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Xizhuang Villagers' Committee v. Changdao Maritime Transport Company (Appellate Case on Dispute over Compensation for Tort Due to Sand Quarrying at Shallow Beach)
西庄村委会诉长岛县海运公司浅滩采砂侵权损害赔偿纠纷上诉案
【法宝引证码】
  • Type of Dispute: Civil-->Property
  • Legal document: Judgment
  • Judgment date: 01-01-1997
  • Procedural status: Trial at Second Instance
  • Source: SPC Gazette,Issue 3,1997

Xizhuang Villagers’ Committee v. Changdao Maritime Transport Company (Appellate Case on Dispute over Compensation for Tort Due to Sand Quarrying at Shallow Beach)
(Appellate Case on Dispute over Compensation for Tort Due to Sand Quarrying at Shallow Beach)
西庄村委会诉长岛县海运公司浅滩采砂侵权损害赔偿纠纷上诉案

Xizhuang Villagers' Committee v. Changdao Maritime Transport Company
(Appellate Case on Dispute over Compensation for Tort Due to Sand Quarrying at Shallow Beach)

 

西庄村委会诉长岛县海运公司浅滩采砂侵权损害赔偿纠纷上诉案

BASIC FACTS 
Appellant (Defendant in the first instance): Shandong Changdao Maritime Transport Company. 上诉人(原审被告):山东省长岛县海运公司。
Legal Representative: Hu Yutian, manager. 法定代表人:胡雨田,经理。
Authorized Agent: Su Yonghong and Tong Dezhong, lawyers of Shandong Changdao No. 1 Law Firm. 委托代理人:苏永红、佟德重,山东省长岛县第一律师事务所律师。
Appellee (Plaintiff in the first instance): Xizhuang Villagers' Committee of Dengzhou Town, Penglai, Shandong Province. 被上诉人:(原审原告):山东省蓬莱市登州镇西庄村委会。
Legal Representative: Li Bengui, director general. 法定代表人:李本贵,主任。
Authorized Agent: Zhang Qing, lawyer of Qingdao Bo'ai Law Firm. 委托代理人:张青,青岛市博爱律师事务所律师。
Authorized Agent: Cui Demin, manager of Penglai Mineral Resource Exploitation Company. 委托代理人:崔德珉,蓬莱市矿产开发公司经理。
For the dispute with Xizhuang Villagers' Committee of Dengzhou Town, Penglai, Shandong Province (appellee, hereinafter referred to as Xizhuang Village) over compensation for damage due to sand quarrying at a shallow beach, Shandong Changdao Maritime Transport Company (appellant, hereinafter referred to as Maritime Transport Company) was dissatisfied with Qingdao Maritime Court's judgment of the first instance, and appealed to Shandong Higher Court. 上诉人山东省长岛县海运公司(以下简称海运公司)因与被上诉人山东省蓬莱市登州镇西庄村委会(以下简称西庄村)发生浅滩采砂损害赔偿纠纷,不服青岛海事法院的一审判决,向山东省高级人民法院提出上诉。
PROCEDURAL POSTURE 
It was found out by Qingdao Maritime Court: In late 1980s, the coast to the west of Xizhuang Village was eroded by seawater more and more seriously, the sand beaches at many road sections did no longer exist, and the land had been destroyed. From 1985 to 1993, the coastal land area in Xizhuang Village was reduced to 165.29 mus, and the direct economic losses reached 3,436,500 yuan. The construction costs of the revetment project built for avoiding the losses from being aggravated were estimated to be more than 5,612,000 yuan. 一审法院查明:八十年代后期,原告西庄村以西的海岸遭海水侵蚀的现象加剧,许多地段沙滩已不复存在,土地被冲毁。从1985年至1993年,西庄村沿海土地面积减少165.29亩,直接经济损失达343.65万元。为避免使损失继续扩大而修建的护岸工程,预计费用为561.2万余元。
In April 1990, Yantai Municipal Government retained Yantai Oceanic Jurisdiction of State Oceanic Administration (hereinafter referred to as Yantai Oceanic Jurisdiction) to make an investigation and argument on the marine erosion to the coast of Xizhuang Village. Yantai Oceanic Jurisdiction wrote a report titled “Investigation and Research on the Erosion to the Coast to the West of Xizhuang in Penglai County” in early September. In mid-September, Yantai Municipal Government invited 11 oceanographers to appraise the report. The appraisal opinions held that the erosion to the coast to the west of Xizhuang Village resulted from years of natural evolvement, stormy waves, and artificial excavation of sand at the coast. Dengzhou Shallow Beach could, in a certain extent, weaken the waves, flows and stormy waves which attacked the coast, while the shallow beach to the west of Chaodai Islet had tiny affect to the coast due to its long distance from the coast. 1990年4月,烟台市政府聘请国家海洋局烟台海洋管区(以下简称烟台管区)对西庄村海岸遭受海蚀的情况进行调查论证,烟台管区于9月上旬写出《蓬莱县西庄以西海岸侵蚀的调查研究》报告。9月中旬,烟台市政府邀请了11位海洋方面的专家对该报告进行了评审。评审意见认为:西庄村以西一带海岸遭受侵蚀,是多年自然演变、暴风浪及人为岸边挖砂所致。登州浅滩对这一带海岸,具有一定的减弱波浪、流和风暴浪袭击海岸的作用,潮待州以西的浅滩因距离岸远,作用微小。
On November 15, 1990, Penglai Municipal Government entrusted the First Institute of Oceanography, State Oceanic Administration (hereinafter referred to as the 1st Institute, SOA) to make research on “The Cause of Marine Erosion, the Possible Extent of the Growth of Coastal Erosion, the Major Countermeasures and Methods to Resolve Marine Erosion”. The 1st Institute, SOA rendered the report titled “Study on the Causes of Erosion to the Coast from Xizhuang, Penglai to Luanjiakou and the Control Countermeasures” in December 1992. The report held that the causes of the erosion to the coast from Xizhuang Village to Luanjiakou lied in natural erosion, coastal sand quarrying, and destruction to Dengzhou Shallow Beach, while the sand quarrying at Dengzhou Shallow Beach was the major cause to accelerate the erosion to the coast. The report won the “Authentication Certificate for the Scientific and Technological Achievement” issued by Shandong Provincial Commission of Science and Technology. 1990年11月15日,蓬莱市政府委托国家海洋局第一海洋研究所(以下简称海洋一所)对“海洋侵蚀的原因,海岸侵蚀发展的可能程度,解决海蚀的主要对策和方法”进行研究。海洋一所于1992年12月提出了《蓬莱西庄至栾家口海岸侵蚀原因及治理对策研究》的报告。该报告认为,西庄村至栾家口海岸侵蚀的原因是自然侵蚀、岸边取砂和登州浅滩的被破坏,其中在登州浅滩采砂是该段海岸侵蚀加速的主要原因。该报告获得山东省科委颁发的《科学技术成果鉴定证书》。
Dengzhou Shallow Beach is located at a sea area 1.5 kilometers away from Xizhuang Village, forming a 45°angle with the coast in a direction of southeast to northwest. The shallow beach is composed of Siren Islet, Erri Islet, Chaodai Islet and Xinjing Islet. Within a scope enclosed by the 5-meter fathom line on the 1974 marine map, the minimum water depth of the shallow beach is 1.1 meters, the average water depth is 3.2 meters, and the area is 3.96 square kilometers. According to the on-site measurement made by the 1st Institute, SOA in November and December 1990, the area enclosed by the 5-meter fathom line at Dengzhou Shallow Beach was reduced from 3.96 square kilometers in 1974 to 0.5 square kilometer, and its average water depth was reduced by 1.1 meters. 登州浅滩位于距西庄村1.5公里的海域内,与海岸呈东南西北走向的约45°夹角。该浅滩由四人洲、二日洲、潮待洲和新井洲组成。在1974年版海图上的5米等深线范围内,该浅滩最小水深为1.1米,平均水深为3.2米,面积为3.96平方公里。据海洋一所1990年11月和12月的现场实测,登州浅滩5米等深线以内的面积,已经由1974年的3.96平方公里缩小为0.5平方公里,其平均水深也降低了1.1米。
Maritime Transport Company began to quarry sand at Dengzhou Shallow Beach in July 1986, and obtained a two-year “Temporary Mining License” on September 16, 1989. On January 10, 1991, Yantai Municipal Mineral Resources Administration promulgated an announcement and decided that, as of February 1 of the same year, any entity or individual should be strictly prohibited from quarrying sand around Dengzhou Shallow Beach, but Maritime Transport Company did not stop quarrying sand until May 21, 1991. From 1987 to 1991, Maritime Transport Company totally quarried 969,849 tons of sand at Dengzhou Shallow Beach. The entities quarrying sand at Dengzhou Shallow Beach also included Changdao Quezui Maritime Transport Company and Yantai Port Building Company, but the amount of the sand quarried by either of them was less than that by Maritime Transport Company. In addition, Xizhuang Village organized villagers to quarry sand for sale at the eroded coastal sand beach from late 1970s to 1986. Other coastal villagers also committed similar activities, but the amount of sand they quarried was hard to be counted. Xizhuang Village acknowledged that the annual amount of sand it quarried was approximately 3,000 tons to 5,000 tons. 被告海运公司从1986年7月平始在登州浅滩采砂,1989年9月16日取得为期两年的“临时采矿许可证”。1991年1月10日,烟台市矿产资源管理局发布通告,决定自同年2月1日起,严禁任何单位和个人在登州浅滩一带采砂,但直至同年5月21日,海运公司才停止采砂。从1987年至1991年,海运公司在登州浅滩采砂的总量为969849吨。同在登州浅滩采砂的单位,还有长岛县鹊嘴海运公司和烟台港修建公司,但其采砂量均少于被告。另外,原告西庄村从七十年代后期至1986年,曾经组织村民在遭受侵蚀的海岸沙滩上挖砂外卖,沿岸其他村民也有类似的情况,采砂量难以统计。原告承认每年采砂量约为3000吨至5000吨。
Whereas the present case involved complicated professional issues, and there were two investigation reports with different conclusions, the court entrusted Oceanographic Research Institute of Chinese Academy of Sciences (hereinafter referred to as Oceanographic Research Institute, CAS) on October 18, 1994 to authenticate the rationality of the two reports. Oceanographic Research Institute, CAS appointed 5 researchers and associate researchers who were specialized in marine environment, marine wave, marine current, coastal engineering geology and marine geology, etc. to make the authentication, and they issued the “Authentication Report of Oceanographic Research Institute of Chinese Academy of Sciences on the Causes of Aggravated Coastal Erosion around Xizhuang, Penglai” on May 15, 1995. The Authentication Report holds that, the report of the 1st Institute, SOA “has many measured data, entire argumentation and analysis”, as well as “relevant objective argumentation in the chapters on analysis of the causes of coastal erosion.” The Authentication Report also holds, “The major cause of the aggravated coastal erosion at Xizhuang is the recession of Dengzhou Shallow Beach, while the direct cause of the recession of Dengzhou Shallow Beach is the large-amount artificial sand quarrying at Dengzhou Shallow Beach.” 鉴于本案涉及复杂的专业问题,而且存在着两个结论不同的调查报告,法院于1994年10月18日委托中国科学院海洋研究所(以下简称科学院海洋所)对两份报告的科学性进行鉴定。该所指派了在海洋环境、海洋波浪、海流、海岸工程地质和海洋地质等方面的研究员和副研究员共5人进行了鉴定,并于1995年5月15日出具了《中国科学院海洋研究所关于蓬莱西庄一带海岸侵蚀加剧原因的鉴定报告》。该报告认为,海洋一所的报告“实测数据较多,论述与分析较全面”,“有关海岸侵蚀原因分析等篇章论述较为客观。”该报告还认为,“西庄海岸侵蚀加剧的主要原因是登州浅滩的消退,而登州浅滩消退的直接原因是人为在登州浅滩大量挖砂所致。”
Qingdao Maritime Court held that Oceanographic Research Institute, CAS is an authoritative institution in China in the area of oceanology, all the authenticators it appointed were eligible for authentication, and the structure of persons was reasonable; the authenticators made careful research and examination of the investigation report provided by both parties as evidence in the process of authentication and the materials on which the report was based, and listened to the opinions of relevant oceanographers, therefore, the conclusion they made was prudent, careful, objective, entire, rational and impartial, and may be used as the basis for finding facts, adopting evidence and dividing liabilities in the present case. One of the causes of aggravating the losses to Xizhuang Village due to marine erosion was that Maritime Transport Company quarried a large amount of sand at Dengzhou Shallow Beach for long. Maritime Transport Company quarried sand before obtaining the “Temporary Mining License”, injured the lawful rights and interests of Xizhuang Village, and should bear the civil liabilities for tort in accordance with Paragraph 2 of Article 106 of the “General Principles of Civil Law of the People's Republic of China”. Paragraph 3 of Article 30 of the “Mineral Resources Law of the People's Republic of China我不休息我还能学” prescribes: “Anyone who, in mining mineral deposits, causes losses to the production and livelihood of other persons shall be liable for compensation and adopt the necessary remedial measures.” Although subjectively, Maritime Transport Company had no fault for its sand quarrying after obtaining the “Temporary Mining License”, it should still bear civil liabilities as required by Paragraph 3 of Article 106 of the General Principles of Civil Law, i.e., “A party who has no fault shall bear civil liabilities if so required by the law”. Xizhuang Village's damage was due to many causes including natural erosion, coastal sand quarrying and recession of Dengzhou Shallow Beach. Maritime Transport Company should only bear the compensation liability corresponding to its acts. Xizhuang Village's ground for its assertion that Maritime Transport Company should bear all liabilities could not be tenable. Therefore, Qingdao Maritime Court decided as follows: 1. Maritime Transport Company shall compensate Xizhuang Village 945,000 yuan of land loss incurred from coastal erosion, but other losses shall be borne by Xizhuang Village itself; and 2. Maritime Transport Company shall compensate Xizhuang Village 1,559,800 yuan of expenses for Xizhuang Village to take necessary protection measures to prevent the losses from being further aggravated. For the 64,010 yuan of case acceptance fee and 15,000 yuan of authentication fee, Xizhuang Village shall bear 57,282.25 yuan, and Maritime Transport Company shall bear 21,727.76 yuan. 一审法院认为,科学院海洋所是我国海洋科学研究的权威性机构,其指派的鉴定人员均具有鉴定能力,且人员构成合理;鉴定人员在鉴定过程中对原、被告双方举证的调查报告及所依据的资料进行了认真的研究和审查,听取了有关专家的意见,因此,其做出的结论审慎认真、客观全面、科学公正,可以作为本案认定事实、采纳证据和划分责任的依据。被告海运公司在登州浅滩长期、大量采砂,是造成原告西庄村因海蚀加剧遭受损失的原因之一。海运公司在取得《临时采矿许可证》以前的采砂行为,是对西庄村合法权益的侵害,应当依照《中华人民共和国民法通则》第一百零六条第二款的规定,承担侵权的民事责任。《中华人民共和国矿产资源法》第三十条北大法宝第三款规定:“开采矿产资源给他人生产、生活造成损失的,应当负责赔偿,并采取必要的补救措施。“海运公司在取得《临时采矿许可证》以后的采砂行为,虽然主观上没有过错,但是依照民法通则一百零六条第三款“没有过错,但法律规定应当承担民事责任的,应当承担民事责任”的规定,亦应承担民事责任。西庄村遭受的损害,是自然侵蚀、岸边取砂和登州浅滩消退等多种原因形成的,海运公司只能承担与其行为相应的赔偿责任。西庄村主张由海运公司承担全部责任的理由不能成立。据此,一审法院判决:一、被告海运公司赔偿原告西庄村因海岸侵蚀造成的土地损失94.5万元,其他损失由原告西庄村自行承担;二、被告海运公司补偿原告西庄村155.98万元,作为其采取必要的护岸措施,防止损失进一步扩大的费用。案件受理费64010元和鉴定费15000元,由西庄村承担57282.25元,海运公司承担21727.76元。
Maritime Transport Company was dissatisfied with the judgment of the first instance, and alleged in the appeal that the authentication report on which the judgment of the first instance was based had not been verified by facts, and thus was not objective; the authentication report did not take many factors such as the effects of port construction, marine breeding and amount of quarried sand to Dengzhou Shallow Beach, the starting time of sand quarrying, etc. into account, and thus was not rational; the authentication report was the opinions of few persons, could not represent Oceanographic Research Institute, CAS, and thus was not reliable. Maritime Transport Company applied for re-authentication and requested Shandong Higher Court to amend the judgment of the first instance according to law. Xizhuang Village argued that the judgment of the first instance was based on a rational and impartial authentication conclusion, and was lawful and correct. It pleaded with Shandong Higher Court to reject the appeal and to sustain the judgment of the first instance. 上诉人海运公司不服一审判决,上诉称:一审判决依据的鉴定报告没有经过事实验证,缺乏客观性;鉴定报告对诸多因素如建港、海上养殖、挖砂数量对登州浅滩的影响、挖砂开始时间等未考虑,缺乏科学性;鉴定报告是个别人的意见,不能代表科学院海洋所,缺乏可靠性,申请重新鉴定并要求依法改判。被上诉人西庄村辩称:原审判决依据的鉴定结论科学公允,判决合法正确,要求驳回上诉,维持原判。
JUDGMENT 
Shandong Higher Court holds that all the facts found in the first instance may be adopted because they can be proven with materials, testimonials, the investigation reports and the transcripts of the parties' statements, and have been cross-examined in court. Oceanographic Research Institute, CAS is an authoritative institution of oceanographic research in China, and its authentication of the rationality of the investigation report issued by Yantai Oceanic Jurisdiction and that issued by the 1st Institute, SOA upon entrustment of Qingdao Maritime Court was procedurally lawful, and may be deemed as the basis for finding facts, adopting evidence and dividing liabilities for the present case. Maritime Transport Company's assertion that the authentication was opinions of few persons and could not represent Oceanographic Research Institute, CAS cannot be tenable. Its application for re-authentication on the grounds that the contents of the authentication was incomplete, had not been proved in practice and was disputable in the academic area shall be rejected. The judgment of the first instance found the facts clearly and applied the laws correctly, and thus shall be sustained. Therefore, Shandong Higher Court decided as follows in accordance with Item (1) of Paragraph 1 of Article 153 of the “Civil Litigation Law of People's Republic of China”: 山东省高级人民法院认为,原审认定的事实均有资料、证明、调查报告及当事人的陈述笔录在案为证,并已经过开庭质证和审查,可以采信。科学院海洋所是我国海洋研究的权威性机构,其受一审法院委托对烟台管区和海洋一所两份调查报告的科学性进行的鉴定从程序上是合法的,可以作为本案认定事实、采信证据、划分责任的依据。上诉人海运公司提出该鉴定是个别人的意见,不能代表科学院海洋所的主张不能成立。其以鉴定内容不全面,没有经过实践检验,学术界认识不一致为由要求重新委托鉴定的申请,应予驳回。原审判决认定事实清楚,适用法律正确,应予维持。据此,山东省高级人民法院依照《中华人民共和国民事诉讼法》第一百五十三条第一款第(一)项的规定判决:
The appeal shall be rejected, and the judgment of the first instance shall be sustained. 驳回上诉,维持原判。
The 64,010 yuan of case acceptance fee of the second instance shall be borne by Changdao Maritime Transport Company.

 二审案件受理费64010元由上诉人长岛县海运公司负担。
 

     
     
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