Provisions of the Supreme People’s Court on Relevant Issues in Hearing Limitation of Liability for Maritime Claim Cases

Updated : 2016-10-26

(Adopted at the 1484th meeting of the Judicial Committee of the Supreme People's Court on March 22, 2010) 

FS[2010] No. 11

The Supreme People's Court announces that:

Provisions of the Supreme People’s Court on Relevant Issues in Hearing Limitation of Liability for Maritime Claim Cases has been adopted at the 1484th meeting of the Judicial Committee of the Supreme People's Court on March 22, 2010 and shall be effective as of September 15, 2010

August 27, 2010

 

In order to correctly hear the limitation of liability for maritime claim cases, pursuant to the Special Maritime Procedure Law of the PRC and Chinese Maritime Code, and in combination with judicial practice, these Provisions are hereby adopted.

Article 1 For the hearing of limitation of liability for maritime claim cases, the regulations of the Special Maritime Procedure Law of the PRC and Chinese Maritime Code shall be applied; where it is not regulated in the Special Maritime Procedure Law of the PRC and Chinese Maritime Code, other relevant laws and administrative regulations shall be applied.

Article 2 In the same occurrence, before the filing of the claim if different liable persons apply to constitute the limitation of liability for maritime claim fund pursuant to Article 102 of the Special Maritime Procedure Law of the PRC before different maritime courts, the maritime court that accepted the case later shall remove the case to the maritime court that accepted the case prior to its acceptance to exercise jurisdiction. 

Article 3 If the liable person applies to constitute the limitation of liability for maritime claim fund during the suit, the application shall be submitted before the maritime court that has accepted the case.

When the relevant maritime dispute are accepted by different courts, if the liable person applies to constitute the limitation of liability for maritime claim fund, the application shall be submitted to the maritime court that has accepted the case in the first pursuant to the choice of court agreement. If there is no choice of court agreement between the parties, the application shall be submitted to the maritime court that has accepted the case in the first.

Article 4 After the constitution of the limitation of liability for maritime claim fund, the maritime court before which the fund is constituted shall have jurisdiction over the suits brought about by the maritime claimant against the person liable for the disputes relating to the relevant occurrence. 

When the maritime claimant sues before other maritime court, the maritime court that has accepted the case shall, pursuant to the regulations of the Civil Procedure Law of the PRC, remove the case to the maritime court before which the limitation fund has been constituted, unless there is choice of court or arbitration agreement between the parties.

Article 5 As to the 15 days time period provided in Article 106 (2) of the Special Maritime Procedure Law within which the maritime court shall deliver the civil ruling, it shall count from the 30th day as from the next day when the last Public Announcement of the maritime court for the acceptance of the application for the constitution of the limitation of liability for maritime claim fund is publicized.

Article 6 The expiry day regarding the application for registration of the claim stipulated in the Article 112 of the Special Maritime Procedure Law shall be the 60th day from the next day of the day when the maritime court’s last Public Announcement of acceptance of the application to constitute the limitation of liability for maritime claim fund is publicized.

Article 7 For the creditor applying for registration of the credit, if it complies with related provisions, the maritime court shall make a civil ruling in accordance with Article 114 of the Special Maritime Procedure Law after constitution of the limitation of liability for maritime claim fund; if the limitation of liability for maritime claim fund is not constituted in accordance with law, the maritime court shall make a civil ruling to terminate the claim registration procedure. The registration fee paid by the creditor shall be born by the person who applies for constituting the limitation of liability for maritime claim fund.

Article 8 After the limitation of liability for maritime claim fund is constituted, the maritime claimant may apply for preservation of the liable person’s property, basing on the maritime claims that the person liable can not invoke the defence of limitation of liability for maritime claims.

Article 9 After the limitation of liability for maritime claim fund is constituted, as to the maritime claim which flows from the same maritime accident/occurrence and its liability may be limited in accordance with Article 207 of Chinese Maritime Code, if the maritime claimant applies to arrest the vessel for the reason of exercising the maritime lien, the people’s court shall not support such application.

Article 10 When bringing an action to have the claim confirmed by the creditor, if the creditor claims that the person liable is not entitled to limit his liability in accordance with Article 209 of Chinese Maritime Code, he shall make the claim in written. The procedure of action for confirming claims stipulated by the Special Maritime Procedure Law shall not apply to the hearing of the said case. For the civil judgments and rulings made by the maritime court thereof, the parties may file appeals in accordance with the law.

Where two or more creditors hold that the person liable has no right to limit his liability, the maritime court may consolidate the claims.

Article 11 After the creditor brings an action to have the claim confirmed in accordance with Article 116(1) of the Special Maritime Procedure Law, if it is necessary to determine the extent of the proportion of the faults of the colliding vessels, the procedures for confirming claims stipulated by the Special Maritime Procedure Law shall not be applied to the hearing of the said case; for the civil judgment and ruling made by the maritime court, the concerned parties may file an appeal in accordance with law.

Article 12 The operator of a vessel referred to in Article 204 of Chinese Maritime Code shall be the registered operator of a vessel or the person who accepts the entrustment of the owner of the vessel to actually utilize and control the vessel, and assume liability for the vessel, excluding the NVOCC (non vessel operating common carrier).

Article 13 Where the person liable does not apply for constituting a limitation of liability for maritime claim fund, its right of invoking limitation of liability for maritime claims as the defence according to Article 207 of Chinese Maritime Code shall not be prejudiced.

Article 14 If the person liable does not raise any defence of limitation of liability for maritime claims, the maritime court shall not take the initiative to apply provisions of Chinese Maritime Code concerning the limitation of liability for maritime claims to handle the case.

Article 15 The people’s court shall not support the defence of limitation of liability for maritime claims raised in the second instance or retrial instance if the person liable had not raise the said defence before the judgment of the first instance is made.

Article 16 Where the person liable has not raised the defence of limitation of liability for the maritime claims as stipulated by Article 207 of Chinese Maritime Code and the creditor applies for executing the properties other than the limitation fund of the person liable in accordance with relevant effective judgment or arbitration awards, the people’s court shall support the application, except that the creditor takes the abovementioned documents as evidences of creditor’s rights to apply for registering creditor’s claims and is approved by a civil ruling of the maritime court.

Article 17 The items of the maritime liabilities which may be limited in accordance with Article 207 of Chinese Maritime Code shall not include the claims caused by refloating, cleaning up, demolishing the sunken vessels, vessels in distress, grounding vessels or abandoned vessels, or by making the abovementioned vessels harmless; or claims caused by cleaning up, demolishing of the cargo on board, or by making the said cargo harmless.

Where the person liable sustained the claims in the preceding paragraph due to vessel collision, when the person liable claim recourses against the opponent vessel for the loss incurred thereon, if the person against whom the claim is brought raises defence for limitation of liability in accordance with Article 207 of Chinese Maritime Code, the people’s court shall support.    

Article 18 The “person liable” referred to in Article 209 of Chinese Maritime Code shall be the person himself who is liable for maritime accident.  

Article 19 In case the maritime claimant alleges that the person liable has no right to limit his liability based on the reason that the vessel involving in the maritime accident is unseaworthy, but the maritime claimant can not prove that the loss was resulted from the liable person’s act or omission done with the intent to cause such loss or recklessly and with knowledge that such loss would possibly be produced, the people’s court shall not support such allegation.

Article 20 The limitation of liability for maritime claim fund shall be constituted in the currency of RMB, and its amount shall calculated in accordance with the converting method of the SDR (special drawing right) against RMB of the day when the civil ruling made by the court to approve to constitute such fund takes effect.

Article 21 The interests stipulated by Article 213 of Chinese Maritime Code shall be calculated from the date when the accident happened to the date when the fund is constituted in accordance with the benchmark one-year loan rate of the same time of the financial institutions determined by the People’s Bank of China.

In case the limitation of liability for maritime claim fund is constituted in the form of guarantee, the interests during the constitution of the fund shall be calculated in accordance with the benchmark one-year loan rate of the same time of the financial institutions determined by the People’s Bank of China.

Article 22 If the judgment of the case has taken effect before the implementation of these Provisions, these Provisions shall not be applied when the people’s court conducts a retrial of the case.

Article 23 In case the judicial interpretations adopted by this court before the implementation of these Provisions are inconsistent with it, these Provisions shall prevail.