{"kind":"task","effective_mode":"full","benchmark":{"kind":"benchmark","effective_mode":"full","slug":"longbench-v2","formal_name":"LongBench v2","introduction":"LongBench v2 evaluates deep understanding and reasoning over long contexts through multiple-choice questions. Its official description lists 503 questions spanning tasks such as single-document and multi-document QA and code-repository understanding.","introduction_ja":"","introduction_en":"","category":"Category not supplied","task_count":null,"acquisition_status":"Acquisition status not supplied","official_url":"https://huggingface.co/datasets/zai-org/LongBench-v2","indexing_mode":"noindex","profile":{"resources":[],"task_format":"","scoring":"","metric":"","size":"","answer_access":"","license":"","citation":"","maintainer":"","released":"","why_hard":"","related":[]}},"task_id":"c17ab336-64d2-5add-9211-8948027e6f4a","task_key":"train--66f3c1c3821e116aacb2eaf6","task_revision_id":"3","upstream_id":"66f3c1c3821e116aacb2eaf6","short_description":"What is the difference in the focus of the two departments in terms of creating…","config":"","split":"train","body":"{\"choice_A\":\"The Nanjing Maritime Court has won praise for improving the accuracy of case handling by formulating normative guidelines; The Guangzhou Maritime Court cited the results to explain.\",\"choice_B\":\"The Nanjing Maritime Court has won the trust of the international community in China's maritime justice with its professional judicial ability; The Guangzhou Maritime Court illustrates the results of its work through data.\",\"choice_C\":\"The Nanjing Maritime Court promotes the quality of law enforcement and case handling through fair and efficient trial of cases; The Guangzhou Maritime Court illustrates its work results by listing its achievements.\",\"choice_D\":\"Nanjing Maritime Court adheres to the strategy of high-quality trials; The Guangzhou Maritime Court cited the results of high-quality cases.\",\"context\":\"- 1 - \\n \\nNanjing Maritime Court Report on Trials  \\n(December 2019 to November 2020) \\n \\nTABLE OF CONTENTS \\n \\nPreface ..............................................................................................- 3 - \\nⅠ. General Information ...................................................................- 4 - \\n(1) General Performance \\n.............................................................- 4 - \\n(2) Case Classification ................................................................- 5 - \\n(3) The Openness of the Justice System .....................................- 8 - \\nII. Highlights of Activities \\n................................................................- 8 - \\n(1) Prospective Systematic Planning ..........................................- 8 - \\n(2) Refining the Trial Process .....................................................- 9 - \\n(3) Systematic Formulation of Rules and Regulations .............- 11 - \\n(4) Additional Intelligent Litigation Services ...........................- 12 - \\n(5) Building a Professional Team .............................................- 14 - \\nIII. Typical Cases............................................................................- 15 - \\nCase 1:BOA BARGES AS vs. Nanjing Yichun Shipbuilding Co., \\nLtd. Dispute over International Shipbuilding Contract \\n.............- 15 - \\nCase 2:Zhang vs. the People's Government of Jianye District, \\nNanjing, Disputes over Administrative Punishment \\n.................- 19 - \\nCase 3:Dongxing Branch of Jiangsu Jingjiang Rural Commercial \\nBank Co., Ltd. vs. Hu et al.Dispute over Financial Loan Contract \\nand Ship Mortgage Contract .....................................................- 22 - \\n\\n\\n- 2 - \\n \\nCase 4:Case of China Grain Storage Oil Co., Ltd.’s Application to \\nDetain theKELLY Ship ............................................................ - 27 - \\nCase 5:Qin vs. Su: A Dispute over Maritime Personal Injury \\nLiabilities \\n.................................................................................. - 30 - \\n \\n \\n \\n \\n \\n \\n \\n \\n \\n \\n \\n \\n \\n \\n \\n\\n\\n- 3 - \\n \\n \\nPreface \\nThe 11th maritime court in China, Nanjing Maritime Court \\nofficially started operating on December 4, 2019. In its first year, \\nunder the guidance of Xi Jinping thoughts on Socialism with Chinese \\nCharacteristics in a New Era, Nanjing Maritime Court (hereinafter \\nreferred to as “the Court”) implements the guiding principles of the \\n19th National Congress of the Communist Party of China and the \\nSecond, the Third, the Fourth and the Fifth Plenary Sessions of the \\n19th CPC Central Committee.  Focused on “building a first-class \\nmaritime court with its influence spreading across the country and \\neven across the globe”, the Court always put political building as the \\noverarching principle, made unremitting efforts to refine the trial \\nprocess and make systematic plans and progress, and leveraged the \\nrole of the maritime trial to support national strategies such as the \\nbuilding of a powerful maritime country as well as the re-start of the \\nconstruction of new Jiangsu Province featuring a strong economy, \\nwealthy people, beautiful environment, and a high degree of social \\ncivilization. With a promising beginning in various efforts, the Court \\nwas recognized by Zhou Qiang, President of the Supreme People's \\nCourt of China, and Lou Qinjian, Secretary of the CPC Committee of \\nJiangsu Province for its operating performance. The Work Report of \\nthe Supreme People’s Court of China (2020) also mentions, “Based on \\nits geographical advantages, Nanjing Maritime Court actively supports \\nthe development of the marine economy.” \\n\\n\\n- 4 - \\n \\nⅠ. General Information  \\n(1) General Performance \\nAs of November 2020, the Court has accepted 2,127 cases of \\nvarious types and closed 1,312cases, ranking 7th and 9th respectively \\namong maritime courts in China concerning the number of accepted \\nand closed cases. There are 94 types of cases among all 108 types in \\nsix categories determined by the Provisions of the Supreme People's \\nCourt on the Scope of Cases to Be Accepted by Maritime Courts, \\n88.06% cases were closed within the time limit for trial, 96.23% cases \\nwere settled without appeal in the first trial and 63.88% civil cases \\nwere withdrawn after meditation. Moreover, it accepted the 8th highest \\nnumber of civil cases, the highest number of administrative cases, and \\nthe 11th highest number of enforcement cases among maritime courts \\nin China. The subject matter of all actions valued RMB 7.066billion, \\nof which RMB 5.002 billion came from trial cases and RMB 2.064 \\nbillion came from enforcement cases. \\n\\n\\n- 5 - \\n \\n \\n \\n(2) Case Classification \\n1. Civil Cases: As for the civil cases, 1,269 cases were accepted, \\nand 693 cases were closed. The top three in the ranking of \\nsubcategories with the most accepted cases are listed below: disputes \\nover contracts for freight forwarding by sea or by waters leading to the \\nsea (127 cases), disputes over contracts for freight transport by sea or \\nby waters leading to the sea (123 cases), and disputes over contracts \\nfor the supply of ship stores and spares (95 cases). There are a total of \\n561 cases in the top ten subcategories with the exact number of cases \\nin each subcategory shown below.  \\n \\n\\n\\n- 6 - \\n \\n \\n \\n2. Administrative Cases: As for administrative cases, 130 cases \\nwere accepted and 45 cases were closed. The top three in the ranking \\nof subcategories with the most accepted cases are listed below: \\ndisputes over administrative compulsion on marine resources (64 \\ncases), disputes over administrative penalty on water transportation \\n(19 cases) and disputes over administrative license on marine \\nresources (10 cases). \\n3. Enforcement Cases: As for enforcement cases, 477 cases were \\naccepted and 361 cases were closed. \\n4. Seizure of Ships: 112 ships were seized, of which 5 were from \\nforeign countries, Hongkong,  Macau, and Taiwan. \\n5. Cases involving foreign, Hong Kong, Macau, and Taiwan \\nelements: 100 cases were accepted and accounted for 7.88% of the \\n\\n\\n- 7 - \\n \\ntotal accepted cases by the Court; the subject matter of these actions \\nvalued for RMB443 million and involved the elements of more than \\n30 countries and regions such as the United Kingdom, France, \\nGermany, South Korea, India, Singapore, Greece, and Brazil. \\n6. Cases of Detached Tribunals: Four detached tribunals in \\nLianyungang, Nantong, Taizhou, and Suzhou accepted 1028 cases, \\naccounting for 48.33% of the cases accepted by the Court; closed 610 \\ncases, accounting for 46.49% of the cases closed by the Court. Among \\nthem, Lianyungang Detached Tribunal accepted 424cases, Nantong \\nDetached Tribunal accepted 188 cases, Taizhou Detached Tribunal \\naccepted 165 cases, and Suzhou Detached Tribunal accepted 151 \\ncases.  \\n \\n \\n \\n \\n\\n\\n- 8 - \\n \\n(3) The Openness of the Justice System \\n943 judgments which account for 71.88% of the total cases were \\nuploaded through China Judgments Online. 72 trials were broadcasted \\nlive on China Court Trial Live Broadcast Online with a total of 47,515 \\nviewers. 1,304 cases which account for 98.79% of the total went \\nthrough effective judicial process and information disclosure on China \\nJudicial Process Information Online. \\nII. Highlights of Activities \\n(1) Prospective Systematic Planning \\nThe Court carried out prospective research to reach the targets \\nand prioritized leverage of maritime justice in supporting national \\nstrategies such as the building of a powerful maritime country, the \\ndevelopment of the Yangtze River Economic Belt, the integrated \\nregional development of the Yangtze River Delta, as well as the Belt \\nand Road Initiative, in order to promote economic and social \\ndevelopment with high-quality maritime judicial service; promulgated \\nthe Opinions on Fully Leveraging the Role of Maritime Trial to \\nProvide Judicial Services and Guarantees for the Re-start of the \\nConstruction of New Jiangsu Province Featuring Strong Economy, \\nWealthy People, Beautiful Environment and a High Degree of Social \\nCivilization, which clarifies 4 main tasks, 8 key fields and 10 \\nguarantee mechanisms for maritime justice; established a regular \\nanalysis and notification system for cases involving the Belt and Road \\nInitiative, conducted special investigations on admiralty and maritime \\ncases involving the Free Trade Zone, the construction of the Grand \\n\\n\\n- 9 - \\n \\nCanal Cultural Belt, and marine ecological environment protection, \\nand introduced 10 measures to make business environment more \\ninternational, facilitating and making it compatible with the rule of \\nlaw; closed 38 maritime administrative cases involving unlicensed \\nships on the Yangtze River in accordance with the law, promoted \\nsubstantive progress in resolving administrative disputes through \\ndemonstrative court trials, and supported the elimination of unlicensed \\nships on the Yangtze River—all these judicial efforts led to a better \\nprotection of the Yangtze River; proposed 15 measures on maritime \\njustice for pandemic prevention, published 14 issues of articles on the \\n“interpretation of maritime laws by maritime judges”, organized the \\npreparation and distribution of more than 1,000 copies of the Manual \\non Legal Risk Avoidance in the Shipping, Port, Logistics, Shipbuilding \\nand Other Industries, provided relief to companies in difficulties and \\nworked to ensure stability in employment, financial operations, \\nforeign trade, foreign investment, domestic investment, and \\nexpectations as well as security in job, basic human needs, operations \\nof market entities, food and energy security, stable industrial and \\nsupply chains, and the normal functioning of primary-level \\ngovernments. \\n (2) Refining the Trial Process \\nGiven that maritime jurisdiction is internationally involved and \\nrequires professionalism, the Court made vigorous efforts to refine its \\ntrial process and guaranteed fair and efficient trial of cases. It \\nformulated the Opinions on Refining the Maritime Trial Process and \\n\\n\\n- 10 - \\n \\nSelecting a Collection of Well-tried Cases, set up a group of \\nconsulting experts, recommended experts to serve as the jurors, \\ncarefully paid attention to complex and troublesome major cases with \\nsignificance for rulemaking and demonstration, and presented a batch \\nof well-tried cases; formulated 12 guidelines for collecting maritime \\nevidence, judicial review of maritime arbitration and other trial \\nprocedures and prepared trial guidelines for typical cases such as \\ncargo delivery by sea without a bill of lading and disputes over freight \\nforwarding by sea to standardize judicial behaviors and unify \\njudgment standards. In the early stage of its establishment, the Court \\novercame a series of difficulties such as lack of experience in the \\nseizure of foreign ships, and actively coordinated with maritime and \\ndefense departments to its first foreign ship seizure case—the seizure \\nof “Kelly”, and developed its initial procedure for the seizure of ships; \\nproperly handled a ship seizure case involving multiple sensitive \\nfactors such as foreign affairs, the pandemic, floods and effectively \\nmitigated pandemic and flood risks faced by the ship \\\"New Orion\\\" \\nduring its seizure, and protected the legitimate rights and interests of \\nboth Chinese and foreign litigants; effectively closed an international \\ncase involving disputes over a shipbuilding contract that was actively \\nhanded by the foreign litigant to Nanjing Maritime Court and won the \\ntrust of the international community in China's maritime justice with \\nprofessionalism. During the tour of inspection to courts in Jiangsu, a \\ndeputy to National People’s Congress fully recognized Nanjing \\nMaritime Court for its professionalism, as well as its efforts to refine \\n\\n\\n- 11 - \\n \\nthe maritime trial process and support the development of the marine \\neconomy. \\n(3) Systematic Formulation of Rules and Regulations \\nThe Court gave priority to rules and regulations, accelerating \\ntheir formulation and ensuring they remain systematic, coordinative, \\nand operable. The Court prepared the Development Plan for Nanjing \\nMaritime Court (2021-2025), and issued more than 60 rules and \\nregulations, covering case trial, team management, Party building, and \\njudicial affairs; improved the operating mechanism of maritime \\njurisdiction, issued a complete set of trial management documents to \\nclarify jurisdictions and responsibilities of judges, the responsibility of \\ntrial supervision of the Court’s president, vice president, and division \\nchief judges, and the working rules of the adjudication committee and \\nthe presiding judges' meeting, and fully implemented the judicial \\nresponsibility system. The Court further developed a communication \\nmechanism between detached courts and local CPC committees, \\ngovernments, and local courts, and better leveraged the role of \\ndetached courts in serving the overall interests in accordance with the \\nlaw, ensuring justice is served, training officials, and improving social \\ngovernance. Moreover, it co-signed the Memorandum on the Strategic \\nCooperation in the Administrative Enforcement of the Maritime Law \\nand Maritime Justice in Jiangsu Province with the Department of \\nTransportation of Jiangsu Province, Jiangsu Maritime Safety \\nAdministration and Lianyungang Maritime Safety Administration to \\nactively explore a new cooperation model for the administrative \\n\\n\\n- 12 - \\n \\nenforcement of the maritime law and maritime justice in Jiangsu, an \\ninnovative measure which was successfully selected as one of the \\nrepresentative cases of judicial reform in courts of Jiangsu; established \\nstrategic partnerships with Dalian Maritime University and Nanjing \\nUniversity of Information Science and Technology, carrying out \\npragmatic and in-depth cooperation in talent training, academic \\nplatform construction, and personnel exchanges and interactions; \\npromoted the establishment of the Maritime Litigation Research \\nSociety, Jiangsu Law Society to bring together experts on the \\nadmiralty and maritime laws in the province and make constant \\ntheoretical and practical innovation on maritime justice, and \\nsuccessfully held its first annual meeting through live streaming with a \\ntotal of 25,000 viewers and positive social repercussions. Besides, the \\nCourt appointed deputies to NPC, CPPCC members, and maritime \\nexperts as special supervisors, and regularly arranged activities such \\nas court hearings, inspections, and investigations. During the trial of a \\nmaritime administrative case in which the administrative officer \\nappeared in court, deputies to NPC and CPPCC members as hearers \\nspoke highly of the judgment of the court. \\n (4) Additional Intelligent Litigation Services \\nThe Court made full leverage of the achievements from the \\nconstruction of smart courts in Jiangsu to promote the construction of \\na one-stop multi-component dispute resolution and litigation service \\nsystem and enable smart service, smart trial, smart enforcement, and \\nsmart management; optimized online litigation services to enable \\n\\n\\n- 13 - \\n \\ncross-domain case filing, electronic delivery,  online payment, and \\nonline case review and installed self-service facilities in Nanjing \\nYangtze River International Shipping & Logistics Center and \\nMaritime Rule of Law Square to provide litigation services day and \\nnight.  It further developed construction planning for the trial building \\nin the Nanjing Rule of Law Park and infrastructure of detached courts, \\nintegrated the information system of the Court's headquarters and \\ndetached courts, established a remote conference system for judges \\nand an online court, developed an online ship inspection and control \\nsystem, and improved the 854 operation model of the executive \\ncommand center by formulating the Online Trial Norms of Nanjing \\nMaritime Court and closed 154 cases on the Internet during the \\nCOVID-19 pandemic to guarantee continued case trial and \\nadministration of justice. Moreover, it set up one-stop dispute \\nresolution centers for disputes over marine accidents, port disputes, \\nand fishery disputes in Nanjing, Suzhou, and Lianyungang as well as \\ncircuit trial courts and trial work stations for dispute resolution at the \\nsource in the four detached courts, and specially invited six mediation \\norganizations and 89 mediators. Based on these efforts, a maritime \\ndispute resolution network was shaped to provide various needed \\njudicial services to people. Besides, it became the first court in Jiangsu \\nto develop a bilingual website (Chinese and English) where it released \\nits first bilingual maritime report on trials. It also created accounts on \\nonline platforms such as WeChat, Weibo, and Toutiao where it \\npublished more than 800 posts, with 450,000 reads and 15 news \\n\\n\\n- 14 - \\n \\nreports shared by People’s Court Daily, Xinhua Daily, Jiangsu Legal \\nDaily, andsome other mainstream media. \\n(5) Building a Professional Team \\nThe Court strived to build a politically solid and professionally \\ncompetent maritime trial team with an international perspective by \\nadhering to the requirements of constant reform, regularized operation, \\nspecialization and professionalism and giving priority to self-\\nbetterment and the sense of responsibility; always putting the Party’s \\npolitical building first, continued to guide itself with theory and put \\ninto practice the requesting and reporting system for major affairs; \\nestablished its own CPC committee, commission for disciplinary \\ninspection, labor union, youth league, and women's federation to \\npromote the solid integration of Party building and trial work, \\nprepared personal archives for court personnel and warned them with \\nnegative cases, and put into action the responsibility of its CPC \\ncommittee and the supervision responsibility of its commission for \\ndisciplinary inspection. Moreover, it focused on equipping maritime \\njudges with knowledge about the law, foreign languages, maritime \\naffairs, trade, and shipping,  as well as held the “lectures on maritime \\naffairs” every month, and organized judicial officers to train sea safety \\nskills on ships in order to improve their professionalism; it further \\nbuilt a translation team of young staffers to regularly conduct \\ntranslation training and academic exchanges; set up 10 professional \\nteams of  judges and pooled efforts to conduct in-depth discussions on \\nprofessional cases; introduced an assessment mechanism based on \\n\\n\\n- 15 - \\n \\nseven objectives, established a pool of researchers, and encouraged \\nthem to “delve deep into research problems, summarize their \\nexperiences, and present their findings.” In the past year, the judicial \\nofficers of the Court have undertaken one province-level key research \\nproject and wrote 21 papers, which were either published in journals \\nsuch as People’s Judicature and Journal of Law Application or won \\nawards in the state- and province-level conferences. It participated in a \\nseries of conferences, including the 28th National Maritime Trial \\nSeminar, the Special Symposium of the Supreme People's Court on \\nJudicial Protection of Marine Ecological Environment, and the Annual \\nMeeting of the China Maritime Law Association, and delivered more \\nthan 10 keynote speeches. \\nIII. Typical Cases \\n \\nCase 1:BOA BARGES AS vs. Nanjing Yichun Shipbuilding Co., \\nLtd. Dispute over International Shipbuilding Contract \\n \\n[Case Details] \\nOn April 18, 2007, Norwegian shipowner BOA OFFSHORE AS, \\nordered ships from Nanjing Yichun Shipbuilding Co., Ltd. \\n(hereinafter referred to as “Nanjing Yichun Company”) and signed \\nthree Semi-Submersible Heavy-duty Deck Barge Contracts with a \\ntotal price of nearly US$50 million.The contracts agreed that disputes \\n\\n\\n- 16 - \\n \\nshall be arbitrated in London and governed by English law. On May \\n17, 2010, Norwegian shipowner BOA BARGES AS, as the new \\npurchaser, assumed the rights and obligations of the original three \\ncontracts. With the occurrence of the dispute over the contract \\nperformance, both parties decided to terminate the Contract on \\nDecember 8, 2015, but failed to reach an agreement on a series of \\nissues after the termination of the contract. By the beginning of 2020, \\nthe dispute cannot be solved by negotiation due to its escalation.Thus, \\nboth partiesshall apply to the London Court of International \\nArbitration for arbitration in accordance with the relevant contract to \\nsolve the dispute.  \\nThe sudden outbreak of COVID-19 in February 2020 has a great \\nimpact on international arbitration. Especially with the increasingly \\nsevere situation of global epidemic, many European countries \\nadoptentry restrictions and other prevention and control measures. \\nBased on various factors, both parties signed the Supplementary \\nAgreement on May 16, which agreed to submit the dispute to Nanjing \\nMaritime Court for adjudication and apply Chinese laws. On June 11, \\nthe plaintiff BOA BARGES AS entrusted lawyers with a lawsuit to \\nNanjing Maritime Court, requesting the defendant Nanjing Yichun \\nCompany to return the advance payment and the accrued interest. \\n[Verdict] \\n\\n\\n- 17 - \\n \\nAt the acceptance of this case, it was found through examination \\nthat the power of attorney of the plaintiff's attorney shall be notarized \\nby the Norwegian notary office and authenticated by the embassy of \\nthe People's Republic of China in Norway. However, due to the \\ninfluence of the pandemic situation, the plaintiff failed to submit the \\nauthenticated notarial documents to the court. In view of the actual \\nimpact of the pandemic on notarization and authentication and the \\ncomplete specifications of other relevant filing materials of the case, \\nand the plaintiff's attorney promised to complete the authenticated \\nnotarial documents before the trial, Nanjing Maritime Court decided \\nto file the case first, allowing the attorney to delay submitting and \\nauthorization procedures. In the process of trial, in order to reduce the \\nrisks brought about by the flow and gathering of people during the \\npandemic, the undertaking judge, on the basis of carefully examining \\nthe evidence materials involved in the case, facilitated the parties to \\nreach a mediation agreement by handling the case through the Internet, \\nand concluded the case in 27 days. \\n[Significance] \\nJiangsu is a major shipbuilding province in China, with \\nshipbuilding completion, order placement and existing orders ranking \\nfirst in China for consecutive years, and all indicators accounting for \\nmore than 30% of the national total. There are a large number of ship \\ncases accepted by Nanjing Maritime Court, accounting for 29.71% of \\n\\n\\n- 18 - \\n \\nthe total number of civil cases. The discussed case is an international \\nship construction contract dispute case. Against the backdrop of the \\nincreasingly severe global COVID-19 epidemic, the foreign party took \\nthe initiative to alter the dispute resolution method from arbitration in \\nLondon to filing a lawsuit to Nanjing Maritime Court and applying \\nChinese law, which is not only based on the trust in China's efforts to \\nbuild the International Maritime judicial center and optimize the \\njudicial environment, but also fully recognized the Nanjing Maritime \\nCourt's service to ensure the construction of \\\"the Belt and Road \\nInitiative\\\" and actively build a preferred place for maritime litigation. \\nDuring the COVID-19 epidemic, Nanjing Maritime Court allows \\nforeign parties to postpone the submission of relevant notarization and \\nauthentication documents according to the relevant guidelines of the \\nGuiding Opinions of the Supreme People's Court on Several Issues \\nConcerning the Proper Trial of Civil Cases Involving COVID-19, and \\nactively used the Internet in handling cases to promote the resolution \\nof disputes in a timely manner, which truly realized thevision of \\nnormal trial and execution without halt the justice during COVID-19 \\nepidemic. It is a great practice of equally protecting the legitimate \\nrights and interests of Chinese and foreign parties, actively optimizing \\nthe rule of law, internationalization and facilitating the business \\nenvironment, which fully embodies the advantages of the socialist \\njudicial system with Chinese characteristics. \\n\\n\\n- 19 - \\n \\n[First-instance Trial, Case Number] (2020) Jiangsu72,Civil \\nCase First Instance No.611 \\n \\nCase 2:Zhang vs. the People's Government of Jianye District, \\nNanjing, Disputes over Administrative Punishment \\n \\n[Case Details] \\nIn May 2018, seven administrative agencies including Nanjing \\nJianye District People's Government, Nanjing Transportation Bureau, \\nNanjing Maritime Safety Administration, the Water Branch of \\nNanjing Public Security Bureau, the Nanjing Branch of Yangtze River \\nShipping Public Security Bureau, Nanjing Water Affairs Bureau, and \\nNanjing Agriculture and Rural Bureau set up a joint team to carry out \\nspecial actions to rectify the “Three Withouts” (“without name and \\nnumber”, “without ship certificate” and “without registry port”) ships \\nin some waters of the Nanjing section of the Yangtze River, \\nidentifying 19 vessels owned by 14 persons, including Zhang, as \\n“Three Withouts” vessels, and towing them to the temporary detention \\narea for confiscation and dismantlement. Upon learning of the \\nconfiscation and dismantling of the vessels, Zhang et al. started \\nseeking help from government authorities at all levels in the forms of \\nletters and visits. In June 2020, Zhang et al. filed an administrative \\nlawsuit with Nanjing Maritime Court, demanding confirmation that \\n\\n\\n- 20 - \\n \\nthe seven administrative organs of the joint team confiscated and \\ndismantled ships illegally, and filed an administrative compensation \\nlawsuit, requiring that the administrative organs to compensate each \\nship for losses ranging from several hundred thousand yuan to more \\nthan one million yuan. \\n[Verdict] \\nAfter the case acceptance according to law, Nanjing Maritime \\nCourt acquired a deep understanding of the background, progress and \\nearly dispute handling of the rectification of the “ThreeWithouts” \\nships in the Yangtze River, combed the relevant laws, regulations and \\npolicies, analyzed and judged the practices, common disputes and \\njudicial decisions of the rectification of the “ThreeWithouts” ships in \\nvarious provinces and cities. In order to properly handle the discussed \\ndisputes according to law, Nanjing Maritime Court decided to take the \\nlead in arranging 12 typical cases for trial, and notify the person in \\ncharge of the sued administrative organ to appear in court to respond \\nto the lawsuit, and arrange the parties in other 26 cases to attend the \\ntrial. On the basis of finding out the facts of the cases, the \\nprosecutions of the above 12 cases were rejected on the grounds that \\nthe cases exceeded the time limit for prosecution. After the trial, the \\ncourt patiently explained the applied laws and regulations and \\nclarified the legal relationship. On the basis of fully considering the \\nactual situation of the ships and the specific policies of the local \\n\\n\\n- 21 - \\n \\ngovernment, the parties in other 26 cases voluntarily withdrew the \\nlawsuits requesting confirmation of the administrative organ’s \\nillegality, and reached a mediation agreement with the sued \\nadministrative organs on the administrative compensation, which was \\nconfirmed by the Nanjing Maritime Court. \\n[Significance] \\nMaritime administrative cases are one of the six categories of \\ncases accepted by maritime courts. The discussed disputes over \\nmaritime administration involving the “Three Withouts” ships on the \\nYangtze River were properly concluded according to law, which is a \\nsuccessful practice for Nanjing Maritime Court to deepen the \\nconnection between administrative law enforcement and judicial \\ndisposal. It strongly supports the zero clearing of “Three Withouts” \\nships on the Yangtze River and demonstrates the maritime judicial \\nprotection of the Yangtze River. “Three Withouts” ships evade \\nsupervision and illegally engage in passenger traffic, cabin cleaning, \\nsand excavation & fishing, electric welding repair and other business \\nactivities on the Yangtze River, which easily causes potential safety \\nhazards of waterways and environmental pollution on the Yangtze \\nRiver waters. Additionally, it is hard to investigate and handle the \\n“ThreeWithouts” ships, and these situations turn to occur repeatedly. \\nIn the trial of this case, Nanjing Maritime Court conscientiously \\nimplemented the concept of “joint efforts rather than mass \\n\\n\\n- 22 - \\n \\ndevelopment”, based on the objective of resolving administrative \\ndisputes substantively, and guided the parties to such cases involving \\nthe “Three Withouts” ships of the Yangtze River to defend their rights \\nrationally by organizing demonstration trials and rejecting Zhang’s \\nlawsuit in advance according to law, thus laying a solid foundation for \\nresolving contradictions and disputes and ensuring the detailed \\nimplementation of the relevant strategic arrangements for the \\nprotection of the Yangtze River. The successful conclusion of these \\ndisputes safeguardthe rights and interests of people’s livelihood to the \\nutmost extent, supportand supervise the law-based administration of \\nmaritime administrative organs, and provided guidance for the \\nmaritime administrative organs to further improve the standardization \\nof administrative law enforcement, which fully demonstrates the \\nfunctional role of maritime trials in promoting the development of the \\nYangtze River Economic Belt and regional integration in the Yangtze \\nRiver Delta in accordance with the law. \\n[First-instance Trial, Case Number] (2020) Jiangsu 72, \\nAdministrative Case First Instance No.9-14, No.59-71, (2020) Jiangsu \\n72, Administrative Compensation Case First Instance No.3-21 \\n \\nCase 3:Dongxing Branch of Jiangsu Jingjiang Rural Commercial \\nBank Co., Ltd. vs. Hu et al.Dispute over Financial Loan Contract and \\nShip Mortgage Contract \\n\\n\\n- 23 - \\n \\n \\n[Case Details] \\nOn December 3, 2013, Hu signed a loan contract with Dongxing \\nBranch of Jingjiang Rural Commercial Bank Co., Ltd. (hereinafter \\nreferred to as “the Bank”), stipulating that Hu applied a loan of 28 \\nmillion yuan from the Bank. On the same day, Taizhou Jintai \\nShipping Co., Ltd. (hereinafter referred to as “Jintai Company”), XX \\nZhang, X Zhang, Wu, and Mao signed a guarantee contract with the \\nBank, stipulating that Jintai Company, XX Zhang, X Zhang, Wu, and \\nMao shall provide joint liability guarantee for all principal, interest, \\noverdue interest, penalty interest, compound interest, damages, \\nexpenses for realizing creditor’s rights and all other expenses for \\nrealizing creditor’s rights under the above contract. Hu and Jintai \\nCompany signed a mortgage contract with the Bank, stipulating that \\nall “Jintai 528” bulk carriers of Hu and Jintai Company provide \\nmortgage guarantee for the above loan, with the guarantee amount of \\n28 million yuan, and the guarantee scope covers the principal, interest, \\noverdue interest, penalty interest, compound interest, damages, \\nexpenses for realizing creditor’s rights and all other expenses for \\nrealizing creditor’s rights under the main contract. After the expiration \\nof the repayment period, Hu still owed a principal of 26.93 million \\nyuan and failed to return it according to the contract. The Bank \\nappealed to Nanjing Maritime Court, requesting that Hu immediately \\n\\n\\n- 24 - \\n \\nrepay the loan principal of 26.93 million yuan and the interest until the \\ndate of repayment. Jintai Company, XX Zhang, X Zhang, Wu and \\nMao shall bear joint and several liability.The Bank has the priority to \\nbe compensated for the price obtained from auction, sale and discount \\nof “Jintai 528” bulk carriers mortgaged by Xx Hu and Jintai Company \\nfor the above debts. \\n[Verdict] \\nNanjing Maritime Court held upon trial that, according to Article \\n58 of theMinutes of Civil and Commercial Trial Work of National \\nCourts issued by the Supreme People’s Court on November 8, 2019, \\nin the confirmation of the scope of guarantee for real estate security, if \\nthe scope of guarantee agreed in the contract is inconsistent with the \\nregistration due to the setting of regional registration system and \\nregistration rules, it is an appropriate choice for the People’s Court to \\nconfirm the scope of guarantee for real estate security by contract. In \\nthe practice of Jiangsu’s ship mortgage registration authority, the \\nregistration system does not set the column of “guarantee scope”, and \\ngenerally only has the expression of “amount of creditor’s rights”, and \\nonly a fixed number can be filled in. Due to the technical conditions, \\nthe registration authority usually only registers the amount of principal \\ncreditor’s rights in it. In this case, the registration authority recorded \\nthe amount of creditor's rights of 28 million yuan in the mortgage of \\n“Jintai 528” bulk carriers, which only indicated the amount of \\n\\n\\n- 25 - \\n \\nprincipal creditor’s rights, but did not limit the guarantee scope of ship \\nmortgage to 28 million yuan. In this case, the mortgage of “Jintai 528” \\nbulk carrier involved in this case, as a special movable property, is \\ninconsistent with the contract agreement due to the setting of the \\nregistration system of the ship mortgage registration authority. \\nTherefore, the scope of mortgage guarantee may be determined as \\ncovering the principal creditor’s rights, interest, penalty interest and \\nother expenses by reference to the spirit of meeting minutes, instead of \\nsimply confirming the registered creditor’s rights amount of 28 \\nmillion yuan as the guarantee scope of ship mortgage. Therefore, the \\ndefendant, Hu, repaid the plaintiff,the Bank, the loan principal of \\n26.93 million yuan and accrued interest, and the defendants, Jintai \\nCompany, XX Zhang, X Zhang, Wu and Mao bore joint and several \\nliabilities for liquidation.The plaintiff,the Bank, was given the priority \\nof compensation for the proceeds from the auction, sale and discount \\nof “Jintai 528” bulk carrier. After the judgement of the first instance \\nwas pronounced, neither party lodges an appeal. \\n[Significance] \\nThere are disputes in practice as to whether the guarantee scope \\nof ship mortgage shall be based on the amount of creditor’s rights \\nregistered in mortgage or the guarantee scope agreed in contract. The \\ntypical significance of this case lies in the establishment of the rules \\nfor the determination of the scope of creditor’s rights guaranteed by \\n\\n\\n- 26 - \\n \\nship mortgage, that is, if the scope of ship mortgage secured as agreed \\nin the contract is inconsistent with that of the mortgage registration, \\nthe contract shall prevail. At present, due to the technical conditions, \\nthe ship mortgage registration authorities in some areas of China \\nusually only register the amount of the principal creditor's rights on \\nthe ship mortgage certificate, which leads to disputes over whether the \\nscope of the creditor’s rights guaranteed by ship mortgage cover \\ninterest, penalty interest and other expenses. In the trial process of this \\ncase, instead of simply equating “the amount of creditor's rights” with \\n“the scope of guarantee”, based on the analysis of the current legal \\nprovisions and referring to the rules for determining the scope of \\nguarantee of real property rights in the Minutes of Civil and \\nCommercial Trial Work of National Courts, it is determined that the \\nscope of ship mortgage should be based on the contractual agreement \\nof the parties, which provides targeted referee guidance for the \\npeople’s court to determine the scope of creditor’s rights guaranteed \\nby ship mortgage, and can also promote the maritime department to \\nfurther improve the ship mortgage registration system, which is \\nconducive to standardizing the ship financing order and ensuring ship \\nfinancing safety and the health of the whole shipping industry. \\n[First-instance Trial, Case Number] (2020) Jiangsu 72,Civil \\nCaseFirst Instance No.19 \\n \\n\\n\\n- 27 - \\n \\nCase 4:Case of China Grain Storage Oil Co., Ltd.’s Application \\nto Detain theKELLY Ship \\n \\n[Case Details] \\nIn August, 2019, KELLY, a Marshall Islands cargo ship carrying \\na load of 80,000 tons of soybean from Richelief Port, Louisiana, USA \\narrived at Dafeng Port and Zhenjiang Port, respectively, and the cargo \\nwas found seriously damaged after inspection. On December 25, 2019, \\nthe consignee of this batch of goods, China Grain Storage Oil Co., \\nLtd., applied to Nanjing Maritime Court for detaining the “KELLY”, \\nwhich was anchored in Zhenjiang Port, on the grounds of serious \\ndamage to the goods, and requested the shipper to provide a guarantee \\nof US$4 million. \\n[Execution Process] \\nIn the process of handling this case, Nanjing Maritime Court, \\nafter strictly examining the subject qualification, basic evidence and \\nguarantee provided by the applicant, considered that the case met the \\nrequirements for maritime claim preservation, and immediately made \\na ruling on arrest of the ship and an arrest order, and decided to arrest \\nthe ship on the same day. On the premise of comprehensively \\nconsidering many factors such as the port environment where the ship \\nwas located, the weather conditions of the day and the arrival of \\nChristmas Day in western world, a detailed plan for ship arrest has \\n\\n\\n- 28 - \\n \\nbeen worked out, and a team of police officers with rich experience in \\nship arrest and good English skill has been organizedto perform the \\nship arrest. The leaders of the court conducted real-time command of \\nthe ship arrest process by implementing the command system. In the \\nafternoon of December 25, 2019, the executive police officers arrived \\nin Zhenjiang, and delivered the notice of assisting in the arrest of ships \\nto Zhenjiang Maritime Safety Administration and Zhenjiang Border \\nInspection Station in time. The Maritime Safety Administration and \\nBorder Inspection Station immediately assisted in handling the \\nprocedures of prohibiting the ships involved from leaving the port and \\nboarding the ship. The executive police officers boarded the ship \\nsmoothly, issued an order to arrest the ship to the captain in \\naccordance with the law, seized the ship certificate, and ordered the \\nrequested party to provide guarantee. After explaining the operation \\nstatus and ownership of the ship to the judge, the captain signed the \\nlegal documents for arresting the ship, and agreed with the \\nstandardized law enforcement of Nanjing Maritime Court. Nine days \\nafter the arrest of the ship, the applicant applied for lifting the arrest \\non the grounds that the defendant had provided guarantee, and the \\nNanjing Maritime Court ruled and lifted the arrest according to law. \\n[Significance] \\nSeizure and auction of ships is a judicial function exclusively \\nvested in maritime courts. Seizure of ships before litigation is a special \\n\\n\\n- 29 - \\n \\nform of preservation in maritime courts, which can effectively urge \\nthe defendant to fulfill his legal obligations in a timely manner and \\npromote the rapid resolution of maritime contradictions and disputes. \\nSince performing their duties, Nanjing Maritime Court has detained \\nall types of ships according to law, amounted to 112, including 5 \\nforeign ships. This is the first case accepted by Nanjing Maritime \\nCourt to apply for detaining a foreign ship, which is of great \\nsignificance to broaden the way for domestic parties, standardize the \\nwork flow, protect the rights and interests of the foreign applicants \\nand safeguard the judicial authority. First, establish the appraisal \\nsystem of arresting ships before litigation. Before applying for the \\narrest of a ship before litigation, the judge studies and evaluates the \\nmaterials, guarantees and controversial issues provided by the parties, \\nprompting the parties to provide complete and standardized materials \\nin time to ensure the smooth and efficient seizure of the ship. Second, \\nestablish a guarantee system in line with the reality of Yangtze River \\nshipping. In view of the special situation of many functional \\ndepartments, high density of ships and fast service cycle of docks on \\nthe Yangtze River route, a guarantee system of “letter of \\nguarantee&cash guarantee” shall be established, and the calculation \\nrules of cash guarantee required by different ships and docks shall be \\nclarified to deal with various expenses and possible risks during the \\nseizure of ship. Third, establish a cooperative working mechanism \\nwith various maritime functional departments. In this case, Nanjing \\n\\n\\n- 30 - \\n \\nMaritime Court made full use of communication means such as \\nplatform network, and immediately docked with maritime affairs, \\nborder defense and other departments to handle the procedures of \\narresting and boarding ships, and coordinate the dispatching of \\nberthing docks, so as to effectively improve the implementation \\nefficiency of arresting ships and equally protect the legitimate rights \\nand interests of the parties. \\n[Execution \\nCase \\nNumber] \\n(2019) \\nJiangsu \\n72,Property \\nPreservation Case No.2, (2019) Jiangsu 72,Evidence Preservation \\nCase No.1 \\n \\nCase 5:Qin vs. Su: A Dispute over Maritime Personal Injury \\nLiabilities \\n \\n[Case Details] \\nQin was rendering service on Su’s fishing vessel. When he was \\ntrying to moor the vessel during a fishing task on the sea, an injury \\nwas inflicted on his right foot by the mooring line. He was \\nimmediately brought back to the port and treated at a local hospital in \\nQingdao. When his conditions stabilized, he was transferred to a \\nhospital in Ganyu District, Lianyungang City for further treatment, but \\nhe ended up with an authenticated Grade-9 disability, which would \\n\\n\\n- 31 - \\n \\nexert adverse effects on his future life, labor, and income. When Qin \\nwas hospitalized, one of Su’s family members kept him company all \\nthe time and paid over 180,000 yuan for the medical expenses. \\nAfterwards, the two parties failed to agree on the due amount of \\nindemnities for Qin’s disability, nursing expenditure, and lost income. \\nThus, a dispute arose and Qin later filed a lawsuit to Nanjing Maritime \\nCourt, requesting the defendant Su to compensate him with a total of \\n307,830.64 yuan for the miscellaneous losses caused by the accident \\nin the course of his service rendering. \\n[Verdict] \\nNanjing Maritime Court tried the case in a timely manner and \\nascertained the facts by organizing both parties to present evidence \\nand cross-examine. When it came to fees such as disability \\ncompensation and nursing expenditures, the two parties kept arguing \\nwhether the injured person was at fault, as well as about his average \\nincome and the nursing staff, which made it difficult for the court \\ninvestigations to proceed, so the presiding judge promptly announced \\nadjournment, summarized the trial, and analyzed the pertinent factual \\nevidence and liabilities. The presiding judge maintained that the \\nsustained accompaniment from defendant Su’s family following Qin’s \\ninjury and the 180,000-yuan payment for medical expenses \\ndemonstrated that Su has complied with the local shipowner’s norms \\nfor handling an injured crew member, and that the rules recognized by \\n\\n\\n- 32 - \\n \\nthe local fishermen, therefore, should be applied to resolving the \\ndispute. Thanks to the trial, especially the judge’s summary, both \\nparties adjusted their expectations into more practical directions, \\nwhich might well eventually lead to mediation. Given the hostility \\nbetween the two parties when the trial was concluded, it was \\ninappropriate to conduct mediation immediately. Therefore, the court \\nannounced the scheduled time and place for mediation and entrusted it \\nto a special mediator at the one-stop fishery dispute resolution center \\nunder Nanjing Maritime Court. The special mediator has lived in the \\nlocal fishing village for a long time and thus acquires professional \\nknowledge of fishery and rich experience in handling related disputes. \\nThe efforts of the special mediator enabled the two parties to reach an \\nagreement: the defendant Su should compensate the plaintiff Qin for \\nhis disability, moral damage, follow-up treatment fees, and other \\nlegitimate indemnities, totaling 164,000 yuan, to be paid by three \\ninstallments. The court issued a mediation document confirming this \\nagreement. \\n[Significance] \\nIn the coastal area of Jiangsu, fishery disputes mostly occurred in \\ntraditional fishing ports, villages and townships. They are typical of \\nwhat are termed“cases concerning people’s livelihood.” In most cases, \\none of the parties usually has an urgent need of aid and support, or is \\nled a life troubled by injury or illness. In view of this, Nanjing \\n\\n\\n- 33 - \\n \\nMaritime Court attaches great importance to the resolution of fishery-\\nrelated disputes and stays committed to “resolving disputes through a \\nnon-litigation mechanism.” To this end, a one-stop mediation center \\nfor fishery disputes has been established in Xiakou Village, Qingkou \\nTown, Ganyu District, Lianyungang City. A special mediator, Qi \\nHonggui, who is based at the center, provides the fisherman \\ncommunity with convenient, efficient, and low-cost maritime judicial \\nservices. Despite the current availability of relatively sound law \\ntheories and comprehensive law-based evidence for fishermen’s \\ndisputes over maritime personal injury liabilities, the twoparties often \\nhave substantial disagreements to the amount of compensation. This, \\nalong with the plethora of witnesses and testimonies as well as the \\ninsufficiency of key documentary evidence, poses a great and time-\\nconsuming challenge to the court in ascertaining the facts, handling \\nthe disputes, and ensuring timely relief for the injured.  \\nThe presiding judge of this case made a summary of the trial after \\ncombing through the evidence presented by both parties, so as to \\nmentally prepare them for the direction of the trial. Then, the judge \\nentrusted the mediation work to an experienced special mediator, who \\nis acquainted with fishery practices and fishermen’s life, to spare \\nmuch energy and time in the course of fact ascertaining. Giving full \\nplay to the special mediator’s role has proved to be quite productive \\nand conducive to timely and efficient settlement of cases concerning \\n\\n\\n- 34 - \\n \\npeople’s livelihood. The settlement of this case through mediation \\nmanifests Nanjing Maritime Court’s efforts in upholding people-\\ncentered administration of justice, developing its one-stop multi-\\ndispute resolution mechanism and litigation service system with \\nmaritime characteristics, and meeting the diverse judicial needs of the \\npeople in a better way. \\n[First-instance Trial, Case Number] (2020) Jiangsu 72 Civil \\nCase No. 231 \\n \\n(The above information provided by Nanjing Maritime Court） \\n \\n \\n \\n \\n \\n\\n\\n \\nGuangzhou Maritime Court \\nReport on Trials 2020 \\n \\nPreface \\n \\n2020 was an extraordinary year in the history of the People’s Republic of China. The year \\nwitnessed the country’s efforts in completing the building of a moderately prosperous \\nsociety in all respects and attaining a decisive victory in the fight against poverty. It was \\nalso the year China made successful conclusion of the 13th Five Year Plan. However, the \\noutbreak of COVID-19 has sent the world economy into a severe downturn, disrupted \\nproduction, and caused a contraction in international trade. In UN’s “World Economic \\nSituation and Prospects”, in 2020, the world economy shrank by 4.3 per cent, over two \\nand half times more than during the global financial crisis of 2009. Marine shipping, the \\nartery of the global trade and a barometer for the global economy, was facing severe \\nimpact of the epidemic, which was evidenced by the shrinking demand, shipment delays, \\nshipping space shortage, and continuous rise of freight rates. The global shipping supply \\nchain was stuck in a deep recession.  \\n \\nIn 2020, facing the challenging international environments and the complicated domestic \\nwork relating to reform, development and stability, especially the shock of COVID-19, \\nunder the firm leadership of the Party Central Committee with Comrade Xi Jinping at its \\ncore, China has made major strategic achievements in the response to COVID-19, and \\nachieved positive results in the epidemic prevention and control and in the advancement \\nof the economic and social development. According to the data released by the National \\nBureau of Statistics, China’s GDP in 2020 exceeded 100 trillion yuan, increasing by 2.3% \\nin comparable prices compared with 2019, making a tremendous progress in the overall \\nnational strength. China is also pursuing higher-standard opening up, as is evidenced by \\nthe Master Plan for the Construction of Hainan Free Trade Port issued by the State Council, a \\nmomentum to boost the development of free trade port, and the Opinions on Accelerating \\nthe Construction of Tianjin as An International Shipping Hub in North China jointly released by \\nthe National Development and Reform Commission and the Ministry of Transport, with \\na view to promoting positive interplay between domestic circulation and international \\ncirculation. In the 2020 Xinhua-Baltic International Shipping Centre Development Index, \\nShanghai has ascended to the top three international shipping centers for the first time.  \\n \\nIn 2020, following the guidance of the Xi Jinping Thought on Socialism with Chinese \\nCharacteristics for a New Era and focusing on administrating justice for the people and \\nmaintaining judicial fairness, Guangzhou Maritime Court has been pioneering in building \\n\\n\\n \\n \\nitself into an international maritime judicial center and offering its wisdom and strength \\nin supporting the advancement of the Belt and Road Initiative and the Greater Bay Area, \\nin supporting Shenzhen in constructing the socialist pilot demonstration area of Chinese \\ncharacteristics and Guangzhou in regaining vitality and scoring new achievements in four \\naspects which aim at improving its city functions, cultural strength, service industry, and \\ninternational business environment, and in supporting the rollout of the province’s new \\ndevelopment model featuring “one core, one belt, one zone”, i.e. the Pearl River Delta as \\nthe core, the coastal economic belt, and the ecological development zone in the north of \\nthe province. In the year, Guangzhou Maritime Court retained its place among the top \\nthree maritime courts of China on the openness of judicial process. The court was also \\nawarded for its efforts in the international communication of the rule of law, which was \\nlisted in China’s ten typical cases of international communication of the rule of law. It \\nalso succeeded, inter alia, in completing the first judicial confirmation case by opening an \\nonline court session that connected the parties involved in Guangdong and Hong Kong \\nsimultaneously.       \\n  \\nIn 2020, through case study on issues such as maritime administrative litigation, freight \\nforwarding, time charter, personal injuries, rights and interests of crew, and limitation \\nfund for maritime claims, we would like to pinpoint the risks and present some solutions \\nand suggestions to shipping market participants and relevant authorities for reference, to \\nhelp boost healthy development of the ocean economy. \\n  \\n\\n\\n \\n \\nContents \\n \\nI. \\nGeneral Information of  Maritime Trials ..............................................................................  \\nSignificant fall of new cases compared with last year. ................................................................  \\nLarge portion of cases involving foreign affairs and Hong Kong, Macao, Taiwan........................  \\nA record high of administrative litigation cases accepted in first instance ...................................  \\nA small number of cases involving the new coronavirus epidemic .............................................  \\nInitial results achieved in diversified dispute resolution ..............................................................  \\nThe support of smart court in trial...........................................................................................  \\nSatisfactory results achieved by the multiple measures in advancing the campaign of solving the \\ndifficulties in enforcement. ......................................................................................................  \\nSuccessful practice to deliver quality cases. The case \\n..................................................................  \\nII. Participating in Maritime Litigation According to Law ......................................................  \\n— Analysis and suggestions concerning procedural issues in maritime litigation \\n......................  \\nAppropriateness of insurer as a subject in administrative litigation .............................................  \\nJurisdiction of crew labor (service) contract disputes .................................................................  \\nChinese seller’s right to sue under contract of carriage of goods by sea on FOB term \\n..................  \\nIII. Maintaining Legal the Order of  Freight Forwarding Market According to Law ................  \\n—Issues and suggestions concerning maritime administrative litigation cases .............................  \\nReview of legality in disputes related to administrative agreements .............................................  \\nRes judicata of effective judgment \\n............................................................................................  \\nBasis for administrative acts \\n.....................................................................................................  \\nIV. Maintaining the Order of  Rule of  Law of Freight Forwarding Market According to Law \\n—Issues and suggestions concerning marine freight forwarding disputes ...................................  \\nDisposal of goods rejected by customs .....................................................................................  \\nSub-entrustment of freight forwarding contract ........................................................................  \\nRepresentative of a branch company pending scheduled deregistration.......................................  \\nV. \\nMaintaining the Order of  Rule of  Law of Chartering Market According to Law ..............  \\n—Issues and suggestions concerning time charterparty disputes ................................................  \\nGeneral rules on ascertaining the legal effect of ship’s stamp in the conclusion of contract \\n..........  \\nException on ascertaining the legal effect of ship’s stamp in the conclusion of contract ..............  \\nIdentification of unnamed agency under charterparty ................................................................  \\nVI. Protecting People’s Rights and Interests in Sea-related Disputes According to Law .........  \\n—Issues and suggestions concerning disputes over personal injury at sea \\n...................................  \\nIdentification of the legal relationship under seafarers’ service contracts ....................................  \\nAscertainment of liability between employers and ship operators \\n...............................................  \\nAscertainment of liability between concurrent tortfeasors without a common design \\n..................  \\nVII. Maintaining the Order of  Rule of  Law of Seafarer Labour Market According to Law ......  \\n—Issues and suggestions concerning seafarer service contract disputes \\n......................................  \\nAscertainment of seafarer’s wages when no written labor contract is signed ...............................  \\nIdentification of false records in seafarer’s identity documents \\n...................................................  \\nAscertainment of seafarers’ wage periods .................................................................................  \\nVIII.Constituting Limitation of  Liability Funds for Maritime Claims According to Law..........  \\n\\n\\n \\n \\n—Issues and suggestions concerning application for constituting limitation of liability funds \\nWhether voyage charterers may seek limitation of liability for maritime claims ...........................  \\nWhether port operators may seek limitation of liability for maritime claims \\n................................  \\nWhen to invoke the right to limitation of liability for maritime claims ........................................  \\nIX. Advancing Enforcement Processes According to Law ........................................................  \\n—Issues and suggestions concerning arrest and auction of ships during enforcement.................  \\nShip’s sailing away from the place of arrest without permission .................................................  \\nAssumption of liability when a successful buyer pulls out of an auction \\n.....................................  \\nApplication of the principle of restricting futile auctions in sales of ship ...................................  \\n\\n\\n \\n \\nI. \\nGeneral Information of Maritime Trials \\n \\n(I) Overall performance \\n \\n \\nIn 2020, Guangzhou Maritime Court accepted 3454 cases, including 2860 new cases and \\n594 pending cases of the previous year. 2865 cases were closed, indicating a closing rate \\nof 82.95%. New cases involved a total value of 9.554 billion yuan, falling 1.76% from the \\nprevious year, and the value involved in the closed cases totaled 5.987 billion yuan, falling \\n46.17% from the year earlier. Throughout the year, the ratio of closed cases to accepted \\ncases was 100.17%, up 1.51 percentage points.     \\n \\n0\\n500\\n1000\\n1500\\n2000\\n2500\\n3000\\n3500\\n4000\\n4500\\nPending cases \\nof previous yearNew cases\\nClosed cases\\nPending cases\\n535\\n4260\\n4203\\n594\\n594\\n2860\\n2865\\n589\\nUnit: case\\nCases accepted, closed, and pending in 2020 compared with \\nlast year over the same period\\n2019\\n2020\\n \\nAmong the new cases accepted by the court, there were 1544 civil cases (non-litigation \\ncases included), accounting for 53.99% of the new accepted cases, 102 administrative \\ncases (non-litigation review cases included), accounting for 3.57%, and 1214 enforcement \\ncases, accounting for 42.45%.  \\n \\n \\n \\n \\n \\n\\n\\n \\n \\n53.99%\\n3.57%\\n42.45%\\nThe proportion of different new cases in 2020\\nCivil cases\\nAdministrative cases\\nEnforcement cases\\n \\nOf the 1298 new civil cases accepted in first instance, 93 causes of action were involved. \\nThe top three causes were disputes over contract of carriage of goods by sea or waters \\nconnected to sea, disputes over freight agency contract for carriage of goods by sea and \\nsea-connected waters, and crew labor disputes.  \\n \\n \\n\\n\\n \\n \\n \\nAmong the cases closed by the court, there were 1366 litigation cases (inclusive of 1343 \\nfirst-instance civil cases and 23 first-instance administrative cases), accounting for 47.68% \\nof the total cases closed, 244 non-litigation cases, with a percentage of 8.52%, and 1255 \\nenforcement cases, accounting for 43.80% of the total closed cases.  \\n \\nAmong the litigation cases closed in first instance, there were 537 cases concluded by \\njudgment, accounting for 39.31%, 381 concluded by mediation, accounting for 27.89%, \\n358 allowed to be withdrawn by a ruling or ruled to be withdrawn, taking up 26.20%, and \\n90 closed by other means, accounting for 6.59%.     \\n \\nIn 2020, the court accepted 1214 new enforcement cases, while there were 144 pending \\ncases of previous year. With 1255 cases effectively enforced, 92.42% of the enforcement \\ncases were concluded by the court, up 2.54 percentage points compared with last year. \\nAmong the closed cases, 95.83% with available property for enforcement were enforced \\nwithin the statutory period, 100% were successfully enforced or discontinued according \\nto law, 100% of the cases with letters and visits involving enforcement were resolved or \\nconcluded, and online auction had covered all cases, with total enforced value amounting \\nto 812.881 million yuan.  \\n \\n(II) Characteristics of  the trial and enforcement work in 2020 \\n \\n1. \\nSignificant fall of new cases compared with last year. Since the implementation of \\nthe case filing registration system by the people’s courts in 2015, the new cases accepted \\nby this court in each year (except 2019) varied between 2500 and 3500. The number of \\nnew cases accepted in 2020 was also among the normal range at 2860, although falling \\nsignificantly by 32.86% compared with a record high of 4260 cases accepted in 2019. \\n \\n2. Large portion of cases involving foreign affairs and Hong Kong, Macao, Taiwan. In \\n3150\\n2562\\n2614\\n3378\\n4260\\n2860\\n3137\\n2000\\n2500\\n3000\\n3500\\n4000\\n4500\\n2015\\n2016\\n2017\\n2018\\n2019\\n2020\\nUnit: case\\nThe number of  new cases accepted during 2015-2020\\nNew cases\\nAverage\\n\\n\\n \\n \\n2020, the court accepted 322 first-instance civil cases involving foreign affairs and Hong \\nKong, Macao, Taiwan, which accounted for 24.81% of the new first-instance civil cases. \\nAmong them, there were 269 new first-instance civil cases involving foreign affairs, 64 \\ninvolving Hong Kong, 2 involving Macao, and 13 involving Taiwan. There were 385 of \\nfirst-instance civil cases involving foreign affairs and Hong Kong, Macao, Taiwan closed, \\naccounting for 29.32% of all the civil cases concluded in first instance. By trying such \\ncases according to law, Guangzhou Maritime Court was performing its responsibility and \\njudicial capability to safeguard the advancement of the Belt and Road Initiative and the \\nconstruction of the Greater Bay Area.    \\n \\n3. A record high of administrative litigation cases accepted in first instance. In 2020, \\nthe court accepted 89 administrative litigation cases in first instance, an all-time high \\nsurging 122.5% from the previous year, while it only accepted 12, 63, 10, 29 and 40 cases \\nrespectively during 2015-2019. The majority of these cases were caused by administrative \\nacts, such as fishery administration and environmental protection administration. Facing \\nthe challenges in the trial of maritime administrative disputes brought by the increasing \\nnumber of administrative cases in first instance, the court, by visiting and doing research \\nin maritime administrative organs and allowing judges to observe and learn skills from \\nadjudication of administrative cases, ensured that such cases were handled with fairness \\nand justice. \\n \\n4. A small number of cases involving the new coronavirus epidemic. Throughout the \\nyear, the court accepted only 17 litigation cases in relation to the impact of COVID-19 \\n(inclusive of the liability or litigation acts related to the epidemic and the prevention and \\ncontrol of the epidemic), accounting for only 1.23% of the new cases accepted in first \\ninstance. The handling of these cases were progressing at a steady pace, with 8 cases \\nhaving been concluded, accounting for 47.06% of all the epidemic-related cases in first \\ninstance. In the light of the strong recovery of the shipping industry in the second half of \\n2020, it is expected that the impact of COVID-19 on the shipping industry is limited and \\nthe number of maritime cases following such impact is also limited.   \\n \\n5. Initial results achieved in diversified dispute resolution. In 2020, the court accepted \\n20 new mediation cases applying for judicial confirmation, surging 566.67% compared \\nwith last year, an evidence of the efforts of Guangzhou Maritime Court in the launch and \\nimplementation of related measures under the campaign of building the two “one-stop \\nservices” litigation service system. By collaborating with maritime administrative organs, \\nindustry associations, bar associations, arbitration bodies, crew’s trade unions, conducting \\ncourt hearings and publicity of law in communities, and establishing diversified dispute \\n\\n\\n \\n \\nresolution channels online and offline, the court aimed at providing more comprehensive \\nand high-quality judicial services to the people. \\n \\n6. The support of smart court in trial. Throughout the year, the court conducted 211 \\nhearings on the internet. Nearly all the cases handled by the head office and the detached \\ntribunals of the court could be handled by internet court. The court also witnessed two \\nauthorization cases involving parties form Hong Kong and Macao respectively by means \\nof the cross-border authorization platform, and it also succeeded in the delivery of an \\nauctioned vessel outside the province through the enforcement command center.  \\n \\n7. Satisfactory results achieved by the multiple measures in advancing the campaign of \\nsolving the difficulties in enforcement. In the year, the court initiated and developed new \\nenforcement methods, such as launching the special enforcement campaigns of “Nanyue \\nEnforcement Operation 2020” and “Exercising enforcement function to ensure stability \\non six key fronts and maintain security in six key areas”. In March, the court held China’s \\nfirst live streaming promotion of judicial auctions, which was reprinted by the official Tik \\nTok and WeChat accounts of the High People’s Court of Guangdong Province and the \\nSupreme People’s Court. In July, the court sent the first warning notice for enforcement \\npunishment in the province. In November on the occasion of the double 11 shopping \\nspree, the court introduced its online judicial auctions to netizens through live streaming, \\ntransferred a case that was contemplated to be discontinued for bankruptcy examination, \\nand confiscated the deposits of two buyers who repudiated bids and ordered them to pay \\nbalance of the transaction prices of the judicial auctions. Throughout the year, the court \\nsuccessfully enforced 117 cases involved the people’s livelihood, such as crew service \\ncontract disputes, and completed the enforcement of the existing and new wage arrears \\ncases, with 7.745 million yuan enforced.  \\n \\n8. Successful practice to deliver quality cases. The case Shenzhen Hengtonghai Shipping Co., \\nLtd. v. Ji'an Hengkang Shipping Co., Ltd. on dispute over voyage charterparty was listed by the \\nSupreme People’s Court in the Typical Maritime Cases of China 2019; Xiamen Mingsui \\nGrains & Oils Co., Ltd v. Atlantic Mexico Pte. Ltd. on dispute over contract of  carriage of  goods by \\nsea” and “Taiwan Fire & Marine Insurance Co., Ltd v. All Oceans Transportation Inc. on dispute \\nover liability for collision of  ships were awarded second prize and recognition prize for the \\n2020 excellent cases of the people’s courts in China. The case Application of  Farenco \\nShipping Pte. Ltd. for enforcement of  arbitration award made in Hong Kong was listed as case 4 of \\nthe Supplementary Arrangement for the Mutual Enforcement of  Arbitral Awards between the \\nMainland and the Hong Kong Special Administrative Region released by the Supreme People’s \\nCourt on 26 November 2020.  \\n\\n\\n \\n \\nII. Participating in Maritime Litigation According to Law \\n—Analysis and suggestions concerning procedural issues in maritime litigation \\n \\n (I) Appropriateness of insurer as a subject in administrative litigation \\n \\nIn August 2019, A Vessel sank in the waters 3.4 nautical miles to the south of Dawoshan \\nof Hengqin Island. The department of the maritime safety administration in charge made \\nthe Investigation Conclusions on the maritime accident (hereinafter the “Investigation \\nConclusions”), which determined that the gale (Beaufort scale 8) was the major cause of \\nthe tragedy and the loose hatch cover and change of the ship’s hull strength might also \\ncontribute to the accident. The insurer A, however, disagreed with the conclusion of the \\ngale of Beaufort scale 8. In its opinion, there is no available wind data to prove the wind \\nblowing on the accident site as strong as a gale of Beaufort scale 8.On the contrary, they \\nbelieved that the change of hull strength(fracture) caused by allowing in a flood of water \\nfrom the loose hatch cover, was the primary cause of the accident. Insurer A thus applied \\nwith the court to annul the Investigation Conclusions and draw a new conclusion. The \\nfirst-instance court rejected the case on the ground that insurer A was not an appropriate \\nsubject to initiate an administrative lawsuit in respect of the Investigation Conclusions. \\nThe insurer filed an appeal, which was dismissed by the second-instance court who \\nmaintained the decision of first instance.      \\n \\nAccording to the effective decision of the court, pursuant to paragraph 1 of Article 25 of \\nthe Administrative Procedure Law of the People’s Republic of China, “The persons subject to an \\nadministrative act and other citizens, legal persons or other organizations having interests \\nin the administrative act are entitled to bring a lawsuit”. Insurer A was not the \\nadministrative conterpart to the Investigation Conclusions involved. There was no \\ninterests between the insurer and the Investigation Conclusions in administrative law,  \\nbecause the latter didn’t set any rights and obligations for the former directly. Although \\nthe Investigation Conclusions might be used as an evidence in the litigation of the \\nmaritime accident dispute that followed and might have some impact on the insured and \\nthus on the insurer, it did not directly impair the insurer’s legitimate rights and interests. \\nSo, the insurer could not act in the capacity of claimant in this case based on the \\ninsurance contract relationship with the insured. The insurer could seek civil remedies to \\nprotect its interests under the insurance contract. \\n \\nIn the Reply to the Consultation Letter of  the Maritime Safety Administration of  the Ministry of  \\nTransport on the Actionability of  Maritime Investigation Conclusions on 20 May 2019, the Fourth \\nCivil Division of the Supreme People’s Court made it clear: “Currently, traffic accident \\n\\n\\n \\n \\nliability decisions in China not only find the facts, but also determine the liabilities of the \\nparties. They therefore actually affect the rights and obligations of the private parties and \\nare used as the evidence in civil cases involving traffic accidents. Such decisions could not \\nbe an excuse to invalidate the right of the private parties to bring an administrative \\nlawsuit to the court.…There is no legal basis to exclude such decisions on the liability of \\nmaritime accidents from the scope of actionable administrative cases.” Later on, several \\nother administrative lawsuits were brought to our court in respect of decisions on the \\nliability of maritime accidents. \\n \\nWe suggest that the parties involved in this new type of administrative lawsuits should \\nproperly and timely exercise the right to sue pursuant to the relevant provisions of the \\nadministrative procedure law, to protect their legitimate rights and interests, and that \\nmaritime administrative organs should perform governance strictly following the law to \\nensure that the administrative procedures are lawful and the related persons are treated \\nwith fairness. In the event of an administrative action, the maritime administrative organs \\nshould prepare evidential materials carefully and respond to the action actively, to ensure \\nthe smooth advancement of the law enforcement.  \\n \\n(II) Jurisdiction of crew labor (service) contract disputes  \\n \\nFeng belonged to the crew of a liquefied petroleum gas carrier. In May 2019, he was hit \\nby cable by accident aboard the ship berthed at terminal. After discharged from hospital, \\nFeng applied to the social security administration of Shenzhen for confirmation of \\nemployment injury, and the administration issued a decision to confirm the employment \\ninjury and also made a disability grading identification certificate. In October 2020, Feng \\nbrought a lawsuit against the ship management company headquartered in Tianjin and its \\nbranch in Shenzhen on dispute over employment injury compensation, whereby he \\nrequested the court to dissolve the labor contract relationship and demand the \\ndefendants to pay the disability subsidy, salary during injury, loss of working time, and \\nthe retrospective pay of social security contributions.  \\n \\nAfter examining the complaint materials, this court found that there was an agreement \\nunder the Crew Embarkation Agreement signed by Feng and the defendants, which read \\n“Any dispute arising from this Agreement, if not settled by negotiation, shall be \\nreferred to Qingdao Maritime Court for judgment”. Upon the court’s explanation on \\nthe jurisdiction clause, the claimant lodged a lawsuit before Qingdao Maritime Court.    \\n \\nBy hearing the case, Qingdao Maritime Court concluded that as the Crew Embarkation \\n\\n\\n \\n \\nAgreement established an employment agency relationship between the two parties, the \\njurisdiction clause point to Qingdao Maritime Court only applied when a dispute was \\narising from the agency contract. However, in this case, Feng brought a suit for \\nemployment injury compensation, which was based on a labor contract relationship. The \\ncase was indeed a labor dispute. Pursuant to Article 8 of the Interpretation of  the Supreme \\nPeople’s Court on Several Issues Concerning the Application of  Law for the Handling of  Labor \\nDispute Cases, “Labor dispute cases shall be governed by the primary people’s court at \\nthe place where the employer is located or where the labor contract is performed. Where \\nthe place of performance of the labor contract is not clear, the dispute shall be governed \\nby the primary people’s court at the place where the employer is located.” In the case, \\nsince the employer was a Shenzhen company located within the jurisdiction of \\nGuangzhou Maritime Court and the case was a crew labor contract dispute as defined in \\nArticle 24 of the Provisions of  the Supreme People’\\ns Court on the Scope of  Cases to be Accepted by \\nMaritime Courts, which shall be accepted by maritime courts, Qingdao Maritime Court \\nthus ruled to transfer the case to Guangzhou Maritime Court. \\n \\nWe held that as crew related disputes often involved maritime liens, pursuant to Article 8 \\nof the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application \\nof  the Special Maritime Procedure Law of  the People’\\ns Republic of  China,\\n“A maritime court shall \\naccept lawsuits directly brought to it which are arising from disputes over crew service \\ncontracts.” In the Provisions on the Scope of  Cases to be Accepted by Maritime Courts released \\nby the Supreme People’s Court in 2016, a distinction is made between “crew labor \\ncontract” and “labor service contract” under Article 24, which reads: “Cases of \\ndisputes over the payment of remunerations and the compensation for personal injuries \\nand death that are related to the embarkation of crew, services provided on board, and \\ndisembarkation and repatriation of crew under crew labor contract or labor service \\ncontract (including crew labor service dispatch agreement)”\\n. As there are special laws and \\nprocedures in China to deal with labor dispute cases, if a seafarer is involved, the two \\ndifferent disputes shall be settled by different resolution schemes. In recent years, there \\nwere cases that crew were making litigation requests unrelated to on-board services or \\nmaritime liens. Pursuant to Article 1 of the Provisions on Some Issues Concerning the Trial of  \\nCases Involving Crew-related Disputes implemented by the Supreme People’s Court on 29 \\nSeptember 2020, if a crew labor contract dispute does not involve embarkation of crew, \\nservices provided on-board, or disembarkation and repatriation of crew, i.e. maritime lien \\nis not involved, the dispute shall be deemed as a general labor dispute, and the party shall \\nbe instructed to follow the preceding procedure as provided in the Labor Dispute Mediation \\nand Arbitration Law of  the People's Republic of  China and refer the case to arbitration as will \\nbe done by other general labor disputes, and bring a lawsuit if not satisfied with the \\n\\n\\n \\n \\narbitration. The disputes related to crew service contract or those disputes related to \\nembarkation of crew, services provided on-board, and disembarkation and repatriation \\nof crew shall still be directly governed by a competent maritime court pursuant to Article \\n2 of the judicial interpretation. Thus, the subject dispute was a labor dispute arising from \\npersonal injury during his service on board, which was within the scope of cases to be \\ndirectly accepted by maritime courts. It is worth noting that crew’s litigation requests \\nmay cover matters with or without relation to maritime liens. To facilitate crew’s \\nparticipation in ligation, it is not encouraged that maritime courts should require crew to \\nseek justice by means of arbitration and litigation separately. Maritime courts should \\naddress these requests at the same time. \\n \\n    \\n(III) Chinese seller’s right to sue under contract of carriage of goods by sea on \\nFOB term \\n \\nThe claimant Company A, operating in Foshan, lodged a suit before this court on dispute \\nover contract of carriage of goods by sea, requesting that Company B (an international \\nfreight forwarder) and its Shenzhen branch and Company C (an international carrier) and \\nits Zhongshan branch to jointly compensate Company A for the cargo loss at an amount \\nof USD47,665 and othe relevant costs. In March 2020, Company A signed a purchase \\ncontract with Company D (a Hong Kong enterprise) whereby Company D agreed to buy \\ncoffee makers from Company A on FOB term, and Company D was responsible for the \\ntransportation of goods and would make cargo payment upon the receipt of a copy of \\nbill of lading presented by Company A. After signing the contract, Company D assigned \\nCompany B to act as freight forwarder and Company C as actual carrier. In September, \\nCompany A delivered the goods to Company C at Shenzhen Port as per instructions of \\nCompany D and thus obtained the manifest and original bill of lading (noting Company \\nA as shipper) for the shipment of goods. When the goods arrived at the destination port \\nat Jakarta, Indonesia, Company D told Company B to arrange telex release of the goods. \\nHowever, after Company A presented the copy bill of lading to Company D, Company \\nD did not make cargo payment as agreed. Company A hence lodged the suit complaining \\nthat it was the actual shipper on the bill of lading and lawful holder of the original bill of \\nlading, and it had established a contractual relationship for the carriage of goods by sea \\nwith the defendants Company B, Company C and their branches, but the defendants’ \\nrelease of cargo without the presentation of original bill of lading had made it lose the \\ncontrol of the cargo, due to which it was unable to collect cargo payment. The claimant \\ntherefore demanded compensation from the four defendants.   \\n \\n\\n\\n \\n \\nIn the understanding of the court, when cargo is transported by sea on FOB term, buyer \\nis responsible for chartering or booking space and paying freight, and seller is responsible \\nfor delivering the cargo to the vessel designated by buyer at the time or within the period \\nagreed in contract, and shall notify buyer and provide general documents to prove that \\nthe cargo has been delivered on board. Buyer will receive the cargo upon receipt of the \\ndelivery documents and make payment. And the risks associated with the cargo will be \\ntransferred from seller to buyer when the cargo pass ship’s rail. FOB term is widely used \\nby Chinese traders for many years due to the convenient delivery under the term. In this \\ncase, the claimant was seller to the sales contract of goods, but before it obtained the bill \\nof lading and presented the same to buyer, the carrier had released the cargo to buyer. \\nThe carrier violated the general procedures that required delivery of cargo against the \\npresentation of transportation documents, due to which the seller failed to receive cargo \\npayment. Although the claimant did conclude a carriage contract with the carrier, it was \\nthe party noted on the bill of lading issued by the carrier as shipper and had actually sent \\nthe cargo to carrier for transportation, and the claimant also provided evidence to prove \\nthat it had established cargo carriage relationship with the defendants. The lawsuit met \\nthe requirements set forth under Article 119 of the Civil Procedure Law of  the People’s \\nRepublic of  China and was accepted by the court.  \\n \\nWe suggest that Chinese sellers should pay special attention to the legal risks for trading \\non the FOB term: while foreign buyer is bound by a contractual relationship for carriage \\nof goods by sea with carrier when booking shipping space, Chinese seller is usually not a \\nparty to the carriage contract. That means, the Chinese seller, if it encounters difficulties \\nin negotiating transportation documents or shipping frauds when settling accounts with \\nbuyer after it has delivered the goods to carrier for shipment, it is possible that seller may \\nbe unable to collect cargo payment and recover the goods. If Chinese seller loses money \\nor goods, it may initiate a lawsuit in the capacity of actual shipper or consignor pursuant \\nto paragraph 3 of Article 42 of the Maritime Law of  the People’s Republic of  China to recover \\nits loss to the extent possible.   \\n \\n \\n \\n \\n\\n\\n \\n \\n \\nIII. Maintaining the Order of Rule of Law of Maritime Administration According \\nto Law  \\n— Issues and suggestions concerning maritime administrative litigation cases  \\n \\n(I)Review of legality in disputes related to administrative agreements  \\n \\nIn December 2012, Government A signed a Project Agreement with Company C for the \\nrestoration of marine ecology, infrastructure, and real estate development that would last \\nfor eight years with a total investment of more than ten billion yuan. In October 2013, \\nthe Oceanic and Fishery Bureau A signed a Project Franchise Agreement with Company \\nC. In March 2017, Government A and the Oceanic and Fishery Bureau A issued a notice \\nto dissolve the Project Agreement and the Project Franchise Agreement, claiming that \\nCompany C did not make investment and advance the project as agreed, and had failed \\nthe purposes of the agreements and constituted material breach. Thus, they decided to \\nreclaim the right of investment, development and operation of the project. Company C \\nhence brought a lawsuit and requested the court to order Government A to continue to \\nperform the Project Agreement on the ground that the Project Agreement was valid and \\neffective and qualified for further performance, and that there was no factual basis for \\nGovernment A to take such action.   \\n \\nAccording to the effective judgment of the court, Company C violated the contract since \\nit did not perform obligations within the given time as agreed after it signed the Project \\nAgreement. Pursuant to the Project Agreement and paragraph 2 of Article 93 of the \\nContract Law of  the People’s Republic of  China, as Company C failed to perform the primary \\nobligations under the contract, Government A was entitled to terminate contract without \\nthe consent of Company C. However, the Project Franchise Agreement concluded by \\nCompany C and the Oceanic and Fishery Bureau A involved franchised operations, and \\nit was indeed inappropriate for Government A to dissolve the administrative agreement \\nbefore consulting and making an agreement with Company C, which was in violation of \\nArticle 38 of the Measures for the Administration of  Franchise of  Infrastructure and Public \\nUtilities. Further, although the parties had negotiated with each other for several times in \\nrespect of the termination of contract before the termination of the Project Agreement, \\nand Government A had given Company C opportunities to make statements and defense, \\nGovernment A did not notify Company C in writing of the right to make statement or \\ndefense and the way to seek remedies, nor did it notify Company C of specific judicial \\nremedies in the termination notice. Government A’s act violated the statutory procedures. \\nConsidering that the administrative agreement concerned public benefits in ecological \\n\\n\\n \\n \\nconservation, environmental protection and infrastructure, if the administrative act of \\nGovernment A, though in violation of law, was rescinded, it would cause serious damage \\nto the national interest and the public benefits. Therefore, in accordance with paragraph \\n1(1) of Article 74 of the Administrative Procedure Law of  the People’s Republic of  China, the \\ncourt adjudged that Government A was in violation of law by issuing the notice of \\ndissolving the Project Agreement, but the act shall not be withdrawn.  \\n \\nThis is a typical case involving administrative agreement. Administrative agreement is in \\nnature a contract based on administrative mandate. When handling disputes arising from \\nthe conclusion, performance, amendment and termination of administrative agreements \\nbrought against an administrative organ, the people’s court should, on one hand, examine \\nthe validity of the administrative act in such aspects as whether the administrative organ \\nis acting in statutory capacities, whether it is abusing authorities, whether it applies laws \\nand regulations correctly, whether it follows the statutory procedures, whether it is acting \\nappropriately, and whether it performs statutory duties; on the other hand, in addition to \\nthe application of administrative laws and regulations, the people’s court may also apply \\nrelevant civil laws and regulations and the agreements of the parties involved, provided \\nthat such application does not violate the mandatory provisions of the administrative law \\nand the administrative procedure law.   \\n \\nWe suggest that when concluding, performing, amending, and terminating administrative \\nagreements, administrative organs should ensure that they act in a way compliant with \\nthe administrative laws and regulations, and they should also observe the relevant civil \\nlaws and regulations. Especially when an act is to be taken during the conclusion, \\nperformance, amendment, and termination of administrative agreement that may impair \\nthe rights and interests of the persons subject to such administrative act, the \\nadministrative organs shall give full opportunity so that the private parties are able to \\nmake statement or defense, and guide them to seek remedy according to law. Further, \\nadministrative agreement is made for administration or public service purpose which will \\naffect people’s immediate interests and the performance of which usually necessitates a \\ngreat deal of administrative approvals, reviews, and planning, and a large volume of \\ncapital flow and deployment of labor force and supplies. We suggest that after signing an \\nadministrative agreement, both parties shall actively and fully fulfill the agreed rights and \\nobligations during performance of the agreement, so as to avoid the waste of public \\nresources and damage to the public interests.   \\n \\n(II) Res judicata of effective judgment  \\n \\n\\n\\n \\n \\nIn October 2017, the Oceanic and Fishery Bureau A made a decision of administrative \\npenalty, which ascertained that Company B had built an impermeable pioneer road and a \\npermeable construction platform without authorization, reclaiming sea areas of 2237 m2 \\nand 1335 m2 respectively. The penalty decision ordered Company B to return the illegally \\noccupied sea areas and restore them to the original state, and to pay a penalty in the sum \\nof 2,321,390 yuan. In June 2018, the Oceanic and Fishery Bureau A applied with the \\ncourt for enforcement of the administrative penalty decision, requesting the court: 1. to \\norder Company B to return the illegally occupied sea areas and restore them to the \\noriginal state; 2. to order Company B to pay the penalty in the amount of 2,321,390 yuan; \\nand 3. to order Company B to bear the enforcement costs.   \\n \\nThe court found that, upon the notice of the Oceanic and Fishery Bureau A, Company \\nB removed the impermeable pioneer road and the permeable construction platform, but \\nit did not pay the penalty of 2,321,390 yuan. In its effective judgment, the court held that \\nthe Oceanic and Fishery Bureau had conducted investigation, notification, and approval \\nfollowing the statutory procedures and the Decision of Administrative Penalty was valid \\nas it was made by an appropriate administrative subject which acted in a way compliant \\nwith administrative procedures and regulations and was served on Company B according \\nto law and became effective. Company B did not apply for administrative reconsideration \\nor lodge a lawsuit before the people’s court within the time prescribed by law, nor did it \\nfulfill its obligations, and therefore the court ruled to enforce the penalty 2,321,390 yuan \\nunder the administrative penalty decision.       \\n \\nUpon the receipt of the administrative ruling of the court, Company B lodged a lawsuit \\nbefore the court, requesting to withdraw the Decision of Administrative Penalty made by \\nthe Oceanic and Fishery Bureau A. Company B alleged that it only became aware that an \\nadministrative penalty decision had been made by the Oceanic and Fishery Bureau after \\nit received the administrative ruling of the court. Company B held that the administrative \\npenalty decision was not served according to law, the penalty was made against statutory \\nprocedures, the facts ascertained therein were wrong, and that there was no legal basis \\nfor the penalty amount. Although the court ruled to enforce the administrative penalty, \\nCompany B did not receive the notice of enforcement application from the Oceanic and \\nFishery Bureau A, and the court did not listen to the statements or defense of Company \\nB during examination of the case.  \\n \\nUpon examination, the court held that, in accordance with paragraph 1 of Article 69 of \\nthe Interpretation of  the Supreme People’s Court on Application of  the Administrative Procedure Law \\nof  the People's Republic of  China, “A complaint which has been docketed shall be dismissed \\n\\n\\n \\n \\nby the people’s court under any of the following circumstances… (9) The subject matter \\nof the complaint is bound by an effective judgment or consent judgment”. In this case, \\nthe court’s administrative ruling in favor of enforcement had examined the validity of \\nthe administrative penalty decision in question, and the ruling had taken effect. Company \\nB lodged a lawsuit against the administrative penalty decision, but the decision had been \\nbound by the effective administrative ruling. If Company B insisted that the decision was \\nin violation of the law and be withdrawn, it shall refer the dispute to the trial supervision \\nprocedures. The court thus dismissed the compliant of Company B according to law.  \\n \\nWe suggest that when private parties believe that their legitimate rights and interests are \\nimpaired by administrative organs, they shall timely and actively seek remedies within the \\nstatutory period, for example, applying for administrative reconsideration or lodging an \\nadministrative lawsuit before the court. Private parties shall bear the adverse consequence \\nfor delay in exercise of such remedies. If private parties exercise remedies in a manner \\nbeyond the statutory scope, the people’s court will dismiss such request according to law.   \\n \\n(III) Basis for administrative acts  \\n \\nIn 2015, A applied with the Oceanic and Fishery Bureau B for diesel oil subsidy of the \\nprevious year for the 10 fishing boating operating under his name, and the Oceanic and \\nFishery Bureau B completed the subsidy approval and public disclosure. In 2016, A was \\nsentenced to imprisonment and fine by a court located at B for assisting other fishing \\nboats to gain diesel oil subsidy by cheating. In 2017, the Oceanic and Fishery Bureau B \\nissued a notice based on the criminal judgment and decided not to allow subsidy to the \\n10 fishing boats operating in the name of A. A hence applied for administrative \\nreconsideration to Government B, but Government B maintained the notice. He was not \\nsatisfied with the reply and brought a lawsuit before the court, requesting the court to \\nrescind the notice and the administrative reconsideration decision and to order the \\nOceanic and Fishery Bureau and the government to amend their administrative acts. In \\nthe effective judgment, the court held that the evidence provided by the Oceanic and \\nFishery Bureau B was not sufficient to prove that when it issued the notice, A was acting \\nin a way as prescribed in the circumstances under Article 20 of the Provisional Measures for \\nAdministration of  Special Funds to the Fishery Industry for Finished Oils Price Subsidy. The court \\nthus ruled to withdraw the notice of the Oceanic and Fishery Bureau B and the \\nadministrative reconsideration decision of Government B, and ordered the Oceanic and \\nFishery Bureau to amend its administrative act.  \\n \\nPublic authorities shall follow the principle that administrative bodies should not take any \\n\\n\\n \\n \\naction that is not mandated by law. Administrative bodies should always act on legal basis. \\nArticle 20 of the Provisional Measures for Administration of  Special Funds to the Fishery Industry \\nfor Finished Oils Price Subsidy delimits the circumstances where fishery subsidy shall not be \\nallowed: “the subsidy fund shall be managed by a special account and is used for special \\npurpose only, and no unit or individual is allowed to gain access to the subsidy fund by \\ncheating (such as applying for subsidy by presenting a license but without a fishing boat \\nat all, or presenting several licenses for only one fishing boat, or applying for subsidy for \\nan illegal boat, or counterfeiting licenses), or give subsidy in a wider range of benefits, or \\noccupy, withhold or misappropriate the subsidy fund or operating funds. In the event of \\nany of such circumstances, financial authorities will recover the illegally occupied subsidy \\naccording to law, and the person in charge and other liable personnel shall undertake the \\nlegal liabilities according to law. For those who present false documents to gain subsidy \\nby cheating, once found, they will be disqualified for fishery subsidy forever and will be \\ndisclosed nationwide.” Although the court ascertained that A assisted others to cheat the \\nauthority for subsidy, the evidence presented by the Oceanic and Fishery Bureau B was \\nnot sufficient to prove that when it issued the notice the 10 fishing boats operating in the \\nname of A were applying for subsidy in such a manner as “presenting a license but \\nwithout a fishing boat at all, or presenting several licenses for only one fishing boat, or \\napplying for subsidy for an illegal boat, or counterfeiting licenses”. It was against the \\nprovision given above and there was no other legal basis for the Oceanic and Fishery \\nBureau B to disqualify A for the subsidy by referring to the criminal judgment. Thus, the \\ncourt ruled to withdraw the administrative decision of the Oceanic and Fishery Bureau B \\nand ordered it to amend its administrative act.    \\n \\nWe suggest that administrative organs should learn more about the laws and regulations \\nin relation to their functions and duties and apply the laws and regulations properly and \\nimprove their administration according to law. When taking an administrative act, they \\nshall act strictly as mandated by law, interpret and apply the laws and regulations correctly, \\nfollow the statutory procedures, and protect the legitimate rights of the person subject to \\nthe administrative act.     \\n \\n \\n \\n\\n\\n \\n \\n  \\nIV. Maintaining Legal the Order of Freight Forwarding Market According to \\nLaw \\n— Issues and suggestions concerning marine freight forwarding disputes  \\n \\n(I) Disposal of goods rejected by customs \\n \\nCompany A entrusted Company B to carry a shipment of polarizer from Pusan, South \\nKorea to Shenzhen, China. The parties signed an agreement, whereby it was agreed that: \\n“Company A promises to receive the containers no matter the container is rejected by \\nthe customs or is allowed for customs clearance. If the customs allows the importation \\nof the container but Company A refuses to accept the container, Company B shall have \\nthe right to unpack the container and dispose of the goods, including, but not limited to, \\nto sell, depreciate, auction off, mortgage or pawn the goods. Company B will withhold \\nthe proceeds from such disposal, and Company A shall bear the costs on the disposal of \\nthe goods. If the customs rejects the container but Company A refuses to take delivery \\nof the container after Company B has returned the same to Hong Kong, Company B \\nshall have the right to dispose of the goods in an appropriate manner , including, but not \\nlimited to, to abandon or dispose of the goods as waste or scrap, or to return the same to \\nSouth Korea. And Company A shall bear the disposal costs incurred thereby.” When the \\ngoods arrived at Shenzhen, Shenzhen Dapeng Customs rejected the importation of the \\ngoods, as it found that the goods were actually some composite materials made up of \\nwaste and scraps. So Company B notified Company A by sending letters to the address \\ngiven under the agreement for three times by EMS, requiring Company A to confirm the \\ncontact details for the return. But the mails were rejected and Company A also refused to \\ngive information for the return. Company B had no choice but returned the goods to \\nSouth Korea, but later Company A sued against Company B for disposal of goods \\nwithout consent and demanded compensation from Company B. In its effective \\njudgment, the court held that Company A, although well aware that EMS postmen had \\ndelivered mails to its address specified in the agreement, did not inquire about where the \\nmails came from, nor did it notify Company B of its new address. Company A shall \\ntherefore undertake the unfavorable consequences for the rejection of mails. Company B \\nwas disposing of the goods according to the term of the agreement and shall not be \\ndeemed in breach of contract. The claims of Company A were untenable.  \\n \\nIn this case, Company B had properly served notice by EMS for three times to Company \\nA at the address specified in the agreement. Company A, although aware of such mails, \\ndid not receive the mails, which shall be deemed a rejection of the goods. Company B \\n\\n\\n \\n \\nshall not be held at fault by disposing of the goods in an appropriate way as agreed in the \\ncontract, and Company A shall bear the adverse consequences thereof.       \\n \\nWe suggest that when facing cargo transportation difficulties, consignor and forwarder \\nshall maintain good communication and notify the other party of any changes in its \\nservice address or contact details in time. Escaping the problems is not a good way to \\nimprove the situation. The parties should work together to solve problems. If consignor \\nis out of contact, forwarder shall dispose of cargo appropriately following the laws , \\nregulations and the contracts between them, and it should preserve evidence to prove its \\ninnocence and notify consignor of the situation once it gets in touch with the consignor.   \\n \\n(II) Sub-entrustment of freight forwarding contract  \\n \\nCompany A and Company B signed a freight forwarding contract for export of goods by \\nsea, whereby Company B agreed to arrange export transportation of the goods by sea. It \\nwas agreed that “in case of any change in the transportation conditions due to objective \\nreasons or third party, Company B shall notify Company A in writing promptly and only \\nship the goods upon confirmation of Company A.” After signing the contract, the legal \\nrepresentative of Company B, although without confirmation of Company A, entrusted \\nCompany C to arrange shipment for the goods. After the carriage service was performed, \\nCompany A paid the freight and related costs to Company B, and Company C issued \\ninvoice to Company B. Yet Company B only made partial payment to Company C. Now \\nCompany C, based on the freight forwarding contract with Company A, lodged a suit to \\ndemand Company A to pay the outstanding freight and related costs. According to the \\neffective judgment of the court, although Company A and Company B did not make any \\nagreement in respect of the sub-entrustment, Company C did not produce evidence to \\nprove that Company A explicitly agreed that Company B might sub-entrust Company C \\nto perform the contract. Thus, Company A and Company C did not establish contractual \\nrelationship under the freight forwarding contract. The court thus dismissed the litigation \\nrequest of Company C.        \\n \\nArticle 5 of the Provisions of  the Supreme People's Court on Several Issues Concerning the Trial of  \\nCases of  Disputes over Marine Freight Forwarding provides that “Where there is no agreement \\nin respect of sub-entrustment, if the freight forwarder or a third party alleges that the \\nconsignor has agreed on sub-entrustment of the marine freight forwarding operation on \\nthe ground that the consignor knows and does not object that the freight forwarder has \\nsub-entrusted all or part of the marine freight forwarding operation to the third party, the \\npeople’s court shall not uphold such a claim, unless the consignor acts in a way to make \\n\\n\\n \\n \\nit clear that it accepts the sub-entrustment arrangement.” In this case, as Company A and \\nCompany B did not agree on the sub-entrustment arrangement, namely, Company C was \\nsub-entrusted by Company B without the consent of Company A, and there was no \\nevidence proving that Company A had given explicit consent on the sub-entrustment, so \\nCompany B shall assume the liability thereof.   \\n \\nWe suggest that freight forwarder shall fulfill obligations to the benefit of consignor and \\narrange sub-entrustment according to agreement of the parties (if any), or (if no such \\nagreement) do so after obtaining the consignor’s explicit consent. If sub-entrustment is \\nin urgent need to protect the interests of the consignor, the forwarder should preserve \\nrelevant evidence and notify the consignor of the situation in a timely manner.    \\n \\n(III) Representative of a branch company pending scheduled deregistration  \\n \\nA was the person in charge registered by the Guangzhou Branch of Company B at the \\nindustrial and commercial bureau. During the period when the Guangzhou Branch of \\nCompany B was waiting for deregistration as scheduled, A entrusted Company C to \\nprovide freight forwarding service in the name of the Branch. A showed his title when \\ncommunicating with Company C. During the freight forwarding operation, A continued \\nto assign Company B’s agent in America as consignee and notify party on bill of lading, \\nand the personnel of Company B was responsible for contacting the American agent for \\nthe release of cargo. Company B knew that A continued to trade in its name although A \\ndid not possess the company seal and license at all, but Company B did nothing to stop \\nhim. Now Company C brought a lawsuit against Company B and demanded the latter to \\npay the outstanding freight and costs payable by its Guangzhou Branch. According to the \\neffective judgment of the court, industrial and commercial registration was a kind of \\npublic notice, and it was natural that Company C would act by relying on the capacity of \\nA, assuming that A was acting on behalf of the Guangzhou Branch of Company B. As \\nA was entrusting Company C for the carriage in the name of the Guangzhou Branch of \\nCompany B and did not tell Company C about the deregistration that was to be taken by \\nthe Branch, Company B could not deny the validity of A to act as representative of the \\nGuangzhou Branch on the ground that it had suspended the capacity of A. The court \\ntherefore upheld the litigation requests of Company C.   \\n \\nAccording to Article 14 of the Company Law of  the People’s Republic of  China, “A company \\nmay set up branches. To set up a branch, the company shall file a registration application \\nwith the company registration authority and shall obtain a business license. If a branch is \\nnot a legal person, its civil liabilities shall be borne by its parent company.” In this case, \\n\\n\\n \\n \\nalthough Company B had decided to cease the operation of its Guangzhou Branch, it did \\nnot complete deregistration at the industrial and commercial bureau in a timely manner \\nor give notice to announce deregistration of its Guangzhou branch and the suspension \\nof the company seal of the branch company. Now A was entrusting Company C to carry \\nthe goods, and the agent of Company B in America released the cargo under the bill of \\nlading. As the registration at the industrial and commercial bureau remained unchanged \\nand Company C had exercised the duty of caution, the freight forwarding business \\noperating between A in the name of the Guangzhou Branch of Company B and \\nCompany C, shall be deemed an operation under a freight forwarding contract between \\nthe Guangzhou Branch of Company B and Company C. The freight and costs owed by \\nthe Guangzhou Branch of Company B to Company C shall be borne by Company B as \\nit is provided by law that if a branch is not a legal person, its civil liabilities shall be borne \\nby its parent company. \\n \\nWe suggest that if parent company decides to cease the operation of a branch, it should \\ntimely retrieve the company seal and licenses, complete deregistration formalities at the \\nindustrial and commercial bureau, and make public announcement. When trading with a \\nbranch, a commercial entity should make a check carefully to see whether the person in \\ncharge of the branch has the power to conduct the business and whether the branch has \\nceased operation or is deregistered. It would be better to contact the parent company to \\ncheck the information of the person in charge of the branch and the operation of the \\nbranch, to avoid invalid representation.     \\n \\n\\n\\n \\n \\n \\nV. Maintaining the Order of Rule of Law of Chartering Market According to \\nLaw \\n— Issues and suggestions concerning time charterparty disputes  \\n \\n(I) General rules on ascertaining the legal effect of ship’s stamp in the conclusion \\nof contract  \\n \\nIn a time charterparty dispute, A and B (as Party A) signed a charterparty with Vessel E \\n(as Party B), whereby Party B agreed to charter Vessel E to Party A. Party B affixed the \\nstamp of Vessel E on the contract, and D signed the contract as the legal representative \\nof Party B. Company C was the registered owner and operator of Vessel E, and D was \\nthe actual owner and operator of Vessel E. A and B paid hire to D, but Vessel E was \\nresumed by Company C before maturity. A and B therefore requested the court to order \\nCompany C to compensate the hire loss. The court held that A and B had no reason to \\nbelieve that D was acting on behalf of Company C to sign the charterparty, and that the \\nship stamp of Vessel E affixed upon the contract did not surely have the legal effect of \\nrepresenting the act of owner. Therefore, A and B did not establish a time charterparty \\nrelationship with Company C, and the litigation requests of A and B shall be dismissed.     \\n \\nPursuant to paragraph 1 of Article 64 of the Civil Procedure Law of the People’s Republic of \\nChina and Article 90 of the Interpretation of the Supreme People’s Court on the Application of the \\nCivil Procedure Law of the People’s Republic of China, A and B shall bear the burden of proof \\nto prove that they had established a time charterparty relationship with Company C. But \\nA and B mainly relied on the fact that the charterparty bore the stamp of Vessel E. In \\nfact, the ship’s stamp was not the official seal of Company C. A ship’s stamp is usually \\ncarried with the ship and used by the actual owner in daily operation and management of \\nthe ship. When it is used in the conclusion of contract with other parties, generally such \\ncontract is not surely binding on the company that operates the vessel. Namely, such \\ncontract has not legal effect on the registered owner or operator of the vessel. Therefore, \\nit was groundless for A and B to hold Company C as opposite party to the charterparty.      \\n \\nWe suggest that when establishing a time charterparty relationship, especially concluding \\na charterparty, the parties should notice the different functions of a ship’s stamp and a \\nstamp under the legal person matrix. A ship’s stamp is no more than an in-house seal and \\nis not used for external business. In general, a contract bearing a ship’s stamp has no \\napparent agency effect on the owner and operator of the ship.     \\n \\n\\n\\n \\n \\n(II)Exception on ascertaining the legal effect of ship’s stamp in the conclusion of \\ncontract  \\n \\nIn a time charterparty dispute, Vessel C (as owner) signed a charterparty with A and B (as \\ncharterer). The charterparty bore the stamp of Vessel C at the bottom and the signature \\nof E as representative. Later, the parties signed a supplementary agreement bearing the \\nstamp of Vessel C. The stamp of Vessel C placed on the charterparty and supplementary \\nagreement indicated the name of Company D. However, Vessel C was arrested by the \\ncourt W due to Company D’s failure in performing the obligations determined by the \\neffective legal instrument in a another case. A and B could not employ the vessel as a \\nresult. A and B applied with this court to order the termination of the charterparty with \\nCompany D and demanded compensation. The court held that, A and B said they were \\nsigning the charterparty and supplementary agreement with E (alleged owner of Vessel C) \\nand F (alleged operator of the vessel), F placed ship’s stamp, and that A and B obtained \\nthe documents of Vessel C when concluding the contracts and knew that Company D \\nwas the registered owner and operator of the vessel. Before paying deposit, A and B also \\ncontacted Company D for confirmation, and the staff of Company D did not deny or \\nconfirm the identity of E. After the subject dispute arose, Company D also did not give \\nreasonable explanation as regards whether Vessel C was under the actual control of E \\nduring the dispute. Based on above descriptions, A and B had exercised the duty of care \\nwhen concluding the charterparty and supplementary agreement, and they had reason to \\nbelieve that E and F had the authorization to rent out Vessel C on behalf of Company D. \\nPursuant to Article 172 of the General Provisions of  the Civil Law of  the People's Republic of  \\nChina, “Where an actor still performs an act of agency without a power of agency, \\nbeyond his or her power of attorney, or after his or her power of attorney terminates, \\nthe act shall be valid if the opposite party has reason to believe that the actor has the \\npower of attorney.” The charterparty and supplementary agreement concluded by E and \\nF on behalf of Company D shall be binding on Company D. As Company D breached \\nthe contract, in accordance with paragraph 4 of Article 94 of the Contract Law of  the \\nPeople’s Republic of  China, the requests of A and B to dissolve the charterparty was in \\ncompliance with the law and shall be supported by the court.    \\n \\nWe suggest that charterer should exercise the duty of care before signing a charterparty \\nand examine all the relevant certificates and documents of the vessel it indents to charter. \\nWhen the charterparty bears the vessel’s stamp by the owner, charterer should carefully \\nexamine whether the actor or personnel onboard has the power of attorney at the time \\nthe contract is concluded, and should preserve evidence, to protect its interests to the \\nextent possible, and to avoid the failure of recovery of loss for breach of contract on the \\n\\n\\n \\n \\npart of the opponent party as the charterparty bearing ship’s stamp may not be binding \\non the shipowner or operator. \\n \\n(III) Identification of unnamed agency under charterparty  \\n \\nIn a time charterparty dispute, B was the registered owner of Vessel D. B issued a power \\nof attorney to engage C and E to provide intermediary services in the introduction and \\nnegotiation of sand-mining service contract. B also concluded sand-mining contract with \\nC and E in respect of dredging and mining operations at a terminal by Vessel D. C, as \\nlessor, signed a ship employment contract with Company A, whereby C agreed to deliver \\nthe vessel at the designated location for operation. Later, C (as lessor) signed a guarantee \\ncontract with Company A in respect of the chartering, whereby C agreed to return the \\ndeposit and pay liquidated damages to Company A if it failed to dispatch Vessel D at the \\ndesignated terminal within the given time. However, later B failed to send Vessel D to the \\ndesignated working area within the given time, Company A brought a lawsuit before the \\ncourt, requesting the court to order B to return the guaranty money to Company A and \\nrepay the deposit in double. The court held that, although it had presented a power of \\nattorney to Company A, C was in fact concluding the ship employment contract in its \\nown name, which did not constitute unnamed agency. Thus, Company A and B did not \\nestablish a relationship under the ship employment contract. The court thus dismissed \\nthe litigation requests of Company A.        \\n \\nPursuant to Article 402 of the Contract Law of  the People's Republic of  China, “Where the \\nagent, acting within the scope of authority granted by the principal, enters into a contract \\nin its own name with a third party who is aware of the agency relationship between the \\nprincipal and agent, the contract is directly binding upon the principal and such third \\nparty, except where there is conclusive evidence establishing that the contract is only \\nbinding upon the agent and such third party.” Unnamed agency is conditional on the fact \\nthat principal and agent have established an agency relationship. B only issued the power \\nof attorney to engage C and E to provide intermediary service, rather than to entrust C \\nto sign contract on its behalf. B had signed the sand-mining contract with C and E in \\nrespect of Vessel D the previous day before the ship employment contract was signed. B \\nwas relying on the sand-mining contract in respect of receiving the guaranty money from \\nC, instructing C for site survey, or inquiring about the progress of sand-mining approvals, \\nand these activities was not ratification or implied consent under the ship employment \\ncontract signed by C on behalf of B as alleged. Although B indeed entrusted C and E to \\nnegotiate and sign a sand-mining service contract, there was no evidence proving that B \\nand C agreed that C might act independently or that C directly disclosed the conclusion \\n\\n\\n \\n \\nof contract to B when signing the ship employment contract with Company A to obtain \\nB’s consent in signing such contract. On the contrary, there was evidence that C and E \\nhad signed a separate sand-mining contract with B to pocket the difference. C was not \\nacting for the purpose of fulfilling obligations under an agency contract, in which by \\nreceiving agency fees, it shall follow the principal’s instructions, report to the principal, \\nand to transfer the properties received by operation of the entrustment to the principal. \\nHence, B and C did not establish a relationship bound by agency contract. C’s conclusion \\nof the ship employment contract in its own name did not constitute unnamed agency.   \\n \\nIdentifying the subject of contract correctly is important to the handling of ship leasing \\ncontract dispute properly. Unnamed agency is a common practice in the legal activities of \\nthe ship leasing market. It should be noticed that unnamed agency is different from both \\nnamed agency and unauthorized agency. It has important conditions and characteristics: \\n1. Principal has granted authorization to agent, or agent is authorized by operation of law; \\n2. Agent is exercising civil juristic act on behalf of principal, and such act is authorized \\nby principal or mandated by law; 3. Agent performs the civil juristic acts in its own name \\nagainst the opposite party; 4. Results achieved by such act shall be transferred to principal \\naccording to law. It follows that unnamed agency differs from unauthorized agency in \\nthat agent has the authorization and performs the civil juristic acts within the limit of \\nauthority. To identify whether a subject act under unnamed agency to sign a ship leasing \\ncontract, first of all, the court should focus on the core issue, i.e. whether the agent has \\nauthorization. Further, the court should strictly follow the provisions of Article 402 and \\nArticle 403 of the Contract Law of  the People's Republic of  China to examine the legal effect \\naccording to the regulations on legal elements, to strike a balance of interests among \\nprincipal, agent and the opposite party.   \\n\\n\\n \\n \\nVI. Protecting People’s Rights and Interests in Sea-related Disputes According to \\nLaw \\n— Issues and suggestions concerning disputes over personal injury at sea \\n \\n(I) Identification of  the legal relationship under seafarers’ service contracts \\n \\nIn a dispute arising out of a seafarer’s contract for services, A was employed by G and \\nworked on a ship but no written contract for services was concluded. Around 0705hrs \\non the morning of 7 May 2017, A had a headache and went into a coma. The ship clerk \\ncontacted the emergency services in Hong Kong and transported A to Tuen Mun \\nHospital. As shown on the hospital records dated 16 May, A had acute intracranial \\nbleeding on 7 May, and brain CT scans showed excessive bleeding in left temporal lobe \\nand extensive damage to both hemispheres of the brain; he was minimally conscious, \\nhad stable vital signs, and was unable to speak. On 1 November A’s wife engaged an \\nassessment agency to assess the extent of A’s injury and disability,  subsequent \\ntreatment cost and related matters. The assessment opinions described A as in a \\npersistent vegetative state and rated his disability at Grade I. A requested the court to \\norder Company F, registered owner of the ship, and G, the labour hire agency, for joint \\nand several liability for medical cost, subsequent treatment cost, and disability \\ncompensation in the sum of about 1 million yuan. The first-instance court passed a \\njudgment ordering Company F and G to compensate A in a sum of about 900,000 yuan \\nfor medical cost, subsequent treatment cost and disability compensation. During the \\nsecond instance, A’s wife B, daughter C, mother D, and father E made a statement to the \\ncourt of second instance that A had passed away on 5 June 2018 and as his legal \\ninheritors they duly applied to participate in the proceedings. The court of second \\ninstance affirmed the identification of the legal relationship and apportionment of \\nliability but made amendments to the claimants and the contents of the damages. Its \\njudgment ordered F and G to compensate B, C, D and E for medical cost, subsequent \\ntreatment cost, subsequent care cost, death compensation, and funeral expenses in a sum \\nof about 900,000 yuan. \\n \\nAs stated in the court’s effective judgment, although Company F and G argued that the \\ndispute should be under a seafarer employment agreement and liability should be \\ndetermined through a work-related injury evaluation, ascertained facts showed it was \\nexpressly agreed in the ship management agreement between Company F and G that the \\nlatter was in charge of actually operating the ship and recruiting the crew. The parties \\nconcerned did not deny that A was engaged by G to work on the ship. As G was not an \\nemployer as described in the Labour Law of  the People’s Republic of  China, the relationship \\n\\n\\n \\n \\nbetween A and G should be a relationship under a seafarer’s contract for services rather \\nthan that under an employment contract. Thus the Labour Law and related legal \\nprovisions did not apply to the case. Instead, the case should be tried by applying the Tort \\nLaw of  the People's Republic of  China and the Interpretation of  the Supreme People's Court on \\nSome Issues concerning the Application of  Law in Trying Cases regarding Compensation for Personal \\nInjuries.  \\n \\nAccording to Article 1 of the Notice of  the Ministry of  Labour and Social Security on \\nIdentification of  Labour Relationship (LSBF [2005] No.12), “Where no written employment \\nagreement is concluded between an employer and a worker, an employment relationship \\nexists when the following conditions are met. (I) The employer and worker both qualify \\nas such under applicable laws and regulations…” In this case, G was not an employer \\nand was not qualified as an employer, thus the Labour Law and related legal provisions \\ndid not apply to the dispute over compensation for personal injury arising out of the \\nlabour hire arrangements. It should be noted that the seafarer had not entered into a \\nwritten contract for services with either of the other parties before he started to perform \\nservices. In some sense A’s action had posed great risks to the exercise of his rights. This \\nwas due to his lack of legal literacy, but it also had a lot to do with the vulnerable \\nposition that seafarers found themselves in as labour providers. China is transitioning \\nfrom a “large shipping nation” to a “shipping power”. During this transition, seafarers as \\nimportant participants should enjoy full protection of their lawful rights. In order to fully \\nprotect seafarers’ rights, it is advisable to set up seafarers’ unions, and maritime \\nadministration should tighten regulation on seafarer service agencies, shipping companies \\nand ship owners.  \\n \\n(II) Ascertainment of  liability between employers and ship operators \\n \\nIn the above case, as shown by the records of Tuen Mun Hospital, Hong Kong and the \\nexpert assessment opinions issued by the assessment agency, A was in a persistent \\nvegetative state due to brain arteriovenous malformation and intracranial hematoma. \\nHowever, there was no evidence that A’s unique physiology was the only cause of his \\nillness. The particularity of working on the ship, transition between day and night shifts, \\nworkplace noise in the engine rooms, and chronic fatigue from work could all have \\nplayed a part in inducing the attack of illness suffered by A who had a unique physiology. \\nCompany F and G argued that the other 7 crew members had been working in the same \\nenvironment and condition but had not fallen ill. However, they failed to produce \\nsufficient evidence to rule out the work environment and condition on the ship as a \\ncause of A’s illness, and therefore should bear the adverse consequence of such failure. \\n\\n\\n \\n \\nSumming up all facts, the court of first instance held at its discretion that A should \\nassume 50% liability due to his unique physiology while Company F and G should \\nassume the other 50% liability for A’s illness which put him in a persistent vegetative \\nstate.   \\n \\nArticle 35 of the Tort Law provides that “in a client/contractor relationship, the client \\nshall be liable for any damage to a third party caused by the contractor in performing the \\nagreed services. If damage is sustained by the contractor himself in performing the \\nservices, liability shall be shared by the parties in proportion to their respective levels of \\nfault.” This is the first time China has referred to terms such as “contractor services \\n(laowu)” and “client/contractor relationship (laowu guanxi)” in legislation. In Chinese \\nlegislation and judicial practice, they are associated with “employment” and “employment \\nrelationship”. In the relationship under a seafarer’s contract for services, the client is \\nobliged to protect the seafarer’s life, health and personal safety for the period in which he \\nis performing services on the ship. In other words, if the contractor suffers personal \\ninjury in performing the agreed services, the client shall be liable for compensation. In \\nthis case, Company F was not only the registered owner of the ship but also the ship \\noperator. It was responsible for ensuring the safe navigation of the ship and providing a \\ngood working environment for the crew. The existence of a ship management agreement \\ndid not relieve it of its obligation to manage the crew. Under the principle of fairness, \\nboth the client and the ship operator should be liable for personal injury suffered by a \\nseafarer.  \\n \\nThe shipping industry plays a key role in the growth of the national economy, whereas \\nthe occupation of seafarers involves great risks and a fair amount of hard work. Some \\nseafarers start their career young and after years of unbalanced diet on ships, chronic \\nhomesickness, and fatigue from work combined with aging, they suffer high blood \\npressure, heart disease or other illnesses. If no compensation is made to a seafarer who \\nfalls ill on a ship and subsequently dies, it would be a total disregard for the seafarer’s \\nlong-time devotion and would be against morals and humanity. It would also put the \\nseafarer’s family into financial difficulty. Moreover, insufficient protection of seafarers \\nwould drive young people away from the occupation, which would in turn have adverse \\neffect on the growth of the shipping industry. For the sake of people’s livelihood and \\nhumanity, we advise ship owners to compensate seafarers who fall ill on ships and pass \\naway, and ship owners’ liability insurers should settle the ship owners’ claims. Insurers \\nwho thus incur increased insurance cost may charge higher premiums to protect their \\ninterests.  \\n \\n\\n\\n \\n \\n(III) Ascertainment of  liability between concurrent tortfeasors without a common \\ndesign \\n \\nIn a dispute over liability for personal injury at sea and in waters leading to the seas, the \\nyacht “ZI YOU ZHI XING” navigated by A who was engaged by B collided with an \\nunnamed fishing boat navigated by C at 2000hrs on 3 June 2017 in the northeast waters \\nof Sanmen Island, Huizhou. The accident caused injuries to different extents to \\nnavigator C and 4 passengers, including D, on the fishing boat. D subsequently died \\ndespite medical efforts. The Maritime Safety Administration of Huizhou Port issued an \\naccident liability report, apportioning the liability equally between the vessels on the \\ngrounds of their equal level of fault. D had been married to E and they had a son, F, \\nwho was born on 19 February 2015. And G was D’s mother. E, F and G requested the \\ncourt to order A, B and C to be jointly and severally liable for death compensation, \\nmedical cost, funeral expenses, living expenses of the dependent, and emotional distress \\ndamages in the sum of about 2 million yuan. The court of first instance passed a \\njudgment ordering B and C to jointly and severally compensate E, F and G a sum of \\nabout 1.8 million yuan. The court of second instance affirmed the determination of \\namounts of expenses and damages, but made amendments to the modes of liability \\nassumed by B and C to the damages. Instead, B and C were ordered to respectively pay \\nabout 900,000 yuan as compensation.  \\n \\nThe effective judgment rendered by the court held that B and C were both at fault for \\nthe collision between the yacht and the boat but the two parties acted without a common \\ndesign. Rather, they concurrently committed related wrongs. The joint and several \\nliability prescribed in Article 8 of the Tort Law did not apply to the case. Moreover, \\nexisting evidence was insufficient to prove that either of the parties’ respective wrongful \\nacts would have sufficed to cause the whole injury. Therefore, Article 12 of the Tort Law \\nshould apply, which provides that “when two or more persons respectively commit \\ntortious acts leading to the same injury, the tortfeasors shall be held proportionately \\nliable if it is possible to determine their respective levels of fault, or equally liable if it is \\nimpossible to make such determination.” Accordingly, B and C should be liable for the \\naccident in proportion to their respective levels of fault. The accident liability report \\nissued by the Maritime Safety Administration of Huizhou Port determined that both \\nvessels had committed equal level of fault in the accident and should be held equally \\nliable. B and C had no objection to the above decision. Accordingly, B and C should \\nrespectively assume 50% liability for the compensation.  \\n \\nWhen two or more persons respectively commit different acts without a common design \\n\\n\\n \\n \\nor negligence leading to the same injury, they are concurrent tortfeasors without a \\ncommon design, and Article 12 of the Tort Law should apply to the determination of \\nliability based on their respective levels of fault. Each tortfeasor commits an independent \\nwrongful action and should only be liable for the injury caused by such action. Where \\neach tortfeasor’s wrongful action is sufficient to cause the whole injury, the tortfeasors \\nshall assume joint and several liabilities; the tortfeasors shall be held proportionately \\nliable if it is possible to determine their respective levels of fault, or equally liable if it is \\nimpossible to make such determination. To some extent, the Tort Law shows the \\nlegislation trend towards stricter criteria for and limitations on the application of joint \\nand several liabilities. For instance, it holds concurrent tortfeasors without a common \\ndesign proportionately liable for their concurrent wrongful actions. This restricts \\nexcessive application of joint and several liability and conflicts with the generally \\naccepted practice in judicial trials that are familiar to most people. For victims and their \\nrelatives seeking dispute resolution through legal proceedings in similar circumstances, it \\nis advisable to bring actions after distinguishing in good faith and based on facts the \\nmodes of liability attribution for different tortious acts. This will help to avoid inefficient \\ntrials and facilitate the fair and proper satisfaction of the victims’ claims.  \\n\\n\\n \\n \\n \\nVII. \\nMaintaining the Order of Rule of Law of Seafarer Labour Market According \\nto Law \\n— Issues and suggestions concerning seafarer service contract disputes \\n \\n(I) Ascertainment of  seafarer’s wages when no written labor contract is signed  \\n \\nOn 5 November 2018, Seafarer C served as chief officer on Ship B operated by \\nCompany A. No written employment agreement had been signed between Company A \\nand Seafarer C for the period in which Seafarer C is performing services on the ship B. \\nCompany A had paid Seafarer C 6 months’ wages at a rate of 20,000 yuan per month. As \\nCompany A failed to pay the full remuneration on time, Seafarer C resigned and \\ndisembarked from the ship on 4 September 2019. The employment relationship between \\nSeafarer C and Company A was affirmed in the court effective judgement considering \\nthat Seafarer C had been serving as chief officer on Ship B for nearly one year even \\nthough no written employment agreement had been entered into between Seafarer C and \\nCompany A. In accordance with applicable provisions of the Labour Contract Law, the \\ncourt supported Seafarer C’s claims for the unpaid wages of 80,000 yuan plus interest \\nthereon, a double time pay of 180,000 yuan due to no written employment agreement \\nbeing concluded, and the severance pay of 20,000 yuan.  \\n \\nDue to the particularity of seafarer jobs, a number of seafarers do not enter into a written \\nemployment agreement with their employers before starting their services. The \\ndetermination of the existence of an employment relationship does not rely on an \\nemployment agreement. However, when a dispute arises over unpaid wages without \\nwritten employment agreement, the seafarer has to prove the fact that he has been \\nperforming services on the ship and with whom he has established an employment \\nrelationship. In compliance with Article 38.1.2, Article 46.1, Article 47.1 and Article 82.1 \\nof the Labour Contract Law of the People’s Republic of China, and Article 6 of the Regulation on \\nthe Implementation of the Labour Contract Law of the People's Republic of China, the employer \\nmay be required to pay the arrears of wages, an amount to make up for the double time \\npay due to no written employment agreement, plus severance pay for the arrears of \\nwages once such facts are proved. The double time pay shall be calculated from the first \\nday of the second month following the commencement of services to the day preceding \\nthe date on which a written employment agreement is concluded, but no later than the \\nday preceding the last day of the year following the commencement of services. The \\nseverance shall be paid based on the duration of the seafarer’s service to the employer, at \\na rate of one month’s wage for each year; any period not less than six months but shorter \\n\\n\\n \\n \\nthan one year shall be counted as one year, and any period less than six months shall be \\ncounted as six months.  \\n \\nTo protect seafarers’ and employers’ lawful rights and interests, it is advisable for \\nemployers to enter into written employment agreements with seafarers to set out rights \\nand duties before they start performing services. If a seafarer has to board a ship in a city \\nor port outside the domicile of the employer under emergency circumstances, the \\nemployer may enter into a written employment agreement with the seafarer through \\nemail, facsimile, instant messaging means or otherwise delegate to the officer who is in \\ncharge of shipping matters. If the employer is negligent in the above responsibilities, the \\nseafarer may actively request the employer to fulfill his/her responsibilities.  \\n \\n(II) Identification of  false records in seafarer’s identity documents \\n \\nIn a dispute arising out of a seafarer’s employment agreement, Seafarer C brought an \\naction against Company A claiming payment of wage arrears based on the records in his \\nseafarer’s identity document. The records showed that Seafarer C had served as chief \\nofficer from 2 June to 30 September 2017 and as captain from 1 October 2017 to 20 \\nSeptember 2018 and from 1 October 2018 to 18 June 2020 on Ship B owned by \\nCompany A. Seafarer C thus claimed against Company A for unpaid wages earned after 1 \\nOctober 2018. Company A argued that Seafarer C had not performed services on Ship B \\nafter 1 October 2018; the officer who held the position of business representative and \\nwas in charge of the safekeeping of Ship B’s stamp and seafarer service stamp, had filled \\nin and stamped Seafarer C’s identity document without permission to help Seafarer C \\npolish up his resume. When questioned by the court about the details of his service on \\nthe ship, Seafarer C voluntarily admitted that he had made a false statement and \\nwithdrew his claims in court. Seafarer C was thus admonished by the court and wrote a \\nletter of apology.  \\n \\nA seafarer’s identity document is a seafarer’s professional identification, which is an \\nimportant record of services performed by the seafarer to preliminarily proof that the \\nseafarer has worked on a ship. Therefore, the entries in the document are significant for \\nboth the seafarer and the company. In this case, Seafarer C took advantage of the \\nbusiness representative’s role in safekeeping the stamps and conspired with the \\nrepresentative to fabricate his service on the ship in an attempt to gain benefits. In doing \\nthis, Seafarer C not only violated regulations on crew management but also involved the \\ncompany in litigation. Eventually, Seafarer C was admonished by the court.  \\n \\n\\n\\n \\n \\nIt is important for ship companies to safe keep ship stamps, seafarer service stamps and \\nother important items and documents. All important items and documents to be carried \\non board should be kept by persons selected with prudence in order to avoid \\nunnecessary legal risks. Seafarers should be honest and trustworthy at work. In particular, \\ncaptains who have the right to act at their discretion on behalf of the ship should observe \\nstrict self-discipline and abstain from momentary greed that will impair their career in the \\nlong run.  \\n \\n(III) Ascertainment of  seafarers’ wage periods \\n \\nStarting from 21 November 2018, Seafarer C performed services on Ship B owned by \\nCompany A. No written employment agreement was concluded between the parties. On \\n14 June 2019, Company A delegated its business representative on board to give Seafarer \\nC notice of termination of employment due to operational difficulty. However, Seafarer \\nC continued his service on Ship B after receiving the notice given that Company A was \\nin arrears with wages. He temporarily left the ship from 26 June to 1 July, from the \\nafternoon of 28 August to the morning of 29 August, and from the afternoon of 1 \\nSeptember to the noon of 2 September. During these periods, Ship B remained in its \\nanchorage. On 4 September, Seafarer C resigned, disembarked the ship, and completed \\nthe formalities for the separation with the maritime safety administration. As Company A \\nfailed to pay his wages on time, Seafarer C claimed to the court against Company A for \\nunpaid wages earned up to 4 September, which amounted to 92,427 yuan, plus interest. \\nCompany A argued that it was not required to pay wages after 14 June as it had \\nterminated its employment relationship with Seafarer C on that date when it gave the \\nnotice of termination, and Seafarer C had subsequently left work on multiple occasions. \\nThe court passed an effective judgment which held that after an employment relationship \\nhad been established between Seafarer C and Company A, it could not be terminated by \\nCompany A unilaterally by giving notice of termination; thus Seafarer C should be paid \\nhis wages until the date of termination, namely 4 September. Although Seafarer C had \\ntemporarily left the ship three times during the existence of the employment relationship, \\nthere was no evidence that such leave taken by Seafarer C while the ship was at berth had \\nany substantial effect on the management or operation of the ship. Company A had not \\nreached any agreement with or explained to Seafarer C about the wage deduction \\nconsequence of leaving the ship while she was at berth. For these reasons, Company A \\nshould pay Seafarer C wages for the periods in which he was temporarily off the ship.. \\n \\nThe employment relationship between a ship company and a seafarer is under strict \\nprotection once established. Without an agreement, the ship company may only \\n\\n\\n \\n \\nterminate the employment agreement unilaterally under circumstances in which an \\nemployer is allowed to terminate an employment contract as provided for in Article 39, \\nArticle 40 and Article 41 of the Labour Contract Law of the People’s Republic of China. \\nAccordingly, a ship company may not stop paying a seafarer’s wages simply based on a \\nunilateral notice of termination. If a seafarer temporarily leaves the ship for personal \\nreasons during the existence of the employment agreement, the payment or non-payment \\nof wages during such leave should be determined taking into account relevant \\nagreements between the parties, relevant policies published by the ship company, and the \\neffect of such leave on the management and operation of the ship.  \\n \\nSeafarers’ wages are paid by ship companies in consideration of the services performed \\nby seafarers. We suggest that ship companies should pay seafarers’ wages as agreed and \\nin compliance with law, and not to make deductions for various reasons. Both ship \\ncompanies and seafarers should be serious about their employment relationships. The \\nparties should enter into a written employment agreement setting out rights and \\nobligations. A ship company intending to prematurely terminate an employment \\nagreement and stop paying wages for operational reasons should strictly comply with \\nrelevant agreement and applicable provisions. Where there is no agreement or provisions, \\nthe ship company should in good faith try to reach an agreement with the seafarer. The \\ncooperation, mutual respect and common efforts between seafarers and ship companies \\nare essential to the growth of the shipping market.  \\n\\n\\n \\n \\nVIII. Constituting Limitation of Liability Funds for Maritime Claims According \\nto Law \\n— Issues and suggestions concerning application for constituting limitation of  \\nliability funds \\n \\n(I) Whether voyage charterers may seek limitation of  liability for maritime claims \\n \\nUnder a contract of carriage of goods by sea which gave rise to a dispute, Company A \\nentrusted Company B with the carriage of a shipment from Tangshan, Hebei to \\nGuangzhou, Guangdong. Company B as the charterer entered into a voyage charter with \\nCompany C, the lessor, for the carriage of the shipment by Ship No. 1. During the \\ncarriage, Ship No. 1 collided with Ship No. 2 and sank with the shipment on board. \\nCompany A’s insurer settled its insurance claims and brought an action with us, \\nrequesting Company B for compensation. Company B argued that it was entitled to \\nlimitation of liability for the damage to the shipment in dispute. The court rendered an \\neffective judgement which found Party B’s defence of limitation of liability legally \\ngroundless and invalid because Company B was not among the persons entitled to \\nlimitation of liability for maritime claims.  \\n \\nThe Maritime Law entitles ship owners, operators and charterers to limitation of liability \\nfor maritime claims. Such special protection is granted mainly based on the maritime \\nrisks involved in ship operations. A charterer under a voyage charter does not own the \\nship or control her operations or bear the risks involved in her operations. Such charterer \\nis engaged in the carriage of goods rather than the operations of the ship. A voyage \\ncharterer in effect has the legal status of a shipper and holds the position of the cargo \\ninterests; they do not fall into the definition of “ship owners” in a broad sense and are \\nnot engaged in the specific operations of ships. Entitling voyage charterers to limitation \\nof liability for maritime claims does not conform to the purpose or trend of the \\nprovisions on limiting liability for maritime claims. The charterers described in Article \\n204 of the Maritime Law include charterers under bareboat charters or time charters, but \\nnot charterers under voyage charters. Voyage charterers are not among the persons \\nentitled to limitation of liability for maritime claims.  \\n \\nWe advise litigants and their agents ad litem to comply with applicable Chinese laws on \\nthe entitlement to limitation of liability for maritime claims. Any defence of voyage \\ncharterers of entitlement to limit their liability for maritime claims will be dismissed by \\ncourts.  \\n \\n\\n\\n \\n \\n(II) Whether port operators may seek limitation of  liability for maritime claims \\n \\nIn relation to a dispute over liability for damage to marine property, a loaded container in \\nYantian Port, Shenzhen was found damaged and the cargo inside suffered damage. \\nCompany A as the cargo insurer settled the insurance claims with the cargo owner and \\nwas duly subrogated to the claims. Company A made a cargo claim against the carrier on \\nthe grounds of improper safekeeping and care by the carrier, and requested to hold the \\nport operator jointly and severally liable for the cargo damage on the grounds of its \\nimproper handling that led to the damage to the container which in turned caused the \\ncargo damage. The port operator defended itself by arguing that it would be entitled to \\nlimitation of liability for maritime claims even if it was liable for compensation. The \\ncourt rendered an effective judgment which found the port operator not entitled to \\nlimitation of liability for maritime claims and dismissed its argument for such \\nentitlement.  \\n \\nWhere a port operator causes cargo damage in the course of port operations and the \\nshipper or consignee concerned brings an action in tort against the port operator, the \\nport operator may not claim entitlement to limitation of liability for maritime claims \\nunder Article 58 of the Maritime Law, which provides for the limitation of liability \\nenjoyed by carriers, whereas a port operator is neither a carrier nor an actual carrier. \\nMoreover, the carriers’ rights granted by the Maritime Law to exemption or limitation of \\nliability are simply based on the particularity of maritime risks, which are not normally \\nborne by port operators. For these reasons, port operators may not defend themselves by \\nclaiming carriers’ entitlement to limitation of liability under Article 58 of the Maritime \\nLaw. Moreover, port operators are not ship charterers, operators or salvors as described \\nin Article 204 of the Maritime Law, who are persons entitled to limit their liability for \\nmaritime claims. Port operators are therefore not entitled to limitation of liability for \\nmaritime claims.  \\n \\nIf a port operator argues against liability for compensation in a dispute over damage to \\nmarine property, it is advisable for such port operator to prove that it is not an infringer \\nand that the cargo damage is not due to its fault or caused by any of its actions. Any \\ndefence of port operators of entitlement to limit their liability for maritime claims will \\nnot be accepted by courts.  \\n \\n(III) When to invoke the right to limitation of  liability for maritime claims \\n \\nIn a dispute over liability for damage caused by a ship collision, the fishing boat owned \\n\\n\\n \\n \\nby A collided with the fishing boat owned by B when they were engaged in shrimp \\ntrawling in the waters of Wanshan Port. The fishing boat owned by A sank as a result of \\nthe collision. A thus brought an action with us and claimed against B for compensation. \\nThe court of first instance made a judgment ordering B to compensate A for the \\neconomic loss caused by the accident. B lodged an appeal and claimed it had the right to \\nlimit its liability for maritime claims as provided in Article 207 of the Maritime Law. The \\ncourt of second instance gave a judgment which, referring to Article 15 of Several \\nProvisions of  the Supreme People's Court on the Trial of  Cases of  Disputes over the Limitation of  \\nLiability for Maritime Claims, did not support B’s defence of limitation of liability for \\nmaritime claims during the second instance. The appeal was thus dismissed and the \\noriginal judgment affirmed. B applied for a retrial, arguing that the court of first instance \\nhad not explained to it the limitation of liability for maritime claims, which was a \\nprocedural error, and that the second-instance judgment made a mistake by rejecting its \\nargument on the grounds that it had failed to invoke the right to limitation of liability for \\nmaritime claims within the specified time limit. The retrial court held that the court of \\nsecond instance made no mistake in rejecting B’s defence of limitation of liability for \\nmaritime claims. Such defence of a litigant in maritime proceedings should be raised by \\nthe litigant himself. B was legally groundless in arguing that the court of first instance \\nhad made a procedural error by not explaining its right to limitation of liability for \\nmaritime claims, and its application for retrial was thus dismissed.  \\n \\nArticle 15 of Several Provisions of  the Supreme People's Court on the Trial of  Cases of  Disputes \\nover the Limitation of  Liability for Maritime Claims provides that “where a liable person fails \\nto raise the defence of limitation of liability for maritime claims before the first instance \\njudgment is rendered, but raises such defence in the second instance or during retrial, the \\npeople’s court shall not uphold such defence.” Claims of a litigant should be made in the \\nfirst instance. According to the principles of civil procedure, a court cannot arbitrarily \\nmake any decision as regards any independent claim added by the litigant in the second \\ninstance.  \\n \\nThe right to limitation of liability for maritime claims is a defence that can be raised by a \\nlitigant, and a privilege vested in persons liable for marine accidents under the Maritime \\nLaw. A litigant’s defence of limitation of liability is a defence of substantive rights and \\nshall be raised by the litigant himself at his discretion. When a liable person is not raising \\nthe defence of limitation of liability, the competent court should not on its own initiative \\nexplain such right or render any judgment with reference to legal provisions on limitation \\nof liability for maritime claims. We advise litigants to follow Article 15 of the above \\nProvisions and raise a defence of limitation of liability for maritime claims before the \\n\\n\\n \\n \\nfirst-instance judgment is passed. Courts should not on their own initiative provide \\nexplanation or give judgments with reference to legal provisions on limitation of liability \\nfor maritime claims. Such defence should be raised by the litigants themselves.  \\n\\n\\n \\n \\n \\nIX. Advancing Enforcement Processes According to Law \\n— Issues and suggestions concerning arrest and auction of  ships during \\nenforcement \\n \\n(I) Ship’s sailing away from the place of  arrest without permission  \\n \\nIn the enforcement with relation to a dispute under a financial loan contract, the court \\nhad acted on the informaiton received from Shareholder A of Company C, the debtor, \\nand arrested Ship B, which was owned by the debtor and berthed at a shipyard in Nansha, \\nGuangzhou. The court had also ordered the debtor to take responsibility for safekeeping \\nthe ship and not to allow her to depart from the place of arrest without the court’s \\npermission. Subsequently the ship was sold by the court through a judicial auction on \\nTaobao.com. During the period from the arrest to transfer after auction, the court did \\nnot received an application for the ship to be moved.  \\n \\nIn the investigation related to a separate case, the court found that the ship might have \\nleft her place of arrest without permission during the time she was under arrest. To \\nverify the suspicion, the court applied to the maritime safety administration for access to \\nthe ship’s historical movements recorded while she was under arrest, which showed that \\nthe ship had departed from her place of arrest in the evening of the same day she was \\narrested and had made a number of round trips between the waters of Xiaochan Island, \\nShenzhen and Xiaowanshan Island, Zhuhai. The court then summoned Shareholder A \\nand the legal representative of the debtor to appear in court for investigation. \\nShareholder A spontaneously admitted their fault, actively cooperated with the court and \\ninformed other persons concerned of appearing in court for the investigation. \\nEventually the court found that the ship under arrest had departed from her place of \\narrest without permission for engagement in transportation under Shareholder A’s \\ninstruction. In compliance with the Civil Procedure Law of  the People's Republic of  China, the \\ncourt decided to impose a penalty of 80,000 yuan on Shareholder A. Shareholder A paid \\nthe fine as soon as he received the decision.  \\n \\nIn accordance with Article 7.1 of the Provisions of  the Supreme People's Court on Several Issues \\nconcerning the Application of  Law in the Arrest and Auction of  Ships, which provided that \\n“during the period when a ship is under arrest, the ship shall be under the management \\nof the shipowner or bareboat charterer”, the ship owner or manager shall duly fulfil their \\nobligations of managing the arrested ship and, without the court’s permission, shall not \\nallow the ship to depart from her place of arrest or engage the ship in any operations. \\n\\n\\n \\n \\n \\nIf any special circumstances arise during the period of arrest of a ship, such as typhoon, \\nwhich renders precautions or change of berth necessary, the interested parties of the \\nship are advised to promptly apply to the local maritime administration and report to the \\ncourt for permission. If the ship departs or escapes without permission, a penalty \\nand/or detention will be imposed accordingly, and criminal liabilities may arise in relation \\nto serious offences.  \\n \\n(II) Assumption of  liability when a successful buyer pulls out of  an auction \\n \\nIn the enforcement with relation to a dispute under a ship sale and purchase contract, the \\ncourt intended to auction off the ship owned by the debtor. An objective and \\ncomprehensive disclosure of the ship’s condition was given in the published auction \\ninstructions. The appraised value of the ship was 326,900 yuan, the opening bid was \\n230,000 yuan, and the deposit was 20,000 yuan. At the first online judicial auction, Bidder \\nA won the bid by offering 502,000 yuan. Under the influence of the COVID-19 \\npandemic, Bidder A was allegedly unable to pay the balance on time and take delivery of \\nthe ship on site. The collegial panel had a discussion and granted Bidder A’s request to \\npostpone the payment of the balance. However, after the granted extension Bidder A \\nexpressed its unwillingness to pay the balance. In accordance with Article 24 of the \\nProvisions of  the Supreme People's Court on Several Issues Concerning Online Judicial Auctions \\nHosted by People's Courts (Interpretation [2016] No. 18, hereafter referred to as Online \\nAuctions Provisions), “where a successful buyer pulls out after an auction is closed, the \\ndeposit paid by such buyer shall be forfeit and applied, in turn, to cover the costs of the \\nauction, make up for any deficiency if the re-opened auction is concluded at a price \\nlower than the original purchase price, and offset the debts of the debtor(s) in the case \\nand the debts of the debtor(s) in relation to the auction items. The original successful \\nbuyer may not bid in the auction re-opened after such pullout.” According to these \\nprovisions and the published auction instructions, the court put the ship up for another \\nauction. At the second auction, Bidder B won the bid at 538,000 yuan, with an excess of \\n36,000 yuan over the first hammer price. However, Bidder B decided to pull out of the \\nsale alleging that it had offered too high a bid. Once again, the court had to re-initiate the \\nauction process. Eventually at the third auction, Bidder C won the bid at 492,000 yuan \\nand paid the balance.  \\n \\nArticle 25.2 of the Provisions of  the Supreme People's Court about Auction and Sale of  Property by \\nthe People's Courts in Civil Enforcement (Interpretation [2004] No. 16, hereafter referred to as \\nProvisions on Auction and Sale) provides that “the original successful buyer shall bear \\n\\n\\n \\n \\nany deficiency if the re-opened auction is concluded at a price lower than the original \\npurchase price as well as the costs and commission incurred in the original auction. A \\npeople’s court may deduct such amounts from the deposit paid by the buyer and shall \\nreturn the balance thereof, if any, to the buyer; where the deposit is insufficient for such \\npurpose, the buyer may be ordered to make up the sum required; such order may be \\nenforced if rejected by the buyer.” Accordingly, the deposit paid by Bidder B was \\nwithheld. As the online auction did not induce other costs, Bidder B who pulled out of \\nthe second auction sale was ordered to pay 26,000 yuan to make up for the deficiency. In \\ncompliance with Article 24.1 of the Online Auctions Provisions, it was decided that the \\ndeposit of 20,000 yuan paid by Bidder A would be forfeit. The sum of 66,000 yuan \\ngained from the two failed auctions was thus kept as part of the auction proceeds of the \\nship.  \\n \\nOnline judicial auction is no trifling matter. It reflects reverence for the law. When \\nparticipating in a judicial auction, it is advisable to carefully read through the auction \\nannouncement and instructions, and not to casually pull out of the auction once it is \\nconcluded. Such prudence will contribute to the maintenance of a good auction order \\nand the credibility of judicial auction.  \\n \\n(III) Application of  the principle of  restricting futile auctions in sales of  ship \\n \\nIn a case regarding the dispute between A and B under a sale and purchase contract, A \\nowed B a principal of 650,000 yuan and interest, and B applied to a court in Place D for \\nenforcement. An investigation found no enforceable assets in A’s name other than ships. \\nThus B applied for auctioning off Ship No. 1 and Ship No. 2 in A’s name. The local \\ncourt subsequently entrusted us with the auction of the ships. We found out that Bank C \\nhad already put a mortgage lien on the ships for a sum of 1.8 million yuan which was not \\nat all paid. However, B as an ordinary creditor still insisted on auctioning off the ships, \\nwhereas Bank C as a known mortgagee had not applied for the arrest of the ships.  \\n \\nThe ships were arrested, and a subsequent appraisal determined that Ship No. 1 had a \\nvalue of 1,138,500 yuan and Ship No. 2 had a value of 993,600 yuan. Article 10 of the \\nOnline Auctions Provisions provides that “a reserve price shall be determined at an \\nonline judicial auction, and the reserve price shall be the opening bid. The opening bid \\nshall be determined by a people's court with reference to the appraised value; where no \\nappraisal is conducted, it shall be determined with reference to the market price, and the \\nopinions of the parties concerned shall be consulted. The opening bid shall not be lower \\nthan 70% of the appraised value or the market price.” Accordingly, the reserve prices of \\n\\n\\n \\n \\nthe ships would only need to be over 70% of their appraised values. However, as stated \\nin Article 9 of the Provisions on Auction and Sale, “after the reserve price has been set, \\nif a calculation based on the reserve price of the current auction renders any surplus \\nimprobable after paying off priority claims and the enforcement fees out of the auction \\nproceeds, the enforcement applicant shall be notified the relevant information prior to \\nthe auction. If, within 5 days after it has received the notice, the enforcement applicant \\nrequested to proceed, the people's court shall grant such request but shall determine a \\nnew reserve price, which shall exceed the sum of the priority claims and the enforcement \\nfees. If the auction so conducted fails, the costs of the auction shall be borne by the \\nenforcement applicant.” As there were known priority claims on the ships, it was \\nnecessary to prevent a futile auction when setting the reserve prices, which means that \\nthe reserve prices should cover the priority claims and the enforcement fees. Faced with \\nthe thin demolition market and the ongoing expenses it incurred after the arrest if the \\nships were not disposed of promptly, Applicant B handed in 100,000 yuan as security \\nthat it would bear all the costs of a futile auction. The court thus initiated the online \\nauction procedure. The ships were put up for public auction on Taobao.com and were \\neventually sold for a sum of 2,172,000 yuan.  \\n \\nDuring the announcement of the pending auction, Bank C and a non-party, D, came \\nforward to register their creditor’s rights and bring actions to ascertain related rights. Out \\nof the auction proceeds of the ships, about 100,000 yuan was eventually paid to B who \\nwas an ordinary creditor. \\n \\nAuction as a means of enforcement involves high costs. To decide whether to conduct \\nan auction, we need to take into account its benefit to enforcement-related parties as well \\nas its burdens on and benefit to the society. Enforcement that would not produce \\ntangible benefits to any party concerned should be avoided to the greatest extent. \\nHowever, a request for auction should not be dismissed casually in anticipation of a \\nfutile auction. The value of an asset cannot be determined until such asset comes onto \\nthe market. A futile auction in a real sense should feature an auction object with negative \\nvalue, such auction not benefiting anyone in any way. For an ordinary creditor requesting \\nfor the auction of a ship owned by the debtor, it is advisable to find out in as much and \\naccurate detail as possible whether any priority claim on the ship exists; where any \\nexisting secured creditor does not initiate an auction procedure, it is also advisable for the \\nordinary creditor to assess its capacity to bear all enforcement costs incurred in relation \\nto the auction of the ship if such auction turns out futile.  \\n \\n      (The above information provided by Guangzhou Maritime Court）\",\"difficulty\":\"hard\",\"domain\":\"Multi-Document QA\",\"length\":\"short\",\"question\":\"What is the difference in the focus of the two departments in terms of creating high-quality cases?\",\"sub_domain\":\"Governmental\"}","display_format":"text","language":"","answer_status":"published","assets":[],"source_url":"https://huggingface.co/datasets/zai-org/LongBench-v2","history":"initial import","indexing_mode":"noindex","subproblems":[],"grids":[]}