南京海事法院海事審判報告Report on Trials of Nanjing Maritime Court of PRC (2019.12-2020.11)
發布時間:2020-12-04 瀏覽量:3965

南京海事法院海事審判報告

201912-202011月)

特別說明:本報告以中英兩種文字發布,以中文文本為準。


  

作為全國第11家海事法院,南京海事法院于2019124日正式履職。一年來,南京海事法院堅持以習近平新時代中國特色社會主義思想為指導,認真貫徹黨的十九大和十九屆二中、三中、四中、五中全會精神,緊緊圍繞努力打造全國一流乃至在國際上有影響力的海事法院目標,堅持政治建設統領、堅持審判精品戰略、堅持系統謀劃推進,充分發揮海事審判職能作用,服務保障海洋強國等國家戰略實施和強富美高新江蘇建設再出發,各項工作實現良好開局,受到最高人民法院周強院長、江蘇省委婁勤儉書記批示肯定。南京海事法院立足區位優勢,積極服務海洋經濟發展寫入2020年最高人民法院工作報告。

一、基本情況

(一)總體概況

截至202011月,全院受理各類案件2127件,結案1312件。收、結案數分別位列全國海事法院第7位、第9位。受理案件的類型涉及《最高人民法院關于海事法院受理案件范圍的規定》確定的六大類共108種案件類型中的94種。法定正常審限內結案率88.06%,一審服判息訴率96.23%,民事案件調解撤訴率63.88%。民事案件、行政案件、執行案件收案數分別位列全國海事法院第8位、第1位、第11位。立案標的總金額70.66億元,其中審判類案件標的金額50.02億元,執行類案件標的金額20.64億元。

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(二)案件構成

1.民事案件:受理1269件,審結693件。其中,收案數量排名前三的案由分別是:海上、通海水域貨運代理合同糾紛(127件),海上、通海水域貨物運輸合同糾紛(123件),船舶物料和備品供應合同糾紛(95件)。收案數量排名前十的案件共計561件,具體案由分布如下:

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2.行政案件:受理130件,審結45件。收案數量排名前三的案由分別是海洋資源行政強制(64件)、水上交通運輸行政賠償(19件)、海洋資源行政許可(10件)。

3.執行案件:受理477件,執結361件。

4.扣押船舶情況:扣押船舶112艘,其中外國籍、港澳臺船舶5艘。

5.涉外涉港澳臺案件情況:受理100件,占全院民事案件的7.88%;案件標的金額4.43億元,涉及英國、法國、德國、韓國、印度、新加坡、希臘、巴西等30多個國家和地區。

6.派出法庭收結案情況:連云港、南通、泰州、蘇州四個派出法庭受理案件1028件,占全院受理案件48.33%;結案610件,占全院審結案件46.49%。其中,連云港法庭受理案件424件、南通法庭受理案件188件、泰州法庭受理案件265件、蘇州法庭受理案件151件。

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(三)司法公開情況

通過中國裁判文書網上傳裁判文書943篇,裁判文書上網率71.88%。依托中國庭審公開網直播庭審72場,總觀看人數達47515人次。依托中國審判流程信息公開網有效公開1304件案件審判流程信息,有效公開率98.79%。

二、工作亮點

(一)服務大局前瞻化

開展前瞻性調研,準確把握海事司法服務保障海洋強國、長江經濟帶發展、長三角區域一體化發展、共建“一帶一路”等國家戰略的著力點和結合點,以高質量海事司法護航高質量發展。出臺《關于發揮海事審判職能作用為推動強富美高新江蘇建設再出發提供司法服務和保障的意見》,明確海事審判工作4項主要任務、8大重點領域和10項保障機制。建立涉一帶一路案件定期分析通報制度,開展涉自貿區、大運河文化帶建設、海洋生態環境保護等海事海商案件專題調研,推出深入優化營商環境十項措施,積極營造法治化、國際化、便利化營商環境。依法審結38起涉長江三無船舶海事行政案件,通過示范庭審推動行政爭議實質性化解,支持長江“三無”船舶清零行動,交出長江大保護海事司法答卷。提出海事司法服務疫情防控15項舉措、推出14海事法官釋海法專題分析文章,組織編寫并向企業發送《航運、港口、物流、造船等行業法律風險提示手冊》1000余份,助力企業紓困解難,精準服務六穩”“六保。

(二)執法辦案精品化

立足海事審判國際性、專業性強的特點,大力實施審判精品戰略,公正高效審理案件。制定《關于實施海事審判精品戰略打造精品案件的意見》,建立咨詢專家庫,推薦專家擔任人民陪審員,精心審理具有規則確立和宣示意義的重大疑難復雜案件,推出一批精品案件。制定海事證據保全、海事仲裁司法審查等12個審理程序指南,編寫海上貨物運輸無單放貨、海上貨運代理糾紛等常見案件審理指南,規范司法行為,統一裁判尺度。履職初期,克服扣押外輪經驗欠缺等困難,積極協調相關海事、邊防部門順利辦理首起外籍船舶凱利(KELLY輪扣押保全案件,初步形成訴前扣押船舶的流程規范;妥善處理一起兼具涉外、涉疫、涉汛多重敏感因素的船舶扣押案件,有效化解新獵戶座(NEW ORION輪扣押期間面臨的疫情、汛情風險,平等保護中外當事人合法權益;高效審結一起外國當事人主動選擇南京海事法院管轄的國際船舶建造合同糾紛案件,以專業的司法能力贏得國際社會對中國海事司法的信任。全國人大代表視察江蘇法院時,對南京海事法院突出專業特色、打造精品案件、服務海洋經濟發展等工作給予充分肯定。

(三)制度構建體系化

堅持制度清單先行,加快建章立制,確保制度的系統性、協同性和可操作性。編制《南京海事法院發展規劃綱要(2021-2025)》,出臺60余項規章制度,涵蓋審判執行、隊伍管理、機關黨建和司法政務各個方面。完善海事審判權運行機制,出臺一整套審判管理文件,明確審判人員權力責任清單、院庭長審判監督職責、審委會、專業法官會議工作規則,全面落實司法責任制。構建派出法庭與駐地黨委、政府、地方法院之間溝通聯絡機制,更好發揮派出法庭依法服務大局、公正為民司法、培養鍛煉干部、參與社會治理的前沿陣地作用。與江蘇省交通運輸廳、江蘇海事局、連云港海事局共同簽署《江蘇海事行政執法與司法戰略合作備忘錄》,積極探索江蘇海事行政執法與司法協作新模式,該創新舉措成功入選江蘇法院司法改革案例。與大連海事大學、南京信息工程大學建立戰略合作關系,在人才聯合培養、學術平臺共建、人員交流互動等方面開展務實深入合作。推動設立江蘇省法學會海商法學研究會,匯聚省內海事海商法律研究力量,不斷豐富海事司法理論與實踐創新,以同步線上直播方式成功舉辦首次年會,在線人數達2.5萬,取得較好社會反響。聘任人大代表、政協委員和有關專家擔任特約監督員,定期安排旁聽庭審、視察調研等活動,當庭宣判的一起行政機關負責人出庭應訴的海事行政案件,獲旁聽人大代表、政協委員高度肯定。

(四)訴訟服務信息化

充分運用江蘇智慧法院建設成果,推進一站式多元解紛和訴訟服務體系建設,實現智服、智審、智執、智管。優化網上訴訟服務,全面實現跨域立案、電子送達、網上繳費、在線閱卷等便民服務,在南京長江國際航運物流服務中心、海事法治廣場配置設施,提供24小時自助訴訟服務。按照新基建標準高起點謀劃南京法治園區審判樓和派出法庭基礎設施建設,一體推進院本部和派出法庭信息化建設,建成法官遠程會議系統、互聯網法庭,開發船舶在線查控系統,實現執行指揮中心854模式迭代升級。制定《南京海事法院互聯網庭審操作規范》,疫情期間,通過互聯網辦案方式審結案件154件,做到“審判執行不停擺,公平正義不止步”。在南京、蘇州、連云港分別設立水上交通事故、港口、涉漁糾紛一站式解紛中心,在四個派出法庭轄區設立巡回審判點和訴源治理審務工作站,聘任6個特邀調解組織和89名特邀調解員,初步形成以一站式建設為龍頭,以海事糾紛一站式解紛中心為重點,以審務工作站、巡回審判點為支撐,以人民調解員、特邀調解員、協助執行員為網格的海事糾紛多元化解格局,滿足人民群眾多元司法需求。開設全省法院第一家中英文網站,首次發布中英雙語海事審判報告,搭建微信、微博、今日頭條等網絡信息平臺,累計對外發布信息800余條,閱讀總量達45萬余人次,15篇報道被《人民法院報》《新華日報》《江蘇法制報》等主流媒體推介。

(五)隊伍建設專業化

按照革命化、正規化、專業化、職業化隊伍建設要求,秉持 “后發先至,首任擔當工作理念,努力打造政治過硬、業務精良、具有國際視野的高素質海事審判隊伍。始終把黨的政治建設擺在首位,不斷加強思想理論武裝,落實重大事項請示報告制度。成立機關黨委、機關紀委和工青婦組織,推進黨建與審判業務深度融合,建立廉政檔案,加強警示教育,壓實“兩個責任”。聚焦懂法律、懂外語、懂海洋、懂貿易、懂航運復合型海事審判人才培養目標,每月舉辦海事大講堂,組織干警登船實習,開展海上安全技能培訓,提升干警專業素養。組建青年翻譯小組,定期開展翻譯培訓、學術交流活動。組建10個專業審判團隊,對專業性較強的案件集聚力量開展深入研討。推出七個一目標考核機制,建立調研人才庫,營造勤于研究問題、善于總結經驗、勇于推出成果的良好氛圍。一年來,全院干警獲省級重點調研課題立項1件,撰寫的21篇論文在《人民司法》《法律適用》等期刊發表或在全國、省級會議上獲獎。先后參加“第二十八屆全國海事審判研討會”最高人民法院海洋生態環境司法保護專項調研座談會”“中國海商法協會年會等會議,并作主題發言10余次。

三、典型案例

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

【基本案情】

2007418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。2010517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2015128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。

20202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516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。611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。

裁判結果

在案件受理階段,經審查發現,原告代理律師授權委托書應當經挪威公證機關證明及中華人民共和國駐挪威大使館認證,但因疫情影響未能向法院提交公證認證文書。鑒于疫情對公證認證的實際影響及該案其他相關立案材料規范齊全,且原告代理律師承諾將于案件開庭審理前補齊公證認證文書,南京海事法院決定對該案先行立案,允許代理律師遲延提交授權手續。案件審理過程中,為減少疫情期間人員流動和聚集帶來的風險,承辦法官在認真審查涉案證據材料的基礎上,通過互聯網辦案方式促成當事人達成調解協議,用時27天審結此案。

【典型意義】

江蘇是全國造船大省,造船完工量、新承訂單量、手持訂單量連續多年位居全國首位,各項指標均占全國份額三成以上。南京海事法院受理的船舶類案件數量較多,占民事案件總數的29.71%。本案是一起國際船舶建造合同糾紛案件,在海外新冠肺炎疫情形勢日益嚴峻的情況下,外國當事人主動將爭議解決方式由倫敦仲裁,變更為向南京海事法院起訴并適用中國法律,既是基于對中國建設國際海事司法中心、優化司法環境的信任,也是對南京海事法院服務保障一帶一路建設,積極打造海事訴訟優選地的充分認可。南京海事法院在疫情期間根據《最高人民法院關于依法妥善審理涉新冠肺炎疫情民事案件若干問題的指導意見(三)》相關精神要求,允許外國當事人延期提交相關公證認證文書,并積極運用互聯網辦案方式促成糾紛快速化解,真正實現了 “審判執行不停擺,公平正義不止步,是平等保護中外當事人合法權益,積極優化法治化、國際化、便利化營商環境的生動實踐,充分體現了中國特色社會主義司法制度的優越性。

【一審案號】2020)蘇72民初611

 

案例二:張某某訴南京市建鄴區人民政府等行政處罰系列糾紛案

【基本案情】

20185月,南京市建鄴區人民政府、南京市交通運輸局、南京海事局、南京市公安局水上分局、長江航運公安局南京分局、南京市水務局、南京市農業農村局等7個行政機關成立聯合小組,在長江南京段部分水域開展整治三無無船名船號”“無船舶證書”“無船籍港)船舶專項行動,將張某某等14人的19條船認定為三無船舶,并拖至臨時看管區進行沒收拆解。得知船舶被沒收拆解后,張某某等開始各級信訪。20206月,張某某等人向南京海事法院提起行政訴訟,要求確認聯合小組7個行政機關沒收拆解船舶違法,同時提出行政賠償訴訟,要求行政機關賠償每條船舶幾十萬到一百多萬不等的損失。

【裁判結果】

案件依法受理后,南京海事法院深入了解長江“三無”船舶整治的背景、進度和前期糾紛處理等情況,梳理相關法律法規和政策規定,并對各省市整治“三無”船舶的主要做法、常見糾紛和司法裁判情況進行分析研判。為依法妥善處理這批系列糾紛案,決定率先安排具有典型性的12起案件開庭審理,并通知被訴行政機關負責人出庭應訴,同時安排另外26起案件當事人旁聽庭審。合議庭經過庭審查明了案件事實,認為原告提起訴訟時已經超過法定期限,遂對上述12起案件作出駁回起訴的裁定。庭審后,經過法院耐心釋法明理,明晰法律關系,另外26起案件的當事人在充分考慮船舶實際情況和地方政府具體政策的基礎上,主動撤回了請求確認行政機關違法的訴訟,并就行政賠償部分同被訴行政機關達成調解協議,南京海事法院出具調解書予以確認。

【典型意義】

海事行政案件是海事法院受理的六大類案件之一。該批涉長江“三無”船舶海事行政案件的依法妥善審結,是南京海事法院深化行政執法與司法銜接處置的成功案例,有力支持了長江“三無”船舶清零行動,交出長江大保護海事司法答卷。 “三無船舶逃避監管,在長江上非法從事載客交通、清艙抽殘、采砂捕撈、電焊修理等經營行為,極易造成航道安全隱患和長江水域環境污染。同時,三無船舶排查難、處置難、易反彈的問題也比較突出。本案審理中,南京海事法院認真貫徹共抓大保護,不搞大開發理念,立足實質性化解行政爭議目標,通過組織示范庭審、先行依法駁回張某某起訴的方式,引導此類涉及長江“三無”船舶案件當事人理性維權,為矛盾糾紛化解奠定了堅實基礎,保障了長江大保護相關戰略部署落細落實。該批案件的圓滿審結,最大限度地維護了民生權益,支持監督海事行政機關依法行政,也為海事行政機關進一步提高行政執法規范化水平提供了指引,充分彰顯了海事審判依法促進長江經濟帶發展和長三角區域一體化發展的職能作用。

一審案號】(2020)蘇72行初9-14號、59-71號,(2020)蘇72行賠初3-21

 

案例三:江蘇靖江農村商業銀行股份有限公司東興支行訴胡某某等金融借款合同及船舶抵押合同糾紛案

基本案情

2013123日,胡某某與江蘇靖江農村商業銀行股份有限公司東興支行(以下簡稱靖江農商行東興支行)簽訂借款合同,約定胡某某向靖江農商行東興支行借款2800萬元。同日,泰州市金泰船務有限公司(以下簡稱金泰公司)、張某某、張某、吳某某、茅某某與靖江農商行東興支行簽訂保證合同,約定金泰公司、張某某、張某、吳某某、茅某某對上述合同項下的全部債務本金、利息、逾期利息、罰息、復利、損害賠償金、實現債權的費用和實現債權的其他一切費用提供連帶責任保證。胡某某、金泰公司與靖江農商行東興支行簽訂抵押合同,約定胡某某、金泰公司所有的金泰528”散裝貨船為上述借款提供抵押擔保,擔保金額為2800萬元,擔保范圍為主合同項下的債務本金、利息、逾期利息、罰息、復利、損害賠償金、實現債權的費用和實現債權的其他一切費用。還款期限屆滿后,胡某某尚結欠本金2693萬元未能按約歸還,靖江農商行東興支行因此訴至南京海事法院,請求判令胡某某立即歸還借款本金2693萬元及至還款之日止的利息,金泰公司、張某某、張某、吳某某、茅某某承擔連帶清償責任;靖江農商行東興支行就上述債務對胡某某、金泰公司設定抵押的金泰528”散貨船拍賣、變賣、折價后所得的價款享有優先受償權。

裁判結果

南京海事法院經審理認為,2019118日最高人民法院印發的《全國法院民商事審判工作會議紀要》第58條規定,在不動產擔保物權的擔保范圍認定中,對于因地區登記系統設置及登記規則造成合同約定的擔保范圍與登記不一致的,人民法院以合同約定認定擔保物權的擔保范圍,是符合實際的妥當選擇。在我省船舶抵押登記機關的實踐中,登記系統未設置“擔保范圍”欄目,一般僅有“債權數額”的表述,且只能填寫固定數字,登記機關囿于技術條件通常只將主債權金額登記于其上。本案中,登記機關在“金泰528”散貨船的抵押情況中記載債權數額2800萬元,該記載只是表明主債權的金額,而并未將船舶抵押的擔保范圍限定為2800萬元。本案案涉抵押物金泰528”散貨船作為特殊動產,因船舶抵押登記機關的登記系統設置導致登記的擔保范圍與合同約定不一致,可以參照會議紀要精神,以合同約定認定抵押擔保范圍包含主債權及利息、罰息等其他費用,而不能簡單地將登記的債權數額2800萬元認定為船舶抵押的擔保范圍。遂判決:被告胡某某償付原告靖江農商行東興支行欠款本金2693萬元及相應利息;被告金泰公司、張某某、張某、吳某某、茅某某對上述債務承擔連帶清償責任;原告靖江農商行東興支行就金泰528”散貨船拍賣、變賣、折價后所得價款享有優先受償權。一審宣判后,雙方當事人均未上訴。

【典型意義】

關于船舶抵押的擔保范圍是以抵押登記的債權數額為準,還是應以合同約定的擔保范圍為準,實踐中存在爭議。本案典型意義在于確立了船舶抵押擔保范圍的認定規則,即當合同約定的船舶抵押擔保范圍同抵押登記不一致的,應以合同約定為準。當前,我國部分地區船舶抵押登記機關囿于技術條件通常只將主債權金額登記于船舶抵押權證書上,導致船舶抵押擔保范圍是否及于利息、罰息等其他費用產生爭議。本案審理過程中沒有簡單地將“債權數額”等同于“擔保范圍”,而是在分析現行法律規定基礎上,參照《全國法院民商事審判工作會議紀要》中不動產物權的擔保范圍認定規則,認定船舶抵押擔保范圍應以當事人的合同約定為依據,為人民法院認定船舶抵押擔保范圍提供了有針對性的裁判指引,同時也能促進海事部門進一步完善船舶抵押登記制度,有利于規范船舶融資秩序,保障航運金融安全和航運業健康發展。

一審案號】(2020)蘇72民初19

 

案例四:中儲糧油脂有限公司申請扣押凱利(KELLY輪案

【基本案情】

 “凱利(KELLY輪系載重8萬噸的馬紹爾群島籍貨輪,20198月,該輪自美國路易斯安那州里塞弗港承運黃大豆到達大豐港、鎮江港,經檢驗貨物嚴重受損。20191225日,該批貨物收貨人中儲糧油脂有限公司遂以貨物受損嚴重為由向南京海事法院申請扣押停泊于鎮江港的“凱利(KELLY)”輪,并要求船方提供400萬美元擔保。

【執行過程

本案處理過程中,南京海事法院在對申請人的主體資格、基本證據及提供擔保情況進行嚴格審查后,認為該案符合海事請求保全條件,遂立即制作了扣押船舶裁定書和扣船命令,并決定當日即對該船舶實施扣押。在綜合考慮船舶所在港口環境、當日天氣情況及時值西方傳統圣誕節等多方面因素的前提下,制定了詳細的船舶扣押工作預案,并從全院抽調具有扣押船舶經驗、英語水平較高的干警參與此次扣船工作。20191225日下午,執行干警抵達鎮江,及時向鎮江海事局、鎮江邊防檢查站送達了協助執行扣押船舶通知書等材料,海事局和邊防站立即協助辦理了涉案船舶禁止離港及登船手續。執行干警順利登船,依法對船長下達扣押船舶命令,查扣船舶證書,并責令被申請人提供擔保。船長向法官說明船舶營運狀況和船舶權屬情況后,簽收了扣押船舶法律文書,并對南京海事法院的規范執法表示認同。船舶扣押9日后,申請人以被申請人已提供擔保為由申請解除船舶扣押,南京海事法院遂依法作出裁定并解除扣押。

【典型意義】

扣押、拍賣船舶是專屬于海事法院的一項司法職能。訴前扣押船舶是海事法院特有的保全形式,能夠有效敦促被申請人快速履行法律義務,促進海事矛盾糾紛快速化解。履職以來,南京海事法院已依法扣押各類船舶112艘,其中外國籍、港澳臺船舶5艘。本案是南京海事法院受理的第一起申請扣押外輪案件,具有對內拓荒開路、規范工作流程,對外保障申請人權益、維護司法權威的重要意義。一是建立訴前扣船的評議制度。在訴前扣押船舶申請立案前,法官對當事人提供的材料、擔保以及有爭議的問題進行研究評議,促使當事人及時提供完整、規范的材料,保證船舶查扣工作的順利、高效。二是規范訴前扣船法律文書樣式。依據最高人民法院訴前財產保全民事裁定書樣式,針對海事法院訴前扣船工作實際情況和特殊要求,在學習借鑒其他海事法院經驗做法基礎上,確定了我院訴前扣船案件的法律文書樣式和內容,為后續案件審理工作打下良好基礎。三是建立與各海事職能部門協同聯動工作機制。本案中,南京海事法院充分借助平臺網絡等通訊手段,即時與海事、邊防等部門對接辦理扣船、登船手續、協調??看a頭調度等,切實提高扣押船舶實施效率,平等保護當事人的合法權益。

【執行案號】2019)蘇72財保2號、(2019)蘇72證保1

 

案例五:秦某某訴蘇某某海上人身損害責任糾紛案

【基本案情】

秦某某在蘇某某的漁船上提供勞務,在出海捕撈期間使用纜繩將船體固定過程中右腳被船上纜繩所傷,受傷后當即被送回港,先是在青島當地醫院救治,傷情穩定后轉院回到連云港市贛榆區的醫院繼續治療,但最終落下殘疾,經鑒定構成九級傷殘,對今后的生活和勞動收入產生不利的影響。在秦某某住院期間,蘇某某家人一直陪伴左右,并支付了18萬余元的醫療費用,雙方后因秦某某應予獲得的傷殘賠償、護理費、務工費等賠償數額無法達成一致,引發糾紛。后秦某某訴至南京海事法院,請求判令蘇某某賠償其在提供勞務過程中發生事故造成的各項損失共計307830.64元。

【裁判結果】

南京海事法院及時開庭審理本案,通過組織雙方舉證質證,查明了基本案情,但涉及傷殘賠償、護理費等費用時,因雙方當事人對受傷者本人有無過錯、受傷者的平均收入、護理費用等爭執不休,導致法庭調查難以深入進行。主審法官及時宣布休庭并作出庭審小結,對相關事實證據、是非責任進行了分析。主審法官認為,蘇某某家人在秦某某受傷后一直陪護左右,并支付18萬余元的醫療費用,表明蘇某某遵守了當地船東對受傷船員的處理習慣,本案具備按當地漁民認可的規則解決爭議的基本條件。經過庭審特別是主審法官作出庭審小結后,當事人的心理預期更加現實,有可能促成雙方調解。鑒于庭審剛結束,雙方情緒對立,不適合立即進行調解,遂向當事人宣布調解時間、地點,將本案委托給南京海事法院涉漁矛盾一站式解紛中心的特邀調解員調解。該特邀調解員長期在當地漁村生活,具有漁業生產專業知識和豐富的處理涉漁糾紛的經驗。經特邀調解員調解,雙方順利達成協議,蘇某某賠償秦某某殘疾賠償金、精神撫慰金、后續治療費等法律規定范圍內的全部賠償費用164000元,分三期付清,法院以出具調解書的形式予以確認。

【典型意義】

江蘇沿海涉漁糾紛大多發生在傳統漁港、漁業村鎮,是典型的涉民生案件,多數情況下有一方當事人是急需救助、因傷因病導致生活困難的群體。南京海事法院高度重視涉漁糾紛的矛盾化解,堅持把非訴訟糾紛解決機制挺在前面,在漁業專業村——連云港市贛榆區青口鎮下口村設立了涉漁矛盾一站式解紛中心,由一名海事特邀調解員祁洪桂常駐中心負責調解工作,為漁民提供便捷、高效、低成本的海事司法服務。目前,對于漁民海上人身損害責任糾紛雖然有相對成熟的法學理論指導和比較全面的法律適用依據,但訴辯雙方在關系到賠償數額的諸多事實上往往爭議較大,證人證言多,關鍵書證少,導致法院查明事實的任務重,糾紛處理耗時冗長,不利于受損群眾及時獲得救濟。本案主審法官在梳理分析訴辯雙方證據的基礎上作出庭審小結,使得當事人對庭審走向有了一定的心理預期,再把案件交由對漁業生產漁民生活比較熟悉,又具有豐富調解經驗的特邀調解員調解,避免在事實查明上耗費過多精力和時間,充分發揮特邀調解員委托調解、協助調解的特殊作用,收到事半功倍的效果,有利于涉民生類案件及時高效的解決。本案的調解解決,是南京海事法院堅持司法為民,推進具有海事特色的一站式多元解紛和訴訟服務體系建設,更好滿足人民群眾多元司法需求的具體體現。

【一審案號】(2020)蘇72民初231號

 

 


 

Preface

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.”

. General Information

(1) General Performance

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.

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(2) Case Classification

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. 

 

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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. 

 

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(3) The Openness of the Justice System

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.

II. Highlights of Activities

(1) Prospective Systematic Planning

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.

 (2) Refining the Trial Process

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. 

(3) Systematic Formulation of Rules and Regulations

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 DailyXinhua DailyJiangsu Legal Daily, and some other mainstream media.

(5) Building a Professional Team

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.

III. Typical Cases

Case 1:BOA BARGES AS vs. Nanjing Yichun Shipbuilding Co., Ltd. Dispute over International Shipbuilding Contract

 

[Case Details]

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.

 [Verdict]

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.

[Significance]

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

 

[Case Details]

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.

[Verdict]

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.

[Significance]

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

 

[Case Details]

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.

[Verdict]

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.

[Significance]

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

 

Case 4:Case of China Grain Storage Oil Co., Ltd.’s Application to Detain the KELLY Ship

 

[Case Details]

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.

 [Execution Process]

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. 

[Significance]

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

 

Case 5:Qin vs. Su: A Dispute over Maritime Personal Injury Liabilities

 

[Case Details]

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.

[Verdict]

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.

 [Significance]

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