Mitsui Sumitomo Insurance Company Limited v. International multimodal transport contract dispute between COSCO Shipping Container Transport Co., Ltd. [Basic facts] In March 2015, the non-case SONY EMCS (MALAYSIA) SDN BHD Company (hereinafter referred to as Sony Company)

Mitsui Sumitomo Insurance Company Limited v. COSCO Shipping Container Transport Co., Ltd. International Multimodal Transport Contract Dispute

[Basic Case] ​​

In March 2015, the non-case SONY EMCS (MALAYSIA) SDN BHD Company (hereinafter referred to as Sony Company) commissioned COSCO Shipping Container Transport Co., Ltd. (hereinafter referred to as COSCO Shipping Company) to transport a batch of LCD panels first from Malaysia Port Klang to Port Piraeus, Greece, and then to Nitra, Slovakia via railway. COSCO Shipping Company has issued 4 sets of non-transferable, clean intermodal shipping shipping bills. The goods suffered cargo damage in the railway transport section located in Greece due to train derailment. As the insurer of the goods involved, Sumitomo Mitsui Maritime Fire Insurance Co., Ltd. (hereinafter referred to as Mitsui Insurance Company), as the insurer of the goods involved, filed a claim against Sony Company and filed a claim against COSCO Shipping Company. COSCO Shipping Company argued that the reason for the train's derailment was that the local rainstorm continued during the accident period, causing geological collapse, and the carrier can be exempted from liability; even if it cannot be exempted from liability, it can enjoy the carrier's unit's liability limit in accordance with the law.

[Judgement Results]

The Shanghai Maritime Court held in the first instance that Mitsui Insurance Company was registered in Japan, with its transportation destination in Slovakia, and the accident occurred in Greece. The dispute in the case is a dispute under foreign-related civil legal relations. The parties can choose to resolve the dispute and apply the law. During the trial, the parties reached an agreement to apply Greek law to the determination of responsibility and the method of liability for the railway transportation sections involved in the case, and the laws of the People's Republic of China were chosen to apply for the remaining disputed issues, and the court chose to respect this.

Greece is a member of the Convention concerning International Carriage by Rail, and the Uniform Rules Concerning the Contract of International Carriage of Goods by Rail is Annex B to the Convention on International Carriage of Railways. Greece did not make any reservations when it ratified its accession to the Convention, which was preferred to its domestic law in Greece. According to Article 23.2 of the International Convention on Railway Transport, the carrier shall not be liable for compensation if the loss, damage or delayed delivery of goods is caused by the inability of the carrier to prevent it from occurring. Although there was continuous rainfall before the accident, compared with the historical precipitation data in the accident area, the precipitation in the month of the accident was only at a historical medium-to-upper level, and there was no obvious abnormality. However, the train derailment was not caused by direct impact from rainwater, but the geological effect caused by frequent rainfall in the accident area eroded the soil caused by the geological effects caused by the erosion of the soil. It is a process from quantitative change to qualitative change, and the specific time will not be predicted and controlled by humans. Whether railway maintenance is appropriate or can delay the process of such geological changes, but there is no evidence that it can be accurately predicted, controlled and absolutely avoided. Therefore, COSCO Shipping Company may invoke Article 23.2 of the International Railway Transport Convention and shall not be liable for compensation for cargo damage. Mitsui Insurance Company was dissatisfied with the first-instance judgment and appealed to the Shanghai Higher People's Court. During the second instance, Mitsui Insurance Company withdrew its appeal.

[Typical Significance]

This case is an international multimodal transport contract dispute including shipping. The shipping starts in Malaysia and passes through Greece to railway. The destination is Slovakia. It is a typical sea-rail intermodal transport that transports goods to landlocked Central and European countries through the "21st Century Maritime Silk Road" through the Mediterranean to railway. With the increasing close trade exchanges between countries and regions in the "Belt and Road" industry, the demand for multimodal transport in international trade has also shown a rapid growth trend. In international multimodal transport contract disputes spanning multiple countries and involving multiple modes of transportation, there is a situation of inconsistent understanding of the relationship between the "network responsibility system" and the law on determining the appropriate provisions of the transportation section.In this case, the court adheres to the principle of autonomy of will and fully respects the choice of the parties. The railway transportation section shall be subject to Greek law, and the remaining disputed issues shall be subject to the laws of the People's Republic of China, and shall apply the relevant provisions of the "International Railway Transport Convention" and the "Uniform Rules for the International Railway Carriage Contract" in accordance with the legal origins under the Greek Law. In addition, the natural climate conditions and geographical and hydrological conditions of countries and regions along the "Belt and Road" vary greatly, and the construction and maintenance levels of infrastructure are also uneven. The occurrence of freight accidents often lead to complex situations where multiple factors intertwin and coexist. When judging the risk responsibility, this case uses the method of causal analysis, fully demonstrated and thoroughly explained, providing reference ideas for the handling of similar disputes.

[First instance case number] (2016) Shanghai 72 Minchu No. 288

[Second instance case number] (2018) Shanghai Minzhong No. 140

Bank of China Co., Ltd. Rizhao Lanshan Branch and Tianjin Southwest Maritime Transportation Co., Ltd. and other maritime cargo transportation contract dispute case

[Basic case facts]

Bank of China Co., Ltd. Rizhao Lanshan Branch (hereinafter referred to as Lanshan Bank of China) purchased production raw materials for Rizhao Guangxin Chemical Technology Co., Ltd. (hereinafter referred to as Guangxin Company) based on the credit period. This case involves three 90-day forward irrevocable letters of credit issued by Lanshan Bank of China, and all beneficiaries are the consignee Marubeni Corporation (hereinafter referred to as Marubeni Company). Yingshe Shipping Company issued three sets of instructions to Marubeni Company on behalf of the carrier Tianjin Southwest Shipping Co., Ltd. (hereinafter referred to as Southwest Company), all of which recorded that the shipper was Marubeni Company, loading port South Korea Ulsan , unloading port China Lianyungang , the cargo name is polymer-grade propylene, and the ship name is "HONG YU". The goods involved arrived in Lianyungang on March 27, 2017. Southwest Company deposited the goods into the shore tank designated by Guangxin Company based on the guarantee issued by Marubeni Company and extracted them by Guangxin Company. According to the letter of credit trade document process, Lanshan Bank of China obtained three sets of bills of lading involved in the case on April 14. Three months later, because Guangxin Company was unable to pay the full redemption order, Lanshan Bank of China advanced US$2033,796.85. After Lanshan Bank of China recovered US$488,086.33. In order to protect its legitimate rights and interests, Lanshan Bank of China applied for the court to seize the "HONG YU" round before lawsuit, and claimed to Southwest Company that had no orders and were released from based on the bill of lading held by the case, and demanded compensation for the actual advance payment and interest under the letter of credit. Southwest Company argued that Lanshan Bank of China knew that Guangxin Company must pick up goods without orders according to custom, and that the financing bank is not the holder of bills of lading in the usual sense, and there is no causal relationship between the losses suffered and the act of unordered release, and Southwest Company should not bear the liability for compensation.

[Judgement Results]

Ningbo Maritime Court The first instance held that Lanshan Bank of China enjoyed and did not waive the rights of bill of lading holders stipulated in Article 71 of the Maritime Law , and may claim compensation from the carrier based on the legal relationship of the bill of lading. After deducting the US$488,086.33 recovered by Lanshan Bank of China, the Southwest Company was ordered to compensate Lanshan Bank of China for economic losses of US$1545,710.52. Southwest Company was dissatisfied with the first-instance judgment and filed an appeal.

Zhejiang Higher People's Court The second instance held that Article 2 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Cases of Delivery of Goods without Original Bills of Lading" did not exclude other entities that legally transfer the original Bill of Lading, such as the issuing bank of documented letters of credit, partners with commercial interests, and other entities that hold original Bill of Lading after legal circulation. The actual amount of advance payment claimed by the Bank of Lanshan Central did not exceed the value of the goods when loading under the bill of lading and the scope of compensation for unordered goods stipulated by law. The judgment rejected the appeal and upheld the original judgment.

[Typical Significance]

This case is a maritime cargo transportation contract dispute involving trade financing factors of letters of credit. It has three typical significances: First, from the perspective of textual meaning and purpose interpretation, the legal and judicial interpretation regulations involving the definition of bill of lading holders and the carrier's liability for compensation for unordered goods issuing goods is confirmed to confirm that the bank of the letter of credit can enjoy the legal status and right to claim the original bill of lading. Second, we have made some innovations in determining the loss caused by unordered delivery.Article 55 of the Maritime Law only stipulates the upper limit and general calculation method of the amount of compensation for loss of goods. The bank claims actual advance payment losses below the specified limit, which is in line with the principle of loss filling. Third, it has positive significance for regulating the order of maritime cargo transportation. With the changes in the way banks provide trade financing services to enterprises, banks protect their legitimate rights and interests through possession of bills of lading, which meets commercial needs. The carrier shall still bear the liability for compensation for the release of goods without orders.

[First instance case number] (2017) Zhejiang 72 Minchu No. 1601

[Second instance case number] (2018) Zhejiang Minzhong No. 624

Qu Moumou sued China Dadi Property Insurance Co., Ltd. Weihai Central Branch, China Dadi Property Insurance Co., Ltd. Shidao branch marine insurance contract dispute case

[Basic case facts]

On May 25, 2011, Qu Moumou and China Dadi Property Insurance Co., Ltd. Shidao Branch (hereinafter referred to as Dadi Insurance Shidao Branch) signed two insurance contracts on the "Lu Rongyu 1813" and "Lu Rongyu 1814" ships. Both contracts stipulate that the insurance is the comprehensive insurance of the "China Land Property Insurance Co., Ltd., Limited Liability Format Ocean Fishing Boat Insurance Terms", with a fishing boat insurance value of 4.2857 million yuan and an insurance amount of 3 million yuan. Article 2 of the insurance clauses involved in the case (scope of liability) states that the insurance is divided into total loss insurance and comprehensive insurance, among which the comprehensive insurance covers six liabilities and expenses, including all or part of the losses of the insured fishing boat caused by the following three reasons and the rescue costs caused by the three reasons: 1. Natural disasters and accidents such as storms, typhoons, thunder, flowing ice, earthquakes, tsunamis, floods, volcanic eruptions, stranding, reefs, sinking, collisions, fires, boiler or other equipment explosions, oil pipe ruptures and other natural disasters and accidents; 2. Potential defects of the hull and machine; 3. Negligence of the captain, chief mate, crew, water diversion officer or ship repair personnel. Article 3 of the insurance clauses involved in the case (except liability) states that the insurer is not responsible for compensation for the eight listed losses, expenses and liabilities, of which item 1 and item 2 are: losses caused by the insured fishing boat not meeting the conditions for seaworthiness; losses caused by the negligence of the shipowner and his representative and the shipowner and his representative and the shipowner. Dadi Insurance Shidao Branch did not provide evidence to prove that it clearly explained to Qu Moumou the exclusion liability clauses and special agreements on the insurance policy when entering into the insurance contract. The two fishing boats were repaired and maintained at the Beigang Fishing Wharf, Yandunjiao, Rongcheng City, Shandong Province after June 1, 2011. On June 25, 2011, Qu Moumou tried to drive the two ships (the main engine of the "Lu Rongyu 1814" has been lifted out of the cabin for maintenance) to the South Wharf in order to avoid the typhoon. Later, due to the servo failure on the way, the two ships were stranded and scrapped under the influence of the typhoon waves.

[Result]

Qingdao Maritime Court held in the first instance that the ship involved in the case was completely damaged during the typhoon avoidance. This reason falls within the scope of insurance compensation stipulated in the insurance contract. It was ruled that Dadi Insurance Shidao Branch was ordered to pay Qu Moumou 6 million yuan in insurance compensation and interest; China Dadi Property Insurance Co., Ltd. Weihai Central Branch (hereinafter referred to as Dadi Insurance Weihai Branch) bears additional payment liability for the compensation. Qu Moumou, Dadi Insurance Weihai Branch, and Dadi Insurance Shidao Branch were both dissatisfied with the first-instance judgment and filed an appeal.

Shandong Higher People's Court The second instance held that the accident involved in this case first included the negligence of the ship owner and then the impact of the typhoon. Without any cause, the accident will not occur, and the direct, effective and decisive cause is difficult to determine. Therefore, the Weihai Branch of Dadi Insurance and Shidao Branch of Dadi Insurance should pay insurance money to Qu Moumou at a ratio of 50%. The second instance sentenced Dadi Insurance Shidao Branch to pay Qu Moumou's insurance compensation of 3 million yuan and interest, and Dadi Insurance Weihai Branch assumed the supplementary payment responsibility. Qu Moumou was dissatisfied with the second-instance judgment and applied to the Supreme People's Court for a retrial.

The Supreme People's Court held that the accident involved was caused by three reasons: typhoon, the negligence of the ship owner, and the negligence of the captain and crew, among which typhoon was the main cause. The insurance clauses involved in the case have clearly stipulated that the shipowner’s negligence does not fall within the scope of coverage specified by him.Since the insurer did not make clear to Qu Moumou on the provisions of exempting the insurer from liability in accordance with the provisions of Article 17, paragraph 2 of the Insurance Law, the liability clauses involved in the case do not take effect. The moving of the ship involved in the case in the port does not fall under the "ship sailing" stipulated in Article 244, Paragraph 1, Paragraph 1 of the Maritime Commercial Law. The Dadi Insurance Shidao Branch claims exemption of insurance compensation liability in accordance with this article. There is no factual basis. Among the three reasons for the accident involved, the negligence of the typhoon and the captain and crew is a risk of underwriting, while the negligence of the shipowner is a non-underwriting risk. When an insurance accident occurs due to the combined effect of underwriting risks and non-underwriting risks, the court decided that Dadi Insurance Shidao Branch shall bear 75% of the insurance compensation liability for the accident involved based on the degree of impact of each risk (cause) on the accident. The Supreme People's Court retrialed the judgment that Dadi Insurance Shidao Branch would pay Qu Moumou 4.5 million yuan in insurance compensation and interest, and Dadi Insurance Weihai Branch would assume the additional payment responsibility.

[Typical Significance]

This case is a typical ship insurance contract dispute case. The retrial judgment in this case played a guiding role in both trial ideas and the application of substantive rules, which are mainly reflected in the following aspects: First, the basic issues involved in the determination of insurance compensation liability include the overall effectiveness of the contract, the cause of the accident, the scope of insurance coverage, the exclusion liability, the causal relationship composition, etc. The retrial judgment in this case clarified the level of argumentation about the basic issues. Second, regarding the handling of damage compensation for multiple causes and one effect, our country's law does not stipulate the "proximal cause principle" of insurance compensation. Judging from the principle of determining compensation in corresponding proportions in life insurance, Article 25 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Insurance Law of the People's Republic of China (III)" stipulates that compensation is determined in the corresponding proportional proportionality, my country's insurance judicial practice is tending to adopt the gradual development of the international proportional causal relationship theory, and the retrial judgment in this case follows this judicial trend. Third, the retrial judgment of the case clarified the meaning of "starting sail" in Article 244 of the Maritime Law.

[First instance case number] (2016) Qinghai Fashangchu No. 240

[Second instance case number] (2016) Lumin Zhong No. 1542

[Retrial case number] (2017) Supreme Court Civil Resign No. 413

China Rattan Shipping (Dalian) Co., Ltd. applied to establish a maritime compensation liability restriction fund case

[Basic case facts]

On March 9, 2017, all Chinese "Zhong Ran 39" ships of China Rattan Shipping (Dalian) Co., Ltd. (hereinafter referred to as China Rattan Company) collided with the North Korean "Kunshan" ship (M.V KUM SAN) in the Lianyungang waters of China, causing losses. The "China Ram 39" ship is a coastal transport ship with a total tonnage of 2,548 tons. China Ram Company applied to the Dalian Maritime Court for the non-personal casualties that can limit compensation liability due to ship collisions. The amount of the fund is in accordance with the "Regulations on Maritime Compensation Liability Liability Limits for Ships Less than 300 Gross Tons and Coastal Operations" (hereinafter referred to as the "Liability Limits Regulations"), and the amount of RMB and interest converted from the 254,508 Special Drawing Rights. The owner of the "Kunshan" ship, North Korea's Kingsoft Shipping Company, did not apply to the court to establish a maritime compensation liability restriction fund. It objected to the establishment of the fund with Dalian Eurasia Trading Co., Ltd., the consignee of the goods carried by the "Kunshan" ship, and believed that the amount of the fund should be determined in accordance with Article 210 of the Maritime Law.

[Judgement Results]

The Dalian Maritime Court held that the total tonnage of "China Ram 39" wheel is 2,548 tons, engaged in transportation between Chinese ports, and in accordance with the provisions of Article 210, paragraph 2 of the Maritime Law on "ships with a total tonnage of less than 300 tons, ships engaged in transportation between ports of , and ships engaged in coastal operations, the compensation limit shall be formulated by the transportation authority of the State Council and shall be implemented after approval by the State Council". The compensation limit for the "China Ram 39" wheel should be subject to the "Liability Limit Regulations". However, according to Article 5 of the provisions, if the maritime compensation limit for the ship involved in the same accident is subject to Article 210 of the Maritime Law or Article 3 of these Provisions, the maritime compensation limit for the other ship involved shall also apply.Although the owner of the Kunshan ship that collided with the "China Ram 39" wheel did not apply to the court to establish a maritime compensation liability restriction fund, the total tonnage of the ship was 5,852 tons and engaged in international transportation. The maritime compensation limit should be subject to Article 210 of the Maritime Law. Therefore, as other ships involved in the same accident, the maritime compensation limit should also be subject to Article 210 of the Maritime Law. In summary, the court ruled to allow China Ran Company to establish a maritime liability restriction fund, with the amount of the fund being the RMB amount and its interest converted from the non-personal injury and death compensation limit of 509016. The first instance ruling has now taken effect.

[Typical Significance]

In accordance with the "Liability Limit Regulations" approved by the State Council, the maritime compensation limit for ships with less than 300 gross tonnage and coastal transportation and coastal operations is 50% of the maritime compensation limit for ships engaged in international transportation and operation. However, there are exceptions, that is, the same maritime compensation limit shall be subject to the ships involved in the same accident, and the higher limit regulations shall prevail. China Ran Company claims that the above-mentioned rules of "the same provisions apply to the ships involved in the same accident can only apply if the rights holders of the ships involved in the same accident claim to enjoy the limit of maritime liability or apply for the establishment of the limit of maritime liability fund. Since the owner of the "Kunshan" round did not apply to the court to establish a maritime liability restriction fund, the above rules do not apply to this case. The court held that if the maritime compensation limit for the ship involved in the same accident should be subject to the circumstances stipulated in Article 210 of the Maritime Law, the maritime compensation limit for other ships involved should also be subject to the provisions of Article 210 of the Maritime Law, regardless of whether the right holder actually applies to the establishment of a maritime compensation liability restriction fund. The court correctly interpreted the rule that "the same provisions apply to the ships involved in the same accident", equally protected the legitimate rights and interests of Chinese and foreign parties, and fully reflected the attitude of Chinese courts to fairly hear foreign maritime cases.

[Case No.] (2017) Liao 72 Minte No. 104

Han Moumou applied for the establishment of a maritime compensation liability restriction fund

[Basic case]

The owner of the "Xiang Zhangjiajie Cargo 3003" ship is Han Moumou, with a total tonnage 2,071 tons. The ship holds the transport license for inter-provincial ordinary cargo ships in the middle and lower reaches of the Yangtze River and its tributaries and the seaworthiness certificate for inland ships. It is allowed to sail in Class A navigation zones for self-dumping sand ships. On May 9, 2016, the "Xiang Zhangjiajie Cargo 3003" ship collided with the "Enki 1" ship while floating in the D9 in the Minjiang Estuary, causing damage to the "Enki 1" ship and the cargo on board. Han Moumou applied to the court to establish a maritime liability restriction fund.

[Judgement Results]

The Xiamen Maritime Court held in the first instance that Han Moumou was the registered owner of the "Xiang Zhangjiajie Cargo 3003". Although the ship was an inland ship, according to the "Inland Ship Navigation Certificate" provided by him, the navigation area of ​​the ship was an inter-provincial inland route of the middle and lower reaches of the Yangtze River and its tributaries. When an accident involved occurred, it was sailing at the mouth of the Minjiang River. It belongs to the "Regulations on Maritime Compensation Liability Limits for Ships Less than 300 Gross Tons and Coastal Transportation and Coastal Operations" (hereinafter referred to as the "Liability Limit Regulations") stipulated in Article 4 of the "Regulations on the Transportation of Cargo or Coastal Operations of Ships with Gross than 300 Gross Tons and Coastal Operations" (hereinafter referred to as the "Liability Limit Regulations") approved by the State Council. The first instance ruled to allow Han Moumou to apply for the establishment of a maritime liability restriction fund. The relevant interested parties were dissatisfied with the first-instance ruling and filed an appeal.

The Fujian Higher People's Court held in the second instance that although the ship involved in the case, although the ship "Xiang Zhangjiajie Cargo 3003" is an inland river ship, its navigation operations in coastal waters is a ship engaged in coastal operations stipulated in Article 4 of the "Liability Limit Regulations" may apply for the establishment of a maritime compensation liability restriction fund in accordance with the law. The second-instance ruling rejected the appeal and upheld the first-instance ruling. The relevant interested parties were dissatisfied with the second-instance ruling and filed for a retrial.

The Supreme People's Court held that the "Xiang Zhangjiajie Cargo 3003" ship holds the transport license for inter-provincial ordinary cargo ships in the middle and lower reaches of the Yangtze River and its tributaries and the seaworthiness certificate for inland ships, and is allowed to sail in Class A sailing area, and is an inland ship. The ship collision accident involved occurred at the Minjiang River estuary in Fujian, and was not the navigation area approved for navigation by the "Xiang Zhangjiajie Cargo 3003" ship.The nature of the ship of the "Xiang Zhangjiajie Cargo 3003" ship and the approved navigation area will not change due to the actual navigation area of ​​the ship. As an inland ship, the "Xiang Zhangjiajie Cargo 3003" does not fall within the scope of the ship that applies to the Liability Limit Regulations. The retrial was revoked the first and second instance rulings and rejected Han's application to establish a maritime liability restriction fund.

[Typical Significance]

Ships stipulated in Article 3 of the Maritime Law are limited to sea ships. There is controversy in judicial practice regarding whether the maritime liability restriction system is applicable to the navigation of inland ships at sea. The "Regulations on Limits of Liability" approved by the State Council is derived from the authorization of Article 210 of the Maritime Law. The "ships engaged in cargo transportation or coastal operations between ports of the People's Republic of China" stipulated should still be limited to sea ships. Driven by interests, the problem of illegal maritime transportation in inland river ships in recent years is very prominent, seriously threatening the safety of people, property and environment. In this case, the Supreme People's Court further clarified that the nature of the inland ship and the approved navigation area will not change due to the actual navigation area of ​​the ship, which is of positive significance for standardizing shipping order and unifying the judgment standards for similar cases.

[First instance case number] (2016) Min 72 Minte No. 90

[Second instance case number] (2016) Minmin Zhong No. 1587

[Retrial case number] (2018) Supreme Court Civil Rebate No. 453

Shanghai Branch of China People's Property Insurance Co., Ltd. v. Jiangsu Hualong Maritime Transport Co., Ltd. and Song Moumou Tonghai Waters Cargo Transport Contract Dispute case

[Basic Case] ​​

On May 27, 2017, Guangzhou Haida Feed Co., Ltd. (hereinafter referred to as Haida Company) ordered corn from non-cases and planned to ship it to Hunan Province for sale. On July 26 of the same year, Haida Company entrusted Jiangsu Hualong Shipping Co., Ltd. (hereinafter referred to as Hualong Company) to transport the corn involved in the case from Jingjiang Wharf to Changsha, Hunan, Yueyang and Miluo, respectively. On July 28, Hualong Company and Song (Song's daughter) agreed to transport the goods from Jingjiang to Yueyang from the "Far East 98" ship to Song. On August 3, Hualong Company and Song jointly signed and issued relevant tickets (way bills), stating that both the shipper and the consignee were Haida Company. The bill states that this waybill has the effect of a contract after being signed and recognized by the parties to the entrusting party, and the rights, obligations and boundaries of responsibility between the carrier, the consignee and the consignee are handled in accordance with the relevant provisions of the "Rules on Waterway Freight Transportation" (hereinafter referred to as the "Currency Regulations") and the relevant provisions of the transportation and miscellaneous expenses. When the cargo was ready to cover the canvas after loading the cargo at the port of departure, it suddenly rained heavily, causing the corn on the bow and cargo hold to become moldy. China People's Property Insurance Co., Ltd. Shanghai Branch (hereinafter referred to as PICC Shanghai Branch) obtained the right of subrogation after paying compensation to Haida Company as the insurer, and demanded that Hualong Company and Song Moumou bear joint and several liability.

[Result]

The Wuhan Maritime Court held in the first instance that the waybill is a form of the formation of a transportation contract relationship between the shipper and the carrier. The shipper stated in the waybill in this case is Haida Company, and the carrier ship is the "Far East 98" ship belonging to and operated by Song Moumou. Hualong Company and Song Moumou both stamped the waybill or signed the representative. The waybill involved in the case states the relevant provisions on the rights and obligations of the shipper and carriers that apply to the "Current Rules", so the relevant contents of the "Current Rules" can be regarded as the rights and obligations clauses of the transportation contract relationship between Hualong Company, Song Moumou and Haida Company. Hualong Company is the contract carrier. When Song responded, he had no objection to the facts of the cargo transportation involved, so Song actually assumed the obligation to transport the cargo in question and was the actual carrier of the case. The first instance judgment was made by Hualong Company and Song Moumou to bear joint and several liability for compensation to the Shanghai Branch of PICC. The parties involved appealed the first-instance judgment and Hubei Higher People's Court upheld the first-instance judgment.

⇨Turn down to the fourth edition

⇨Continue to the third edition

[Typical significance]

In order to reduce the burden on the parties, the people's court referred to the "Currency Regulations" formulated by the former Ministry of Transport, and ruled that the carrier and the actual carrier bear joint and several liability, which is a long-term judicial rule for my country's maritime judicial practice.After the Ministry of Transport announced the abolition of the "Currency Regulations" in 2016, whether the actual carrier system can be continued to be applied, and whether the carrier and the actual carrier bear joint and several liability is largely controversial, resulting in inconsistent judicial judgment standards. In this case, the court applied the joint and several liability system between the carrier and the actual carrier in the "Current Regulations", which is conducive to safeguarding the legitimate rights and interests of the parties, maintaining the stability of the application of the law, and has positive significance for making up for the loopholes in the current legal.

[First instance case number] (2018) E72 Minchu No. 1177

[Second instance case number] (2018) Eminzhong No. 1376

Jiangmen Haoyin Trading Co., Ltd. and Union Logistics (Union Logistics, Inc) marine cargo transportation contract dispute case

[Basic case facts]

From September to October 2014, Jiangmen Haoyin Trading Co., Ltd. (hereinafter referred to as Haoyin Company) sold a batch of women's pants to Adorn Fashion Co., Ltd. (hereinafter referred to as Adorn Fashion Co., Ltd.) In accordance with the instructions of Adorn Company, Haoyin Company entrusts Union Logistics, Inc to transport the goods involved from Yantian Port, Shenzhen, Guangdong Province to Long Beach Port, California, United States. After Liantai Logistics arranged transportation, it authorized its agent Guangzhou Shengyang International Freight Forwarding Co., Ltd. (hereinafter referred to as Shengyang Company) to issue a full set of original bills of lading to Haoyin Company, stating that the shipper is Haoyin Company and the carrier is Liantai Logistics. On December 26, 2014, the cargo involved was loaded and shipped. On January 16, 2015, the goods involved were delivered to Adorn Company in Long Beach, USA by Liantai Logistics. However, Haoyin Company still holds a full set of original bills of lading. On October 21, 2015, Haoyin Company filed a lawsuit with Shengyang Company as the defendant. After the trial, the Guangzhou Maritime Court held that Shengyang Company was the signing agent of Liantai Logistics and was not the transport carrier involved in the case, so it ruled to dismiss Haoyin Company's lawsuit. On February 24, 2016, Haoyin Company filed a lawsuit with Liantai Logistics as the defendant, requesting Liantai Logistics to compensate for the losses and interest of the goods it suffered. After the convention, Liantai Logistics came to court to respond and confirmed the facts of delivering the goods without original bill of lading, but argued that Haoyin Company's lawsuit against him had exceeded one year's statute of limitations stipulated in the Maritime Law, and there was no statutory situation of suspension or interruption of the statute of limitations in this case, and requested the court to reject Haoyin Company's lawsuit in accordance with the law.

[Judgement Results]

The Guangzhou Maritime Court believes that the interruption of the limitation period for litigation in this case should be subject to the provisions of Article 267 of the Maritime Law. This article stipulates that "investing a lawsuit" can interrupt the statute of limitations, but does not clearly stipulate that the specific circumstances covered by "investing a lawsuit" should be defined by other laws, regulations or judicial interpretations. According to Article 13 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Limitation System for the Trial of Civil Cases" and Article 173, paragraph 2 of the "Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China (Trial)" "If the right holder claims rights to the debt guarantor, the debtor's agent or property custodian, the statute of limitations may be determined to be interrupted", Haoyin Company's act of filing a lawsuit with Shengyang Company as the defendant on October 21, 2015 can be considered as a matter with the same effect as the filing of the lawsuit. This act should be regarded as a "filing lawsuit" stipulated in the first paragraph of Article 267 of the Maritime Law, that is, the limitation period for the case constitutes an interruption on October 21, 2015 and the calculation begins again. Haoyin Company filed a lawsuit on February 24, 2016, and did not exceed the statutory limitation period. As the carrier, Liantai Logistics delivers the goods without the original bill of lading, which violates the carrier's legal obligations and constitutes a breach of contract. This breach of contract caused Haoyin Company to lose control of the goods and unable to recover the payment. Liantai Logistics should compensate for the losses. After the first instance judgment, neither party appealed.

[Typical Significance]

As a special law of civil law, my country's maritime law stipulates a special statute of limitations system that is different from general civil laws. When it comes to rights and obligations related to adjustments to the Maritime Law, the relevant provisions of the Maritime Law should be given priority. When there are no clear provisions on the Maritime Law, general civil laws such as the General Principles of Civil Law should be applied.Although Article 267, paragraph 1 of the Maritime Law stipulates that only by filing a lawsuit by the applicant can interrupt the limitation period, the law does not clearly stipulate the specific circumstances of "investing a lawsuit". At this time, the General Principles of Civil Law and other laws and relevant judicial interpretations should be defined. This case is of reference value for handling the relationship between maritime law and general civil legal statute of limitations.

[Case No.] (2016) Guangdong 72 Minchu No. 311

Chen Moumou and the Gaochun Branch of China People's Property Insurance Co., Ltd. and other Tonghai waters insurance contract dispute case

[Basic Case Information]

Since 2014, Chen Moumou has insured all insurance of coastal inland ships with the Gaochun Branch of China People's Property Insurance Co., Ltd. (hereinafter referred to as PICC Gaochun Branch) for four consecutive years. The Nanjing Branch of China People's Property Insurance Co., Ltd. (hereinafter referred to as PICC Nanjing Branch) issued an insurance policy based on Chen Moumou's insurance, collected insurance premiums and issued an insurance premium invoice. The insurance policy in 2015 states that the insured is Chen Moumou, and the insurance is for all insurance for coastal inland ships. Article 9 of the insurance conditions and special agreements states that the additional shipowner's crew liability insurance is included, and the insured three persons are insured, each with an insured amount of 100,000 yuan, and the names and citizenship numbers of the three crew members are listed. Article 10 states: Except for the above special agreements, other conditions shall be strictly implemented in accordance with the "Coastal Inland Ship Insurance Clauses of China People's Property Insurance Co., Ltd. (2009 Edition)". Article 3, Paragraph 1 of the insurance clause stipulates that the insurer shall not be responsible for compensation for losses, liabilities and expenses caused by ships that are unavailable for seawater or tow (including ship technical status, stowage, loading, etc., losses, liabilities and expenses of towed ships caused by towed by tugboats, and all losses, liabilities and expenses caused by non-tugboats). On March 13, 2016, during transportation, the "Ninggaopeng 3368" ship touched the terminal of CNOOC Yueyang Oil Depot located in the Yangtze River, causing the barge and steel guide bridge to shift. The three crew members on the ship were on the boat at the time of the incident, and no certificate of competence was obtained. Yueyang Maritime Safety Bureau determined that the driver on duty on the round did not hold the "Inland Ship Certificate of Competency for Inland Ship" and illegally drove the ship. Improper operation was the direct cause of the accident. The round was fully responsible for the above accident. Chen Moumou filed an insurance claim with the Gaochun Branch of PICC for the accident loss. The Nanjing Branch of PICC believes that improper operation of the crew is the direct cause of the contact, and the crew does not have a certificate of competency and the ship does not meet the minimum staffing, and the ship is not sailable, which is an exclusion responsibility, so it is entitled to refuse compensation. Chen then sued PICC Nanjing Branch, PICC Gaochun Branch and China People's Property Insurance Co., Ltd.

[Responsibility]

The Tianjin Maritime Court held in the first instance that in shipping practice, obtaining a certificate of competency is an important measure to prevent improper ship driving operations and ensure ship safety. According to the maritime administrative department's determination, improper crew operation is the direct cause of the accident. The crew member on duty does not hold the "Inland Ship Certificate of Competency for the Certificate of Competency for the Inland Ship Certificate of Competency for the Inland Ship Certificate of Competency for the Inland Ship Certificate of Competency for the Inland Ship Certificate of Competency for the Inland Ship Certificate of Competency for the accident. The ship involved is not equipped with a suitable crew, which constitutes that the ship is unaerobic. According to Article 3, paragraph 1 of the "Coastal Inland Ship Insurance Clauses of China People's Property Insurance Co., Ltd. (2009 Edition)", the insurer shall not be liable for compensation for losses caused by ships' unavailability. Therefore, the first instance court ruled to reject Chen Moumou's lawsuit. The parties involved appealed the first-instance judgment and Tianjin Higher People's Court upheld the first-instance judgment.

[Typical Significance]

For a long time, many enterprises and individuals engaged in inland cargo transportation have hired crew members who do not hold certificates of competence or do not equip crew members according to the minimum staffing standards in order to reduce operating costs, which has caused serious hidden dangers to inland navigation safety and damaged the healthy and orderly development of inland shipping economy.In 2016, the Supreme People's Court issued the "Opinions on Providing Judicial Services and Guarantees for the Development of the Yangtze River Economic Belt", proposing to guide all types of market entities to engage in orderly and healthy competition, guide ports, shipping and shipbuilding companies to effectively enhance their safety awareness and quality awareness, and provide strong judicial support for the construction of safe golden waterways. During the trial of this case, the People's Court determined in accordance with the law that the ship involved was not equipped with a crew member holding a certificate of competence, and if the ship's unavailable airworthiness is a ship, it will exempt the insurer from compensation liability in accordance with the insurance terms. This case is of positive significance for strengthening the safety awareness of inland river navigation and promoting the high-quality development of inland river shipping economy.

[First instance case number] (2018) Tianjin 72 Minchu No. 53

[Second instance case number] (2018) Tianjin Minzhong No. 392

China Ping An Property Insurance Co., Ltd. Shanghai Branch and China Pacific Property Insurance Co., Ltd. Zhenjiang Central Branch and other non-cases

[Basic case facts]

China Ping An Property Insurance Co., Ltd. Shanghai Branch (hereinafter referred to as Ping An Shanghai Branch) is the operator of the shipless carrier business Shanghai Wangjia International Freight Forwarding Co., Ltd. (hereinafter referred to as Wangjia Company), and issued a shipless carrier margin liability insurance policy with a limit of 800,000 yuan. The insurance terms stipulate: "During the insurance period or the retrospective period stated in the insurance contract, the insured person is ineffective in performing the carrier's obligations or improper performance of the obligations. If the insured person's losses are subject to economic compensation liability for the arbitration institution's losses after the judicial authority's judgment or the judicial authority's ruling, and if the insured person requires assistance in the execution during the insurance period, the insurer shall be responsible for compensation. "Wangjia Company suffered cargo damage during the course of operating shipless carrier business during the insurance period, the Zhenjiang Central Branch of China Pacific Property Insurance Co., Ltd. (hereinafter referred to as the Pacific Zhenjiang Branch) filed a claim against Wangjia Company and others after paying the shipper's loss of goods. The Shanghai Maritime Court made a first-instance judgment during the insurance period. Pacific Zhenjiang Branch was dissatisfied with the first-instance judgment and filed an appeal. The Shanghai Higher People's Court made a final judgment, ordering Wangjia Company to compensate for the loss of goods of more than 1.3 million yuan, but the insurance period was exceeded at this time. During the execution of the case, the People's Court issued an execution notice to Ping An Shanghai Branch, requiring Wangjia Company's margin liability limit of 800,000 yuan to the court account. Ping An Shanghai Branch raised an execution objection and filed an execution objection lawsuit after the objection was rejected, believing that the time of the final judgment of the case and the time when the parties applied for execution had exceeded the insurance period, and according to the terms of the insurance, it should not make compensation, so the lawsuit confirms that it does not need to assist the court in the execution and payment of insurance compensation.

[Result of the Judgment]

The Shanghai Maritime Court held in the first instance that the terms of the insurance contract involved were contract terms pre-planned by Ping An Shanghai Branch for reuse and belonged to the standard terms. Ping An Shanghai Branch and Wangjia Company concluded a contract through negotiation. In addition to following the principle of autonomy of will, they should also determine the rights and obligations of both parties in accordance with the principle of fairness. The content of the contract clauses involved in the case restricting the claimant's rights holder. Since the claimant is still a potentially unspecified object at the time of the contract and does not meet the conditions for negotiation, higher requirements should be put forward for the rationality of the relevant clauses, and the contractor is required to formulate the contract terms based on the principle of honesty and trustworthiness. The insurance clauses involved in the case require the claimant to obtain an effective judgment within the insurance period and apply for execution. This is an unreasonable way to exempt the insurer from the main liability, aggravate the liability of the claimant, and exclude the main rights of the claimant. It violates the principle of honesty and trustworthiness and should be invalid. Based on this judgment, Ping An Shanghai Branch's lawsuit was rejected. Ping An Shanghai Branch was dissatisfied with the first-instance judgment and filed an appeal.

The Shanghai Higher People's Court held in the second instance that claims and determination of insurance accidents and insurance liability usually involve multiple interrelated lawsuits. The first lawsuit first determines whether the insured is liable, and the latter lawsuit determines whether the insurance company should repay the insurance premium. Multiple lawsuits are successively taken before and after.The standard terms involved in the case stipulate that insurance compensation must meet multiple claims conditions at the same time, namely "judicial authority judgment + insurance period + requiring assistance in execution through judicial procedures." The above situations have caused the difficulty of insurance claims after an insurance accident in the insured, insured, etc. to significantly increase the difficulty of insurance claims, and to a certain extent excluded the rights enjoyed by the insured, insured, etc. in accordance with the law. The first instance court has nothing wrong with determining the validity of this clause. Based on this judgment, the appeal was rejected and the original judgment was upheld.

[Typical Significance]

This case is a case where the standard terms of margin liability insurance for operators of non-ship carriers are invalid in accordance with the law. The margin liability insurance system for operators of shipless carriers is an alternative form of operating margin for non-shipping business. Replacing margin in the form of insurance not only reduces the cash pressure of operators of shipless carriers, but also has a similar effect as margin. Many shipless carrier business operators in the market currently use similar format terms. The insurance liability clause stipulates the claim period, requiring the claimant to sue the insured within the insurance period, and obtain effective judgment documents and apply for execution during the insurance period. Similar clauses set obvious unreasonable conditions for insurance claims, which essentially exempts the insurer from the main liability, increases the liability of the claimant, and excludes the main rights of the claimant. This clause is significantly contrary to the purpose of the contract, weakening the due function of liability insurance for operators of shipless carrier business. The judgment of this case determined that the insurance clause involved was invalid, which not only safeguarded the legitimate rights and interests of the claimant in individual cases, but also played the role of judicial judgments in guiding social behavior. It has positive significance for promoting the standardized management of shipless carrier business and the healthy and orderly development of deposit liability insurance products for shipless carrier business operators.

[First instance case number] (2017) Shanghai 72 Minchu No. 2203

[Second instance case number] (2018) Shanghai Minzhong No. 81

The applicant for execution Fu'an Marine and Fisheries Bureau and the person subject to execution Chen Zhongyi and other maritime administrative non-litigation execution case

[Basic case facts]

Fujian Ningde Sandu Bay Wetland is a typical representative of Fujian Bay-type coastal wetlands and is included in the "China Important Wetland List" of the "China Wetland Protection Action Plan". Ningde Huan Sanduao Wetland Waterfowl Mangrove Nature Reserve is the core part of Sandu Bay National Important Wetland. Chen, Fang, Huang and many others occupied wetland waters without the approval of the marine administrative authority to implement seaside aquaculture construction, seriously infringing on nature reserves and causing damage to local marine ecosystems. They were listed as the target of rectification by feedback from the central environmental protection inspection team. On August 31, 2016, the Fu'an Marine and Fisheries Bureau issued an administrative penalty decision, ordering Chen Moumou and others to return the illegally occupied sea area, restore the original state of the sea area, and impose a fine. Chen Moumou and others did not apply for administrative reconsideration or filed administrative litigation within the statutory period. After being urged by Fu'an Marine and Fisheries Bureau, Chen Moumou and others still refused to fulfill their obligations, and the bureau applied to the Xiamen Maritime Court for the execution of the administrative penalty decision.

[Judgement Results]

The Xiamen Maritime Court believes that the Fu'an Marine and Fisheries Bureau is an administrative agency that exercises the supervision and management functions of sea area use in accordance with the law. The administrative penalty decision made by the main evidence is conclusive, the facts are determined clearly, the law is applied correctly, and the administrative procedures are legal. The ruling is approved for compulsory execution. Subsequently, the Xiamen Maritime Court launched the "sanction and separation" mechanism for non-litigation cases, and determined that the Fu'an Marine and Fisheries Bureau was responsible for the specific organization and implementation of the return of the sea area and restoring the original state. At the same time, it coordinated the Fu'an Municipal People's Government to organize multiple departments to participate in joint law enforcement, and referred to the execution procedures for forced relocation of real estate, and guided the formulation of the "Compulsory Retreat Action Work Plan" and "Risk Prevention and Control Plan" and other implementation plans, clarifying the process steps and pre-announcements for implementing compulsory execution, third-party witnesses, execution record production, video recording of law enforcement activities, on-site items (breeding materials) booking, preservation, and handover.From July 31 to August 3, 2018, under the supervision of the court, the relevant administrative departments organized more than 1,100 people and 12 excavators to demolish illegal breeding management houses through four days and nights of enforcement, excavated 4 gaps on the sea-enclosed embankment, demolished 7 gates, cleared tens of thousands of cubic meters of silt, and introduced seawater to restore 352.287 acres of occupied sea areas to their natural state. Taking this case as a demonstration and driving force, all 170 hectares of aquaculture facilities that do not comply with the ecological nature reserve plan will be cleared out, achieving effective exchange of water sources inside and outside the tidal flats and restoring the wetlands. After regular ecological monitoring, the natural ecological environment of the protected area has been further optimized after retirement and return to wetness, ecological species have been further enriched, and ecological benefits have been initially revealed.

[Typical Significance]

Illegal occupation of sea, sea encirclement and sea reclamation are important reasons for the destruction of my country's offshore marine ecology in recent years, and are also "pain points" and "stubborn diseases" in the battle against marine pollution. The enforcement of ordering the return of illegally occupied sea areas and restoring the original state of the sea areas is often difficult to implement effectively due to the wide area of ​​the sea areas involved, the large number of responsible entities, and the large volume of structure demolition and earthwork cleaning projects. The people's courts start by strengthening judicial review, strictly enforcing the procedures and standardizing enforcement behaviors, coordinate judicial and administrative resources, meticulously organize and implement the "separation of severance and enforcement", coordinate forces from all parties to vigorously promote execution, demolish ponds and silt, retire and return to wetness, and return the ocean to tranquility, harmony and beauty, and achieve good ecological results. The successful conclusion of this case provides a reference, replicable and popularizable sample for implementing the requirement of "using the strictest systems and the strictest rule of law to protect the ecological environment" in Xi Jinping's ecological civilization thought, and to solve the problem of "difficulty in enforcement" of marine ecological justice. At the same time, through supervision and support marine administrative agencies in administration according to law, improve and perfect the effective connection mechanism between environmental justice and administrative law enforcement, guide maritime administrative agencies to standardize administrative law enforcement, and improve the level of legalization of marine environmental protection.

[Case No.] (2018) Fujian 72 No. 6

Source: People's Court News

Editor: Sun Xin