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Tianhai Co., Ltd. v. Yuedong Co., Ltd. (Case on Tort Dispute over Vessel Lease)
天海公司诉粤东公司船舶租用侵权纠纷案
【法宝引证码】
  • Type of Dispute: Civil-->Maritime
  • Legal document: Judgment
  • Judgment date: 08-13-2002
  • Procedural status: Trial at Second Instance
  • Source: SPC Gazette,Issue 3,2003

Tianhai Co., Ltd. v. Yuedong Co., Ltd. (Case on Tort Dispute over Vessel Lease)
(Case on Tort Dispute over Vessel Lease)
天海公司诉粤东公司船舶租用侵权纠纷案

Tianhai Co., Ltd. v. Yuedong Co., Ltd.
(Case on Tort Dispute over Vessel Lease)

 

天海公司诉粤东公司船舶租用侵权纠纷案

BASIC FACTS 
Plaintiff: Tianjin International Marine Shipping Co., Ltd., domiciled at Yueyang Ave., Heping District, Tianjin 原告 天津国际海运公司。住所地:天津市和平区岳阳道。
Legal Representative: Song Xingting, chairman of the board of directors of Tianjin International Marine Shipping Co., Ltd. 法定代表人 宋兴庭,该公司董事长。
Defendant: Shantou Yuedong Int'l Shipping Agency Co., Ltd., domiciled in Xidi Road, Shantou, Guagndong Province 被告 汕头粤东国际船舶代理公司。住所地:广东省汕头市西堤路。
Legal Representative: Cai Kangmian, general manager of Shantou Yuedong Int'l Shipping Agency Co., Ltd. 法定代表人 蔡康绵,该公司总经理。
Tianjin International Marine Shipping Co., Ltd. (hereinafter referred to as Tianhai) filed an action with Tianjin Maritime Court for the tort dispute over vessel lease with Shantou Yuedong Int'l Shipping Agency Co., Ltd. (hereinafter referred to as Yuedong). 原告 天津国际海运公司(以下简称天海公司)因与被告汕头粤东国际船舶代理公司(以下简称粤东公司)发生船舶租用侵权纠纷,向天津海事法院提起诉讼。
Tianhai alleged that: Tianhai had the right to the operation and management of Ship SALVIA II. The defendant rented the aforesaid ship to transport sawn timber in Indonesia. As the goods under transportation are suspected of smuggling, the ship was detained by the Indonesian Customs. In the duration of detainment, the defendant refused to appear for statement of the situation or assumption of liabilities, so the Ship was detained and the plaintiff suffered the overdue expenses and losses of periodic interests. Therefore, the plaintiff pleaded with the court to adjudicate that the defendant shall compensate 2, 485, 147. 20 yuan of all losses (unless any currency unit is specially indicated herein, it shall be deemed as Renminbi as to currency) and pay the relevant interests to the plaintiff. 原告诉称:原告对“SALVIA II”号轮享有经营管理权。被告租用该轮到印尼装运原木,因所装货物涉嫌走私,该轮被印尼海关滞留。期间,被告不出面说明情况和承担责任,以致船舶被扣押,使原告产生额外费用和遭受期得利益损失。请求判令被告给原告赔偿各项损失计2485147.20元(本文货币单位除注明的以外,均为人民币),并支付相应的利息。
Tianhai presented the following evidence: 原告天海公司提交以下证据:
1. A General Power of Attorney of the Right to Ship Operation as produced by the Oriental Pioneer Marine Shipping Co., Ltd. (hereinafter referred to as the Pioneer) to Tianhai on March 1, 1995; 1.东方先锋海运公司(以下简称先锋公司)1995年3月1日给天海公司出具的船舶经营全权授权委托书;
2. A Shipmen Employment Agreement and an Agreement on the Extended Term for Employment as concluded between Tainhai and the marine shipping department of China International Cooperation (Group) Co., Ltd. (Guangdong); 2.天海公司1999年8月1日、2000年8月1日与中国广东国际合作(集团)公司海运部签订的聘用船员协议和延长聘用期限协议;
3. A Time Charter for Ship SALVIA II as concluded by Tianhai on behalf of the Pioneer with the Everfar International Co., Ltd. (hereinafter referred to as the Everfar) on April 17, 2000; 3.天海公司代表先锋公司于2000年4月17日与瑞航国际有限公司(以下简称瑞航公司)签订的“SALVIA II”号轮《期租合同》;
4. A Time Charter on Trip Basis for Ship SALVIA II as concluded between the Everfar and Yuedong on April 25, 2000; 4.瑞航公司于2000年4月25日与粤东公司签订的“SALVIA II”号轮《航次租船合同》;
5. The Logbooks of Ship SALVIA II from May 5 to 19, 2000; 5.“SALVIA II”号轮2000年5月5日至19日的航海日志;
6. An order of the Sorong Customs of Indonesia on May 19, 2000 that Ship SALVIA II enter into the harbor and obtain an approval before any navigation as well as an order thereof on May 20 that such articles as logbooks be examined; 6.2000年5月19日印尼索龙海关要求“SALVIA II”号轮开往港内的命令和得到批准前不准开航的命令,5月20日要求检查航海日志等物品的命令;
7. Certification presented by Lin Huahui, Captain of Ship SALVIA II, on an agent-based combined inspection and examination on May 9, 2000, boarding under the charge of the customs and the Immigration Bureau on May 16 as well as ship detainment by the Indonesian Customs on July 14; 7.“SALVIA II”号轮船长林华辉就2000年5月9日代理联检情况、5月16日海关和移民局上船情况、7月14日印尼海关扣船情况的证明;
8. A memorandum as formulated by Lin Huahui, Captain of Ship SALVIA II; 8.“SALVIA II”号轮船长林华辉所作的备忘录;
9. Receipts of the relevant certificates that the agent has taken from Ship SALVIA II; 9.代理从“SALVIA II”号轮船上拿走有关证书的收条;
10. 67 relevant faxes, telexes and telegraphs among Tianhai, Everfar, Ship SALVIA II and Yuedong; 10.天海公司、瑞航公司、“SALVIA II”号轮、粤东公司之间的往来传真、电传、电报67份;
11. A report on the detainment of Ship SALVIA II by the relevant Indonesian organ, which was submitted by Tianhai to the foreign affairs office of the people's government of Tianjin Municipality on June 16, 2000; 11.天海公司2000年6月16日致天津市外事办公室关于“SALVIA II”号轮被印尼有关部门滞留的报告;
12. The exchanged notes which were sent by the Chinese Embassy in Indonesia to the Ministry of Foreign Affairs, the General Inspection Administration and the Supreme Procuratorate of Indonesia on June 26, July 6 and July 31, 2000, respectively; 12.中国驻印尼大使馆于2000年6月26日、7月6日、7月31日分别致印尼外交部、总检查署、最高检察院的照会;
13. The statement on Ship SALVIA II as produced on August 20, 2001 by Zhou Xikang, former First Secretary of the Chinese Embassy in Indonesia; 13.原中国驻印尼大使馆一等秘书周锡康于2001年8月20日出具的关于“SALVIA II”号轮情况的说明;
14. Criminal Ruling as produced by the Sorong Court of Indonesia on Lin Huahui, Captain of Ship SALVIA II; 14.印尼索龙地区法院对“SALVIA II”号轮船长林华辉的刑事判决书;
15. The statement on Ship SALVIA II as produced by Ye Sunfa, Chinese Indonesian, in Sorong, Indonesia, on May 20, 2001; 15.印尼华人叶孙发于2001年5月20日在印尼索龙出具的关于“SALVIA II”号轮情况的说明;
16. 5 fine bills, 5 bills of attorney's fees, 6 bills of agency commissions and 5 bills of translation fees, etc., 34 bills of reception fees for Ye Sunfa, 1 bill of remunerations to the relevant personnel, 29 bills of travel expenses that Tianhai spent in handling the ship detainment as well as 11 bills of communications fees in the event of Ship SALVIA II detainment; 16.“SALVIA II”号轮被扣押事件中的罚款类单据5份、律师费类单据5份、代理费类单据6份、翻译费类单据5份、给印尼华人叶孙发开支的招待费单据34份、付有关人员的酬劳费单据1份,以及天海公司为处理船舶被扣押事开支的差旅费类单据29份、交通通讯费类单据11份。
17. A Ship Registration Certificate, certifying that the owner of Ship SALVIA II is the Pioneer; 17.船舶登记证书,证明“SALVIA II”号轮的所有权人是先锋公司;
18. Panama Registration Certification, certifying the establishment of the Pioneer; 18.巴拿马登记证明书,证明先锋公司的设立情况;
19. Documents of the Pioneer, certifying its overall status; 19.先锋公司文件,证明该公司整体情况;
20. A photocopy of Song Xingting, certifying his identity as well as the authenticity of his signature in the General Power of Attorney of the Right to Ship Operation; 20.宋兴庭身份证复印件,证明其身份及在船舶经营全权授权委托书中签字的真实性;
21. A Power of Attorney, certifying that the Pioneer authorized Tianhai to externally claim the losses as incurred from the detainment of Ship SALVIA II (including the depreciation); 21.授权书,证明先锋公司授权天海公司对外索赔“SALVIA II”号轮因滞留印尼而产生的损失(包括船舶折旧费);
22. Photocopies of Zhou Xikang as well as certification as provided by Consulate General of China in San Francisco where Zhou now works; 22.周锡康的身份证复印件及其现工作单位中国驻旧金山总领事馆的证明;
23. 11 bills of freshwater expenses, 33 bills of medical expenses for shipmen and 5 bills of labor costs of shipmen; 23.“SALVIA II”号轮淡水费单据11份、船员医疗费单据33份、船员劳务费单据5份;
24. Calculation of the fuel surcharge of Ship SALVIA II in the period of detainment by Tianhai; 24.天海公司对“SALVIA II”号轮被扣押期间燃油费的计算;
25. 2 settlement lists of navigation repair of Ship SALVIA II in the anchoring place of Sekou as produced by Shenzhen Shunzhu Port Mechanical Equipment Co., Ltd. and 2 invoices of maintenance fees, 1 invoice of maintenance fees for Ship SALVIA II as produced by Shenzhen Jiahang Vessel and Marine Project Equipment Co., Ltd., 1 settlement list and 1 invoice of maintenance fee of Ship SALVIA II as produced by Dagang Voyage Repair Station, Jiangyin Cengxi Vessel Maintenance Factory; 25.深圳市顺珠港口机械设备有限公司出具的“SALVIA II”号轮在蛇口外锚地进行航次抢修的工程结算单和修理费发票2份,深圳市嘉航船舶与海洋工程设备有限公司出具的“SALVIA II”号轮修理费发票1份,江阴澄西船舶修造厂大港航修站出具的“SALVIA II”号轮修理结算单和修理费发票1份;
26. A voucher that calculates the depreciation of Ship SALVIA II by Tianhai; 26.天海公司对“SALVIA II”号轮计算折旧的记账凭证;
27. An auditing report as produced by Jinlian Accounting Firm upon re-examination on Tianhai's losses on November 22, 2001; and 27.津联会计师事务所于2001年11月22日对天海公司损失金额进行复核后出具的审计报告;
28. A bill of price for purchasing Ship SALVIA II by Tianhai. 28.天海公司支付购买“SALVIA II”号轮船款的单据。
The defendant argued that: Ship SALVIA II was sent to Indonesia for transportation of goods on the basis of a series of the Charter, so there is no contractual relation between the plaintiff and defendant. Therefore, the plaintiff is not the owner of Ship SALVIA II and thus shall not enjoy any right and interest of the Ship. It could only, as an operator, claim the expenses as incurred in the period of ship detainment against the ship owner according to their business contract rather than directly claim any compensation against the defendant. Moreover, the defendant never instructed the ship to carry any goods without legal certification and thus shall not assume the liabilities of showing the legal certification documents for the goods on board the Ship. The Captain agreed to the loading in the absence of completing a combined inspection, thereby breaking the local law and leading to detainment. The defendant had no fault in the aforesaid process. Therefore, the plaintiff's plea is irrelevant to the defendant and thus shall be rejected. 被告辩称:“SALVIA II”号轮是通过一系列《租船合同》才到印尼装载货物的,原告与被告之间没有合同关系。原告不是该轮的船舶所有人,不享有该船权益。其作为经营人在船舶被扣押期间支出的费用,只能依经营合同向船舶所有人求偿,无权直接请求被告赔付。况且被告从未指令该轮装载没有合法证明文件的货物,无需承担为船上货物出示合法证明文件的责任。该轮是在没有完成联检的情况下,船长就同意装货,从而触犯了当地法律,导致被扣押,被告对此没有过错。故原告的请求与被告无关,应当驳回。
Yuedong presented the following evidence: 被告粤东公司提交如下证据:
1. A Time Charter on Trip Basis as concluded between Yuedong and the Everfar on April 25, 2000; 1.粤东公司于2000年4月25日与瑞航公司签订的“SALVIA II”号轮《航次租船合同》;
2. Telegraphs as sent by the Captain of Ship SALVIA II on May 4, 5, 9, 18, 20, 2000 and June 15, 2000, reporting the ship status as well as ship detainment. In particular, it is indicated in the telegraph of May 9 that a combined inspection has been concluded; 2.“SALVIA II”号轮船长于2000年5月4日、5月4日、5月5日、5月9日、5月18日、5月20日、6月15日拍发的电报,报告船舶动态以及船舶被扣押一事的进展情况。其中5月9日的电报称,联检已经完成;
3. Judgment of Sorong Court of Indonesia, certifying that the Captain failed to go through the formalities for import, thereby incurring ship detainment. The Captain had a fault at this matter and thus Tianhai shall assume the liabilities all by itself; 3.印尼索龙地方法院判决书,以此证明因船长没有办理船舶的进口手续,导致船舶被扣押。此事船长有过错,天海公司应自行承担责任;
4. Circulation No. 007 [2000] of China ShipOwners' Mutual Assurance Association, certifying that the Captain of Ship SALVIA II was credulous to the consigner, thereby incurring the ship detainment; 4.中国船东互保协会〔2000〕第007号通报,以此证明因“SALVIA II”号轮船长轻信发货人,导致船舶被扣押;
5. A letter of Tianhai on June 16, 2000, certifying the whole matter; 5.2000年6月16日天津公司的函,证明事件经过;
6. A letter of Tianhai to the Everfar on October 8, 2000, certifying that it was Tianhai that unilaterally terminated the Time Charter as concluded with the Everfar; 6.2000年10月8日天海公司致瑞航公司的函,以此证明是天海公司单方终止与瑞航公司的《期租合同》;
7. The Vessel Registration Certificate and Lloyd's Register Materials of Ship SALVIA II, certifying that the owner of Ship SALVIA II is not Tianhai. 7.“SALVIA II”号轮的船舶登记证书及劳氏登记资料,证明“SALVIA II”号轮的所有权人并非天海公司。
Both the parties concerned conducted a cross-examination in the court investigation. Tianjin Maritime Court found through cross-examination and attestation that: 双方当事人在法庭调查时互相进行了质证。经质证、认证,天津海事法院查明:
On March 1, 1995, the Pioneer, owner of Ship SALVIA II produced a General Power of Attorney of the Right to Ship Operations so as to fully empower Tianhai the right to the operation and management of the Ship. As to any credits and debts relating to the operation and management of this Ship, Tianhai is fully empowered to exercise the relevant rights and assume the relevant liabilities to a third party in its own name. 1995年3月1日,“SALVIA II”号轮的所有权人先锋公司出具《船舶经营全权授权委托书》,将该轮全权委托原告天海公司经营管理,凡因经营管理该轮而产生的一切债权、债务,天海公司有权以自己的名义向第三方行使权利、承担责任。
On August 1, 1999, Tianhai concluded with the marine shipping department of China International Cooperation (Group) Co., Ltd. (Guangdong) an Agreement on Shipmen Employment, employing Lin as Captain, as well as other 20 shipmen to work on the Ship, for which, salaries as well as boarding fees are under an all-round responsibility system and the monthly contractual value is US $ 15, 833. 33. The valid term of the Contact shall expire on July 31, 2001. 1999年8月1日,原告天海公司与中国广东国际合作(集团)公司海运部签订《聘用船员协议》,聘用该部船长林华辉及20名船员到“SALVIA II”号轮上工作,船员工资及伙食费等采用大包干形式,月合同额15833.33美元。该协议有效期至2001年7月31日。
On April 17, 2000, Tainhai, on behalf of the ship owner or the Pioneer, concluded with the Everfar a Time Charter, stipulating that the Everfar leased Ship SALVIA II to transport legal goods, with a term of 3 months and 3 plus, which is up to the leaser's choice, and a rental of US $ 2, 250 per day. 2000年4月17日,原告天海公司代表船东或先锋公司与瑞航公司签订《期租合同》,约定瑞航公司承租“SALVIAII”号轮运输合法货物,租期3个月加3个月由承租方选择,租金每天2250美元。
On April 25, 2000, the Everfar concluded with Yuedong a Time Charter on Trip Basis, stipulating that: Yuedong, as the leaser, rented and sailed Ship SALVIA II to a safe anchor berth in Sorong Port, Indonesia for loading sawn timber of 5, 000 cubic meters and transported the goods to a safe anchor berth in Kuantan Port, Malaysia for unloading. The loading days lasted from May 7 to 11, 2000 and the loading days shall be calculated as of when all the documentations of goods are ready in the loading port. Where any loading fails to be concluded due to any reason relating to goods or documentation of goods, the leaser shall pay the demurrage losses. The leaser shall find agents of the discharging and loading harbors, pay the port charges including the agent commissions, provide port operators and pay remunerations as well as tally fees. Before the Ship reaches the discharging and loading ports, the leaser shall obtain a License for Export of Goods and pay the relevant fees for handling the License as well as the relevant costs relating to goods. On April 29, the Everfar sent a Notice on Voyage Tasks to Ship SALVIA II. On May 1, Yuedong sent a letter to the Everfar, claiming that the information on the agent of the loading harbor would be provided on the following day. On May 2, Yuedong sent a letter to the Everfar, claiming that as the consigner had not returned from Indonesia so far, the only thing it could do is to inform Everfar of the general agent. 2000年4月25日,瑞航公司又以出租人身份,与被告粤东公司签订《航次租船合同》,约定:粤东公司作为承租人,租用“SALVIA II”号轮到印尼索龙港一个安全锚位装载5000立方米原木,运抵马来西亚关丹港一个安全锚位卸货。装货期2000年5月7日至11日,在装货港的货物单证备妥后开始计算装货时间。如由于货物或货物单证原因导致不能按时装货,承租人支付滞期损失。承租人提供装卸港代理并支付包括代理费在内的港口使费,提供港口作业工人并支付其费用和理货费。船舶抵达装卸港前,承租人应办妥货物出口许可证并支付由此产生的费用,有关货物所发生的费用由承租人支付。4月29日,瑞航公司向“SALVIA II”号轮发出航次任务安排通告。5月1日,粤东公司致函瑞航公司,称装货港的代理人情况将于明天提供。5月2日,粤东公司又致函瑞航公司,称由于发货人至今未返回印尼,故只能将总代理人通知给你。
On May 5, 2000, Ship SALVIA II, according to the arrangement as notified by the Everfar, reached Sorong and anchored there for a combined inspection. On May 9, Yuedong sent a letter to the Everfar, claiming that the consigner had two vessels ready for sawn timber of 2, 000 cubic meters and it was ready for loading on the very night and would try its best to load as soon as possible. On the same day, the workers and agent came on board and conducted a combined examination. On May 10, the vessels berthed at 13: 00 of local time and thereafter the workers started the loading. 2000年5月5日,“SALVIA II”号轮按照瑞航公司通告的安排,抵达印尼索龙锚地抛锚,等待联检。5月9日,被告粤东公司致函瑞航公司称,发货人已经准备好两艘驳船共2000立方米原木,当晚可以装货,尽全力以最快速度装完。同日,工人上船,代理上船,联检办妥。5月10日,驳船靠妥,当地时间13:00时,工人开始装货。
On May 16, the Indonesian Customs and the Immigration Bureau boarded Ship SALVIA II for examination. 5月16日,印尼海关和移民局有关官员登上“SALVIAII”号轮检查。
On May 18, the Everfar sent a letter to Yuedong, claiming that: The loading of goods onto Ship SALVIA II had been finished. Yet the agent failed to handle the formalities for departure in the Indonesian Immigration Bureau as well as the local Customs and thus the Ship was drugged into the harbor. In the case of any loss, Yuedong shall, as the leaser, bear all the liabilities. On the same day, Yuedong sent a letter to the Everfar stating that: It had got in touch with the consigner and required the agent to immediately go to the spot and solve the matter with every effort. 5月18日,瑞航公司致函被告粤东公司,称:“SALVIAII”号轮已装完货物,代理至今仍未到印尼移民局及当地海关办理船舶出港手续,船将被拖至港内。如有损失,粤东公司作为承租人应承担全部责任。同日,粤东公司致函瑞航公司称:已与发货人联系,要求代理马上出发,全力解决此事。
On May 19, the Indonesian Customs ordered Ship SALVIA II that: as the consigner of the goods on board failed to go through the customs clearance formalities or obtain a License for the Export of Sawn Timber and despite the fact that the Captain did not know how the consigner made the relevant arrangement, the Customs still ordered that the Ship sail into Sorong Harbor to handle the customs clearance formalities as well as other formalities. On the same day, the Indonesian Customs ordered Ship SALVIA II again that: As to your problem with the goods on board, no navigation shall be started in the absence of customs approval. On the same day, it was indicated in a telegraph as sent by Ship SALVIA II to Tianhai that: As the consigner failed to complete the formalities, the Indonesian Customs and the Immigration Bureau refused any navigation though the goods were loaded on board. Still on the same day, it was indicated in a telex as sent by Ship SALVIA II to the Everfar that: as the consigner failed to pay any custom duty, the consigner did not have any Business License for Transportation of Sawn Timber or any Export License, so no navigation could be started before the aforesaid problems are resolved. 5月19日,印尼海关向“SALVIA II”号轮发出命令:因你船所载货物的发货人没有办理海关通关手续和原木出口证书,尽管船长不知发货人如何安排,海关仍命令你船开至索龙港内办理通关手续及其他手续。同日,印尼海关再次向“SALVIA II”号轮发出命令:基于你船所载货物问题,未经印尼海关批准不得开航。同日,“SALVIA II”号轮在发给原告天海公司的电报中称:因发货人手续不全,装载货物后,印尼海关、移民局不准开航。同日,“SALVIAII”号轮在发给瑞航公司的电传中称:由于发货人未付海关税,发货人没有此种原木贸易出运商业许可证或没有出口许可证,在这两个问题没解决前船舶不能开航。
On May 22, it was indicated in a telex as sent by Ship SALVIA II to the Everfar that: The sawn timber on board had been officially detained by the Indonesian Customs. 5月22日,“SALVIA II”号轮在发给原告天海公司的电报中称:本轮所载原木正式被印尼海关滞留。
On May 25, it was indicated in a telex as sent by Ship SALVIA II to Everfar that: The problems as raised by the Indonesian Customs must be answered, otherwise the Ship would be detained by the Indonesian Customs. The relevant agent and consigner might escape and so, if the Indonesian Customs could not find them, it might turn to the ship owner. On the same day, it was indicated in a telex as sent by Ship SALVIA II to Tianhai that: As the consigner failed to go through the relevant formalities in the Indonesian Customs, the Customs raised such questions as (1) the name of the consigner; and (2) the name of the consignee as well as information of the relevant sale and purchase contract. Please inform the Everfar to make notification thereto before noon so as to avoid any detainment. This is emergent. 5月25日,“SALVIA II”号轮在发给瑞航公司的电传中称:印尼海关的问题必须回答,否则船舶将被印尼海关滞留。代理、发货人可能逃脱,印尼海关如果抓不到他们,可能转而抓船方。同日,“SALVIA II”号轮在发给原告天海公司的电报中称:因发货人长期不到印尼海关办理手续,印尼海关要求回答(1)发货人名称;(2)收货人名称及买卖合同情况。请速令瑞航公司于中午前告知,以避免扣船,告急。
Yuedong failed to provide the relevant information of the agent and consigner. On May 27, it was indicated in a telex as sent by Ship SALVIA II to the Everfar that: This issue has been submitted by the Indonesian Customs to the local court. 被告粤东公司一直没有提供代理人、发货人的有关情况。5月27日,“SALVIA II”号轮在发给瑞航公司的电传中称:此事件已由印尼海关提交当地法院。
On May 31, it was indicated in a telex as sent by Ship SALVIA II to the Everfar that: The Indonesian Customs failed to arrest the relevant consigner and agent, so it deemed the ship owner as a suspect of smuggling. The ship owner was thus informed to hire an attorney within 1 week before a hearing is held by the local court. If the relevant consigner and agent do not contact the Customs, the goods shall be confiscated and the ship owner as well as the Captain shall be subject to the relevant liabilities. 5月31日,“SALVIA II”号轮发给瑞航公司的电传中称:印尼海关抓不到发货人和代理,所以他们视船方为走私嫌疑,已通知船方在当地法院开始审问前一周内雇请律师。如果发货人和代理再不与印尼海关联系,货物将被罚没,船方和船长将承担责任。
On June 15, it was indicated in a telex as sent by Ship SALVIA II to the Everfar that: 20 persons of the Indonesian Customs and the relevant departments boarded the Ship and sent the Captain off board under escort. Please immediately contact the Chinese embassy in Indonesia as well as all the parties concerned and arrange the attorney and translator for the ship owner. This is emergent. 6月15日,“SALVIA II”号轮发给原告天海公司的电报称:印尼海关连同相关部门的20人上船,并押解船长离船,请立即联系中国驻印尼使馆及各方,安排船方律师和翻译,告急。
On June 26, July 6 and July 31, the Chinese embassy in Indonesia exchanged notes with the Ministry of Foreign Affairs, General Inspection Bureau and the Supreme Procuratorate of Indonesia respectively, illustrating the standpoint of the Chinese government that: Ship SALVIA II and its shipmen did not participate in any smuggling, so we request the Indonesian counterpart to revoke its indictment against the Captain and release the ship and relevant personnel as soon as possible. 6月26日、7月6日、7月31日,中国驻印尼大使馆分别照会印尼外交部、总检查署、最高检察院,阐明中国政府的立场:“SALVIA II”号轮船舶和船员没有参与走私,要求撤销对船长的指控,早日放船、放人。
On September 23, the Sorong Court of Indonesia ruled that Lin, Captain of Ship SALVIA II, tried, in the absence of the guaranty of legal documents, to transport exported goods from a dependency under the Indonesian Customs, which has violated the local law, so he shall be sentenced to 7-month imprisonment, be imposed upon a fine of 30 million Indonesian Dong, or 6-month restraint, yet may enjoy 1-year probation without any service of sentence. 9月23日,印尼索龙地区法院认定“SALVIA II”号轮船长林华辉“在没有合法文件保障的情况下,试图从印度尼西亚海关属地运出出口产品”,触犯了当地法律,判处七个月徒刑,罚款3000万印尼盾或六个月监禁,并宣告给予一年的缓刑期而不必服刑。
On October 28, Ship SALVIA II left Sorong Port, Indonesia. 10月28日,“SALVIA II”号轮驶离印尼索龙港。
Tianhai once sent Caowei and Zheng Jiapei to go to Indonesia to solve the issue of Ship SALVIA II detainment and Zhou Xinkang, secretary of Chinese embassy in Indonesia, as well as Yesun, a Chinese Indonesian, participated in the investigation and resolution of the whole matter. 原告天海公司曾派工作人员曹巍、张家佩到印尼解决“SALVIA II”号轮被扣押事件,中国驻印尼大使馆的秘书周锡康以及印尼华人叶孙等在索龙参与了解决事件的过程。
On October 20, 2001, the Pioneer produced another Power of Attorney, confirming that Tianhai shall, as operator of Ship SALVIA II, enjoy the relevant creditors' right and assume the liabilities relating to the Ship and particularly authorized Tianhai to externally claim compensation for all the expenditure or losses including expenses for maintenance and depreciation as incurred from the detainment of Ship SALVIA II. 2001年10月20日,先锋公司再次出具授权书,确认原告天海公司作为“SALVIA II”号轮的经营人,享有和承担和船舶有关的债权、债务,并特别授权天海公司对外索赔因“SALVIA II”号轮滞留印尼产生的包括修理费、折旧费在内的所有支出或损失。
As to the losses as incurred to Tianhai, those with official instruments include: (1) US $ 11, 413. 69 in total that Lin was requested to pay by the Immigration Bureau, the Procuratorate and the Quarantine Bureau of Indonesia, etc.; (2) US $ 11, 414. 15 of attorney's fees for Lin's attorney; (3) US $ 2, 500 of expenses for employing a protection proxy by Tianhai; (4) US $ 202. 50 of translation expenses; (5) US $ 7, 013 and 35, 951 yuan of travel expenses as incurred when Caowei, Zhang Jiapei, et. al went to Shantou and Sorong, Indonesia to handle the relevant matters; (6) US $ 3, 829. 18 of communications expenses and traffic expenses for shipmen's round trips; (7) US $ 590. 22 of medical expenses for shipmen; (8) US $ 38, 150 of shipmen's labor costs; (9) US $ 8, 320 of vessel fuel surcharge; and (10) US $ 3, 888. 87 of freshwater expenses. The sum as mentioned above has all been re-verified by the Accounting Firm of Tianjin Jinlian Co., Ltd. 原告天海公司发生的损失中,具有正式票据的包括:(1)印尼移民局、检察院、检疫局等要求船长林华辉支付的款项,总金额11413.69美元。(2)为船长林华辉雇请律师的费用11414.15美元。(3)天海公司聘请保护代理的费用2500美元。(4)翻译费202.50美元。(5)天海公司派工作人员曹巍、张家佩等赴汕头、印尼索龙等地处理此事的差旅费计7013美元和人民币35951元。(6)印尼通讯费、船员往返陆地交通费共计3829.18美元。(7)船员医疗费590.22美元。(8)船员劳务费38150美元。(9)支付船舶燃油款8320美元。(10)淡水费3888.87美元。以上各项目数额,均已经天津市津联有限责任公司会计师事务所复核。
As is stipulated in the Time Charter concluded between Tianhai and Everfar, the term of lease shall be up to the leaser's choice, which may be either 3 months or 6 months. Calculated from April 17, 2000 when the Time Charter was concluded, the first 3-month contact has expired till July 17 of the current year. The Everfar, the leaser, had no expression of intent to resume the contract for another 3 months and had stopped paying the rental before the first 3-month contact expired, which shall thereby be deemed that it chose not to resume the contact. During the 80 days from July 18, 2000 to October 28, 2000, Tianhai's loss as incurred from shipment costs and rental is US $ 42, 222. 21 and the loss as incurred from the depreciation of Ship SALVIA II is 509, 816. 92 yuan (according to the annualized depreciation of 3, 367, 560 yuan in the credence voucher, the 80-day depreciation is 738, 095. 34 yuan). 原告天海公司与瑞航公司签订的《期租合同》中,约定租期3个月加3个月由承租人选择。从合同签订日的2000年4月17日起算,到当年7月17日,前3个月的合同期满。承租人瑞航公司没有表示继续履行后3个月的合同,而且在前3个月合同期满前即已停付租金,应视为其选择了不续约。在从2000年7月18日至10月28日的80天时间里,天海公司支付的船员租金损失是42222.21美元,“SALVIA II”号轮的船舶折旧损失是509816.92元(按记账凭证上年折旧3367560元计算,80天折旧应为738095.34元)。
On October 27, 2000, Ship SALVIA II was repaired in an anchoring place of Sekou, Shenzhen, going through such recovery maintenance as clearance of ocean living creatures by diving, for which Tianhai paid 219, 236 yuan. From December 20, 2000 to January 1, 2001, Ship SALVIA II went through partial recovery maintenance for its deck in Dagang Maintenance Station, Jiangyin Chengxi Ship Yard, for which Tianhai paid 168, 066 yuan of maintenance fees. 2000年10月27日,“SALVIA II”号轮在深圳蛇口外锚地进行航次抢修,作潜水铲除海生物等恢复性修理,原告天海公司支付修理费219236元。12月20日至2001年1月1日,“SALVIA II”号轮在江阴澄西船舶修造厂大港航修站进行甲板部分恢复性修理,天海公司支付修理费168066元。
The above-mentioned facts were all submitted by both parties concerned and were substantiated by the relevant evidence as confirmed. 以上事实,均由双方当事人提交并得到认证的证据证实。
 天津海事法院认为:
PROCEDURAL POSTURE 
Tianjin Maritime Court held that: Tianhai, as operator of Ship SALVIA II, managed the Ship according to the authorization of the Pioneer, the ship owner, and thus shall assume the relevant creditors' rights and debts relating to the Ship and obtain the rights to the occupation, use and benefits of the Ship according to law. Tianhai concluded with the marine shipping department of China International Cooperation (Group) (Guangdong) an Agreement on Shipmen Employment and with the Everfar a Time Charter, which is an exercise of its right to the operation of Ship SALVIA II. After the Ship was detained in Indonesia, Tianhai, under the identity of ship owner, actively engaged itself in the handling of this mater, secured help from the Chinese Embassy in Indonesia, paid the relevant expenses to the relevant departments of Indonesia so that Ship SALVIA II was finally released. Tianhai is entitled to claim compensation for all the losses as incurred in the aforesaid process. As to the depreciation of Ship SALVIA II in the duration of detainment, Tianhai has the right to claim for joint compensation on the ground of particular authorization as granted by the Pioneer. It is an action on tort that Tianhai has filed, therefore, it could only claim for compensation for the losses as incurred beyond the contract. The rental losses relating to Tianhai and Everfar within the 3-month contractual term shall be separately settled by Tianhai and Everfar. 原告天海公司作为“SALVIA II”号轮的经营人,依船舶所有人先锋公司的授权经营管理船舶,承担与该轮有关的债权、债务,依法取得对该轮占有、使用、收益的权利。天海公司与中国广东国际合作(集团)公司海运部签订了《聘用船员协议》,又与瑞航公司签订了《期租合同》,是其对“SALVIA II”号轮行使经营的权利。船舶在印尼被滞留后,天海公司以船东的身份积极参与了解决事件的活动,寻求中国驻印尼大使馆的帮助,向印尼有关部门支付了相关费用,最终使船舶获得释放。天海公司对因此产生的损失,有权向责任方索赔。“SALVIA II”号轮在此期间的船舶折旧损失,因有先锋公司特别授权,天海公司有权一并索赔。天海公司在本案中提起的是侵权之诉,因此只能对合同以外的损失要求赔偿。天海公司与瑞航公司3个月合同期内的租金损失,应由天海公司与瑞航公司另案解决。
Yuedong obtained the right to the use of Ship SALVIA II from the Everfar through concluding a Time Charter on Trip Basis so as to transport the sawn timber of Indonesia. Article 7 of the Contract Law of the People's Republic of China prescribes that: “In concluding and performing a contract, the parties shall abide by the laws and administrative regulations.” It is stipulated in the contract between Yuedong and Everfar that Yuedong shall take charge of obtaining such documents as a License for Export of Goods, providing the agents of discharging and loading ports and paying the relevant expenses. Therefore, Yuedong is obliged to guarantee the transactional security on both the contractual and legal grounds. Yuedong is obliged to handle the relevant formalities for customs declaration of export and obtain the relevant licenses and is obliged to provide the agents of discharging and loading ports that are capable of performing the relevant functions and duties. 被告粤东公司以《航次租船合同》形式,从瑞航公司取得了对“SALVIA II”号轮的使用权,用于运输印尼产原木。《中华人民共和国合同法》第七条规定:“当事人订立、履行合同应当遵守法律、行政法规。”粤东公司与瑞航公司签订的合同约定,粤东公司负责办理货物出口许可证等单证及提供装卸港代理并支付费用。因而,粤东公司负有从合同和法律上保证交易安全的义务。粤东公司有责任办妥相关货物的出口报关、许可证等手续,有责任提供能履行职责的装卸港代理。
In this case, the consigner failed, before and in the process of loading, to handle the formalities for customs declaration of export of sawn timber and obtain the relevant licenses according to the relevant provisions of the local country, nor did the agent of the loading port perform the relevant functions and duties. Where the Indonesian Customs required the supplementation of the relevant formalities, the consigner and the agent of the loading port escaped, leaving the goods on board alone. At the same time, Yuedong, which should have positively negotiated with the Indonesian Customs, stated the relevant situation and assumed the liabilities, yet failed to perform its obligations in an active and proper manner, thereby leading to the ship detainment because the Ship and Captain were suspected of participating in joint smuggling and that the Captain was sentenced by the local Indonesian court, which has injured the right to occupation, use, benefits and disposal as enjoyed by Tianhai, the ship operator and the Pioneer, the ship owner, and shall therefore assume the relevant liabilities. 本案中,发货人在装货前和装货当时,没有按照所在国家的法律规定,办理原木出口报关、许可证等手续,装港代理也未能履行职责。当印尼海关要求补办手续时,发货人和装港代理置船上货物于不顾而逃脱。此时,被告粤东公司本应积极地与印尼海关交涉,出面说明情况、承担责任,但却没有积极、适当地履行此义务,致使船舶和船长因涉嫌共同走私而被滞留,船长还被印尼法院判刑,损害了船舶经营人原告天海公司和船舶所有人先锋公司享有的占有、使用、收益和处分权利,应当承担责任。
Sorong Court of Indonesia subjected Lin Huahui to sentence on the ground that Lin, in the case of no guaranty of legal documents, attempted to transport the exported products from the dependency under the Indonesian Customs”. It is proved by facts that Lin did not “attempt to transport any exported products from the dependency under the Indonesian Customs. The reason why he “had no guaranty of legal documents” is that, after the relevant consigner and agent of the loading port that mastered the real status of goods escaped, Yuedong failed to present the relevant situation and assumed the relevant liabilities. The Chinese Embassy of Indonesia has, on behalf of the Chinese government, claimed that Ship SALVIA II and its shipmen did not engage in any smuggling. China Shipowners' Mutual Assurance Association failed to participate in the handling of this incident and the circulation of the Association failed to comply with the case facts. Therefore, there is no ground for Yuedong to employ the judgment of Sorong Court of Indonesia and the circulation of China Shipowners' Mutual Assurance Association as its evidence to support its exemption from liabilities. 印尼索龙地方法院以“SALVIA II”号轮船长林华辉“在没有合法文件保障的情况下,试图从印度尼西亚海关属地运出出口产品”为由,给林华辉判刑。事实证明,林华辉并没有“试图从印度尼西亚海关属地运出出口产品”,其所以“没有合法文件保障”,是由于掌握货物真实情况的发货人和装港代理逃脱后,被告粤东公司不出面说明情况、承担责任所致。中国驻印尼大使馆已经代表中国政府声明,“SALVIA II”号轮船舶和船员没有参与走私。而中国船东互保协会自始至终没有参与过此次事件的解决,该协会的通报,与本案事实不符。故粤东公司以印尼索龙地方法院的判决和中国船东互保协会的通报作为自己无责任的证据,理由不能成立。
Paragraph 2, Article 106 感觉黑人都特别团结of the General Principles of the People's Republic of China prescribes that: “Citizens and legal persons who, through their fault, encroach upon state or collective property, or the property or person of other people shall bear civil liabilities.” During the detainment of Ship SALVIA II in Indonesia, such expenses as fines for release of the Ship and Captain, attorney's fees, translation fees, travel expenses as well as the agent-based protection commissions, labor expenses, communications expenses, medical expenses, freshwater expenses, fuel surcharge, shipmen rental and repairing expenses of ship as borne by Tianhai shall be compensated for by Yuedong. As to the depreciation as incurred in the duration of ship detainment, because the ship owner has authorized Tianhai to claim the relevant compensation concurrently, Yuedong shall also compensate for it. Tianhai's voluntary selection of a subject matter with a value lower than that as indicated in the book credence is a civil disposition of its right to properties. This act did not injure Yuedong's interests and thus shall be accepted. Therefore, Tianjin Maritime Court adjudicated on November 30, 2001 that: 中华人民共和国民法通则》第一百零六条第二款规定:“公民、法人由于过错侵害国家的、集体的财产,侵害他人财产、人身的,应当承担民事责任。”在“SALVIA II”号轮滞留印尼期间,原告天海公司为争取船舶和船长获释而支付的罚款、律师费、翻译费、差旅费等,以及为保护船舶安全和保障船员权益而支付的保护代理费、船员劳务费、交通通讯费、医疗费、淡水费、燃油费、船员租金、修船费,被告粤东公司均应赔偿。在船舶被滞留期间产生的船舶折旧损失,由于船舶所有人授权天海公司一并索赔,粤东公司也应赔偿。天海公司自愿选择少于其记账凭证的数额作为索赔标的,是其处分自己财产权利的民事行为。该行为不损害粤东公司的利益,应予认可。据此,天津海事法院于2001年11月30日判决:
1. Yuedong shall compensate Tianhai 1, 727, 046. 80 yuan for such losses as fines and shall pay, according to the interest rate of bank deposit for the same term, the interest from October 29, 2000 to the day of payment as decided by judgment. 一、被告粤东公司赔偿原告天海公司罚款等损失1727046.80元,并按同期银行存款利率,支付自2000年10月29日起至判决确定给付之日止的利息。
The above-mentioned sum shall be paid off within 15 days as of the day when this judgment comes into force. In the case of any defaulted payment, it shall be handled according to Article 232 of the Civil Litigation Law of the People's Republic of China. 上述款项应自判决书生效之日起15日内付清。逾期不付,按《中华人民共和国民事诉讼法不能给市场做人工呼吸》第二百三十二条执行。
2. Tianhai's other litigation claims shall be rejected. 二、驳回原告天海公司的其他诉讼请求。
23, 506 yuan of case acceptance fee, 13, 020 yuan of preservation application fees and 3, 000 yuan of preservation execution fees, which amounted to 39, 526 yuan, shall be borne by Yuedong. 案件受理费23506元、保全申请费13020元、保全执行费3000元,共计39526元,由被告粤东公司负担。
After the judgment was announced, Yuedong was dissatisfied with it and filed an appeal with the Higher People's Court of Tianjin Municipality, pleading with the court to revoke the original judgment and reject Tianhai's action or litigation claim on the following ground that: 1. the appellant rented Ship SALVIA II through an agreement concluded with the Everfar. The Everfar didn't participate in the action and Tianhai filed an action merely on the ground of a Power of Attorney as granted by the Pioneer and is therefore not an adequate subject of action. 2. The confirmation of relevant facts in the original judgment is wrong. The Everfar didn't participate in the action, Tianhai failed to show the originals, whereas the photocopies could not be applied as evidence. It is wrong for the original judgment to confirm, on the basis of photocopies, that Tianhai concluded a Time Charter with the Everfar on behalf of the Pioneer. As Lin Huahui is an interested person in this case, it is wrong to apply the evidence he provided in confirming facts. 67 telegraphs are all photocopies, so, except for those that have been confirmed by the appellant, the others could not be applied as evidence. As Sorong Court of Indonesia adjudicated that the Captain failed to go through the relevant formalities and thus the Ship shall be detained, the facts as confirmed by the court shall consequently be deemed as evidence. The agents as involved in this case shall be defined as agents as entrusted by the ship owner rather than any agent of the leaser. So it is wrong in the original judgment to settle the relevant liabilities as incurred from the agents' breach of duty in this case by regarding the agents entrusted by the ship owner as the leaser's agents, which is a misunderstanding of the contents of Article 14 of the Time Charter on Trip Basis. 3. The appellant had no tort in this case and thus shall not be subject to any liabilities. 4. The appellant rented Ship SALVIA II and only had a contractual relation with the Everfar. So after the appellant, as a leaser, paid the relevant rental, all the shipmen's expenses as well as the expenses for ship depreciation and maintenance shall be borne by the Everfar. Therefore, it is wrong in the original judgment to order the appellant to compensate for all these expenses. 宣判后,粤东公司不服,向天津市高级人民法院提出上诉,请求撤销原判,驳回被上诉人天海公司的起诉或诉讼请求。理由是:一、上诉人通过与瑞航公司签订合同,租用“SALVIA II”号轮。现在瑞航公司未参加诉讼,天海公司仅凭先锋公司的授权委托书就提起诉讼,是不适格的诉讼主体。二、原审判决认定事实错误。瑞航公司未参加诉讼,天海公司也未出示原件,复印件不能作为证据使用。原判根据复印件认定天海公司代表先锋公司与瑞航公司签订了《期租合同》,是错误的。船长林华辉是本案的利害关系人,将其提供的证据作为认定事实的根据,是错误的。67份电报均是复印件,除上诉人确认属实的以外,其他不能作为证据使用。印尼索龙地区法院判决认定船长没有办理相关手续导致船舶被扣押,法院认定的事实当然应成为证据。本案所涉的代理,应当界定为船东委托的代理,而非租家代理。原判以租家代理解决本案所涉因代理失职引起的责任问题,是对《航次租船合同》第14条内容的错误理解。三、上诉人在本案中没有任何侵权行为,不应承担任何责任。四、上诉人租用“SALVIA II”号轮,只与出租人瑞航公司存在合同关系。上诉人作为承租人付出租金后,船员的一切费用以及船舶的折旧和修船费用,都应该由出租人瑞航公司负担。原判令上诉人赔偿这些费用,是错误的。
Tianhai believed that the facts are clear and the application of law is correct in the original judgment and therefore the appeal shall be rejected and the original judgment shall be sustained on the following ground that: 1. Tianhai has been legally authorized by the Pioneer, owner of Ship SALVIA II, so it has the right to dispose of the ship and thus can be an adequate subject of action. 2. The facts as confirmed in the original instance are clear and correct. Tianhai has shown the original of the Time Charter, which has been verified by the court with the relevant photocopy. The Indonesian court, for the purpose of safeguarding the interest of its own country, attributed the relevant liabilities to the Captain when failing to find the consigner and agents, which is not a correct reflection of the relevant objective facts. It is correct for the court of the first instance not to apply such judgment as evidence, which not only safeguards the dignity of the Chinese laws but also safeguards the factual truth. It is correct for the court of the first instance to confirm that the agent of the loading port is an agent of the leaser according to the provisions of Article 14 of the Time Charter on Trip Basis and ordered the leaser to assume the relevant liabilities as incurred from the agents' breach of duties. 3. Although Yuedong rented Ship SALVIA II upon concluding a contract, its failure to perform the relevant obligations not only went against the stipulations of the contract but also directly injured the rights and interests of the appellee. The appellant's tort is so obvious that it is proper for the court of the first instance to order it to bear the losses beyond the contractual term. 被上诉人天海公司答辩认为,原判认定事实清楚,适用法律正确,应当驳回上诉,维持原判。理由是:一、天海公司有“SALVIA II”号轮的所有权人先锋公司的依法授权,有权处分船舶权利,是本案适格的诉讼主体。二、原审认定的事实清楚、正确。天海公司已经出示了《期租合同》的原件,而且法院已经把复印件与原件核对过。印尼法院从维护本国利益出发,在找不到发货人和代理的情况下,把责任归于船长,没有正确反映客观事实。一审不采纳这样的判决为证据,既维护了我国法律尊严,也维护了事实真相,是正确的。一审根据《航次租船合同》第14条的规定认定本案的装港代理是租家代理,从而让承租人承担因代理不履行职责而产生的损失责任,是正确的。三、上诉人粤东公司虽然是签订合同后租用“SALVIA II”号轮,但其不履行义务的行为不仅违背了合同的约定,也直接侵害了被上诉人的权益。上诉人的侵权行为是显而易见的,一审只令其承担了合同期以外的损失,判处是适当的。
In the period of the second instance, both parties concerned had a dispute over how to translate and explain the original Article 14 of the Time Charter on Trip Basis “Owns appoint chtrs Nomi agt Bends wz chtrs paying port charge (INCL agency fee)before vsl arrival at bends”. 二审期间,双方当事人对《航次租船合同》第14条原文“Owns appoint chtrs Nomi agt Bends wz chtrs paying portcharge(INCL agency fee)before vsl arrival at bends”应当如何翻译与解释发生了争议。
Yuedong entrusted the Notary Office of Guangdong Province to render it, the version of which is: “The shipowner shall designate the agents of the loading and discharging ports as nominated by the leaser, the port charges (including the agent commissions) shall be paid by the leaser before the Ship reaches the aforesaid two ports”(“船东指定承租人提名的装卸两港代理,港口费用(包括代理费)由承租人在船舶到达两港之前支付。”). 上诉人粤东公司委托广东省公证处进行翻译,译文是“船东指定承租人提名的装卸两港代理,港口费用(包括代理费)由承租人在船舶到达两港之前支付。”
Tianhai entrusted the department of development and administration of foreign culture of Tianjin Municipality to render it, the version of which is: “The leasee shall appoint the agents as designated by the leaser, the port charges (including the agent commissions) shall be paid by the leaser before the Ship reaches the aforesaid two ports”(“出租人在装卸两港任命由承租人指定的代理,港口费用(包括代理费)由承租人在船舶到达两港之前支付。”). 被上诉人天海公司委托天津市对外文化开发经理部进行翻译,译文是“出租人在装卸两港任命由承租人指定的代理,港口费用(包括代理费)由承租人在船舶到达两港之前支付。”
Tianhai applied for re-translation. According to Article 28 北京大学互联网法律中心of Some Provisions of the Supreme People's Court on Evidence in Civil Procedures, which prescribes that “If the authentication conclusion is made by relevant departments made upon the independent entrustment of any party concerned and the other party has adequate evidence to rebut and applies for re-authentication, such application shall be approved by the people's court.”, the court organized both parties concerned to make negotiation on the entrustment of translators. According to the consensus as reached by both parties, Yin Dongnian, professor of Shanghai Marine Shipping College, rendered the contents of Article 14 of the Time Charter on Trip Basis and gave the relevant explanations. 被上诉人天海公司为此申请重新翻译。根据最高人民法院《关于民事诉讼证据的若干规定》第二十八条关于“一人当事人自行委托有关部门作出的鉴定结论,另一方当事人有证据足以反驳并申请重新鉴定的,人民法院应予准许”的规定精神,法院主持双方当事人就委托翻译人一事进行协商。根据双方当事人达成的一致意见,另行委托上海海运学院尹东年教授对《航次租船合同》第14条的内容进行翻译和解释。
The version as rendered by Yin Dongnian goes like this: “The shipowner shall designate the agents of the loading and discharging ports as designated by the leaser, the leaser shall be responsible for paying the port charges (including the agent commissions) before the Ship reaches the ports” “船东指定承租人所指定的代理作为装卸两港代理,港口费用(包括代理费)由承租人在船舶到港之前负责支付” and he gave further explanations as follows: 1. “owns” is often rendered as “owner” (“船东”). As the “Fixture Note” refers to the Confirmation under the Time Charter on Trip Basis and according to the principles of “privity of contract”, the Confirmation can only apply to both parties to the Time Charter on Trip Basis, namely, the Everfar and Yuedong. The term “owner” in the article refers to Everfar, which is frequently called “disponent owner”. The “owner” as mentioned herein is not referred to as the actual ship owner (generally called first ship owner) or ship operator. 2. The terms “Appoint” and “Nomi” as mentioned herein may properly be rendered into “designate” according to the routine of the shipping industry and is not proper to be rendered as “entrust” or “nominate”. 尹东年教授的译文是:“船东指定承租人所指定的代理作为装卸两港代理,港口费用(包括代理费)由承租人在船舶到港之前负责支付”。尹东年教授进一步解释:1.“Owns”通常译为“船东”。由于涉案的“Fixture Note”是指在航次租约下的确认书,根据“合同相对性”(Privity of Contract)原则,该确认书只适用于航次租约的主体双方,即瑞航公司和粤东公司。条款中的船东系指前者,航运习惯上俗称“二船东”。本处所指的船东,并不是真正的船东(习惯上称之为大船东)或者船舶经营人。2.“Appoint”和“Nomi”,按航运业的习惯,以译成“指定”为宜,翻译为“委派”或者“指名”,在此处均为不妥。
Yuedong deemed that it is improper that Prof. Yin renders “Nomi” as “designate” and Tianhai had no different opinion on the translation and explanations as made and given by Prof. Yin. 上诉人粤东公司认为尹东年教授将“Nomi”译成“指定”不恰当,被上诉人天海公司对尹东年教授的翻译和解释没有异议。
JUDGMENT'S REASONING 
The Higher People's Court of Tianjin Municipality held that: 天津市高级人民法院认为:
Upon soliciting the opinions of both parties, the court entrusted an expert as agreed to by both parties concerned to conduct translation and give explanations to Article 14 of the Time Charter on Trip Basis, which is of authority and thus shall be confirmed. 在征求意见后,法院委托双方当事人一致同意的著名专家对《航次租船合同》第14条进行的翻译和解释,具有权威性,应予确认。
What Tianhai has legally obtained is the right to the operation of Ship SALVIA II and thus it has the right to conclude with the Everfar an agreement on leasing this ship. Yuedong obtained the right to the use of Ship SALVIA II for this navigation by concluding a Time Charter on Trip Basis for the purpose of transporting the sawn timber as originated from Indonesia, thereby being obligated to guarantee that the transported goods shall not affect the ship security. As Yuedong failed to fulfill its obligations and thereby injured Tianhai's interests, Tianhai has the right to claim against Yuedong. Therefore, Yuedong's claim that Tianhai is not an adequate subject of action is not well established. 被上诉人天海公司依授权取是“SALVIA II”号轮的经营权,有权与瑞航公司签订合同出租该轮。上诉人粤东公司通过签订《航次租船合同》,从瑞航公司取得了对“SALVIA II”号轮的本航次使用权,用于运输印尼产原木,从而负起保证运输的货物不影响船舶安全的义务。粤东公司未尽应尽的义务,使天海公司的利益遭受侵害,天海公司有权向粤东公司主张权利。粤东公司上诉称天海公司不具有诉讼主体资格,理由不能成立。
Sorong Court of Indonesia made judgment on Lin, the Captain, under a different judicial sovereignty. The facts as confirmed in the judgment have not been verified by the judicial organ of China and thus cannot function as evidence for this case. Hence, Yuedong's claim to apply the aforesaid judgment as evidence to confirm the relevant facts of this case is not well established. 印尼索龙地方法院在不同司法主权下作出对船长林华辉的判决。该判决认定的事实未经我国司法机关核实,不能成为本案的证据。上诉人粤东公司要求以此判决作为认定本案事实的证据,理由不能成立。
Article 14 of the Time Charter on Trip Basis as concluded between Yuedong and the Everfar prescribes that the ship owner shall designate the agents as designated by the leaser to be the agents of the loading and discharging ports. Yuedong, as a leaser, is obligated to designate the agents of the loading and discharging ports and it actually did designate the loading port agent. However, the consigner that Yuedong is obligated to contact failed to handle the legal formalities for goods and the agent of the loading port as designated by Yuedong was slow in performing its duties. When the Customs requested them to make up the relevant formalities, the consigner and agent of the loading port even gave up the ship and escaped. After all these problems occurred, Yueding failed to actively communicate with the Indonesian government, explain the situation and assume the relevant liabilities, thereby incurring losses to Tianhai, so Yuedong shall make compensation. 上诉人粤东公司与瑞航公司签订的《航次租船合同》第14条规定,船东指定承租人所指定的代理作为装卸两港代理。粤东公司作为承租人,有责任向船东指定装卸港代理,也确实为船东指定了装港代理。只是粤东公司负责联系的发货人不为货物办理合法手续,粤东公司指定的装港代理也怠于履行职责。当海关要求补办手续时,发货人和装港代理竟弃船逃脱。发生这些问题后,粤东公司没有积极与印尼官方交涉,说明情意并承担责任,以致给被上诉人天海公司造成损失,理应赔偿。
Yuedong shall compensate for the fines, attorney's fees, translation fees, travel expenses as well as the protection proxy fees as paid for the security of both the Ship and shipmen beyond the 3-month period of charter, shipmen labor costs, communications expenses, medical expenses, freshwater expenses, fuel surcharge and shipment rental, which paid by Tianhai for releasing the Ship and the Captain. Yuedong's failure to perform its obligations led to a long-term ship detainment as well as the depreciation expenses beyond the 3-month lease. The bottom and hold of the ship were seriously damaged due to such a long detainment and thus required recovery maintenance, whereby the maintenance fees were incurred. Where the Pioneer authorized Tianhai to claim for compensation, Yuedong shall make compensation to Tianhai. The amount of compensation as claimed by Tianhai is well substantiated by bills and instruments. The court of the original instance has extracted the share as borne by the Everfar within the contractual term. As Yuedong appealed that the losses as confirmed in the original instance shall be borne by the Everfar yet failed to present any evidence to support its claim, this litigation claim shall not be established. 被上诉人天海公司为争取船舶和船长获释而支付的罚款、律师费、翻译费、差旅费,以及3个月租期过后为船舶和船员的安全而支付的保护代理费、船员劳务费、交通通讯费、医疗费、淡水费、燃油费、船员租金,上诉人粤东公司均应赔偿。粤东公司未尽义务以致船舶被长期滞留,3个月租期过后的船舶折旧费因此而产生。湿热地区的长时间滞留,使船底、货舱等处损害较大,必须进行恢复性修理,修理费因此而产生。在船舶所有人先锋公司授权天海公司索赔的情况下,粤东公司也应赔偿。天海公司主张的赔偿数额,均有票据证实,原审判决已将合同期内应由瑞航公司负担的份额扣除。粤东公司上诉称原审认定的损失应由瑞航公司负担,但不能为自己的这一主张提供证据,故该上诉理由也不能成立。
JUDGMENT 
In conclusion, the facts are clear and the application of law is correct in the original instance. The judgment is proper and thus shall be sustained. Yuedong's allegation is short of factual or legal ground and thus shall not be sustained. Therefore, the Higher People's Court of Tianjin Municipality adjudicated as follows on August 13, 2002 according to item (1), paragraph 1 of Article 153 of the Civil Litigation Law of the People's Republic of China: 综上,原审判决认定事实清楚,适用法律正确。判处适当,应予维持。上诉人粤东公司的上诉理由,缺乏事实根据和法律依据,不予支持。据此,天津市高级人民法院依照《中华人民共和国民事诉讼法》第一百五十三条第一款第一项的规定,于2002年8月13日判决:
The appeal shall be rejected and the judgment of the original instance shall be sustained. 驳回上诉,维持原判。
The case acceptance fee of 23, 506 yuan for the second instance shall be borne by Yuedong. 二审案件受理费23506元,由上诉人粤东公司负担。
COMMENTARY 
Upon the service of the final judgment, both parties concerned voluntarily reached a compromise and the obligations as confirmed by the aforesaid judgment have been performed.

 终审判决送达后,双方当事人自愿达成和解协议,判决确定的义务已经履行。
 

     
     
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