Special
Maritime Procedure Law of the People's Republic of China
NPC.gov.cn
(Adopted at the 13th Meeting of the
Standing Committee of the Ninth National People's Congress on December 25, 1999
and promulgated by Order No. 28 of the President of the People’s Republic of
China on December 25, 1999)
Contents
Chapter I
General Principles
Chapter II
Jurisdiction
Chapter III
Preservation of Maritime Claims
Section
1 General Provisions
Section
2 Arrest and Auction of Ships
Section
3 Attachment and Auction of Cargo Carried by Ships
Chapter IV
Maritime Injunction
Chapter V
Preservation of Maritime Evidence
Chapter VI
Maritime Security
Chapter VII
Service
Chapter VIII
Trial Procedures
Section
1 Provisions for Trial of Collision Cases
Section
2 Provisions for Trial of General Average Cases
Section 3
Provisions for Exercising the Right of Subrogation by Marine Insurers
Section 4
Summary Procedure, Procedure for Hastening Debt Recovery and Procedure for
Public Exigence
Chapter IX
Procedure for Constitution of Limitation Fund for Maritime Claims
Chapter X
Procedure for Registration and Repayment of Debt
Chapter XI
Procedure for Exigence of Maritime Liens
Chapter XII
Supplementary Provisions
Chapter
I General Principles
Article 1 This
Law is enacted with a view to safeguarding the rights to litigation of the
parties to maritime cases and ensuring that the people's courts shall ascertain
the facts, establish the liabilities, properly apply the laws and promptly hear
and determine maritime cases.
Article 2 The
Civil Procedure Law of the People's Republic of China and this Law shall be
applicable to maritime actions brought in the People's Republic of China. Where
the provisions of this Law are applicable, they shall prevail.
Article 3 Where
any provisions concerning foreign-related maritime actions contained in
international conventions entered into or acceded to by the People's Republic
of China are different from those contained in the Civil Procedure Law of the
People's Republic of China and in this Law, the provisions of such
international conventions shall apply, except those on which the People's
Republic of China has announced reservation.
Article 4 The
maritime courts shall entertain actions brought by the parties in respect of
maritime tort, disputes over maritime contracts and other maritime disputes as
provided for by law.
Article 5 In
hearing and determining maritime cases, the maritime courts, the higher
people's courts of the places where such maritime courts are located and the
Supreme People's Court shall apply this Law.
Chapter
II Jurisdiction
Article 6 The
relevant provisions of the Civil Procedure Law of the People's Republic of
China shall apply to territorial jurisdiction of maritime actions.
The
territorial jurisdiction of the maritime actions listed hereunder shall be
determined as follows:
(1)
apart from jurisdiction exercised in accordance with the provisions of Articles
29 to 31 in the Civil Procedure Law of the People's Republic of China, an
action brought for maritime tort may also be under the jurisdiction of the
maritime court of the place where the ship's port of registry is located;
(2)
apart from jurisdiction exercised in accordance with the provisions of Article
28 in the Civil Procedure Law of the People's Republic of China, an action arising
from a dispute over a contract for carriage by sea may also be under the
jurisdiction of the maritime court of the place where the port of transshipment
is located;
(3)
an action arising from a charter-party dispute of a seagoing ship shall be
under the jurisdiction of the maritime court of the place where the port of
delivery, the port of re-delivery, the ship's port of registry and the domicile
of the defendant is located;
(4)
an action arising from a dispute over a protection and indemnity contract shall
be under the jurisdiction of the maritime court of the place where the
subject-matter of insurance is located, where the accident occurred or where
the domicile of the defendant is located;
(5)
an action arising from a dispute over the service contract of the crew of a
sea-going ship shall be under the jurisdiction of the maritime court of the
place where the domicile of the plaintiff is located, where the contract is
signed, where the port of embarkation or disembarkation of the ship's crew is located,
or where the domicile of the defendant is located;
(6)
an action arising from a dispute over maritime security shall be under the
jurisdiction of the maritime court of the place where collateral is located or
where the domicile of the defendant is located; an action arising from a
dispute over ship mortgage may also be under the jurisdiction of the maritime
court of the place where the ship's port of registry is located;
(7)
an action arising from a dispute over the ownership,
possession, employment and maritime lien of a sea-going ship shall be under the
jurisdiction of the maritime court of the place where the ship is located,
where the ship's port of registry is located, or where the domicile of the
defendant is located.
Article 7 The
following maritime actions shall be under the exclusive jurisdiction of
maritime courts specified in this Article respectively:
(1)
an action arising from a dispute over coastal port
operation shall be under the jurisdiction of the maritime court of the place
where the port is located;
(2)
an action brought against pollution damage to sea areas caused by discharge,
spill or dumping of oil or other hazardous substances from ships, by production
or operation at sea or by ship demolition or repair shall be under the jurisdiction
of the maritime courts of the place where the pollution occurred, the place
that is suffering from the harmful consequences or the place where pollution
prevention measures were taken; and
(3)
an action arising from a dispute over an offshore exploration
and exploitation contract performed within the territory of the People's
Republic of China or in the sea area under the jurisdiction of the People's
Republic of China shall be under the jurisdiction of the maritime court of the
place where the contract is being performed .
Article 8
Where all the parties to a maritime dispute are aliens, stateless persons,
foreign enterprises or organizations and have agreed in writing to be subject
to the jurisdiction of a maritime court of the People's Republic of China,
notwithstanding that the place that is actually related to the dispute is not
within the territory of the People's Republic of China, the said maritime court
of the People's Republic of China shall have jurisdiction of the dispute.
Article 9 Any
party who wishes to apply for a positive decision that certain property at sea
is ownerless shall file an application with the maritime court of the place
where the said property is located; anyone who wishes to apply for a
declaration that a person is dead in an accident at sea shall file an
application with the maritime court of the place where the competent authority
dealing with the accident is located or with the maritime court that entertains
the relevant maritime case.
Article 10 Any
controversy that arises between a maritime court and a local people's court
over jurisdiction shall be resolved by the two courts through consultation; if
consultation fails, the matter shall be submitted to their common superior
people's court for designation of jurisdiction.
Article 11 Any
party who wishes to apply for the enforcement of a maritime arbitration award,
the recognition and enforcement of a judgment or order of a foreign court or a
foreign maritime arbitration award shall file an application with the maritime
court of the place where the property against which enforcement is sought or
the domicile of the person against whom enforcement is sought is located. In
the absence of a maritime court at the said place, the application shall be
filed with the intermediate people's court of the place where the property
against which enforcement is sought or the domicile of the person against whom
enforcement is sought is located.
Chapter
III Preservation of Maritime Claims
Section
I General Provisions
Article 12
Preservation of maritime claims means the compulsory measures taken by a
maritime court on the application of a maritime claimant against the property
of the person against whom a claim is made, for the purpose of ensuring
fulfillment of the claim of the maritime claimant.
Article 13 Any
party who wishes to apply for preservation of a maritime claim before
instituting an action shall file an application with the maritime court of the
place where the property subject to preservation is located.
Article 14
Preservation of a maritime claim shall not be bound by the jurisdiction
agreement or arbitration agreement reached between the parties to an action in
respect of the maritime claim.
Article 15 A
maritime claimant who wishes to apply for preservation
of a maritime claim shall file an application in writing with a maritime court.
In the application the particulars of the maritime claim, reasons for the
application, subject-matter to be preserved and the amount of security required
shall be specified with relevant evidence attached.
Article 16 The
maritime court, having entertained an application for preservation of a
maritime claim, may enjoin the maritime claimant to provide security. If the
maritime claimant fails to do so, the court shall reject the application.
Article 17 The
maritime court, having accepted an application, shall make an order within 48
hours. Where the order involves adoption of measures for preservation of the
maritime claim, it shall be executed forthwith; where the conditions for the
preservation of the maritime claim are not met, it shall make an order to
reject the application.
Any
party who is dissatisfied with such an order may, within 5 days after receipt
thereof, apply for review not more than once. The maritime court shall give the
result of the review within 5 days after receipt of the application therefor.
Execution of the order shall not be suspended during the period of review.
Where
preservation of a maritime claim is objected by an interested person, the
maritime court, having examined the objection and considering the reasons
justified, shall discharge preservation against his property.
Article 18 Where
a person against whom a claim is made provides security or a party applies for
discharge of preservation of the maritime claim on justified grounds, the
maritime court shall discharge the preservation promptly.
If
within the time limit prescribed by this Law a maritime claimant fails to bring
an action or apply for arbitration in accordance with an arbitration agreement,
the maritime court shall discharge the preservation or return the security
promptly.
Article 19 Where
legal proceedings or arbitral proceedings are not commenced in respect of a
maritime dispute after execution of the preservation of a maritime claim, any
party may bring an action in respect of the maritime claim in the maritime
court that adopts measures for preservation of the maritime claim or another
maritime court that has jurisdiction, unless a jurisdiction agreement or
arbitration agreement has been reached between the parties.
Article 20 A
maritime claimant who has wrongly applied for
preservation of a maritime claim shall indemnify the person against whom the
claim is made or the interested person for the losses thus incurred.
Section
II Arrest and Auction of Ships
Article 21 With
respect to the following maritime claims, an application may be made for the
arrest of a ship:
(1)
loss of or damage to property caused by ship
operation;
(2)
loss of life or personal injury in direct connection
with ship operation;
(3)
salvage at sea;
(4)
damage or threat of damage caused by ship to environment, coast or relevant
interested persons; measures adopted to prevent, diminish or eliminate such
damage; compensation paid for such damage; expenses for reasonable measures
actually adopted or to be adopted to restore environment; losses caused by such
damage to or likely to a third party; and damage, expenses or losses of a
similar nature as those specified in this subparagraph;
(5)
expenses related to re-floating, removal, reclamation or destroying of a sunken
ship, wreck, aground ship, abandoned ship or to making them harmless, including
the expenses related to re-floating, removal, reclamation or destroying of the
things which have or no longer remained on board the ship or to making them
harmless and expenses related to maintaining of an abandoned ship and her crew;
(6)
agreement in respect of employment or charting of a
ship;
(7)
agreement in respect of carriage of goods or
passengers;
(8)
cargo (including luggage) carried by a ship or loss or
damage relating thereto;
(9)
general average;
(10)
towage;
(11)
pilotage;
(12)
providing of supplies or rendering of services in
respect of ship operation, management, maintenance or repair;
(13)
construction, re-construction, repair, refurbishment
or equipment of a ship;
(14)
dues or expenses for ports, canals, docks, harbours or other waterways;
(15) crew's
wages and other moneys, including repatriation expenses and social insurance
premium payable for the crew;
(16)
expenses paid for a ship or a ship-owner;
(17)
insurance premium for a ship (including protection and
indemnity calls) payable by or paid for a ship-owner or bareboat charterer;
(18)
commission, brokage or
agency fee related to ships payable by or paid for a ship-owner or bareboat
charterer;
(19)
a dispute over ownership or possession of a ship;
(20)
a dispute between joint owners of a ship over the
employment or earnings of the ship;
(21)
ship mortgage or rights of a similar nature; and
(22)
a dispute arising out of a ship sale contract.
Article 22 No
application may be made for the arrest of a ship on account of maritime claims
other than the ones specified in Article 21 of this Law, except for the
enforcement of a judgment, an arbitration award or other legal documents.
Article 23 The
maritime court may arrest the ship concerned in any of the following
circumstances:
(1)
the ship-owner is liable for the maritime claim and is
the owner of the ship at the time of arrest;
(2)
the bareboat charterer of the ship is liable for the
maritime claim and is the bareboat charterer or owner of the ship at the time
of arrest;
(3)
a maritime claim that gives rise to ship mortgage or
to rights of a similar nature;
(4)
a maritime claim related to ownership or possession of
a ship; and
(5)
a maritime claim that gives rise to maritime lien.
The
maritime court may arrest other ships owned, at the time of arrest, by the
ship-owner, bareboat charterer, time charterer or voyage charterer who is
liable for the maritime claim, except for claims related to ownership or
possession of a ship.
No
ships engaged in military or governmental services may be subject to arrest.
Article 24 No
maritime claimant may, on account of the same maritime claim, apply for arrest
of a ship which was once arrested, except in any of the following
circumstances:
(1)
the person against whom the claim is made fails to
provide sufficient security;
(2)
it is likely that the surety cannot perform the
obligations under the security in full or in part; or
(3)
the maritime claimant agrees, on reasonable grounds,
to release the arrested ship or to return the security provided; or the
maritime claimant cannot, by reasonable means, stop the release of the arrested
ship or the return of the security provided.
Article 25 A
maritime claimant who wishes to apply for arrest of
the ship concerned but cannot promptly ascertain the name of the person against
whom the claim is made may still apply for its arrest.
Article 26
While the maritime court issues an order for arresting of a ship, it may send a
notice to relevant departments for assistance in execution of the order. In the
notice shall be stated the scope and specific tasks of the assistance in
execution of the order, and the relevant departments have the obligation to
assist in the execution. When the maritime court deems it necessary, it may
directly send officers to go aboard for purposes of supervision.
Article 27 After
ordering to preserve a ship, the maritime court may, with the consent of the
maritime claimant, allow continued operation of the ship by means of
restraining disposition or mortgaging of the ship.
Article 28 The
time limit for ship arrest in preservation of a maritime claim is 30 days.
Where
a maritime claimant brings an action or applies for arbitration within the 30
days, or where a maritime claimant applies for arrest of a ship in the process
of a legal action or arbitration, arrest of the ship is not subject to the time
limit prescribed in the preceding paragraph.
Article 29
Where on the expiry of the time limit for ship arrest, a person against whom a
claim is made fails to provide security and it is not appropriate to keep the
ship under arrest, the maritime claimant, having brought an action or applied
for arbitration, may apply to the maritime court ordering the ship arrest for
auction of the ship.
Article 30 The
maritime court shall, after receipt of an application for auction of a ship,
examine the application and make an order to allow or disallow the auction.
Any
party who is dissatisfied with such an order may, within 5 days after receipt
thereof, apply for review not more than once. The maritime court shall, within
5 days after receipt of the application therefor, give the result of the
review. During the period of review, execution of the order shall be suspended.
Article 31
Where a maritime claimant, having applied for auction of a ship, applies for
termination of the auction, the maritime court shall make an order to approve
or disapprove the application. If the maritime court makes an order to
terminate the auction of the ship, the expenses incurred in preparation for
auction of the ship shall be borne by the maritime claimant.
Article 32 The
maritime court which orders auction of a ship shall issue an announcement in
newspapers or other news media. In the case of auction of a foreign ship, such
announcement shall be issued in the newspapers or other news media of overseas
distribution.
Such
announcement shall contain:
(1)
name and nationality of the ship for auction;
(2)
reasons and grounds for auction of the ship;
(3)
composition of the ship auction committee;
(4)
time and venue of the ship auction;
(5)
time and venue for display of the ship for auction;
(6)
formalities to be completed for taking part in
bidding;
(7)
particulars necessary for registration of debts; and
(8)
other matters which need to be announced.
The
period of announcement for ship auction shall be not less than 30 days.
Article 33 The
maritime court shall, 30 days before an auction of a ship, issue a notice to
the ship registrar of the state of registry of the ship for auction and to the
maritime lien holder, mortgagee and ship-owner already known.
Such
notice shall contain the name of the ship for auction, time and venue of the
ship auction, reasons and grounds for the ship auction, registration of debts,
etc.
Such
notice shall be despatched in written form or by
other appropriate means where the receipt thereof can be confirmed.
Article 34 A
ship auction shall be conducted by a ship auction
committee. A ship auction committee shall consist of three or five persons,
including the person of the maritime court in charge of execution designated by
the court, the auctioneer and ship surveyor invited by the maritime court.
The
ship auction committee shall arrange the assessment and evaluation of the ship;
arrange and preside over the auction; sign auction confirmation with the
bidder; and complete ship delivery formalities.
The
ship auction committee is responsible to and under the supervision of the
maritime court.
Article 35
Bidders shall register with the ship auction committee within the prescribed
time limit. At the time of registration, certificates of identification of the
person who registers with the committee, the legal representative of the
enterprise or the leading official of other organization, and the power of
attorney of the authorized proxy shall be submitted for examination and a
certain amount of bidding deposit shall be paid.
Article 36 The
ship auction committee shall, before auction of a ship, display the ship for
auction and make the ship available for inspection and provide information
about the ship.
Article 37 A
buyer, having signed the auction confirmation, shall pay forthwith not less
than 20% of the purchase price, and the balance shall be paid within seven days
after the date of the purchase, unless the ship auction committee has agreed
otherwise with the buyer.
Article 38 When
a buyer has paid the purchase price in full, the ship-owner shall, within the
designated time limit, deliver to the buyer the ship as is at the berthing
place. The ship auction committee shall arrange and supervise the delivery of
the ship and sign the letter of confirmation of delivery and acceptance with
the buyer after delivery of the ship.
After
delivery of the ship, the maritime court shall issue an order to release the
ship.
Article 39 When
a ship is delivered, the maritime court shall issue an announcement in
newspapers or other news media stating that the ship has been sold by auction
and delivered to the buyer.
Article 40 A
buyer, having taken delivery of the ship, shall by virtue of the auction
confirmation and other relevant documents, complete the formalities of
registration with the ship registrar in respect of ownership of the ship. The
former ship-owner shall cancel the registration with the previous ship
registrar in respect of ownership of the ship. Ownership of the ship is
transferred notwithstanding that the former ship-owner fails to cancel such
registration.
Article 41 An
auction is void if there is malicious collusion between the bidders. The
bidders who take part in malicious collusion shall be liable for the expenses
of the ship auction and make good the relevant losses. The maritime court may
impose on the bidders who takes part in malicious
collusion a fine of not less than 10% but not more than 30% of the highest
bidding.
Article 42 In
addition to the provisions of this Section, the relevant provisions of the
Auction Law of the People's Republic of China shall apply to auction.
Article 43
Where a ship under arrest is to be auctioned for satisfaction of debts during
the process of the procedure for execution, the relevant provisions of this
Section may be applied mutatis mutandis.
Section
III Attachment and Auction of Cargo Carried By Ships
Article 44 A
maritime claimant may apply for attachment of the
cargo carried by a ship to ensure fulfillment of his maritime claim.
The
cargo against which an attachment is applied for shall be that owned by the
person against whom the claim is made.
Article 45 The
value of the cargo against which an attachment is applied for by a maritime
claimant shall be equal to the amount of his claim.
Article 46 The
time limit for attachment of the cargo carried by a ship for preservation of a
maritime claim is 15 days.
Where
within the 15 days a maritime claimant brings an action or applies for
arbitration or, in the process of legal action or arbitration, applies for
attachment of the cargo carried by a ship, attachment of the cargo carried by
the ship is not subject to the time limit prescribed in the preceding
paragraph.
Article 47
Where on the expiry of the time limit for cargo attachment, the person against
whom a claim is made fails to provide security and it is not appropriate to
keep the cargo under attachment, the maritime claimant, having brought an
action or applied for arbitration, may apply to the maritime court ordering the
attachment of the cargo carried by the ship for auction of the cargo.
Where
the cargo cannot be preserved or is difficult to preserve, or the expenses for
its preservation are likely to exceed its value, a maritime claimant may apply
for an earlier auction.
Article 48 The
maritime court shall, after receipt of an application for auction of the cargo
carried by a ship, examine the application and, within 7 days, make an order to
allow or disallow the auction.
Any
party who is dissatisfied with such an order may, within five days after
receipt thereof, apply for review not more than once. The maritime court shall,
within five days after receipt of the application therefor, give the result of
the review. During the period of review, execution of the order shall be
suspended.
Article 49 Auction
of the cargo carried by a ship shall be conducted by an auction committee
composed of the person of the maritime court in charge of execution designated
by the court and the auctioneer invited by the maritime court, or conducted by
an organization entrusted by the maritime court.
Where
there are no provisions in this Section to govern certain auction of the cargo
carried by a ship, the provisions of Section 2 of this Chapter regarding
auction of ships may be applied mutatis mutandis
Article 50 Where
a maritime claimant applies for preservation of a maritime claim in respect of
a ship's bunkers and provisions related to the claim, the provisions of this
Section shall apply.
Chapter
IV Maritime Injunction
Article 51 A
maritime injunction means the compulsory measures adopted on the application of
a maritime claimant by the maritime court to compel the person against whom a
claim is made to do or not to do certain things, so as to prevent the lawful
rights and interest of the claimant from being infringed upon.
Article 52 A party who wishes to apply for a maritime injunction before
bringing an action shall file an application with the maritime court of the
place where the maritime dispute arose.
Article 53 A
maritime injunction shall not be bound by the
jurisdiction agreement or arbitration agreement reached between the parties in
respect of the maritime claim.
Article 54 A
maritime claimant who wishes to apply for a maritime
injunction shall file an application in writing with the maritime court. In the
application shall be stated the reasons therefor, with relevant evidence
attached.
Article 55 The
maritime court, having entertained an application for a maritime injunction,
may enjoin the maritime claimant to provide security. Where the maritime
claimant fails to do so, It shall reject the
application.
Article 56 The
following conditions shall be met before a maritime injunction is granted:
(1)
the claimant has a specific maritime claim;
(2)
a breach of legal provisions or contractual provisions
by the person against whom a claim is made needs to be redressed; and
(3)
in a situation of emergency, losses will be caused or
will become worse if a maritime injunction is not granted forthwith.
Article 57 The
maritime court, having accepted an application, shall make an order within 48
hours. Where the order grants a maritime injunction, it shall be executed
forthwith; where the conditions for a maritime injunction are not met, it shall
make an order to reject the application.
Article 58 A party who is dissatisfied with an order may, within five
days after receipt thereof, apply for review not more than once. The maritime
court shall, within five days after receipt of the application therefor, give
the result of the review. Execution of the order shall not be suspended during
the period of review.
Where
a maritime injunction is objected by an interested person, the maritime court,
having examined the objection and considering the reasons therefor justified,
shall cancel the maritime injunction.
Article 59
Where a person against whom a claim is made refuses to comply with the maritime
injunction, the maritime court may, according to the seriousness of the case,
impose a fine or put him under detention; if his act constitutes a crime,
criminal liability shall be investigated in accordance with law.
A
fine imposed upon an individual shall be not less than RMB 1,000 yuan but not more than RMB 30,000 yuan.
A fine imposed upon a unit shall be not less than RMB 30,000 yuan but not more than RMB 100,000 yuan.
The
detention period shall be not more than 15 days.
Article 60 A
maritime claimant who has wrongly applied for a
maritime injunction shall indemnify the person against whom the claim is made
or the interested person for the losses thus incurred.
Article 61
Where legal proceedings or arbitral proceedings are not commenced in respect of
a maritime dispute after execution of the maritime injunction, any party may
bring an action in respect of the maritime claim in the maritime court granting
the maritime injunction or in another maritime court having jurisdiction,
unless a jurisdiction agreement or arbitration agreement has been concluded
between the parties.
Chapter
V Preservation of Maritime Evidence
Article 62
Preservation of maritime evidence means the compulsory measures adopted, on the
application of a maritime claimant, by the maritime court to take, preserve or
seal up the evidence related to a maritime claim.
Article 63 A party who wishes to apply for preservation of maritime
evidence before instituting an action shall file an application with the maritime
court of the place where the evidence is to be preserved.
Article 64
Preservation of maritime evidence shall not be bound by the jurisdiction
agreement or arbitration agreement reached between the parties in respect of
the maritime claim.
Article 65 A
maritime claimant who wishes to apply for preservation
of maritime evidence shall file an application in writing with the maritime
court. In the application shall be stated the evidence to be preserved, the
connection of the evidence with the maritime claim and the reasons therefor.
Article 66 The
maritime court, having entertained an application for preservation of maritime
evidence, may enjoin the maritime claimant to provide security. When the
maritime claimant fails to do so, it shall reject the application.
Article 67 The
following conditions shall be met before preservation of maritime evidence is
granted:
(1)
the applicant is a party to the maritime claim;
(2)
the evidence, preservation of which is requested,
substantiates the maritime claim;
(3)
the person against whom the application is made is a
party relevant to the evidence, preservation of which is requested; and
(4)
in a situation of emergency, the evidence relevant to
the maritime claim might be lost or hard to obtain, unless the evidence is
immediately preserved.
Article 68 The
maritime court, having accepted an application, shall make an order within 48
hours. Where the order involves adoption of measures for preservation of the
maritime evidence, it shall be executed forthwith; where the conditions for
preservation of the maritime evidence are not met, the court shall make an
order to reject the application.
Article 69 A party who is dissatisfied with the order may, within five
days after receipt thereof, apply for review not more than once. The maritime
court shall, within five days after receipt of the application therefor, give
the result of the review. Execution of the order shall not be suspended during
the period of review. If the reasons given by the person against whom a claim
is made are justified, the evidence under preservation shall be returned to
that person.
Where
preservation of the maritime evidence is objected by an interested person, the
maritime court, having examined the objection and considering the reasons therefor
justified, shall make an order to cancel preservation of the maritime evidence.
Article 70 To
preserve maritime evidence, the maritime court may, taking into account the
specific circumstances, seal up the evidence, or take the reproductions, duplicates,
photographs, or make video recording, extracts or records of inquests. It may
also take the original evidence where definitely necessary.
Article 71 A
maritime claimant who has wrongly applied for
preservation of maritime evidence shall indemnify the person against whom the
claim is made or the interested person for the losses thus incurred.
Article 72 Where
legal proceedings or arbitral proceedings are not commenced in respect of a
maritime dispute after preservation of the maritime evidence, any party may
bring an action in respect of the maritime claim in the maritime court that
adopts the measures for preservation of the evidence or another maritime court
that has jurisdiction, unless a jurisdiction agreement or arbitration agreement
has been concluded between the parties.
Chapter
VI Maritime Security
Article 73
Maritime security consists of securities involved in
such procedures as preservation of maritime claims, maritime injunction and
preservation of maritime evidence provided for in this Law.
The
types of security include cash, guarantee, mortgage or pledge.
Article 74 The
security of a maritime claimant shall be submitted to the maritime court; the
security of a person against whom a claim is made may be submitted to the
maritime court or the maritime claimant.
Article 75 The
type and amount of the security provided by a maritime claimant shall be
determined by the maritime court. The type and amount of the security provided
by a person against whom the claim is made shall be determined through
consultation by the maritime claimant and the person against whom the claim is
made; if consultation fails, the matter shall be determined by the maritime
court.
Article 76 The
amount of the security requested for preservation of a maritime claim by a
maritime claimant from a person against whom the claim is made shall be equal
to the amount of his credit, but shall not exceed the value of the property
preserved.
The
amount of the security provided by a maritime claimant shall be equal to the
loss the person against whom the claim is made may suffer as a result of his
application. The exact amount shall be determined by the maritime court.
Article 77 After
providing security, the provider may apply to the maritime court for reduction,
alteration or cancellation of such security, if he has good reasons to do so.
Article 78 If
the amount of the security requested by the maritime claimant is so excessive as to cause losses to the person against whom
the claim is made, the maritime claimant shall bear the liability to compensate for the losses.
Article 79 The
provisions of this Chapter may apply mutatis mutandis to securities involved in
the procedures such as constitution of maritime limitation fund and advance
execution.
Chapter
VII Service
Article 80 The
service of legal documents in maritime actions is governed by the relevant
provisions of the Civil Procedure Law of the People's Republic of China and may
also be conducted in the following ways:
(1)
on the agent ad litem duly entrusted by the person on
whom the document is to be served;
(2)
on the representative office or branch established in the People's Republic of
China by the person on whom the document is to be served, or on the business
agent appointed by the person on whom the document is to be served ; or
(3)
in other appropriate ways whereby such service can be
acknowledged.
The
legal documents in respect of arrest of a ship may be served on the master of
the ship concerned.
Article 81 Where
a person who is under an obligation to accept legal documents refuses to
acknowledge the receipt thereof, the server shall make a record on the receipt
of service of the fact and, having the receipt of service signed or sealed by
the server and the witness, leave the legal documents in the domicile or on the
business premises of the person on whom the documents are to be served, in
which case the service shall be deemed to be completed.
Chapter
XIII Trial Procedure
Section
1 Provisions for Trial of Collision Cases
Article 82 Both
the plaintiff and the defendant shall fill in the Investigation Form for
Maritime Accident truthfully at the time of bringing an action and of
submitting defence respectively.
Article 83 No
evidential documents shall be attached to the bill of complaint or the bill of defence served by the maritime court on the parties.
Article 84 The
burden of proof shall be discharged by the parties before a court hearing.
After the parties have discharged their burden of proof and furnished the
maritime court with the statement to this effect, they may apply to consult the
evidential documents concerning the ship collision.
Article 85 The
parties may not reverse the statement previously made in the Investigation Form
for Maritime Accident or the evidence adduced in discharging the burden of
proof, unless new evidence has come to light and there is good reason for being
unable to submit such new evidence within the period for producing evidence.
Article 86 The
survey and appraisal of a ship shall be conducted by institutions or individual
with due authorization of the State or by professionally qualified institutions
or individuals. The maritime court shall not accept any conclusion of the
survey or appraisal made or drawn up by institutions or individuals without
authorization of the State or without professional qualifications.
Article 87 A
case of ship collision shall be tried and concluded by the maritime court
within one year after filing of the case. Where an extension of the period is
necessary under special circumstances, it shall be subject to approval by the
president of the court.
Section
2 Provisions for Trial of General Average Cases
Article 88 With
respect to general average, the parties may either mutually agree to entrust
average adjusters with the adjustment, or directly bring an action in a
maritime court. In dealing with an unadjusted average dispute, the maritime
court may entrust average adjusters with the adjustment.
Article 89 The
general average statement made by average adjusters may be admissible as the
proper basis for contribution if no objection is raised by any of the parties;
otherwise, the maritime court shall decide whether to accept the statement or
not.
Article 90 A party may bring an action against the liable person for
non-general average losses without being prejudiced by the proceedings
commenced for the general average claim arising from the same maritime
accident.
Article 91 Actions
brought by the parties in respect of the same maritime accident for non-general
average losses and for general average contribution by recourse claim against
the liable person in the maritime court that entertains the general average
case can be consolidated by the same court.
Article 92 A
case of general average shall be tried and concluded by a maritime court within
one year after filing of the case. Where an extension of the period is
necessary under special circumstances, it shall be subject to approval by the
president of the court.
Section
3 Provisions for Exercising Right of Subrogation by Marine Insurers
Article 93 Where
an accident covered was caused by a third party and the insurer has indemnified
the insured, the insurer is entitled to claim
compensation against the third party by exercising the right of subrogation up
to the amount of the indemnity paid.
Article 94 In
exercising the right of subrogation, an insurer shall, bring an action in its
own name against the third party that caused the accident covered, if no action
has been brought by the insured against that third party.
Article 95 In exercising the right of subrogation, an insurer may apply
to the court entertaining the case for an alteration of the party to the
lawsuit and subrogate the rights of the insured against the third party that
caused the accident covered, if an action has been brought by the insured
against that third party.
Where
the losses of the insured caused by a third party cannot be fully covered by
insurance indemnity, the insurer and the insured may act as co-plaintiffs to
claim compensation against the third party.
Article 96
Where an action is brought or an application for participating in the action is
filed by an insurer pursuant to the provisions provided for in Articles 94 and
95 of this Law, the insurer shall submit to the maritime court that entertains
the case the certificate evidencing payment of indemnity by the insurer and
other documents necessary for participating in the action.
Article 97 An
aggrieved party may claim for oil pollution damage caused by a ship either
against the owner of the ship causing oil pollution damage or directly against
the insurer who is answerable for the liabilities of the owner of the ship
causing oil pollution damage, or against the person who provides financial
security therefor.
Where
the insurer for oil pollution damage or the person who provides financial
security therefor is sued in an action, such insurer or person is entitled to
demand the owner of the ship causing oil pollution damage to join the
proceedings.
Section
4 Summary Procedure, Procedure for Hastening Debt Recovery and Procedure for
Public Exigence
Article 98 In hearing simple maritime cases in which the facts are
evident, the rights and obligations are clear and the dispute is a minor one,
the maritime court may apply the provisions governing summary procedure in the
Civil Procedure Law of the People's Republic of China.
Article 99 Where
a creditor, on the basis of a maritime-related matter, requests a debtor to pay
a debt in cash or in securities, if it is found to be in conformity with the
relevant provisions in the Civil Procedure Law of the People's Republic of
China, the creditor may apply to the maritime court that has jurisdiction for
an order of payment.
Where
the debtor is an alien, a stateless person or a foreign enterprise or
organization that has a domicile or representative office or branch within the
territory of the People's Republic of China on which the order of payment can
be served, the creditor may apply to the maritime court that has jurisdiction
for an order of payment.
Article 100 A holder of a bill of lading or similar documents for taking
delivery of cargo may apply for public exigence to
the maritime court of the place where the cargo is located in case such
documents are out of control or lost.
Chapter
IX Procedure for Constitution of Limitation Fund for Maritime Claims
Article 101 After
the occurrence of a marine accident, the ship-owner, charterer, operator, salvor or insurer, who wishes to apply for liability
limitation in accordance with law, may apply to a maritime court for constitution
of the limitation fund for maritime claims.
In
the event of oil pollution damage caused by a ship, the ship-owner and the
insurer or the person who provides financial security therefor shall, for the
purpose of obtaining the right of liability limitation provided for by law,
constitute with the maritime court a limitation fund for maritime claims in
respect of oil pollution damage.
Constitution
of limitation fund may be applied for either before an action is brought or
during the process of legal proceedings, or, at the latest, before the judgement of first instance is given.
Article 102 A party who wishes to apply for constitution of a limitation
fund for maritime claims before an action is brought shall file an application
therefor with the maritime court of the place where the accident occurred, the
contract is performed or the ship is under arrest.
Article 103 Constitution
of a limitation fund for maritime claims shall not be bound by the jurisdiction
agreement or arbitration agreement reached between the parties.
Article 104 A person who wishes to apply for constitution of a limitation
fund for maritime claims shall file an application in writing with a maritime
court. In the application shall be stated the amount of the limitation fund to
be constituted for maritime claims, the reasons therefor as well as the names,
addresses and means of correspondence of the interested persons already known,
with relevant evidence attached.
Article 105 The
maritime court shall, within seven days of the acceptance of an application for
constitution of a limitation fund for maritime claims, notify all the
interested persons already known and issue an announcement of the same in the
newspapers or other news media.
Such
notice and announcement shall contain:
(1)
name of the applicant;
(2)
facts and reasons for application;
(3)
particulars for constitution of the limitation fund
for maritime claims;
(4)
particulars necessary in registration of claims; and
(5)
other matters which need to be announced.
Article 106 Any
interested person who objects to the application filed by the applicant for
constitution of a limitation fund for maritime claims shall file in writing
with the maritime court within seven days from the date of receipt of the
notice, or within 30 days from the date of the announcement if no notice is
received.
The
maritime court, having received the written objection filed by an interested
person, shall examine the objection and make an order within 15 days. If the
objection is well founded, it shall make an order to reject the application of
the applicant. Otherwise, it shall make an order to allow the applicant to
constitute a limitation fund for maritime claims.
The
party who is dissatisfied with such an order may appeal within seven days from the
date of receipt thereof. The people's court of second instance shall make an
order within 15 days from the date of receipt of the appeal.
Article 107 Where
no objection is raised by an interested person within the prescribed time
limit, the maritime court shall make an order to allow the applicant to
constitute a limitation fund for maritime claims.
Article 108 After
the order to allow the applicant to constitute a limitation fund for maritime
claims becomes effective, the applicant shall
constitute the fund with the maritime court.
A
limitation fund for maritime claims may be constituted either by depositing
cash or by providing security acceptable to the maritime court.
The
sum of the limitation fund for maritime claims shall cover the amount of liability
to be limited and any interest accruing from the date of the accident up to the
date of constitution. Where the fund is constituted by way of security, the
amount of the security shall cover the amount of the fund and any interest
accruing thereon during the period of such constitution.
Where
the fund is constituted with cash deposited, the date on which the fund is
transferred into the bank account designated by the maritime court shall be
deemed to be the date of constitution of the fund. Where the fund is
constituted with security provided, the date on which the maritime court
accepts the security shall be deemed to be the date of constitution of the
fund.
Article 109 After
a limitation fund for maritime claims has been constituted,
the parties shall bring an action in respect of the maritime dispute with the
maritime court with which the limitation fund for maritime claims has been
constituted, unless a jurisdiction agreement or arbitration agreement has been
reached between the parties.
Article 110 A person, having wrongly applied for constitution of a
limitation fund for maritime claims, shall indemnify the interested person for
the losses thus incurred.
Chapter
X Procedure for Registration and Repayment of Debts
Article 111 After
announcement of the maritime court's order for forced auction of a ship, the
creditors shall, within the time limit announced, apply for registration of
their claims pertaining to the ship to be auctioned. Creditors who fail to
register their claims before expiry of the said time limit period shall be
deemed to have abandoned their rights to be satisfied from the proceeds of the
auction.
Article 112 After
the maritime court's announcement of acceptance of the application to
constitute a limitation fund for maritime claims, the creditors shall, within
the time limit announced, apply for registration of their claims relevant to
the maritime accident that occurred at a particular scene. The creditors who
fail to register their claims before expiry of the time limit announced shall
be deemed to have abandoned their rights to debt.
Article 113 A creditor who wishes to apply for registration of his claims
shall file an application in writing with the maritime court and provide
relevant debt evidence.
Debt
evidence includes legally-binding judgements, written
orders, conciliation statements, arbitral awards, notarised
documents concerning creditors' rights to debt and other evidential material
substantiating the maritime claim.
Article 114 The
maritime court shall examine the application submitted by a creditor, and make
an order to allow the registration if debt evidence is provided, and to reject
the application if it is not.
Article 115
Where the maritime court, having examined the judgements,
written orders, conciliation statements, arbitral awards, or the notarised documents concerning creditors' rights to debt
provided by the creditors, firmly believe that they are all true and lawful, it
shall make an order to confirm them.
Article 116 Where
a creditor wishes to provide other maritime claim evidence, he shall, after
having registered his claims, bring an action to confirm his rights before the
maritime court where the claims are registered. Where an arbitration agreement
has been concluded between the parties, they shall apply for arbitration
promptly.
The
judgements and written orders made by the maritime
court to confirm the rights are legally binding, no
parties may appeal against them.
Article 117
After examining and confirming the debts, the maritime court shall issue a
notice to the creditors for a creditors' meeting, and make arrangements for and
convene the creditors' meeting.
Article 118 The
creditors' meeting may through negotiation put forward a plan for distribution
of the proceeds from auction of the ship or the limitation fund for maritime
claims and sign an agreement on satisfaction.
The
agreement on satisfaction shall be legally binding after the maritime court
makes an order to confirm it.
Where
consultation at the creditors' meeting fails, the maritime court shall,
according to the ranking of claims provided for in the Maritime Code of the
People's Republic of China and other related laws, decide on the plan for
distribution of the proceeds from auction of the ship or the limitation fund
for maritime claims.
Article 119 The
proceeds from auction of a ship and interest thereon, or the limitation fund
for maritime claims and interest thereon, shall be distributed at the same
time.
In
distribution of the proceeds from auction of a ship, the legal costs to be
borne by the person liable, expenses incurred in order to preserve the ship or
to procure its auction and to distribute the proceeds from the auction, as well
as other expenses incurred in the common interest of the creditors, shall first
be paid out of the proceeds from such auction.
The
balance, after satisfaction of the debts, shall be refunded to the former
ship-owner or the person constituting the limitation fund for maritime claims.
Chapter
XI Procedure for Exigence of Maritime Liens
Article 120
Where a ship is transferred, the transferee may apply to the maritime court for
exigence of the maritime lien, demanding the maritime
lien holder to assert his right promptly so as to extinguish the maritime lien
attached to the ship.
Article 121 A transferee who wishes to
apply for exigence of the maritime lien
shall file an application with the maritime court of the place where the ship
is to be delivered or where the domicile of the transferee is located.
Article 122 A person who wishes to apply for exigence
of the maritime lien, shall submit to the maritime court a written application,
the contract for ship transfer, technical data of the ship and other documents.
In the written application shall be stated the name of the ship, the facts and
grounds therefor.
Article 123 The
maritime court, having received the application and the relevant documents,
shall examine them and, within seven days, make an order to approve or
disapprove the application.
A
transferee who is dissatisfied with such an order may apply for review not more
than once.
Article 124 After
an order to approve an application becomes effective,
the maritime court shall issue an announcement in newspapers or other news
media urging the maritime lien holder to assert his right within the period of exigence.
The
period for exigence of a maritime lien is 60 days.
Article 125 A
maritime lien holder who asserts his right within the
period of exigence shall complete registration with
the maritime court; if the lien holder fails to assert his right, he shall be
deemed to have waived the maritime lien.
Article 126
Where on the expiry of the period of exigence, no one
asserts the maritime lien, the maritime court shall, on the application of a
party, make a judgement, declaring that the ship to
be transferred is free from maritime lien. The judgement
shall be published.
Chapter
XII Supplementary Provisions
Article 127 This
Law shall go into effect as of July 1, 2000.