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No. 8 of the Second Group of Model Cases involving the Protection of People's Livelihood Issued by the Supreme People's Court (case of dispute over labor contract involving “Misimu” Ship)
最高人民法院公布保障民生第二批典型案例之八:涉“密思姆”轮船员劳务合同纠纷系列案
【法宝引证码】
  • Type of Dispute: Civil-->Maritime
  • Legal document: Judgment
  • Judgment date: 12-18-2013
  • Procedural status: Trial at First Instance
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No. 8 of the Second Group of Model Cases involving the Protection of People's Livelihood Issued by the Supreme People's Court (case of dispute over labor contract involving “Misimu” Ship)
(case of dispute over labor contract involving “Misimu” Ship)
最高人民法院公布保障民生第二批典型案例之八:涉“密思姆”轮船员劳务合同纠纷系列案
[Key Terms]
maritime lien ; crew wages, priority payment
[核心术语]
船舶优先权;船员工资;优先支付
[Disputed Issues]
Where a foreign cargo ship crashes into another ship within the maritime territory of the People's Republic of China and causes serious damage to such another ship, and it does not pay the crew wages for a long time during the maintenance period, may the crew wages be paid in priority after the ship is auctioned?
[争议焦点]
外籍货船在我国海域发生碰撞事故并造成他人轮船严重受损,在维修期间长期未支付船员工资的,货轮被拍卖后,能否优先支付船员的工资?
[Case Summary]
Under Article 22 of the Maritime Law, payment claims for wages, other remuneration, crew repatriation and social insurance costs made by the Master, crew members and other members of the complement in accordance with the relevant labor laws, administrative regulations or labor contracts shall be entitled to maritime liens. Maritime lien is the right of the claimant to take priority in compensation against shipowners, bareboat charterers or ship operators with respect to the ship which gave rise to the said claim. Therefore, where a foreign cargo ship crashes into another ship within the maritime territory of the People's Republic of China and causes serious damage to such another ship and it does not pay the crew wages for a long time during the maintenance period, the court shall pay the crew wages in priority from the money obtained from the auction of the ship as the crew wages are entitled to maritime lien.
[案例要旨]
《海商法》第二十二条规定,船长、船员和在船上工作的其他在编人员根据劳动法律、行政法规或者劳动合同所产生的工资、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。船舶优先权,是指向船舶所有人、光船承租人、船舶经营人提出海事请求,对产生该海事请求的船舶具有优先受偿的权利。因此,外籍货船在我国海域发生碰撞事故并造成他人轮船严重受损,在维修期间长期未支付船员工资的,货轮被拍卖后,由于船员工资具有船舶优先权,故法院应当就拍卖款优先支付船员的工资。
No.8 of Second Group of Model Cases regarding Guaranteeing People's Livelihood Issued by the Supreme People's Court: A Series of Cases regarding Disputes over Service Contracts of Crew of the “Maxima” Vessel 最高人民法院公布保障民生第二批典型案例之八:涉“密思姆”轮船员劳务合同纠纷系列案
1. Basic Facts 基本案情
The “Maxima” vessel was a bulker owned by Maxima Shipping B.V. and its place of registry was Willemstad port, Antilles, Netherlands. In June 2012, in the voyage in China's coastal waters, this vessel accidentally had a collusion with another vessel and caused serious damages to such vessel. At the same time, an oil spill accident happened due to the collusion, which caused pollution of surrounding waters. After the accident, the “Maxima” vessel was sent to the Chongming Port for repair. Since then, 11 Ukrainian crew on board have not been paid wages. Afterward, six crew returned home at their own expenses and the other five crew still stayed on board and guarded the vessel. In July 2013, due to long-term arrears of wages by the vessel owner, five crew on board of the “Maxima” vessel filed a petition for maritime claim preservation with the Shanghai Maritime Court and filed a lawsuit regarding service contract disputes against Maxima Shipping B.V., the vessel owner. “密思姆”轮是密思姆航运公司所有的散货轮, 注 册地在荷属安德列斯威廉斯塔德港。2012年6月,该轮在我国沿海海域航行途中不慎与他轮发生碰撞,事故造成他轮严重受损,同时因碰撞发生溢油事故,对附近海域造成污染。事故发生后,“密思姆”轮被送往崇明码头维修。自此,11名在船的乌克兰籍船员工资一直未予发放,之后6名船员自掏腰包先行回国,其余5名船员仍滞留在船,负责看守船舶。2013年7月,“密思姆”轮在船的5名乌克兰船员因船东长期拖欠其工资向上海海事法院提出扣押船舶的海事请求保全申请,并就船员劳务合同纠纷对船东密思姆航运公司提起诉讼。
The Shanghai Maritime Court accepted this case in a timely manner. The departments of case-filing, trial, and execution performed their own functions, closely cooperated with each other, and properly handled a series of cases involving the “Maxima” vessel through the following three measures: First, such departments united and collaborated with each other in effectively conducting litigation guidance on crew. Judges of case-filing, trial, and execution boarded together to detain the vessel. Considering that foreign crew barely knew China's judicial system and the transport between the anchorage of the vessel and the court was inconvenient, by taking the opportunity of attending on board and detaining the vessel, judges of all departments reminded the crew of risks in vessel detainment and litigation, and guided them on the stages of case-filing, litigation, and execution according to their respective duties, patiently and carefully answered questions of crew concerning the collection of relevant evidence materials and the service of litigation documents, and guided crew to claim their rights according to law and be well-prepared for the efficient trial of relevant cases. Second, such departments made overall plans, took all factors into consideration, and effectively conducted coordination and connection of procedures for case-filing, trial, and execution. Considering the lawsuit involved of the “Maxima” vessel, the crew's wages were more likely to be repaid through vessel auction. In order to guarantee the timely and smooth handover of the crew and the “Maxima” vessel after the auction, the departments of case-filing, trial, and execution actively held a conference for consultation and raised corresponding response schemes for problems that may arise in the claim for rights of foreign crew that have left the vessel, the advance payment of repatriation expenses of foreign crew on board, and the vessel handover after foreign crew left the vessel during the detainment period. At the same time, such departments exchanged information and cooperated with each other, synchronously promoted the work, gave good explanations to the parties concerned, effectively safeguarded the rights and interests of all parties concerned, and strived for the optimal handling effects. Third, such departments organized the vessel auction and guaranteed the preferential payment of crew's wages. Upon application of the parties concerned, the executive board conducted a public auction for the “Maxima” vessel according to law. Due to shutdown in the shipping market, vessel auctions in recent years were increasingly becoming difficult. Execution judges hold on-site meetings on board for multiple times. They were concerned about the living of crew and the safety of the vessel and urged the auction company to make greater efforts to publicity, firmly grasp various links of inspection, assessment, and safety supervision, ensure that the vessel inspection and assessment report objectively reflected the actual information and value of the vessel, and smoothly promote the judicial auction procedures. Finally, the “Maxima” vessel was won by a Germany shipping company at the price of 39.9 million yuan. At the end of December 2013, the court rendered a judgment that supported the claims of the 11 crew. The executive board promptly undertook the payment of such crew's wages and preferentially allocated 1.63 million yuan from the vessel auction proceeds as the labor remunerations of these 11 Ukrainian crew. 上海海事法院及时受理该案,立案、审判、执行等部门各司其职、密切协作,通过三项措施妥善处理涉“密斯姆”轮系列纠纷案件。一是团结协作,做好船员的诉讼指导工作。由立案、审判和执行法官一同登轮实施扣押。考虑到外籍船员对中国司法制度不甚了解,且从船舶停泊的锚地往来法院也相当不便,各部门法官利用登轮扣船的契机按各自职责分工对船员们分别进行了扣船和诉讼风险的提示、立案阶段、诉讼阶段和执行阶段的指导,耐心细致地回答了船员们有关证据材料的收集、诉讼文件送达等方面的问题,引导船员依法主张权利,为相关案件的高效审理做好准备;二是统筹兼顾,做好立审执程序间的协调衔接工作。考虑到“密思姆”轮的涉诉情况,船员工资很有可能要通过船舶拍卖获得清偿。为保障船员“密思姆”轮在船舶拍卖后的及时顺利移交,立案、审判、执行等部门积极会商,并就已离船外籍船员权利主张、在船外籍船员遣返费用的垫付、外籍船员在扣押期间离船后的船舶交接等可能出现的问题提出了相应的应对方案。同时互通信息、共同协作、同步推进,并向当事人做好释明工作,有效维护各方权益,争取最佳处理效果;三是船舶拍卖,保障船员工资优先受偿。依据当事人申请,执行局依法对“密思姆”轮进行公开拍卖。受航运市场低迷的影响,近年来船舶拍卖工作难度增大,执行法官数次登轮召开现场会议、关心船员生活及船舶安全,督促拍卖公司加大宣传力度,把牢检验、评估、安全监管等各个环节,确保船检及评估报告客观反映船舶实际情况和价值,顺利推进司法拍卖程序,“密思姆”轮最终以3990万元的价格被德国一家航运公司竞得。2013年12月底,该院作出支持11名船员诉请的判决,执行局迅速着手船员工资的发放工作,从船舶拍卖价款中优先拨出人民币163万元作为11名乌克兰籍船员的劳动报酬。
2. Judgment 裁判结果
Upon auction organized by the Shanghai Maritime Court, the “Maxima” vessel was finally won by a Germany shipping company at the price of 39.9 million yuan. After the auction succeeded, judges first considered the preferential repayment of the crew's labor remunerations. On December 18, 2013, the Shanghai Maritime Court rendered a judgment that the 11 Ukrainian crew, including six crew that returned home earlier, should obtain their labor remunerations of 1.63 million yuan in total from the auction proceeds. 上海海事法院通过拍卖,最终“密思姆”轮以人民币3990万元被德国一家航运公司竞得。拍卖成功后,法官首先考虑对船员的劳务报酬进行优先清偿。2013年12月18日,上海海事法院判决包括先期回国的6名船员在内的11名乌克兰籍船员,从拍卖款中获得共计人民币163万元劳动报酬。
3. Significance 典型意义
This case was a model case regarding disputes over service contracts of foreign crew. The Shanghai Maritime Court observed the international practice and exercised the judicial power according to law, which not only protected the lawful rights and interests of foreign parties concerned on an equal footing, but made foreign crew feel the warmth of China's justice through humanistic concerns. The efficient execution and conclusion of this case was appreciated by the Consulate of Ukraine in Shanghai and established a good image of Shanghai as an international shipping center. 该案为典型的涉外船员劳务合同纠纷,上海海事法院遵循国际惯例,依法行使司法权,不仅平等保护了国外当事人合法权益,还通过人文关怀,让外籍船员感受了中国司法的温暖。该案公正高效的执结受到乌克兰驻上海领事馆的肯定和感谢,树立了上海国际航运中心对外的良好形象。
The establishment of the pilot free trade zone in Shanghai was a major initiative of the CPC Central Committee and the State Council to make overall arrangements of both the domestic and international situation, conform to the global economic and trade development trend, and be more proactive in opening-up, was a key national strategy, and also was a significant opportunity for Shanghai to accelerate the construction of “four centers” and the implementation of “innovation-driven growth and transitional development.” In the construction of the pilot free trade zone, new demands for maritime judicial guarantees would inevitably arise. The Shanghai Maritime Court would face opportunities and challenges with service guarantee concepts that were “ruled by law, market-oriented, and internationalized,” that is, the Shanghai Maritime Court would adopt the thoughts and methods of rule by law to properly settle disputes involved in lawsuits through legal governance, strengthen judicial publicity, unify the application of laws, regulate discretion acts, provide stable judicial expectations for trade activities in the pilot free trade zone, exert more efforts to give play to the due roles of maritime justice in the building of a business environment ruled by law, and promote the decisive role played by the market in resource allocation in the shipping field through legal judgments. The Shanghai Maritime Court would legally protect the procedural rights and the lawful rights and interests of both Chinese and foreign parties concerned on an equal footing, observe the international practice, common practice and trade rules, and highlight the good international image of the pilot free trade zone. 上海建立自贸试验区是党中央、国务院统筹国内国际两个大局,顺应全球经贸发展趋势,更加积极主动对外开放的重大举措,是一项重大的国家战略,也是上海加快推进“四个中心”建设和加快实现“创新驱动、转型发展”的重大机遇。自贸试验区建设进程中必然产生新的海事司法保障需求,上海海事法院将以“法治化、市场化、国际化”的服务保障理念来面对的机遇与挑战。即运用法治思维、法治方法在法治的轨道内妥善解决相关涉诉纠纷,加强司法公开,统一法律适用,规范裁量行为,为区内贸易活动开展提供稳定的司法预期,着力在构建法治化的营商环境方面发挥海事司法应有作用,通过依法裁判促进发挥市场在航运领域资源配置中的决定性作用。坚持依法平等保护中外各方当事人的诉讼权利和合法权益,遵循国际惯例、通行做法和交易准则,彰显自贸试验区对外良好的国际形象。
     
     
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