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Ten Model Maritime Trial Cases Published by the Supreme People's Court in 2017 [Effective]
最高人民法院发布2017年度十件海事审判典型案例 [现行有效]
【法宝引证码】

Ten Model Maritime Trial Cases Published by the Supreme People's Court in 2017 

最高人民法院发布2017年度十件海事审判典型案例

(August 8, 2018) (2018年8月8日)

In 2017, the maritime trial teams across the country closely centered on such general situations of the CPC and the country as the building of a maritime power and the “Belt and Road,” maximized the functional roles of maritime trials, and achieved new progress in aspects of improving maritime trial concepts, unifying adjudication criteria, promoting the development of international shipping, and safeguarding the national maritime rights and interests. In order to maximize such functions of the people's courts as judicial safeguard and service in the building of a maritime power and create good maritime judicial environment, the Supreme People's Court hereby has published ten model maritime trial cases in 2017. 2017年,全国海事审判队伍紧紧围绕海洋强国、“一带一路”建设等党和国家工作大局,充分发挥海事审判职能作用,在提升海事司法理念、统一裁判尺度、促进国际航运发展、维护国家海洋权益等方面取得新的进展。为充分发挥法院在海洋强国建设中的司法保障和服务职能,营造良好的海洋司法环境,最高人民法院发布了2017年度十件海事审判典型案例。
In those ten model cases published this time, maritime cases involving foreign elements take a large proportion. In particular, there are a case about maritime injunction filed by Soyuz TransLink Llp involving a country along the “Belt and Road,” a case about disputes over a contract on carriage of goods by sea involving Guangzhou Hyde International Freight Forwarding Co., Ltd., a case about disputes over a contract on carriage of goods by sea involving China Merchants Logistics Group (Tianjin) Co., Ltd., a case about shipbuilding disputes involving Harpina Owning Company Limited, where a series of international business disputes have been settled by mediation with Chinese wisdom, and a case about disputes over a ship mortgage contract involving Daewoo Shipbuilding & Marine Engineering Co., Ltd., where both the parties to the case and the disputes are in foreign countries, and one party seeks judicial remedy from the Chinese maritime court. The aforesaid cases have fully demonstrated the capability and level of the people's courts in adopting extra-territorial evidence, finding facts, and applying foreign laws and their image of judicial justice in equally safeguarding the lawful rights and interests of foreign and domestic parties. There are also a case about disputes over a contract on carriage of goods by sea involving Zhejiang Longda Stainless Steel Co., Ltd., where the application of law has been specified and the adjudicative standards have been unified, a case about disputes over s shipbuilding insurance contract involving Taizhou Sanfu Ship Engineering Co., Ltd., a case about disputes over liability for damage arising from collision of ships involving Xiamen Lipeng Shipping Co., Ltd. as well as a case about foreign-related maritime traffic accident involving Allan Mendoza Tablate, which is included in the pilot program of maritime criminal trial carried out by China's maritime courts. The aforesaid cases have explored and responded to the relevant issues in maritime trials and played good guiding roles in specifying the application of law, unifying the adjudicative standards, and improving the trial rules. (Huang Xiwu) 此次发布的十个典型案例中,具有涉外因素的海事案件比例较大。其中既有涉及“一带一路”沿线国家的联盟公司海事强制令案、海德公司海上货物运输合同纠纷案、招商局公司海上货物运输合同纠纷案,也有提供中国智慧,通过调解解决系列国际商事纠纷的哈皮那公司船舶建造纠纷案,还有案件当事人与纠纷均在国外,但当事人在中国海事法院寻求司法救济的大宇公司船舶抵押合同纠纷案,这些案件充分展示了人民法院采信域外证据、查明及适用外国法律的能力与水平,平等保护中外当事人合法权益的公正司法形象。此外还有明确法律适用、统一裁判规则的隆达公司海上货物运输合同纠纷案、三福公司船舶建造保险合同纠纷案、力鹏公司船舶碰撞损害责任纠纷案,以及我国海事法院试点海事刑事审判的艾伦·门多萨·塔布雷涉外海上交通肇事案,这些案件对海事审判中的相关问题进行了探索和回应,对明确法律适用、统一裁判尺度、完善审判规则起到了较好的指导作用。(黄西武)
Annex: 附:
Ten Model Maritime Trial Cases in 2017 2017年度十件海事审判典型案例
1. Zhejiang Longda Stainless Steel Co., Ltd. v. A.P. Moller-Maersk A/S (Case about disputes over a contract on carriage of goods by sea) 1. 浙江隆达不锈钢有限公司诉A.P.穆勒-马士基有限公司(A.P.Moller-MaerskA/S)海上货物运输合同纠纷案
[Basic Facts] 【基本案情】
In June 2014, Zhejiang Longda Stainless Steel Co., Ltd. (hereinafter referred to as “Longda Company”) exported a batch of stainless steel products to Colombo Port of Sri Lanka from Ningbo Port of China. Through a freight forwarder, Longda Company booked cargo space from A.P. Moller-Maersk A/S (hereinafter referred to as “Maersk A/S”) and the shipment of the goods involved started on June 28 of the same year. On July 9, 2014, through the freight forwarder, Longda Company sent an email to Maersk A/S and claimed for alteration of port or withdrawal of goods since the destination of the goods involved was erroneous. On the same day, Maersk A/S made a reply that since there were less than two days before the arrival of the goods, alteration of port failed to be arranged. If withdrawal of goods was necessary, Maersk A/S needed to make a reply after confirming with the destination port. On the subsequent day, the freight forwarder of Longda Company inquired whether the goods could be brought back in the same ship. On the same day, Maersk A/S replied that “It is not operational to bring the goods back in the same ship. After the discharge of the goods at the destination port, the consignee should conduct customs clearance at the destination port and then apply for withdrawal of the goods to the local Customs. With the approval of the Customs, the withdrawal of the goods may be arranged.” Around July 12, 2014, the goods involved arrived at the destination port. On May 19, 2015, Longda Company sent an email to Maersk A/S that it has applied for withdrawal of the goods as required by Maersk A/S. Soon afterwards, Maersk A/S notified Longda Company that the goods involved had been auctioned. Longda Company filed a lawsuit with the Ningbo Maritime Court and requested the Court to order that Maersk A/S should compensate for its goods loss and the corresponding interest. 2014年6月,隆达公司由中国宁波港出口一批不锈钢产品至斯里兰卡科伦坡港。隆达公司通过货运代理人向马士基公司订舱,涉案货物于同年6月28日出运。2014年7月9日,隆达公司通过货运代理人向马士基公司发邮件称,发现货物运错目的地要求改港或者退运。马士基公司于同日回复,因距货物抵达目的港不足2天,无法安排改港,如需退运则需与目的港确认后回复。次日,隆达公司的货运代理人询问货物是否可以原船带回。马士基公司当日回复“原船退回不具有操作性,货物在目的港卸货后,需要由现在的收货人在目的港清关后,再向当地海关申请退运。海关批准后,才可以安排退运事宜”。涉案货物于2014年7月12日左右到达目的港。2015年5月19日,隆达公司向马士基公司发邮件表示已按马士基公司要求申请退运,马士基公司随后告知隆达公司涉案货物已被拍卖。隆达公司向宁波海事法院提起诉讼,请求判令马士基公司赔偿其货物损失及相应利息。
[Adjudication] 【裁判结果】
The Ningbo Maritime Court rendered a judgment of first instance to dismiss the claim of Longda Company and Longda Company appealed. The Higher People's Court of Zhejiang Province rendered a judgment of second instance to revoke the judgment of first instance, amend it, and specify that Maersk A/S should compensate for Longda Company's 50% of goods loss and the interest thereof. Maersk A/S refused to accept the judgment of second instance and filed an application for retrial with the Supreme People's Court. 宁波海事法院一审判决驳回隆达公司的诉讼请求,隆达公司提起上诉,浙江省高级人民法院二审判决撤销一审判决,改判马士基公司赔偿隆达公司50%的货物损失及利息。马士基公司不服二审判决,向最高人民法院申请再审。
In the retrial, the Supreme People's Court held that: In accordance with the provisions of Article 308 of the Contract Law, the consignor to a contract on carriage of goods by sea should enjoy the right of claiming for verification of the contract. In the meantime, the rights and obligations of all parties should be determined by abiding by the principle of fairness. If it was difficult to realize verification of the carriage contract or verification of the carriage contract would seriously affect the normal operation of the carrier, the carrier may reject the consignor's claim for alteration of port or withdrawal of goods, but the carrier should, in a timely manner, notify the consignor of the reasons therefor. The mode of transport involved was international liner transport. Around July 12, 2014, the goods arrived at the destination port. On July 9, Longda Company required Maersk A/S to alter the port or withdraw the goods. Under the circumstance where there were only two to three days before the ship arrived at the destination port, the claims of Maersk A/S that the alteration of port failed to be arranged due to voyage and other reasons and the withdrawal of the goods in the same ship was not operational were objective and reasonable. The judgment of first instance supported the aforesaid claims of Maersk A/S, which conformed to the principle of fairness and should be sustained. Knowing that there was no one taking delivery of the goods at the destination port, Longda Company did not take measures for handling, resulting in the auction of the goods by the Customs. Its testification was insufficient to prove that Maersk A/S did not perform the obligation of cautiously managing the goods. The judgment of second instance that Maersk A/S should assume one half of loss to the goods involved lacked factual basis and was improper in the application of law and it should be corrected. 最高人民法院再审认为:依据合同法三百零八条的规定,海上货物运输合同的托运人享有请求变更合同的权利,同时也应遵循公平原则确定各方的权利和义务。如果变更运输合同难以实现或者将严重影响承运人正常营运,承运人可以拒绝托运人改港或者退运的请求,但应当及时通知托运人不能执行的原因。涉案运输方式为国际班轮运输,货物于2014年7月12日左右到达目的港,隆达公司于7月9日要求马士基公司改港或者退运,在距离船舶到达目的港只有两三天时间的情形下,马士基公司主张由于航程等原因无法安排改港、原船退回不具有操作性,客观合理。一审判决支持马士基公司的上述主张,符合公平原则,予以维持。隆达公司明知目的港无人提货而未采取措施处理,致使货物被海关拍卖,其举证也不足以证明马士基公司未尽到谨慎管货义务,二审法院判决马士基公司承担涉案货物一半的损失,缺乏事实依据,适用法律不当,应予纠正。
[Significance] 【典型意义】
Whether Article 308 of the Contract Law applies to a contract on carriage of goods by sea has always been a controversial issue in both theoretical research and trial practice. By closely centering on case facts and following the principle of fairness in the Contract Law, the judgment rendered upon retrial of this case has reasonably balanced interests of all parties to the contract on carriage of goods by sea, determined the general rules that Article 308 of the Contract Law was applicable to the contract on carriage of goods by sea, unified the adjudicative standards for relevant disputes, and provided judicial experience for the on-going revision of the Maritime Law of the People's Republic of China. The judgment rendered upon retrial has supported the contention of the foreign party, showed the people's court's strict application of law and equal protection of the lawful rights of domestic and overseas parties, and highlighted China's good legal environment and business environment. 合同法三百零八条是否适用于海上货物运输合同,一直是理论研究与审判实务中争议很大的问题。本案再审判决紧紧围绕案件事实,依据合同法之公平原则,合理平衡海上货物运输合同各方当事人之利益,确定了合同法三百零八条适用于海上货物运输合同的一般规则,统一了相关纠纷的裁判尺度,为我国正在进行的海商法修订工作提供司法经验。再审改判支持了外方当事人的抗辩,表明人民法院严格适用法律,平等保护境内外当事人的合法权利,彰显我国良好的法治环境和营商环境。
2. Shipping Insurance Operation Center of PICC Property and Casualty Company Limited v. Taizhou Sanfu Ship Engineering Co., Ltd. (Case about disputes over a shipbuilding insurance contract) 2. 中国人民财产保险股份有限公司航运保险运营中心与泰州三福船舶工程有限公司船舶建造保险合同纠纷案
[Basic Facts] 【基本案情】
On April 28, Taizhou Sanfu Ship Engineering Co., Ltd. (hereinafter referred to as “Sanfu Company”) and Hermine Company concluded a shipbuilding contract. On the same day, Sanfu Company, Hermine Company, and the designer Shanghai Jiahao Company concluded the technical specifications for shipbuilding and agreed on that when the ship reached the freeboard draft of 8.25 m, the carrying capacity was about 16,900 tons. On May 14, 2011, Sanfu Company covered shipbuilding insurance for the ship to the Shipping Insurance Operation Center of PICC Property and Casualty Company Limited (hereinafter referred to as “Shipping Insurance Operation Center of PICC”) and on May 17, the Shipping Insurance Operation Center of PICC issued an insurance policy to Sanfu Company. It was listed in Article 3 of the insurance clauses printed on the back of the insurance policy involved that the insurance coverage included “losses arising from any part of the insured ship due to design errors” and the exclusions as listed in Article 4 thereof included “fines as prescribed in the shipbuilding contract as well as indirect losses arising from rejection and other reasons.” It was shown in the empty ship test before the basic completion of the ship involved that the empty ship weighed 6,790 tons and when the draft was 8.25 m, the carrying capacity was 15,968.60 tons, which was 931.40 tons less than that as stipulated in the design contract. After identifying the aforesaid problems, on March 10, 2012, Sanfu Company and Hermine Company concluded a memorandum, in which both parties consented to reduction of the price to USD 2.86 million upon consultation. Afterwards, Sanfu Company increased the carrying capacity of the ship to 16,593.90 tons by increasing the freeboard draft of 0.2 m and on March 16, 2012, Sanfu Company delivered the ship to Hermine Company. On July 9, 2012, Sanfu Company made an insurance claim to the Shipping Insurance Operation Center of PICC for the aforesaid losses arising from price reduction but it was refused. On November 26, Sanfu Company filed this lawsuit. 三福公司与波兰赫密恩公司于2008年4月28日签订了造船合同,同日三福公司、赫密恩公司与设计方上海佳豪公司签订该船舶建造的技术规格书,约定船舶达到干舷吃水8.25米时,载重吨大约为16900吨。三福公司于2011年5月14日为该艘船舶的建造向人保航运中心投保船舶建造险,人保航运中心于5月17日向三福公司签发保险单。涉案保险单背面印制的保险条款第三条列明保险责任范围包括“保险船舶任何部分因设计错误而引起的损失”,第四条列明的除外责任包括“建造合同规定的罚款以及由于拒收和其他原因造成的间接损失”。涉案船舶基本建成前进行的空船测试显示:空船重量为6790吨,吃水8.25米时载重吨为15968.60吨,比设计合同的约定少931.40吨。三福公司发现上述问题后,于2012年3月10日与赫密恩公司签订备忘录协商同意降价286万美元。此后,三福公司通过增加船舶干舷吃水0.2米将船舶载重吨增加至16593.90吨,于2012年3月16日向赫密恩公司实际交付船舶。三福公司于2012年7月9日就上述降价损失向人保航运中心提出保险索赔被拒,遂于11月26日提起诉讼。
[Adjudication] 【裁判结果】
In the trial of first instance, the Shanghai Maritime Court held that the economic losses of CNY 18,038,878 Sanfu Company suffered due to draft design errors were within the coverage of the shipbuilding insurance and it rendered a judgment that the Shipping Insurance Operation Center of PICC should compensate for such losses and the interest thereof. In the trial of second instance, the Higher People's Court of Shanghai Municipality basically consented to the judgment of first instance, but it held that the judgment of first instance was improper in failing to deduct the deductible amount of CNY 140,000 as agreed in the insurance policy. Therefore, the Higher People's Court of Shanghai Municipality amended the judgment of first instance accordingly. The Shipping Insurance Operation Center of PICC refused to accept the judgment of second instance and filed an application for retrial with the Supreme People's Court. 上海海事法院一审认为,三福公司因船舶吃水设计错误所遭受的经济损失人民币18038878元属于船舶建造险的承保范围,判决人保航运中心赔偿该损失及其利息。上海市高级人民法院二审基本同意一审判决意见,但认为一审判决没有扣除保险单约定的免赔额人民币14万元不当,遂在此基础上相应改判。人保航运中心不服二审判决,向最高人民法院申请再审。
In the retrial, the Supreme People's Court held that: (1) In general, the term “ships” as prescribed in the Maritime Law should be limited to ships that have been basically completed and have navigation capacity. Whether the ships covered by the shipbuilding insurance were ships as prescribed in the Maritime Law should be determined based on whether they had navigation capacity by stages. When Sanfu Company covered the insurance, the shipbuilding materials have not been transferred to the shipway, it was far from completion of the ship in a general sense of the Maritime Law. In addition, the insurance accident involved as well as the reasons occurred at the stage of building and design before the shipbuilding was basically completed. Therefore, the Maritime Law should not apply to the disputes involved. It was erroneous for the courts of first instance and second instance to render judgments in accordance with the provisions of the Maritime Law on maritime insurance and such judgments should be corrected. (2) The insurance clauses should first be interpreted according to common sense. The insurance clauses involved provided that “The Company shall be responsible for compensating the following losses, liabilities, and expenses of the insured ship”; the ship refers to the ship owner, operator, or builder, and other relevant interested parties; and “losses and expenses” refers to “losses and expenses” of the insured. Without special restrictions, such “losses and expenses” may be generally interpreted as tangible physical hazards (damages) and intangible economic losses. (3) It has been specified in the shipbuilding insurance policy that the text of the shipbuilding contract should serve as the basis. Therefore, the insurance coverage should be determined according to the insurance policy and insurance clauses. The insurer and the ship buyer made a separate consultation on compensation beyond the stipulations of the shipbuilding contract. Such consultation on compensation has exceeded the reasonable expectations of the parties to the insurance contract when they concluded the contract and the insurer had the right to refuse compensation. Therefore, the judgment was changed by the Supreme People's Court: The Shipping Insurance Operation Center of PICC should pay Sanfu Company CNY 5,640,640.45 as compensation for losses and the interest thereof. 最高人民法院再审认为:(一)海商法规定的船舶原则上应限于基本建成而具有航海能力的船舶,船舶建造险所承保的船舶是否属于该法规定的船舶,需要根据其是否具有航海能力分阶段相应认定。在三福公司投保当时造船材料尚未移上船台,远未建成为海商法一般意义上的船舶,且涉案保险事故及其原因发生在船舶基本建成前的建造与设计阶段,本案纠纷不应适用海商法的规定。一、二审法院适用海商法关于海上保险的规定作出判决错误,应予纠正。(二)对保险条款首先应当按照通常理解予以解释,涉案保险条款规定“本公司对保险船舶的下列损失、责任和费用,负责赔偿”,以船舶指代船舶所有人、经营人或者建造人等相关利益主体,“损失和费用”是指被保险人的“损失和费用”。在没有特别限定情况下通常可以理解为包含有形物理损害(损坏)和无形的经济损失。(三)船舶建造保险单已经明确以造船合同文本为基础,应根据保险单和保险条款确定保险责任范围。被保险人与船舶买方在造船合同约定之外另行协商赔偿,超出保险合同当事人订立合同时的合理预期,保险人有权拒绝赔付。遂改判人保航运中心赔偿三福公司损失人民币5640640.45元及其利息。
[Significance] 【典型意义】
As a shipbuilding power, China has ranked the first in the world in shipbuilding orders it holds and actual total weight tonnage of ships it has built. This case involves the application of laws for shipbuilding insurance and the interpretation of insurance clauses as well as a series of complex application of laws and maritime technical issues including ship design errors and determination of the amount of compensation for losses. The shipping and insurance industries have paid special attention to this case and used the retrial of this case as an exemplary action for legal handling of similar cases. Through common clarification of technical issues and painstaking legal argumentation, the judgment of the Supreme People's Court rendered upon retrial has clarified one by one the rules on application of laws for shipbuilding insurance, the methods for interpretation of insurance clauses, and the basis for determining ship design errors and the relevant losses, and positively responded to such legal hot issues at loggerheads of the shipbuilding industry and the insurance industry. It has played a positive role in guiding the people's courts across the country in the fair trial of cases about similar disputes, standardization of performance of the relevant market players, and promotion of stable and healthy development of the shipping insurance industry. 中国作为造船大国,多年来持有造船订单和实际造船总载重吨位居全球第一。本案涉及船舶建造险的法律适用、保险条款的解释,以及船舶设计错误、损失赔偿数额认定等一系列比较复杂的法律适用和海事专门技术问题。航运和保险业特别关注,将本案再审作为依法解决类案的一个示范性诉讼。最高人民法院再审判决通过通俗阐明专业技术问题和抽丝剥茧的法律论证,逐一厘清了船舶建造险的法律适用规则、保险条款的解释方法、船舶设计错误及有关损失的认定依据,积极回应了船舶建造业与保险业长期争执不休的法律热点问题,对指导全国法院公正审理同类纠纷案件、规范相关市场主体的履约行为、促进航运保险业稳定健康发展,均具有积极作用。
3. Guangzhou Hyde International Freight Forwarding Co., Ltd. v. Fujian Itawa Industry & Trade Co., Ltd. (Case about disputes over a contract on carriage of goods by sea) 3. 广州海德国际货运代理有限公司与福建英达华工贸有限公司海上货物运输合同纠纷案
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