案例一： BOA BARGES AS 訴南京奕淳船舶制造有限公司國際船舶建造合同糾紛案
2007年4月18日，挪威籍船東BOA OFFSHORE AS向南京奕淳船舶制造有限公司（以下簡稱南京奕淳公司）訂購船舶并簽訂三份總價款近5000萬美元的《半潛重型甲板貨駁造船合同》，合同約定發生爭議后應在倫敦進行仲裁并受英國法律管轄。2010年5月17日，挪威籍船東BOA BARGES AS作為新買方，承繼原三份合同權利義務。后因合同履行發生爭議，雙方決定于2015年12月8日終止合同，但對合同終止后的一系列相關問題并未達成一致。到2020年初，雙方爭議不斷增大，無法自行協商解決，要解決糾紛只能根據合同約定向倫敦國際仲裁院申請仲裁。
2020年2月，突如其來的新冠肺炎疫情對國際仲裁活動產生了較大影響，特別是隨著海外疫情形勢日益嚴峻，不少歐洲國家采取入境限制等防控措施?；诙喾N因素考慮，雙方于5月16日簽訂《補充協議》，約定將合同爭議解決方式變更為提交南京海事法院裁決并適用中國法律。6月11日，原告BOA BARGES AS 委托律師到南京海事法院提起訴訟，請求判令被告南京奕淳公司返還預付款及相應利息。
As the 11th maritime court in China, Nanjing Maritime Court officially started operating on December 4, 2019. In its first year, under the guidance of Xi Jinping thoughts on Socialism with Chinese Characteristics in a New Era, Nanjing Maritime Court (hereinafter referred to as “the Court”) implements the guiding principles of the 19th National Congress of the Communist Party of China and the Second, the Third, the Fourth and the Fifth Plenary Sessions of the 19th CPC Central Committee. Focused on “building a first-class maritime court with its influence spreading across the country and even across the globe”, the Court always put political building as the overarching principle, made unremitting efforts to refine the trial process and make systematic plans and progress, and leveraged the role of the maritime trial to support national strategies such as the building of a powerful maritime country as well as the re-start of the construction of new Jiangsu Province featuring a strong economy, wealthy people, beautiful environment, and a high degree of social civilization. With a promising beginning in various efforts, the Court was recognized by Zhou Qiang, President of the Supreme People's Court of China, and Lou Qinjian, Secretary of the CPC Committee of Jiangsu Province. The Work Report of the Supreme People’s Court of China (2020) also mentions, “Based on its geographical advantages, Nanjing Maritime Court actively supports the development of the marine economy.”
As of November 2020, the Court has accepted 2,127 cases of various types and closed 1,312 cases, ranking 7th and 9th respectively among maritime courts in China concerning the number of accepted and closed cases. There are 94 types of cases among all 108 types in six categories determined by the Provisions of the Supreme People's Court on the Scope of Cases to Be Accepted by Maritime Courts, 88.06% cases were closed within the time limit for trial, 96.23% cases were settled without appeal in the first trial and 63.88% civil cases were withdrawn after meditation. Moreover, it accepted the 8th highest number of civil cases, the highest number of administrative cases, and the 11th highest number of enforcement cases among maritime courts in China. The subject matter of all actions valued RMB 7.066 billion, of which RMB 5.002 billion came from trial cases and RMB 2.064 billion came from enforcement cases.
1.Civil Cases: As for the civil cases, 1,269 cases were accepted, and 693 cases were closed. The top three in the ranking of subcategories with the most accepted cases are listed below: disputes over contracts for freight forwarding by sea or by waters leading to the sea (127 cases), disputes over contracts for freight transport by sea or by waters leading to the sea (123 cases), and disputes over contracts for the supply of ship stores and spares (95 cases). There are a total of 561 cases in the top ten subcategories with the exact number of cases in each subcategory shown below.
2.Administrative Cases: As for administrative cases, 130 cases were accepted and 45 cases were closed. The top three in the ranking of subcategories with the most accepted cases are listed below: administrative compulsion on marine resources (64 cases), administrative penalty on water transportation (19 cases) and administrative license on marine resources (10 cases).
3.Enforcement Cases: As for enforcement cases, 477 cases were accepted and 361 cases were closed.
4.Seizure of Ships: 112 ships were seized, of which 5 were from foreign countries, Hong Kong, Macau, and Taiwan.
5.Cases involving foreign, Hong Kong, Macau, and Taiwan elements: 100 cases were accepted and accounted for 7.88% of the total accepted civil cases by the Court; the subject matter of these actions valued for RMB 443 million and involved the elements of more than 30 countries and regions such as the United Kingdom, France, Germany, South Korea, India, Singapore, Greece, and Brazil.
6.Cases of Detached Tribunals: Four detached tribunals in Lianyungang, Nantong, Taizhou, and Suzhou accepted 1028 cases, accounting for 48.33% of the cases accepted by the Court; closed 610 cases, accounting for 46.49% of the cases closed by the Court. Among them, Lianyungang Detached Tribunal accepted 424 cases, Nantong Detached Tribunal accepted 188 cases, Taizhou Detached Tribunal accepted 265 cases, and Suzhou Detached Tribunal accepted 151 cases.
943 judgments which account for 71.88% of the total closed cases were uploaded through China Judgments Online. 72 trials were broadcasted live on China Court Trial Live Broadcast Online with a total of 47,515 viewers. 1,304 cases which account for 98.79% of the total went through effective judicial process and information disclosure on China Judicial Process Information Online.
The Court carried out prospective research to reach the targets and prioritized leverage of maritime justice in supporting national strategies such as the building of a powerful maritime country, the development of the Yangtze River Economic Belt, the integrated regional development of the Yangtze River Delta, as well as the Belt and Road Initiative, in order to promote economic and social development with high-quality maritime judicial service; promulgated the Opinions on Fully Leveraging the Role of Maritime Trial to Provide Judicial Services and Guarantees for the Re-start of the Construction of New Jiangsu Province Featuring Strong Economy, Wealthy People, Beautiful Environment and a High Degree of Social Civilization, which clarifies 4 main tasks, 8 key fields and 10 guarantee mechanisms for maritime justice; established a regular analysis and notification system for cases involving the Belt and Road Initiative, conducted special investigations on admiralty and maritime cases involving the Free Trade Zone, the construction of the Grand Canal Cultural Belt, and marine ecological environment protection, and introduced 10 measures to make business environment more international, facilitating and making it compatible with the rule of law; closed 38 maritime administrative cases involving unlicensed ships on the Yangtze River in accordance with the law, promoted substantive progress in resolving administrative disputes through demonstrative court trials, and supported the elimination of unlicensed ships on the Yangtze River—all these judicial efforts led to a better protection of the Yangtze River; proposed 15 measures on maritime justice for pandemic prevention, published 14 issues of articles on the “interpretation of maritime laws by maritime judges”, organized the preparation and distribution of more than 1,000 copies of the Manual on Legal Risk Avoidance in the Shipping, Port, Logistics, Shipbuilding and Other Industries, provided relief to companies in difficulties and worked to ensure stability in employment, financial operations, foreign trade, foreign investment, domestic investment, and expectations as well as security in job, basic human needs, operations of market entities, food and energy security, stable industrial and supply chains, and the normal functioning of primary-level governments.
Given that maritime jurisdiction is internationally involved and requires professionalism, the Court made vigorous efforts to refine its trial process and guaranteed fair and efficient trial of cases. It formulated the Opinions on Refining the Maritime Trial Process and Selecting a Collection of Well-tried Cases, set up a group of consulting experts, recommended experts to serve as the jurors, carefully paid attention to complex and troublesome major cases with significance for rulemaking and demonstration, and presented a batch of well-tried cases; formulated 12 guidelines for collecting maritime evidence, judicial review of maritime arbitration and other trial procedures and prepared trial guidelines for typical cases such as cargo delivery by sea without a bill of lading and disputes over freight forwarding by sea to standardize judicial behaviors and unify judgment standards. In the early stage of its establishment, the Court overcame a series of difficulties such as lack of experience in the seizure of foreign ships, and actively coordinated with maritime and defense departments to its first foreign ship seizure case—the seizure of “KELLY”, and developed its initial procedure for the seizure of ships; properly handled a ship seizure case involving multiple sensitive factors such as foreign affairs, the pandemic, floods and effectively mitigated pandemic and flood risks faced by the ship "New Orion" during its seizure, and protected the legitimate rights and interests of both Chinese and foreign litigants; effectively closed an international case involving disputes over a shipbuilding contract that was actively handed by the foreign litigant to Nanjing Maritime Court and won the trust of the international community in China's maritime justice with professionalism. During the tour of inspection to courts in Jiangsu, a deputy to National People’s Congress fully recognized Nanjing Maritime Court for its professionalism, as well as its efforts to refine the maritime trial process and support the development of the marine economy.
The Court gave priority to rules and regulations, accelerating their formulation and ensuring they remain systematic, coordinative, and operable. The Court prepared the Development Plan for Nanjing Maritime Court (2021-2025), and issued more than 60 rules and regulations, covering case trial, team management, Party building, and judicial affairs; improved the operating mechanism of maritime jurisdiction, issued a complete set of trial management documents to clarify jurisdictions and responsibilities of judges, the responsibility of trial supervision of the Court’s president, vice president, and division chief judges, and the working rules of the adjudication committee and the presiding judges' meeting, and fully implemented the judicial responsibility system. The Court further developed a communication mechanism between detached courts and local CPC committees, governments, and local courts, and better leveraged the role of detached courts in serving the overall interests in accordance with the law, ensuring justice is served, training officials, and improving social governance. Moreover, it co-signed the Memorandum on the Strategic Cooperation in the Administrative Enforcement of the Maritime Law and Maritime Justice in Jiangsu Province with the Department of Transportation of Jiangsu Province, Jiangsu Maritime Safety Administration and Lianyungang Maritime Safety Administration to actively explore a new cooperation model for the administrative enforcement of the maritime law and maritime justice in Jiangsu, an innovative measure which was successfully selected as one of the representative cases of judicial reform in courts of Jiangsu; established strategic partnerships with Dalian Maritime University and Nanjing University of Information Science and Technology, carrying out pragmatic and in-depth cooperation in talent training, academic platform construction, and personnel exchanges and interactions; promoted the establishment of the Maritime Litigation Research Society, Jiangsu Law Society to bring together experts on the admiralty and maritime laws in the province and make constant theoretical and practical innovation on maritime justice, and successfully held its first annual meeting through live streaming with a total of 25,000 viewers and positive social repercussions. Besides, the Court appointed deputies to NPC, CPPCC members, and maritime experts as special supervisors, and regularly arranged activities such as court hearings, inspections, and investigations. During the trial of a maritime administrative case in which the administrative officer appeared in court, deputies to NPC and CPPCC members as hearers spoke highly of the judgment of the court.
(4) Additional Informationalized Litigation Services
The Court made full leverage of the achievements from the construction of smart courts in Jiangsu to promote the construction of a one-stop multi-component dispute resolution and litigation service system and enable smart service, smart trial, smart enforcement, and smart management; optimized online litigation services to enable cross-domain case filing, electronic delivery, online payment, and online case review and installed self-service facilities in Nanjing Yangtze River International Shipping & Logistics Center and Maritime Rule of Law Square to provide litigation services day and night. It further developed construction planning for the trial building in the Nanjing Rule of Law Park and infrastructure of detached courts, integrated the information system of the Court's headquarters and detached courts, established a remote conference system for judges and an online court, developed an online ship inspection and control system, and improved the 854 operation model of the executive command center by formulating the Online Trial Norms of Nanjing Maritime Court and closed 154 cases on the Internet during the COVID-19 pandemic to guarantee continued case trial and administration of justice. Moreover, it set up one-stop dispute resolution centers for disputes over marine accidents, port disputes, and fishery disputes in Nanjing, Suzhou, and Lianyungang as well as circuit trial courts and trial work stations for dispute resolution at the source in the four detached courts, and specially invited six mediation organizations and 89 mediators. Based on these efforts, a maritime dispute resolution network was shaped to provide various needed judicial services to people. Besides, it became the first court in Jiangsu to develop a bilingual website (Chinese and English) where it released its first bilingual maritime report on trials. It also created accounts on online platforms such as WeChat, Weibo, and Toutiao where it published more than 800 posts, with 450,000 reads and 15 news reports shared by People’s Court Daily, Xinhua Daily, Jiangsu Legal Daily, and some other mainstream media.
The Court strived to build a politically solid and professionally competent maritime trial team with an international perspective by adhering to the requirements of constant reform, regularized operation, specialization and professionalism and giving priority to self-betterment and the sense of responsibility; always putting the Party’s political building first, continued to guide itself with theory and put into practice the requesting and reporting system for major affairs; established its own CPC committee, commission for disciplinary inspection, labor union, youth league, and women's federation to promote the solid integration of Party building and trial work, prepared personal archives for court personnel and warned them with negative cases, and put into action the responsibility of its CPC committee and the supervision responsibility of its commission for disciplinary inspection. Moreover, it focused on equipping maritime judges with knowledge about the law, foreign languages, maritime affairs, trade, and shipping, as well as held the “lectures on maritime affairs” every month, and organized judicial officers to train sea safety skills on ships in order to improve their professionalism; it further built a translation team of young staffers to regularly conduct translation training and academic exchanges; set up 10 professional teams of judges and pooled efforts to conduct in-depth discussions on professional cases; introduced an assessment mechanism based on seven objectives, established a pool of researchers, and encouraged them to “delve deep into research problems, summarize their experiences, and present their findings.” In the past year, the judicial officers of the Court have undertaken one province-level key research project and wrote 21 papers, which were either published in journals such as People’s Judicature and Journal of Law Application or won awards in the state- and province-level conferences. It participated in a series of conferences, including the 28th National Maritime Trial Seminar, the Special Symposium of the Supreme People's Court on Judicial Protection of Marine Ecological Environment, and the Annual Meeting of the China Maritime Law Association, and delivered more than 10 keynote speeches.
Case 1:BOA BARGES AS vs. Nanjing Yichun Shipbuilding Co., Ltd. Dispute over International Shipbuilding Contract
On April 18, 2007, Norwegian ship owner BOA OFFSHORE AS, ordered ships from Nanjing Yichun Shipbuilding Co., Ltd. (hereinafter referred to as “Nanjing Yichun Company”) and signed three Semi-Submersible Heavy-duty Deck Barge Contracts with a total price of nearly US$50 million. The contracts agreed that disputes shall be arbitrated in London and governed by English law. On May 17, 2010, Norwegian ship owner BOA BARGES AS, as the new purchaser, assumed the rights and obligations of the original three contracts. With the occurrence of the dispute over the contract performance, both parties decided to terminate the Contract on December 8, 2015, but failed to reach an agreement on a series of issues after the termination of the contract. By the beginning of 2020, the dispute cannot be solved by negotiation due to its escalation. Thus, both partiesshall apply to the London Court of International Arbitration for arbitration in accordance with the relevant contract to solve the dispute.
The sudden outbreak of COVID-19 in February 2020 has a great impact on international arbitration. Especially with the increasingly severe situation of global epidemic, many European countries adopt entry restrictions and other prevention and control measures. Based on various factors, both parties signed the Supplementary Agreement on May 16, which agreed to submit the dispute to Nanjing Maritime Court for adjudication and apply Chinese laws. On June 11, the plaintiff BOA BARGES AS entrusted lawyers with a lawsuit to Nanjing Maritime Court, requesting the defendant Nanjing Yichun Company to return the advance payment and the accrued interest.
At the acceptance of this case, it was found through examination that the power of attorney of the plaintiff's attorney shall be notarized by the Norwegian notary office and authenticated by the embassy of the People's Republic of China in Norway. However, due to the influence of the pandemic situation, the plaintiff failed to submit the authenticated notarial documents to the court. In view of the actual impact of the pandemic on notarization and authentication and the complete specifications of other relevant filing materials of the case, and the plaintiff's attorney promised to complete the authenticated notarial documents before the trial, Nanjing Maritime Court decided to file the case first, allowing the attorney to delay submitting and authorization procedures. In the process of trial, in order to reduce the risks brought about by the flow and gathering of people during the pandemic, the judge in charge, on the basis of carefully examining the evidence materials involved in the case, facilitated the parties to reach a mediation agreement by handling the case through the Internet, and concluded the case in 27 days.
Jiangsu is a major shipbuilding province in China, with shipbuilding completion, order placement and existing orders ranking first in China for consecutive years, and all indicators accounting for more than 30% of the national total. There are a large number of ship cases accepted by Nanjing Maritime Court, accounting for 29.71% of the total number of civil cases. This case is an international ship construction contract dispute. Against the backdrop of the increasingly severe global COVID-19 epidemic, the foreign party took the initiative to alter the dispute resolution method from arbitration in London to filing a lawsuit to Nanjing Maritime Court and applying Chinese law, which is not only based on the trust in China's efforts to build the International Maritime judicial center and optimize the judicial environment, but also fully recognized the Nanjing Maritime Court's service to ensure the construction of "the Belt and Road Initiative" and actively build a preferred place for maritime litigation. During the COVID-19 epidemic, Nanjing Maritime Court allows foreign parties to postpone the submission of relevant notarization and authentication documents according to the relevant guidelines of the Guiding Opinions of the Supreme People's Court on Several Issues Concerning the Proper Trial of Civil Cases Involving COVID-19, and actively used the Internet in handling cases to promote the resolution of disputes in a timely manner, which truly realized the vision of normal trial and execution without halt the justice during COVID-19 epidemic. It is a great practice of equally protecting the legitimate rights and interests of Chinese and foreign parties, actively optimizing the rule of law, internationalization and facilitating the business environment, which fully embodies the advantages of the socialist judicial system with Chinese characteristics.
[First-instance Trial, Case Number] (2020) Jiangsu72,Civil Case First Instance No.611
Case 2:Zhang vs. the People's Government of Jianye District, Nanjing, Disputes over Administrative Punishment
In May 2018, seven administrative agencies including the People's Government of Jianye District, Nanjing, Nanjing Transportation Bureau, Nanjing Maritime Safety Administration, the Water Branch of Nanjing Public Security Bureau, the Nanjing Branch of Yangtze River Shipping Public Security Bureau, Nanjing Water Affairs Bureau, and Nanjing Agriculture and Rural Bureau set up a joint team to carry out special actions to rectify the “Three Withouts” (“without name and number”, “without ship certificate” and “without registry port”) ships in some waters of the Nanjing section of the Yangtze River, identifying 19 vessels owned by 14 persons, including Zhang, as “Three Withouts” vessels, and towing them to the temporary detention area for confiscation and dismantlement. After learning that the vessels have been confiscated and dismantled, Zhang et al. started seeking help from government authorities at all levels in the forms of letters and visits. In June 2020, Zhang et al. filed an administrative lawsuit with Nanjing Maritime Court, demanding confirmation that the seven administrative organs of the joint team confiscated and dismantled ships illegally, and filed an administrative compensation lawsuit, requiring that the administrative organs to compensate each ship for losses ranging from several hundred thousand yuan to more than one million yuan.
After the case has been accepted according to law, Nanjing Maritime Court acquired a deep understanding of the background, progress and early situation about dispute handling of the rectification of the “Three Withouts” ships in the Yangtze River, combed the relevant laws, regulations and policies, analyzed and researched the practices, common disputes and judicial decisions of the rectification of the “Three Withouts” ships in various provinces and cities. In order to properly handle the discussed disputes according to law, Nanjing Maritime Court decided to take the lead in arranging 12 typical cases for trial, and notify the person in charge of the sued administrative organ to appear in court to respond to the lawsuit, and arrange the parties in other 26 cases to attend the trial. After finding out the facts of the cases in trial, the collegial panel rejected the litigations of the above 12 cases on the grounds that the cases exceeded the time limit for litigation. After the trial, the court patiently explained the applied laws and regulations and clarified the legal relationship. On the basis of fully considering the actual situation of the ships and the specific policies of the local government, the parties in other 26 cases voluntarily withdrew the lawsuits requesting confirmation of the administrative organ’s illegality, and reached a mediation agreement with the sued administrative organs on the administrative compensation, which was confirmed by the Nanjing Maritime Court.
Maritime administrative cases are one of the six categories of cases accepted by maritime courts. The discussed disputes over maritime administration involving the “Three Withouts” ships on the Yangtze River were properly concluded according to law, which is a successful practice for Nanjing Maritime Court to deepen the connection between administrative law enforcement and judicial disposal. It strongly supports the zero clearing of “Three Withouts” ships on the Yangtze River and demonstrates the maritime judicial protection of the Yangtze River. “Three Withouts” ships evade supervision and illegally engage in passenger traffic, cabin cleaning, sand excavation & fishing, electric welding repair and other business activities on the Yangtze River, which easily causes potential safety hazards of waterways and environmental pollution on the Yangtze River waters. Additionally, it is hard to investigate and handle the “Three Withouts” ships, and these situations turn to occur repeatedly. In the trial of this case, Nanjing Maritime Court conscientiously implemented the concept of “joint efforts rather than mass development”, based on the objective of resolving administrative disputes substantively, and guided the parties to such cases involving the “Three Withouts” ships of the Yangtze River to defend their rights rationally by organizing demonstration trial and rejecting Zhang’s lawsuit in advance according to law, thus laying a solid foundation for resolving contradictions and disputes and ensuring the detailed implementation of the relevant strategic arrangements for the protection of the Yangtze River. The successful conclusion of these disputes safeguard the rights and interests of people’s livelihood to the utmost extent, support and supervise the law-based administration of maritime administrative organs, and provided guidance for the maritime administrative organs to further improve the standardization of administrative law enforcement, which fully demonstrates the functional role of maritime trials in accordance with the law in promoting the development of the Yangtze River Economic Belt and regional integration in the Yangtze River Delta.
[First-instance Trial, Case Number] (2020) Jiangsu 72, Administrative Case First Instance No.9-14, No.59-71, (2020) Jiangsu 72, Administrative Compensation Case First Instance No.3-21
Case 3:Dongxing Branch of Jiangsu Jingjiang Rural Commercial Bank Co., Ltd. vs. Hu et al. Dispute over Financial Loan Contract and Ship Mortgage Contract
On December 3, 2013, Hu signed a loan contract with Dongxing Branch of Jingjiang Rural Commercial Bank Co., Ltd. (hereinafter referred to as “the Bank”), stipulating that Hu applied a loan of 28 million yuan from the Bank. On the same day, Taizhou Jintai Shipping Co., Ltd. (hereinafter referred to as “Jintai Company”), XX Zhang, X Zhang, Wu, and Mao signed a guarantee contract with the Bank, stipulating that Jintai Company, XX Zhang, X Zhang, Wu, and Mao shall provide joint liability guarantee for all principal, interest, overdue interest, penalty interest, compound interest, damages, expenses for realizing creditor’s rights and all other expenses for realizing creditor’s rights under the above contract. Hu and Jintai Company signed a mortgage contract with the Bank, stipulating that all “Jintai 528” bulk carriers of Hu and Jintai Company provide mortgage guarantee for the above loan, with the guarantee amount of 28 million yuan, and the scope of guarantee covers the principal, interest, overdue interest, penalty interest, compound interest, damages, expenses for realizing creditor’s rights and all other expenses for realizing creditor’s rights under the master contract. After the expiration of the repayment period, Hu still owed a principal of 26.93 million yuan and failed to return it according to the contract. The Bank appealed to Nanjing Maritime Court, requesting that Hu immediately repay the loan principal of 26.93 million yuan and the interest until the date of repayment. Jintai Company, XX Zhang, X Zhang, Wu and Mao shall bear joint and several liability. The Bank has the priority to be compensated for the price obtained from auction, sale and discount of “Jintai 528” bulk carriers mortgaged by Hu and Jintai Company for the above debts.
Nanjing Maritime Court held upon trial that, according to Article 58 of the Minutes of Civil and Commercial Trial Work of National Courts issued by the Supreme People’s Court on November 8, 2019, in the confirmation of the scope of guarantee for real estate security, if the scope of guarantee agreed in the contract is inconsistent with the registration due to the setting of regional registration system and registration rules, it is an appropriate choice for the People’s Court to confirm the scope of guarantee for real estate security by contract. In the practice of Jiangsu’s ship mortgage registration authority, the registration system does not set the column of “guarantee scope”, and generally only has the expression of “amount of creditor’s rights”, and only a fixed number can be filled in. Due to the technical conditions, the registration authority usually only registers the amount of principal creditor’s rights in it. In this case, the registration authority recorded the amount of creditor's rights of 28 million yuan in the mortgage of “Jintai 528” bulk carriers, which only indicated the amount of principal creditor’s rights, but did not limit the guarantee scope of ship mortgage to 28 million yuan. In this case, the mortgage of “Jintai 528” bulk carrier involved in this case, as a special movable property, is inconsistent with the contract agreement due to the setting of the registration system of the ship mortgage registration authority. Therefore, the scope of mortgage guarantee may be determined as covering the principal creditor’s rights, interest, penalty interest and other expenses by reference to the spirit of meeting minutes, instead of simply confirming the registered creditor’s rights amount of 28 million yuan as the guarantee scope of ship mortgage. Therefore, the defendant, Hu, repaid the plaintiff, the Bank, the loan principal of 26.93 million yuan and accrued interest, and the defendants, Jintai Company, XX Zhang, X Zhang, Wu and Mao bore joint and several liabilities for liquidation. The plaintiff, the Bank, was given the priority of compensation for the proceeds from the auction, sale and discount of “Jintai 528” bulk carrier. After the judgement of the first instance was pronounced, neither party lodges an appeal.
There are disputes in practice as to whether the guarantee scope of ship mortgage shall be based on the amount of creditor’s rights registered in mortgage or the guarantee scope agreed in contract. The typical significance of this case lies in the establishment of the rules for the determination of the scope of creditor’s rights guaranteed by ship mortgage, that is, if the scope of ship mortgage secured as agreed in the contract is inconsistent with that of the mortgage registration, the contract shall prevail. At present, due to the technical conditions, the ship mortgage registration authorities in some areas of China usually only register the amount of the principal creditor's rights on the ship mortgage certificate, which leads to disputes over whether the scope of the creditor’s rights guaranteed by ship mortgage cover interest, penalty interest and other expenses. In the trial process of this case, instead of simply equating “the amount of creditor's rights” with “the scope of guarantee”, based on the analysis of the current legal provisions and referring to the rules for determining the scope of guarantee of real property rights in the Minutes of Civil and Commercial Trial Work of National Courts, it is determined that the scope of ship mortgage should be based on the contractual agreement of the parties, which provides targeted referee guidance for the people’s court to determine the scope of creditor’s rights guaranteed by ship mortgage, and can also promote the maritime department to further improve the ship mortgage registration system, which is conducive to standardizing the ship financing order and ensuring ship financing safety and the health of the whole shipping industry.
[First-instance Trial, Case Number] (2020) Jiangsu 72,Civil Case First Instance No.19
In August, 2019, KELLY, a Marshall Islands cargo ship carrying a load of 80,000 tons of soybean from Richelief Port, Louisiana, USA arrived at Dafeng Port and Zhenjiang Port, respectively, and the cargo was found seriously damaged after inspection. On December 25, 2019, the consignee of this batch of goods, China Grain Storage Oil Co., Ltd., applied to Nanjing Maritime Court for detaining the “KELLY”, which was anchored in Zhenjiang Port, on the grounds of serious damage to the goods, and requested the shipowner to provide a guarantee of US$4 million.
In the process of handling this case, Nanjing Maritime Court, after strictly examining the subject qualification, basic evidence and guarantee provided by the applicant, considered that the case met the requirements for maritime claim preservation, and immediately made a ruling on arrest of the ship and an arrest order, and decided to arrest the ship on the same day. On the premise of comprehensively considering many factors such as the port environment where the ship was located, the weather conditions of the day and the arrival of Christmas Day in western world, a detailed plan for ship arrest has been worked out, and a team of police officers with rich experience in ship arrest and good English skill has been organized to perform the ship arrest. In the afternoon of December 25, 2019, the executive police officers arrived in Zhenjiang, and delivered the notice of assisting in the arrest of ships to Zhenjiang Maritime Safety Administration and Zhenjiang Border Inspection Station in time. The Maritime Safety Administration and Border Inspection Station immediately assisted in handling the procedures of prohibiting the ships involved from leaving the port and boarding the ship. The executive police officers boarded the ship smoothly, issued an order to arrest the ship to the captain in accordance with the law, seized the ship certificate, and ordered the requested party to provide guarantee. After explaining the operation status and ownership of the ship to the judge, the captain signed the legal documents for arresting the ship, and agreed with the standardized law enforcement of Nanjing Maritime Court. Nine days after the arrest of the ship, the applicant applied for lifting the arrest on the grounds that the defendant had provided guarantee, and the Nanjing Maritime Court ruled and lifted the arrest according to law.
Seizure and auction of ships is a judicial function exclusively vested in maritime courts. Seizure of ships before litigation is a special form of preservation in maritime courts, which can effectively urge the defendant to fulfill his legal obligations in a timely manner and promote the rapid resolution of maritime contradictions and disputes. Since performing their duties, Nanjing Maritime Court has detained all types of ships according to law, amounted to 112, including 5 foreign ships. This is the first case accepted by Nanjing Maritime Court to apply for detaining a foreign ship, which is of great significance to broaden the way for domestic parties, standardize the work flow, protect the rights and interests of the foreign applicants and safeguard the judicial authority. First, establish the appraisal system of arresting ships before litigation. Before applying for the arrest of a ship before litigation, the judge studies and evaluates the materials, guarantees and controversial issues provided by the parties, prompting the parties to provide complete and standardized materials in time to ensure the smooth and efficient seizure of the ship. Second, standardize the format of legal instructions of arresting ships before litigation. In view of the practice and special requirements of arresting ships before litigation, Nanjing Maritime Court determined the format and content of legal instructions of arresting ships before litigation on the basis the format of civil ruling paper for property preservation before litigation distributed by the Supreme People's Court of China and with the practice of the other maritime courts in consideration. Third, establish a cooperative working mechanism with various maritime functional departments. In this case, Nanjing Maritime Court made full use of communication means such as platform network, and immediately docked with maritime affairs, border defense and other departments to handle the procedures of arresting and boarding ships, and coordinate the dispatching of berthing docks, so as to effectively improve the implementation efficiency of arresting ships and equally protect the legitimate rights and interests of the parties.
[Execution Case Number] (2019) Jiangsu 72,Property Preservation Case No.2, (2019) Jiangsu 72,Evidence Preservation Case No.1
Qin was rendering service on Su’s fishing vessel. When he was trying to moor the vessel during a fishing task on the sea, an injury was inflicted on his right foot by the mooring line. He was immediately brought back to the port and treated at a local hospital in Qingdao. When his conditions stabilized, he was transferred to a hospital in Ganyu District, Lianyungang City for further treatment, but he ended up with an authenticated Grade-9 disability, which would exert adverse effects on his future life, labor, and income. When Qin was hospitalized, one of Su’s family members kept him company all the time and paid over 180,000 yuan for the medical expenses. Afterwards, the two parties failed to agree on the due amount of indemnities for Qin’s disability, nursing expenditure, and lost income. Thus, a dispute arose and Qin later filed a lawsuit to Nanjing Maritime Court, requesting the defendant Su to compensate him with a total of 307,830.64 yuan for the miscellaneous losses caused by the accident in the course of his service rendering.
Nanjing Maritime Court tried the case in a timely manner and ascertained the facts by organizing both parties to present evidence and cross-examine. When it came to fees such as disability compensation and nursing expenditures, the two parties kept arguing whether the injured person was at fault, as well as about his average income and the nursing cost, which made it difficult for the court investigations to proceed, so the presiding judge promptly announced adjournment, summarized the trial, and analyzed the pertinent factual evidence and liabilities. The presiding judge maintained that the sustained accompaniment from defendant Su’s family following Qin’s injury and the 180,000-yuan payment for medical expenses demonstrated that Su has complied with the local ship owner’s norms for handling an injured crew member, and that the rules recognized by the local fishermen, therefore, should be applied to resolving the dispute. Thanks to the trial, especially the judge’s summary, both parties adjusted their expectations into more practical directions, which might well eventually lead to mediation. Given the hostility between the two parties when the trial was concluded, it was inappropriate to conduct mediation immediately. Therefore, the court announced the scheduled time and place for mediation and entrusted it to a special mediator at the one-stop fishery dispute resolution center under Nanjing Maritime Court. The special mediator has lived in the local fishing village for a long time and thus acquires professional knowledge of fishery and rich experience in handling related disputes. The efforts of the special mediator enabled the two parties to reach an agreement: the defendant Su should compensate the plaintiff Qin for his disability, moral damage, follow-up treatment fees, and other legitimate indemnities, totaling 164,000 yuan, to be paid by three installments. The court issued a mediation document confirming this agreement.
In the coastal area of Jiangsu, fishery disputes mostly occurred in traditional fishing ports, villages and townships. They are typical cases concerning people’s livelihood. In most cases, one of the parties usually has an urgent need of aid and support, or is led a life troubled by injury or illness. In view of this, Nanjing Maritime Court attaches great importance to the resolution of fishery-related disputes and stays committed to “resolving disputes through a non-litigation mechanism.” To this end, a one-stop mediation center for fishery disputes has been established in Xiakou Village, Qingkou Town, Ganyu District, Lianyungang City. A special mediator, Qi Honggui, who is based at the center, provides the fishermen with convenient, efficient, and low-cost maritime judicial services. Despite the current availability of relatively sound law theories and comprehensive law-based evidence for fishermen’s disputes over maritime personal injury liabilities, the two parties often have substantial disagreements to the amount of compensation. This, along with the plethora of witnesses and testimonies as well as the insufficiency of key documentary evidence, poses a great and time-consuming challenge to the court in ascertaining the facts, handling the disputes, and ensuring timely relief for the injured.
The presiding judge of this case made a summary of the trial after combing through the evidence presented by both parties, so as to mentally prepare them for the direction of the trial. Then, the judge entrusted the mediation work to an experienced special mediator, who is acquainted with fishery practices and fishermen’s life, to spare much energy and time in the course of fact ascertaining. Giving full play to the special mediator’s role has proved to be quite productive and conducive to timely and efficient settlement of cases concerning people’s livelihood. The settlement of this case through mediation manifests Nanjing Maritime Court’s efforts in upholding people-centered administration of justice, developing its one-stop multi-dispute resolution mechanism and litigation service system with maritime characteristics, and meeting the diverse judicial needs of the people in a better way.
[First-instance Trial, Case Number] (2020) Jiangsu 72 Civil Case No. 231