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Model Cases of Protection of Rights and Interests of Crew Members Published by the Supreme People's Court [Effective]
最高人民法院关于船员权益保护典型案例 [现行有效]
【法宝引证码】

Model Cases of Protection of Rights and Interests of Crew Members Published by the Supreme People's Court 

最高人民法院关于船员权益保护典型案例

(June 24, 2020) (2020年6月24日)

Case No. 1 案例1
Opening the Green Channel for the Protection of Rights and Interests of Crew Members 开启船员权益保护绿色通道
Promoting the Sustainable and Sound Development of the Cruise Economy 促进邮轮经济持续健康发展
-- Liang et al. v. Diamond Cruise International Co., Ltd. (series of Cases of dispute over crew members' labor contracts) --梁某某等诉钻石国际邮轮公司船员劳务合同纠纷系列案
I. Basic Facts   一、基本案情
According to the Crew Member Employment Agreements they signed with the agency company of the shipowner, plaintiff Liang and other 195 crew members served as sailors, marine engineers, waiters/waitresses, and kitchen staff on the Bahamian cruise “Glory Sea” owned by defendant Diamond Cruise International Co., Ltd. (hereinafter referred to as “Diamond Cruise International Company”) during the period from 2017 to 2019. During the aforesaid period, Diamond Cruise International Company owed Liang and other crew members the wages of CNY12 million. Before filing a lawsuit, the crew members raised a property preservation claim and requested that the measure of judicial arrest of the cruise “Glory Sea” and the Shanghai Maritime Court ruled to permit the claim. Diamond Cruise International Company failed to provide the people's court with guarantee and during the period from March 7, 2019 to April 26, 2020, the cruise was arrested in the Wusongkou anchor ground of the Shanghai Port. Since Diamond Cruise International Company abandoned the cruise and refused to provide guarantee, the expenses for maintaining the cruise safety and the berthage were increasing and there were many safety hazards in long-term arrest of the cruise. For this purpose, in the litigation process, the crew members filed an application for auctioning the cruise “Glory Sea.” The Shanghai Maritime Court ruled to approve the application and initiated the judicial auction procedure. On April 17, 2020, the cruise involved was smoothly sold. 原告梁某某等196名船员根据其与船东的代理公司签订的《船员雇佣协议书》,于2017年至2019年期间在被告钻石国际邮轮公司所属的巴哈马籍“辉煌(GLORY SEA)”轮上担任水手、轮机员、服务员、厨工等职务。在此期间,钻石国际邮轮公司欠付梁某某等船员工资约人民币1200万元。船员在诉前提出财产保全请求,要求对“辉煌”轮采取司法扣押措施,上海海事法院裁定予以准许。钻石国际邮轮公司未向法院提供担保,船舶从2019年3月7日至2020年4月26日期间,一直被扣押在上海港吴淞口锚地。因钻石国际邮轮公司弃船且拒不提供担保,维持船舶安全和停泊等费用与日俱增,长期扣押存在诸多安全隐患。为此,船员在诉讼过程中申请拍卖“辉煌”轮,上海海事法院裁定予以准许,并启动司法拍卖程序,于2020年4月17日成功变卖船舶。
II. Judgment   二、裁判结果
In the trial, the Shanghai Maritime Court held that: Plaintiff Liang and other crew members signed Crew Member Employment Agreements with the agency company of the shipowner, they served on the cruise “Glory Sea,” and they established crew member labor contractual relationship with defendant Diamond Cruise International Company. Plaintiffs have performed their obligations as the crew members, but defendant failed to pay labor remunerations. Therefore, defendant should assume the liability for breach of contract and pay compensation. In accordance with the provisions of item (1) of paragraph 1 of Article 22 of the Maritime Law of the People's Republic of China, payment claims for wages, other remuneration, crew repatriation and social insurance costs made by crew members on board shall be entitled to maritime liens. Therefore, the Shanghai Maritime Court ordered defendant Diamond Cruise International Company to pay the crew members the wages of CNY12 million and the interest thereof and confirmed that the crew members' claim enjoyed the maritime lien. 上海海事法院审理认为:原告梁某某等船员与船东代理公司签订《船员雇佣协议书》,在“辉煌”轮上任职,与被告钻石国际邮轮公司建立了船员劳务合同关系。现原告已履行了船员义务,而被告未支付劳动报酬,应承担赔偿损失的违约责任。依据《中华人民共和国海商法》第二十二条第一款第一项的规定,船员在船期间所产生的工资、其他劳动报酬、船员遣返费用和社会保险费用的给付请求具有船舶优先权。故判令被告钻石国际邮轮公司支付船员工资人民币1200万元及其利息损失,并确认船员的请求享有船舶优先权。
III. Significance   三、典型意义
Recently, the cruise industry has been growing rapidly and the urgency in the protection of crew members' rights and interests on cruises has been increasingly emerging. Compared with cargo ships, cruises have a larger number of crew members and complex posts, the costs for arresting, guarding, and maintaining cruises are higher and the risks are greater, it is more difficult to conduct judicial auctions of cruises, and it takes longer time. Once an incident of infringement on the rights and interests of crew members of a cruise takes place, safeguarding of rights will encounter more obstacles. This case involved a large number of crew members and two thirds of them are foreign crew members. The shipowner owed the crew members' wages of CNY12 million and abandoned the cruise after it was arrested. For this purpose, the people's court opened a “green channel” for the protection of rights and interests of crew members and carried forward the overall coordination of case docketing, trial, and enforcement. The people's court required that the crew member labor dispatching company and the shipowner's mutual assurance association should repatriate foreign crew members stranded on board in the first place, arrange a vessel watch company to conduct management, and take response measures around the clock to guarantee the cruise safety during the typhoon period. At the meantime, the people's court should accelerate the case trial, initiate the cruise auction procedure in a timely manner in the course of litigation, properly handle objections raised by parties not involved to the cruise auction, positively overcome adverse impacts of the COVID-19 outbreak on the disposal of the cruise involved, and smoothly sold the cruise after two auctions. The series of measures taken by the people's court have not only guaranteed legal, standardized, and orderly judicial procedure, but avoided further expansion of arrest costs and risks, effectively safeguarded the lawful rights and interests of 196 crew members, fully demonstrated importance attached by maritime justice to the protection of crew members' rights and interests and support to the long-term sound development of the cruise economy, and provided experience and reference for the handling of similar cases in future. 近年来邮轮产业发展迅速,邮轮船员权益保护的迫切性日益凸显。相较货运船舶,邮轮船员数量多、岗位杂,扣押看管维护成本高、风险大,司法拍卖处置难度高、周期长,一旦发生邮轮船员权益侵害事件,维权会面临更多障碍。本案涉及船员人数众多,其中三分之二为外籍船员。船东拖欠船员工资达人民币1200万元,并在船舶被扣押后弃船。为此,法院开启船员权益保护的“绿色通道”,立案、审判、执行整体协调推进。第一时间要求船员劳务派遣公司与船东互保协会遣返滞留在船的外籍船员,安排船舶看管公司进行管理,并在台风期间采取应对措施全天候保障邮轮安全。同时,加快案件审理节奏,在诉讼过程中及时启动船舶拍卖程序,妥善处理案外人对船舶拍卖的异议行为,积极克服疫情对邮轮处置的不利影响,两次拍卖之后成功变卖船舶。法院一系列举措既确保了司法程序依法规范有序,又避免了扣押成本和风险的进一步扩大,有效维护了196名船员的合法权益,充分体现了海事司法对船员权益保护的重视和对邮轮经济长期健康发展的支持,为今后处理此类案件提供了经验和借鉴。
Case No. 2 案例2
Applying the System of Maritime Liens 适用船舶优先权制度
Giving Support to an Institution in Assisting Crew Members in Safeguarding Their Rights 支持机构协助船员维权
-- Hailong Company v. Glory Company (Case of dispute over maritime lien) --海隆公司诉荣耀公司船舶优先权纠纷案
I. Basic Facts   一、基本案情
On November 12 of 2019, Hailong Company and ISM manager of the ship “Glory Advance” signed an Agreement, which stipulated that Hailong Company accepted the entrustment of North Corporation and arranged eligible crew members to provide service on board. On these grounds, Hailong Company and crew members signed the Crew Members' Labor Intermediary Agreements, Agreements on the Dispatchment of Crew Members, and Interns' Labor Agreements and successively introduced several crew members to work on board. From June 2012, North Corporation started to refuse to make payment, was behind in payment of wages of crew members and the labor remunerations, repatriation charges, and social insurance costs for crew members, and agency fees as well as the interest thereof that should be paid to Hailong Company. 2009年11月12日,海隆公司与“GLORY ADVANCE”轮ISM管理人诺斯公司签订《协议书》,约定海隆公司接受诺斯公司的委托,为其安排适职船员上船服务。据此,海隆公司与船员订立《船员劳务中介协议》《外派船员协议书》及《实习生劳务协议书》,并先后介绍多名船员上船工作。自2012年6月起,诺斯公司开始欠付费用,拖欠船员薪金和应向海隆公司支付的船员劳务报酬、遣返费用和社会保险费、代理费及利息等。
In April 2013, 23 crew members signed a letter of confirmation and agreed to transfer the creditor's rights of the unpaid various charges and the maritime lien formed on the basis of such creditor's rights to Hailong Company. Hailong Company stated that after receiving the recovered charges, it would pay the crew members the consideration transferred as the right of claim. Afterwards, Hailong Company filed a lawsuit against Glory Company, owner of the ship, and requested the people's court to order that Glory Company should pay the labor remunerations, repatriation charges, and social insurance costs for crew members, the agency fees as well as the interest and confirm that Hailong Company enjoyed the maritime lien on the ship “Glory Advance” for the labor renumerations, repatriation charges, and social insurance costs for crew members, the agency fees as well as the interest in the aforesaid creditor's rights. In April 2013, Hailong Company filed an application with the people's court for arresting the ship “Glory Advance” and then filed an application for auctioning the ship. On December 6, 2013, the ship was auctioned at the price of CNY58.70 million. 2013年4月,23名船员签署确认书,同意将欠付各类费用的债权和基于该债权成立的船舶优先权转移给海隆公司。海隆公司声明取得追偿款项后,将作为请求权转移的对价支付给船员。其后海隆公司向该轮所有人荣耀公司提起诉讼,请求判决荣耀公司支付拖欠的船员劳务报酬、遣返费用、社会保险费、代理费及利息,确认其就上述债权中的船员劳务报酬、遣返费用、社会保险费对“GLORY ADVANCE”轮享有船舶优先权。海隆公司2013年4月申请法院扣押了“GLORY ADVANCE”轮,后又申请拍卖该船舶。2013年12月6日,该船以人民币5870万元拍卖出售。
II. Judgment   二、裁判结果
The Xiamen Maritime Court held upon trial that this case was about dispute over maritime lien of a foreign ship. In accordance with the provisions of Article 272 of the Maritime Law of the People's Republic of China, “the law of the place where the court hearing the case is located shall apply to matters pertaining to maritime liens.” Hailong Company was a crew member dispatching company. The crew members consented to transfer the maritime claims including labor remunerations, social insurance costs, and repatriation costs to Hailong Company. Due to the transfer of maritime claims, the maritime lien was transferred accordingly. The exercise of maritime lien on the basis of the aforesaid creditor's rights complied with legal provisions. The agency fee was arisen from the contract signed by and between Hailong Company and North Corporation and was not within the scope of maritime lien. Hailong Company should recover it from North Corporation. Glory Company was the owner of the ship involved and the eligible defendant in the litigation of maritime lien, and it should undertake the liability within the scope of the ship auction price. The Xiamen Maritime Court thus entered a judgment to confirm that Hailong Company enjoyed the maritime lien of the ship “Glory Advance” on the basis of the aforesaid creditor's rights and ordered Glory Company to pay Hailong Company the labor remunerations, social insurance costs, and repatriation costs for the crew members and the interest thereof within the scope of the ship auction price. After the judgment was pronounced, neither party appealed. 厦门海事法院经审理认为,本案为因船员劳务派遣引发的涉外船舶优先权纠纷,根据《中华人民共和国海商法》第二百七十二条规定,船舶优先权应适用受理案件的法院所在地法即我国法律处理。海隆公司作为船员外派公司,船员同意将劳务报酬、社会保险和遣返费用等海事请求权转移给该公司,因海事请求权转移,船舶优先权随之转移。海隆公司就上述债权行使船舶优先权符合法律规定。代理费是基于其与诺斯公司之间的合同产生,不属于优先权范围,海隆公司应向诺斯公司追索。荣耀公司系案涉船舶的所有权人,是船舶优先权诉讼的适格被告,应在船舶拍卖价款的范围内承担责任。厦门海事法院遂判决确认海隆公司就上述债权对“GLORY ADVANCE”轮具有船舶优先权,并判令荣耀公司在船舶拍卖价款范围内向海隆公司支付船员劳务报酬、社会保险和遣返费用及利息。宣判后,双方当事人未提起上诉。
III. Significance   三、典型意义
For the purpose of strengthening protection of the rights and interests of crew members,the Maritime Law provides that the wages, social insurance costs, and repatriation costs of crew members enjoy maritime liens. Since more and more crew members are employed through intermediary institutions and dispatching agencies, the relevant legal provisions specify that intermediary institutions or dispatching agencies have obligations of assisting, supporting, and guaranteeing the crew members' safeguarding of rights against the actual employers. The judgment of this case has confirmed that after accepting the transfer of the crew members' creditor's rights, the crew member labor dispatching company has the right to exercise maritime lien according to the law. It has given full play to and applied functions of the system of maritime lien, is conducive to enhancing the enthusiasm of employers in paying wages of crew members, and has provided strong support to the crew member labor dispatching or service institutions in assisting crew members in safeguarding their rights. At the meantime, through positive incentive and guidance, the people's court has promoted the regulated development of the crew member employment service industry and further solidified and intensified judicial safeguard of rights and interests of crew members. 为加强对船员权益的保护,海商法规定船员工资、社保、遣返费用等具有船舶优先权。同时针对越来越多的船员通过中介服务机构、派遣机构就业的情况,相关法律法规规定服务或派遣机构有协助、支持和保障船员向实际用工单位维权的义务。本案判决确认了船员劳务派遣单位接受船员债权转让后,有权依法行使船舶优先权,充分发挥和运用了船舶优先权制度的机能,有利于提高雇主支付船员工资的积极性,为船员劳务派遣、服务机构协助船员维权提供了有力支持。同时通过正向激励和指引,促进了船员就业服务行业规范发展,进一步夯实和强化了船员权益的司法保障。
Case No. 3 案例3
The Crew Members Left Overseas Solitarily after the Ship Was Abandoned 船员横遭弃船孤悬海外
The People's Court Assisting in Safeguarding Their Rights and Helping Them Return Home 法院高效维权助力归家
-- Series of cases of dispute over crew members' labor contracts involving the Liberian ship “Avlemon” --利比里亚籍“奥维乐蒙(Avlemon)”轮船员劳务合同纠纷系列案
I. Basic Facts   一、基本案情
On November 8, 2015, the ship “Avlemon” was delivered to Pacific Corporation for repairs. Afterwards, since the operator of the ship, Aroania Maritime S.A., failed to pay the repair charge as agreed, Pacific Corporation filed an application with the court for arrest of the ship “Avlemon” before litigation and initiated an arbitration. In January 2018, the China Maritime Arbitration Commission ruled that Aroania Maritime S.A. should pay Pacific Corporation the ship repair charge and other expenses and confirmed that Pacific Corporation enjoyed lien on the ship “Avlemon.” After the arbitral award took effect, Pacific Corporation filed an application with the people's court for enforcement. Since neither Aroania Maritime S.A. nor the registered owner of the ship, Avlemonas Shipping Company, provided guarantee, the ship has been in the state of arrest. 2015年11月8日,“奥维乐蒙”轮交由太平洋公司修理。后因该轮经营人阿若艾尼亚海运公司未按约支付修理费,太平洋公司向法院申请诉前扣押“奥维乐蒙”轮,并提起仲裁。中国海事仲裁委员会于2018年1月裁决阿若艾尼亚海运公司向太平洋公司支付船舶修理费等费用,并确认太平洋公司对“奥维乐蒙”轮享有留置权。仲裁裁决生效后,太平洋公司向法院申请强制执行。因阿若艾尼亚海运公司及该轮登记所有人奥维乐蒙娜斯航运公司均未提供担保,该轮一直处于扣押状态。
During the period when the ship was berthed in Pacific Corporation for repairs, Aroania Maritime S.A. employed plaintiff Kolesnik Jaroslav and other twelve Ukrainian crew members to take posts including captain on the ship “Avlemon.” Since the end of December 2017, the operator and owner of the ship no longer provided materials, there was no water and power supply on the ship “Avlemon,” and the living of crew members failed to be guaranteed. The agency company of the ship “Avlemon” arranged the crew members to check in a hotel and paid the board and lodging expenses in advance. On April 8, 2018, the people's court legally ruled to auction the ship “Avlemon.” During the period of registration of creditor's rights for the auction of the ship “Avlemon,” thirteen crew members filed an application with the people's court for registering creditor's rights on the basis of the unpaid wages, board and lodging costs, and repatriation costs for crew members and filed a lawsuit. On August 21, 2018, the ship was smoothly auctioned.
......
 船舶停靠在太平洋公司修理期间,阿若艾尼亚海运公司雇佣原告科列斯尼克·亚罗斯拉夫等13名乌克兰籍船员到“奥维乐蒙”轮担任船长等职务。自2017年12月底开始,该轮经营人、所有人不再提供船舶物资,“奥维乐蒙”轮断水、断电,船员生活无法得到保障。“奥维乐蒙”轮的代理安排船员入住宾馆并垫付了食宿费用。2018年4月8日,法院依法裁定拍卖“奥维乐蒙”轮。在拍卖“奥维乐蒙”轮的债权登记期间,13名船员就拖欠的船员工资、食宿、遣返费用向法院申请债权登记并提起诉讼。2018年8月21日,该轮成功拍卖。
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