 


On December 24, 2001, the Plaintiffs Zhou Hongru, He Chunxiang and Zhou Shuying applied for labor arbitration with Shenzhen Bao??an District Labor Dispute Arbitration Commission in respect of the dispute under this case. On the same day, Shenzhen Bao??an District Labor Dispute Arbitration Commission issued the Notice of Refusal of acceptance of the case to refuse handling of the application. 


The collegiate bench unanimously holds that: on the ground that the fault of the two Defendants had caused the death of their family member, the four Plaintiffs applied to this court to order that the two defendants be jointly and severally liable for the compensation of death and damage. Therefore, this case is a tort dispute over compensation for death and injury. 


The Defendant Shi Tianfa was responsible for discharging the goods and undertaking the relevant expenses. Although Zhou Yonglong was employed by the foreman Xiao Junfan, the latter only took 10% out of the labor service fee. Therefore, the labor service fee for the porters was actually paid by the Defendant Shi Tianfa. Xiao Junfan was the entrustee and the Defendant Shi Taifa was the entrustor. The Defendant Shi Tianfa employed the porters including Zhou Yonglong through Xiao Junfan to carry out the discharging operation. The Defendant Shi Tianfa was the employer, Zhou Yonglong was the employee. There existed the factual employment relationship between the Defendant Shi Tianfa and Zhou Yonglong. Therefore, the Defendant Shi Tianfa??s allegation that he has not the employment relationship with Zhou Yonglong will not be supported. 


To accomplish the discharge operation, the Defendant Shi Tianfa temporarily employed some porters to manually discharge the bricks. Therefore he had the obligation to provide proper safety protective measures and the working environment suitable for the operation, such as setting up protective grating or guard and net etc.. However, he failed to do so. As the employer, he should have ensured the personal safety of the porters during the operation, but he did not fulfill the obligation but required the porters to work with overload for a long time. The fault committed by the Defendant Shi Tianfa had causal relationship with the process from falling into water and drowning until the death of Zhou Yonglong, therefore he shall undertake the relevant tort liability for compensation. The Defendant Huang Yifan was the provider of the plank, he should have ensured the safety in using the plank. When Zhou Yonglong fell into water, the plank also slipped into the water. This proves that the plank was not safely used. In the meantime, as the owner of the vessel, the Defendant Huang Yifan had the obligation to protect the safety of the porters during the course of their workings on the vessel. The Defendant Huang Yifan should also undertake the relevant liability corresponding to his fault for the drowning and death of Zhou Yonglong. As the Defendants Shi Tianfa and Huang Yifan committed the fault to the same degree, they shall undertake the compensation liability evenly. In view that the death of Zhou Yonglong was caused by the joint infringement by the Defendants Shi Tianfa and Huang Yifan, according to Article 130 of the General Principles of the Civil Law of the PRC, the Defendants Shi Tianfa and Huang Yifan should undertake the joint and several liability. 


The four Plaintiffs filed the claim on the ground that the infringement committed by the two Defendants has incurred losses to them. Therefore, the settlement of the dispute in this case shall apply the relevant provisions of the General Principles of the Civil Law of the PRC relating to infringement. The compensation standard in this case may refer to and apply the Methods for Handling Traffic Accidents in Roads promulgated by the State Council. The Defendant Shi Tianfa has not the qualification as an employing unit, thus relations between Zhou Yonglong and him was merely the temporary employment relationship. There did not exist the labor relationship between the Defendants Huang Yifan and Zhou Yonglong either. Therefore, it is without legal basis for the four Plaintiffs to request that the Guangdong Province Insurance Regulations for Injury and Death During Service be applicable in settling this case, therefore such request will not be supported. 


Zhou Yonglong, the family member of the Plaintiff, was born on May 24, 1976 and died on December 12, 2001. He was 25 years and 6 months old at the time of his death. By reference to the Methods for Handling Traffic Accidents in Roads, the compensation for the death of Zhou Yonglong shall be counted for 10 years on basis of the average cost of living at the place where the accident took place. The annual average cost of living per capita provided in the Standard of Guangdong Province for Calculating Damages in Traffic Accidents in Roads, 2001 is RMB8,016.91, therefore the compensation for the death of Zhou Yonglong is RMB80,169.10. The funeral expenses for Zhou Yonglong shall be paid according to the standard of funeral fee at the place where the accident took place. Therefore, the funeral expenses in this case shall be ascertained according to the standard RMB4,000 per person as provided in the Standard of Guangdong Province for Calculating Damages in Traffic Accidents in Roads, 2001. As the competent authorities have notified the family members of the dead to handle the funeral affairs, but his family members failed to do so within the time limit. Therefore, the overdue cost for storage of the corpse shall be undertaken by the family members of the dead. The part beyond the funeral fee of RMB4,000 claimed by the Plaintiffs will not be supported. The Plaintiff Zhou Hongru is the father of Zhou Yonglong, the Plaintiff He Chunxiang is his mother, the Plaintiff Zhou Shuying is his wife. According to Article 10 of the Succession Law of the PRC, the Plaintiffs Zhou Hongru, He Chunxiang and Zhou Shuying are the successors in the first priority, who have the right to claim for the compensations and funeral expenses for the death of Zhou Yonglong. 


When Zhou Yonglong was dead, Zhou Hongru was at the age of 51, He Chunxiang at the age of 48. As the Plaintiffs Zhou Hongru, He Chunxiang and Zhou Shuying failed to provide evidence to prove that they had lost physical ability to work and had no other sources to make a living, therefore the said three Plaintiffs cannot apply for the cost of living of the fostered. The Plaintiff Chen Juxiang is the grandmother of Zhou Yonglong. When the Plaintiff Zhou Hongru is still alive, Zhou Yonglong has no obligation to foster Chen Juxiang. Therefore, the Plaintiff Chen Juxiang is not entitled to claim for the cost of living of the fostered either. 


Although the death compensation as ascertained above is of the nature of spiritual consolation, considering that Zhou Yonglong is the only son of the Plaintiffs Zhou Hongru and He Chunxiang and the main labor power of the family, and also taking the actual situation of this case into consideration, after the claim for the death compensation is supported, it is still difficult to remedy the spiritual harm to the Plaintiffs Zhou Hongru, He Chunxiang and Zhou Shuying due to the accident. Therefore, according to Article 10 of the Explanation of the Supreme People??s Court on Certain Issues Concerning the Ascertainment of Civil Tort Liability for Compensation of Spiritual Damage, a sum of RMB30,000 as the spiritual consolation money shall be paid to the Plaintiffs Zhou Hongru, He Chunxiang and Zhou Shuying after the actual situation is taken into consideration, but the excessive part claimed will not be supported. 


The Plaintiff Chen Juxiang is the successor of Zhou Yonglong in the second priority. When there are the successors in the first priority, the Plaintiff Chen Juxiang is not entitled to claim for the death compensation, funeral fee and spiritual consolation money of Zhou Yonglong. Therefore, the litigation request of the Plaintiff Chen Juxiang against the Defendants Shi Tianfa and Huang Yifan shall be rejected. 


Pursuant to Article 119, Article 130 and Article 131 of the General Principles of the Civil Law of the PRC, the judgement is rendered as follows: 


I.	The Defendants Shi Tianfa, Huang Yifan shall be jointly and severally liable for compensating the Plaintiffs Zhou Hongru, He Chunxiang and Zhou Shuying for the death compensation of RMB80,169.10, funeral expenses of RMB4,000 and the spiritual consolation money of RMB30,000 for the death of Zhou Yonglong; 

II.	The other litigation requests of the Plaintiffs Zhou Hongru, He Chunxiang and Zhou Shuying shall be rejected;

III.	The litigation requests of the Plaintiff Chen Juxiang against the Defendants Shi Tianfa and Huang Yifan shall be rejected.


The case acceptance fee in this case is RMB5,560, of which a sum of RMB4,048 shall be undertaken by the Plaintiffs Zhou Hongru, He Chunxiang, Zhou Shuying and Chen Juxiang, and a sum of RMB1,512 shall be jointly and severally undertaken by the Defendants Shi Tianfa and Huang Yifan. The investigation and evidence collection fee of RMB500 shall be undertaken by the Defendant Shi Tianfa. 


The above obligation for payment shall be accomplished within 10 days after this judgement takes effect. 


If any party is unsatisfied with this judgement, it may submit a statement of appeal to this court within 15 days upon service of this judgement, together with copies according to the number of the opposite parties. The appellate court shall be the Higher People??s Court of Guangdong Province. 



Presiding Judge: Wu Zili

Judge: Chen Weiguo

Judge: Weng Ziming

December 9, 2002

Court Clerk: Yang Qian