Editor's note: JPRI
International Judicial Conference 2018 was held in
Judicial
Practice on Maritime Disputes Settlement
in Mainland China
Chan YANG
Presiding Judge, Shanghai Maritime Court
It’s my great honor to share our judicial
practice on maritime disputes settlement.
The Court System in Mainland China
1.
People's
courts are judicial organs of the mainland China, adjudicating civil, criminal
and administrative suits and carrying out judicial activities including the
execution of civil and administrative decisions and state compensation.
2.
The
State sets up Supreme People's Court, local courts at different levels and
specialized courts.
3. Local courts are established in conformity
with the administrative divisions, and there are three levels of courts: basic
people's courts, intermediate people's courts and high people's courts. A
people's court at a higher level supervises the judicial work of the people's
courts at the next lower level.
4. Specialized courts are set up where necessary.
For now, Courts of specialized jurisdiction in mainland China include military
courts, maritime courts, railway transport courts, intellectual property
courts, Internet Courts and the financial Court. The youngest specialized court
is Shanghai Financial Court, which was established in August this year.
5. Adjudicatory mechanism in mainland China is
second instance finality with four levels of courts (and three levels in
particular for maritime cases).
6.
Organizational
structure of the court system in mainland China is as follows:
The
Specialized Maritime Adjudication System of Mainland China
7.
Ten maritime
Courts, high people's courts which seat at the domicile of the relevant
maritime courts and the Supreme People’s Court constitute the maritime
adjudicatory mechanism in mainland China.
8.
The
Supreme People’s Court and the Ministry of Transport, with approval of the
Commission for Politics and Law of Central Committee of the Communist Party of
China, jointly issued the Notice on Establishing Maritime Courts on May 24,
1984, thereby setting up maritime courts in Shanghai, Tianjin, Qingdao, Dalian,
Guangzhou and Wuhan. The 6 courts were officially established on June 1, 1984.
9.
To
meet the increasing judicial demand, the Supreme People’s Court subsequently
decided to set up maritime courts in Haikou and Xiamen in 1990, in Ningbo in
1992, and in Beihai in 1999.
10.
Since
1992, the ten maritime courts throughout the country
have established 39 dispatched tribunals in
major port cities within their jurisdictional territories, located in 15
provinces or Municipalities or Autonomous Regions to conduct on-site hearing.
This has formed specialized maritime adjudication infrastructure covering every
port and the entire territorial waters of China, from Heilongjiang River in the
north to the islands of Xisha, Zhongsha,
Nansha and Huangyan Isle in
the south.
11.
After
the maritime courts were established, the high people's courts in the cities
where such maritime courts are located were designated as the appellate courts.
And specialized collegiate panels for second instance trial of maritime cases
were set up within the Economic Divisions, the Fourth or Third Civil Division
of the Appellate High Court and a specialized team of maritime judges were
built up.
12. In order to strengthen guidance and
supervision of adjudicatory work for maritime cases throughout the country, the
Supreme People’s Court set up the Transport Disputes Adjudication Division in
March 1987, changing it later to the Fourth Civil Division in the year 2000,
for handling first instance cases with national influence, as well as appeals on
first instance trials of high people’s courts and re-hearing of maritime cases,
exercising guidance and supervision over the adjudicatory work of all the
maritime courts and the appellate high people’s courts. Hence, the maritime
adjudication system of “second instance finality with three levels of courts”
is formed.
Characteristics of Maritime Judicial
Practice of Mainland China
13.
Relatively
Independent Maritime Law System
The legal system of the People's Republic of China is similar to the civil law
system. The main statutory law of the maritime law of the PRC is the maritime law of the People's Republic of
China, also known as The Maritime
Code of the People's Republic of China, which was enacted in 1992 and came
into enforcement in 1993. The detailed 15-chapter, 278-article maritime code is
to a large extent modeled on international conventions and international
practice and plays an important role in regulating China's maritime transport
relations and ship relations, promoting maritime transport and economic and
trade development. In 1999, the Special
procedure law of the People's Republic of China on maritime litigation was enacted,signifying
establishment of our maritime legal system.
14.
The Supreme People's Court has promulgated 18 judicial
interpretations for the implementation of Chinese maritime law and the unification
of the judicial practice.[1]
15. Both the
substantive and procedural law governing maritime disputes also include certain
other civil laws, but the maritime law shall prevail in case of any
inconsistency.
16. However, as time
passed by, the maritime code has been lagging behind the development in many
ways and calls for a comprehensive modification. In early November 2018, the
revised version of draft amendments to the maritime code was officially released
for solicitation of comments.
17. Specialized Jurisdiction over Maritime Cases
In accordance with the
Civil Procedural Law of People’s Republic of China, the Maritime Procedural Law
of People’s Republic of China, and Provisions
of the Supreme People’s Court on the Scope of Cases to Be Accepted by Maritime
Courts (March 1, 2016), the maritime
courts exercise their jurisdiction across some different administrative
regions, hear first-instance cases over 6 categories (108 types), include:
l Maritime tort
l Maritime
contracts
l Maritime and
navigable waters development and utilization and environmental protection
related dispute cases
l Other maritime
disputes
l Maritime
administrative case
l Maritime special
procedure cases (includes maritime enforcement)
18. Maritime courts
previously only heard civil and commercial cases, but the latest provisions
affirmed the jurisdiction of maritime courts over maritime administrative cases
and stipulate that the cases should be under the jurisdiction of maritime
courts if they concern administrative enforcement.
19. The call for a
three-in-one trial never stops. On February 2017, the Supreme People’s Court
designated Ningbo Maritime Court as a pilot court to exercise jurisdiction over
maritime criminal cases. June 5th, 2017, authorized by Zhejiang High People’s
Court through (2017) Zhe Xing Xia No.29 Order for
Jurisdiction Designation, Ningbo Maritime Court accepted a criminal case. Allan
Mendoza Tablate, the defendant, was charged of
committing a traffic offence by Ningbo Prosecution Office. [2]It is the
first maritime criminal case accepted by maritime court, also the only one so
far.
20.
The annual caseload rose from 100 plus cases per year in
the beginning to more than 20,000 in 2013, the highest in the world. Statistics
shows that the annual nationwide maritime caseload in recent years is about
15,000, excluding cases on application for execution of court decisions.
21. Taking Shanghai
maritime court for example, we can see that in 2017, Shanghai Maritime Court accepted
a total of 4, 274 cases of first instance, and concluded 4, 279 cases. Among
the cases filed with our court, a total of 2828 cases were disputes over contracts
for freight forwarding by sea or on sea-linked waters, taking up the largest
proportion, and a total of 487 cases were disputes over contacts for carriage
of goods by sea or on sea-linked waters. These two types of cases totally
accounted for 84.70% of the total. Other representative cases include 146 cases
of disputes over contracts concerning ship crew, 35 cases of disputes over
contracts for ship repair/building/purchase, 43 cases of disputes over vessel
leasing, 25 cases of disputes over marine insurance contracts, 45 cases of disputes
over maritime personal injury or deaths, and 23 cases of disputes over compensation
for damage caused by vessel collision or contact. Since the expansion of the
scope of cases that may be accepted by maritime courts on March 1, 2016, there have
been new types
of disputes, for example: disputes over purchase and
sale contracts for special items for ships, disputes over lease contracts for
terminals, disputes over ship engineering contracts, but the number of cases of
each type of such disputes was small. In addition, in 2017, we accepted a
maritime administrative case.
22. A Large Proportion of Maritime Cases Involve
Foreign Elements
Compared to the cases heard by the local courts, a much
more large proportion of maritime cases involve foreign elements, concerning
about 70 countries and regions worldwide.
23.
From 2013 to 2017, Shanghai maritime court received first
instance 2,393 cases involving foreign interests (mainly involving foreign parties),
accounting for about 20% of the total first instance cases of our court, and
the total value of the subject matter of such cases exceeded RMB 5.4 billion.
In the past 5 years, our court heard nearly 50 cases involving Korean parties, and
the total value of the subject matter was about RMB 42 million.
24.
Article 8 of the
Special procedural law of the People's Republic of China stipulates that where the
parties to a maritime dispute are foreign nationals, stateless persons, foreign
enterprises or organizations and the parties, through written agreement, choose
a maritime court of the People's Republic of China to be the competent court,
even if the place with practical connections to the dispute is not within the
territory of the People's Republic of China, the chosen maritime court of the
People's Republic of China shall also have jurisdiction over the said dispute.
It’s noteworthy that the number of cases voluntarily filed by foreign parties
with Shanghai Maritime Court has increased. For example, there was a case of
dispute over liability for damages caused by vessel collision, and the parties
in this case from North Korea and South Korea both agreed in writing on April
2018 that the case shall be filed with Shanghai Maritime Court.
New Practices of
Shanghai Maritime Court
25.
Brief Introduction
on Shanghai Maritime Court
Shanghai Maritime Court, established in 1984, has
jurisdiction over marine and maritime cases of first instance within its
jurisdictional areas, which include the neighboring sea areas of Jiangsu
Province, Shanghai Municipality, Yangshan Deep-water
Port, and the water area connecting the sea of the Yangtze River starting from
the estuary of Liuhe River. Shanghai High People's
Court has jurisdiction over appeals on the judgments and orders rendered by
Shanghai Maritime Court. Its internal institutions include the Maritime Affairs
Tribunal (Hai Shi Ting), the Maritime Commerce
Tribunal (Hai Shang Ting), the Case Filing Chamber,
the Enforcement Bureau etc.. Besides, it has four
dispatched tribunals with two based in Shanghai, namely the Yangshan
Deep-water Port Tribunal and Shanghai Free Trade Zone Tribunal, and the other two
based in Jiangsu Province, namely
Lianyungang Port Tribunal and Yangkou Port
Tribunal.
26. The most
influential case is the one involving the Japanese ship, Baosteel
Emotion, owned by Mitsui O.S.K. Lines. The shipping firm was sued in 1988 over
delays in leasing payments for two ships and consequential economic losses
dating back to the 1930s. The maritime court ruled in 2007 that it should
compensate a Chinese firm 2.9 billion Japanese Yen (28.5 million U.S. dollars).
Shanghai High People's Court upheld such ruling in 2010, and the maritime court
released the ship days after the owners paid the compensation.
27. Improve Professionalized Trial Mechanism to Enhance Quality
of Maritime Trials
The
Court appointed the first 10 expert
jurymen from shipping insurance, shipbuilding and maritime administration,
which hopefully may bring their expertise into full play and enhance the
professional level of maritime trials. Furthermore, the Court has built up the
maritime judicial identification and assessment database and formulated guidelines
concerning certain kinds of cases for further promotion of the professionalism,
scientificity and impartiality of maritime judicial
identification and assessment.
28. Establish the “Four-Fast” Green Chanel to Resolve
Maritime Civil Disputes Properly
The Court attached importance to the trial of maritime
civil cases and established the “four-fast” (fast registration, fast
preservation, fast trial and fast enforcement) green channel so that the case
registration, trial and enforcement departments can cooperate with each other
closely for prompt and effective protection of the legitimate rights and
interests of the parties. The two cases properly settled by the Court, namely a
case of dispute over maritime personal injuries or deaths arising from a major
marine accident of “Sanshui 805” in which 15 seamen lost
their lives and a case of dispute over compensation for personal and property
damages on the sea referred by
the Supreme People’s Court to Shanghai Maritime Court and filed by the family
members of 28 seamen victims, reflecting the fair and highly efficient maritime
trial and realizing the integration of legal effect and social effect.
29. Improve the Online Ship Auction Mechanism to Overcome
Maritime “Enforcement Difficulty”
The Court expanded the online ship auction platform,
formulated work rules for online ship auction and standardized detailed online
ship auction procedure to improve the efficiency of online ship auction. In 2017,
the Court auctioned 10 ships online, totaling a trade value of RMB 144.28
million, with an average premium rate of 42.88%, vigorously enhancing the
property liquidation and debt compensation rate of maritime cases of
enforcement.
30.
Expand the
Application of Network Information Technology to Facilitate Litigation and
Improve Efficiency
The Court introduced an “E-Mediation” mobile
application to construct highly efficient, convenient, flexible and open online
mediation mode, reducing litigation costs and enhancing judicial efficiency. In
2016, the Court successfully settled 105 pre-trial cases through the mediation
platform, becoming the first one in China that mediated cases through a mobile
application, and was designated a pilot court for online mediation platform by
the Supreme People’s Court. In certain court hearings of cases involving
foreign elements, some evidences were examined across borders via video-link to
investigate the case facts. This innovative practice significantly improved
cross-border evidence examination efficiency and saved judicial resources and
litigation costs.
Conclusion
31. At present,
China is an important country in the world in maintaining specialized and
comprehensive maritime adjudicatory institutions and in accepting maritime
cases, with a relatively sound maritime legal system and maritime judicial
service system. Many important changes have occurred as the law grows and
changes. Facing the future, China’s maritime adjudication will stand at a new
starting point in closer connection with the national opening-up strategies and
maritime strategies, and will endeavor to build up its maritime judiciary reputation
with extensive international influence.
Thank you all!
[1] Provisions on Pretrial Arrest of Ships by
the Maritime Courts
Provisions on Maritime Court Selling the
Ship Arrested by Auction to Satisfy Debts
Provisions on the Trial of Claim for
Property Damages Arising out of Ship Collision and Touch
Reply on Limitation Period for Claims by
Carrier with regard to Carriage of Goods by Sea against
Consignor, Consignee or Holder of Bills of Lading
Reply on Limitation Period for Claims with regard to Carriage
Goods in Coastal Waters and Inland River
Several Provisions on Scope of Cases to
be Entertained by Maritime Courts
Interpretations on the Several Issues
Concerning Application of the Maritime Procedure Law of
the People’s Republic of China
Reply on Whether Channel Maintenance
Dues may be Listed in Maritime Liens
Provisions on Several Issues Concerning
Adjudicating Marine Insurance Disputes
Provisions on Several Issues Concerning
Adjudicating Ship Collision
Disputes
Provisions on Several Issues Concerning
Law Application in Adjudicating Disputes Arising out of Delivery of Goods without
Production of Original Bills of Lading
Provisions on Adjudicating Disputes
Concerning Limitation of Liability for Maritime Claims
Provisions on Several Issues Concerning
Adjudicating Disputes of Compensation for Ship Oil Pollution Damage
Opinions(Provisional) on Selection and
Appointment of Maritime Court People’s Jurors
Provisions on Several Issues Concerning Adjudicating Disputes of Maritime
Freight Forwarding
Reply on Whether Small Claim Procedure
May Be Adopted in Maritime Courts
Provisions of the Supreme People’s Court
on the Scope of Cases to Be Accepted by Maritime Courts
Provisions of the
Supreme People’s Court on
Issues concerning the Jurisdiction over Maritime Actions.
[2] Approximately
at 3:34 am on May 7th, 2016, the Malta bulk carrier CATALINA, during her trip
from Lianyungang China to Indonesia, collided with the Chinese Shidao fishing vessel Lu Rong Yu
58398 in fog near the coastal waters of Xiangshan of
Zhejiang Province at 72 nautical mile east by north of Nanjiushan
Island. As a result of the collision, Lu Rong Yu
58398 sank, and among its 19 seafarers, 14 died and 5 were missing. The
relevant Maritime Safety Administration has determined that CATALINA shall be
primarily responsible for the incident. Allan Mendoza Tablate,
the second mate of CATALINA and behind the steering wheel during the incident,
was approved to be arrested after the incident.