The Supreme People's Court on the trial of cases of disputes over some limitation of liability for maritime claims (Interpretation (2010) No. 11)

China foreign-related commercial and maritime trial published: 2010-09-02 09:15:43

The Supreme People's Court on the trial of cases of disputes over the limitation of liability for maritime claims "the several provisions of the Supreme People's Court on March 22, 2010 the 1484th meeting of the judicial committee, is hereby promulgated, shall enter into force as of September 15, 2010.

Two August 27th 2010

Http://www.ccmt.org.cn/shownews.php? Id=9435

In order to correctly judge the limitation of liability for maritime claims disputes, in accordance with "the people's Republic of China Special Maritime Procedure Law of the people's Republic of China", "maritime law" provisions, combined with the actual trial, the enactment of this provision.

ArticleArticle 1 [hearing for cases of disputes over the limitation of Maritime Liability Law]

Article 1 the trial of cases of disputes over the limitation of liability for maritime claims, the provisions applicable to the Special Maritime Procedure Law, maritime law; no provisions of the Special Maritime Procedure Law, maritime law, provisions of other relevant laws, administrative rules and regulations.

Cases of disputes over the limitation includes relevant procedure cases constituting a limitation fund for maritime claims of liability for maritime claims, including limitation of liability for maritime claims involving substantial disputes cases. So we need to apply the Maritime Procedure Law of the process, also need the law applicable to maritime law and other entities.

ArticleArticle 2 [v.] before the establishment of fund jurisdiction

Article second the same maritime accident responsibility person different, before filing a lawsuit according to the provisions of the Special Maritime Procedure Law Article 102nd to the maritime court to different application for constituting a limitation fund for maritime claims, the maritime court shall file in accordance with the provisions of the civil procedure law, transfer the case under the jurisdiction of the maritime court to file.

"Maritime Procedure Law" provisions of article 102nd, the application for the establishment of the prosecution of former fund, the accident occurred, contract or to the maritime court of the ship arrest. There may be different in different maritime court responsible fund situation, is not conducive to the entity trial and subsequent fund allocation, therefore this article aims to transfer provisions, establish the first file unified maritime jurisdiction.

ArticleArticle 3 [action] fund jurisdiction

Article third responsibility person in the proceedings for constituting a limitation fund for maritime claims shall be the maritime court, accepts the relevant maritime disputes presented.

The relevant maritime disputes caused by different maritime court, responsible for constituting a limitation fund for maritime claims, on the basis of jurisdiction agreement shall apply to the maritime court case first put forward; the parties fails to conclude a jurisdiction agreement, apply to the maritime court accepts the case first.

Procedure for the fund, under the jurisdiction of the maritime court which accepts the relevant maritime disputes. The relevant maritime disputes caused by different courts, by the first accepted the unified jurisdiction of the maritime court. Reason second.

"Maritime Procedure Law" provisions of article 109th, after the establishment of a limitation fund for maritime claims, the parties concerned shall apply to the maritime court maritime disputes constituting a limitation fund for maritime claims litigation, except that the parties reach an a jurisdiction agreement or an arbitration agreement.

ArticleArticle 4 [fund established relevant jurisdiction]

Article fourth the limitation fund for maritime claims is set up, the maritime court set up a fund for the maritime claimant on maritime disputes related to responsible persons lawsuit has jurisdiction.

A maritime claimant brings an action to other maritime court, the maritime court shall accept the case in accordance with the provisions of the civil procedure law, the maritime court shall transfer the case to the constituting a limitation fund for maritime claims, except that the parties reach an agreement on jurisdiction.

Fund established, related to maritime disputes should be established in fund jurisdiction of the court. Have sued to court, the court shall be transferred to the fund. With the exception of the jurisdiction agreement.There is an arbitration agreement, should also be excluded.

ArticleArticle 5 to set up a fund [ruling] during the objection application

The maritime court, fifth Special Maritime Procedure Law of 106th provisions of the second paragraph of the ruling period within fifteen days from the day following the announcement, the last time the maritime court to set up the limitation fund for maritime claims for the release of thirtieth calculation date.

"Maritime Procedure Law" the 106th regulation, the interested parties on the application for constituting a limitation fund for maritime claims have objection, should be in receipt of notice within seven days from the date or not received notice from the date of the announcement thirty days, in written form to the maritime court.The maritime court, having received the written objection submitted by the interested party, shall carry out the examination, make an order within fifteen days. Objection, the court rejected the request of the applicant; if the objection is not established, it shall order to approve the applicant to constitute a limitation fund for maritime claims. The party is dissatisfied with the ruling, may file an appeal within seven days as of the date of receipt of the order. The people's Court of second instance shall make an order on receipt of the appeal within fifteen days from the date of.

Because of the known interested parties and the public informed of the interested parties may raise objections at different times to the court, in accordance with the above provisions, the maritime court and appellate court may make a ruling. The provisions of this article to centralized review interested parties of the objection and agreed to make a ruling effect.

The applicant applying for the establishment of a limitation fund for maritime claims have objection, objection reason can include what? If the statutory body responsible person does not belong to can set up a fund, the maritime court shall not approve the funding decision.

"Marine procedure law judicial interpretation" eighty-third, interested persons on the basis of the Special Maritime Procedure Law the provisions of article 106th of the applicant to constitute a limitation fund for maritime claims objection, the maritime court shall onThe establishment of the fund applicant qualification,The accident involved the nature of creditor's rightsAndThe application for the establishment of the fund sizeReview.

ArticleArticle 6 [set up funds and debts registration and payment procedure to solve the conflict]

Application for registration of claims during the sixth Special Maritime Procedure Law stipulated in article 112nd of the prior to the expiry date, the release for the last announcement the maritime court to set up the limitation fund for maritime claims the application within sixtieth days.

"Maritime Procedure Law" the 112nd regulation, the maritime court constituting a limitation fund for maritime claims after the announcement, the creditors shall, within the period of the public announcement of maritime accident occurrence and characteristics of the creditor to apply for registration. The period of the public notice no registration, as a waiver of claims.

Appear in the fund shall order to approve the registration of claims before and creditor brings a lawsuit may practice, and ultimately failed to set up the fund.

In view of this, this article redefines the application for registration of claims during expiration date, defined asThe next day the last announcement to the maritime court to set up the limitation fund for maritime claims for release within sixtieth days.

"Marine procedure law judicial interpretation" the eighty-second regulation, the establishment of a limitation fund for maritime claims shall be through newspapers or other news mediaContinuous announcement three days. If the ship is sailing on international routes, shall issue a public notice through newspapers or other news media.

ArticleArticle 7 [application for registration of claims review shall be carried out in the fund since the establishment of]

Article seventh creditors to register the claim, in conformity with the relevant provisions, the maritime court shall the limitation fund for maritime claims shall, in accordance with the provisions of the Special Maritime Procedure Law Article 114th ruling; the limitation fund for maritime claims is not established in accordance with the law, the maritime court shall make a ruling to terminate the registration of claims procedures. The creditor has to pay the application fee by the application for the establishment of the burden of the fund of limitation of liability for maritime claims.

"Maritime Procedure Law" the 114th regulation, the maritime court shall examine the application, to provide evidence of creditors' rights, shall order to approve the registration; do not provide evidence of creditors' rights, the court rejected the application.

ArticleArticle 8 [fund does not affect non limit for property preservation of creditor's rights]

Article eighth the limitation fund for maritime claims is set up, the maritime claimant responsibility according to the law can not be quoted on limitation of liability for maritime claims in defense of maritime claims, the person responsible for the preservation of property.

ArticleArticle 9 [fund established, restrictive creditors not to exercise the priority for the arrest of the ship]

Article ninth the limitation fund for maritime claims is set up, the maritime claimant to produce the same maritime accident on maritime law 207th stipulation to limitation of liability for maritime claims, applies for arrest of a ship to ship priority for exercise, the people's court shall not support.

"Maritime law" provisions of article twenty-eighth, maritime lien shall be enforced by the Court seized the ship have priority.

"Maritime law" provisions of article 214th, responsible for the constitution of limitation fund, make any request to the responsible person, shall not be any property of the responsible person to exercise any rights; marine liability limitation fund has been established or other property has been seized, or fund has been submitted to the collateral, the court shall promptly ordered the release or ordered to return.

"Maritime procedure law judicial interpretation" of the provisions of article eighty-sixth, constituting a limitation fund for maritime claims, put forward any request to the fund, not to any other property fund set up or the person in whose name the claim, to exercise any right.

In addition, "maritime law" provisions of article thirtieth, this section (priority) shall not affect the implementation of law eleventh chapter of limitation of liability for maritime claims provided.

In view of this, this article makes clear a regulation, fund was set up, the request to have the same maritime accident maritime claim based on even with maritime lien creditor's rights, the maritime court shall support the arrest of a ship for not.

ArticleArticle 10 [in the filed proceedings, writing responsible person shall not be entitled to limit liability claims proceedings]

Article tenth creditorsFiled a lawsuit whenOn the basis of the provisions of maritime law, 209th claims responsibility person has no right to limitation of liability, shall be made in written form. The trial is not applicable provisions of the special maritime procedure law confirmation proceedings, parties to make to the maritime court verdict, ruling may appeal in accordance with the law.

Two or more creditors claim that the responsible person shall not be entitled to limitation of liability, the maritime court may be related with the trial case.

"Maritime law" article 209th, proved by the request for compensation, the loss was due to the responsibility of the person intentionally or Ming Zhi may cause losses and hastily resulted from an act or omission, responsibility according to the provisions of this chapter shall not be entitled to limit liability. (lose liability limit)

Proceedings and proceedings relating to the liability for maritime claims is two kinds of different action. Proceedings is the provisions of Maritime Procedure Law for a trial special procedure, and relates to the limitation of liability litigation is apply the ordinary procedure. If the maritime creditors in the proceedings of the responsible person to enjoy the limitation of liability for maritime claims his dissent in writing, shall terminate the proceedings cases, cases will be transferred to ordinary procedure, the parties to the maritime court verdict, ruling may appeal in accordance with the law.

Many creditors proposed, responsible person can enjoy the limitation of liability is a common problem, the maritime court may be related with the trial case.

ArticleArticle 11 [filed a lawsuit after the collision, to judge the degree of fault ratio, the case shall apply the ordinary procedure]

Article eleventh creditors on the basis of the Special Maritime Procedure Law of 116th provisions of the first paragraph of lawsuit filed after the collision, to judge the degree of fault ratio, the trial is not applicable provisions of the special maritime procedure law confirmation proceedings, parties to make to the maritime court verdict, ruling may appeal in accordance with the law.

"Maritime Procedure Law" provisions of article 116th, creditors with other evidence for maritime claims shall handle registration of claims, in the future, in the maritime court entertaining the registration of claims filed a lawsuit. There is an arbitration agreement between the parties, shall promptly apply for arbitration.The maritime court verdict of proceedings, shall promptly apply for arbitration.

"Marine procedure law judicial interpretation" the ninetieth regulation, creditors on the basis of the Special Maritime Procedure Law 116th stipulation to the maritime court entertaining the registration of claims filed a lawsuit,Shall be filed in seven days for the creditor's rights registration.

Existing problems: for the registration of claims, but the existence of an arbitration agreement, whether should also in arbitration within seven days after the registration for the creditor's rights? The author viewpoint: the tendency to initiate arbitration proceedings shall filed in court, shall also be filed in seven days for the creditor's rights registration.

In addition, if the arbitration, to judge the degree of fault ratio of ship collision, whether it can be solved in the arbitration? The author viewpoint: this situation is rare, it relates to the degree of fault ratio of ship collision, is a plaintiff in the East as a joint defendant of liability according to the proportion of negligence. The plaintiff and the defendant and the possibility of two signed arbitration agreement is very small. Even if the arbitration clause shall be agreed at the same time, the problem of collision degree of fault ratio agreed arbitration agreement in the case of collision of ship owners, the arbitration tribunal has jurisdiction.

ArticleArticle 12 [the main limitation of liability - ship operator meaning]

The operator of the ship twelfth maritime law the provisions of article 204th refers to the operator of the ship registration, or by the ship owner entrust the actual use and control of the ship and the ship shall bear the responsibility, but does not include the non vessel shipping operator.

Limitation of liability for maritime claims provided for in the subject of "maritime law" article 204th and article 205th. The provisions of article 204th, the ship owner, rescue, on the 207th article of this law the list of maritime claims, may limit their liability in accordance with the provisions of this chapter.Ships referred to in the preceding paragraph of all people, including the charterer or ship operator.

The provisions of article 205th, the 207th article of this law the list of maritime claims, not to the owner, the salvor I propose, but made to their responsibility for their behavior, negligence of personnel, these personnel may limit their liability in accordance with the provisions of this chapter.

This provision clearly documented the operator of the ship to ship in a certificate to that, if the certificate is not recorded in the ship operators, ship operators shall accept the owner entrusted to the actual use and control the ship and shall bear the responsibility of the ship.

The system of limitation of liability for maritime claims is endowed with the meaning of interests on the ship are to limit the liability of rights. Ship operators should understand whether its interests from the perspective of the ship. From the name can be seen, the operator of the ship shall be the actual operating ship person. While the operation of ships is refers to the actual control of the ship, with the interests of the ship.

"Regulations" provisions of article seventh, the non vessel shipping business, refers to the non vessel shipping operator to the identity of the carrier to accept the cargo of the shipper, issue its own bills of lading or other transport documents, to the shipper freight charge, through international shipping operators to complete the international carriage of goods by sea, the international maritime transportation business activities to bear the responsibility of the carrier. Thus, the characteristics of the non vessel carrier is no boat, transport operators, not the operation of ships, there is no interest relationship between it and the ship. Therefore, the non vessel shipping operator should not be included within the scope of the operator of the ship, not as the main body to enjoy the limitation of liability for maritime claims.

ArticleArticle 13 [whether the fund can not influence the limitation of liability for maritime claims Defense]

Article thirteenth liability does not apply to constitute a limitation fund for maritime claims in the lawsuit, does not affect its maritime on maritime law 207th stipulation request for limitation of liability for maritime claims defense.

ArticleArticle 14 [the court does not take the initiative to apply the limitation of liability for Maritime Claims]

Article fourteenth responsibility person did not put forward the limitation of liability for maritime claims defense, the maritime court shall not take the initiative to apply the maritime law provisions on limitation of liability for maritime claims is the referee.

This article made clear to the defense of the right of limitation of liability for maritime claims, is a kind of special right given by maritime law liability of maritime accident. According to the rules of prescription counterargument in the party, for the limitation of liability for maritime claims, defense, law courts should not invoke the limitation of liability for maritime claims is the referee.

ArticleArticle 15 [exercise of limitation of liability for maritime claims of right of defense limit]

Article fifteenth the responsibilities of the person inA courtLimitation of liability for maritime claims defense did not put forward, put forward in the second period, the retrial, the people's court shall not support.

The responsible person shall put forward the limitation of liability for maritime claims when, maritime law and Maritime Procedure Law has no provisions. The litigant request should be put in the first instance. The increase of independent claims in the second instance, the court can not directly make a decision, it is the principle of civil procedure. Based on the principle of equal rights, right of defense should be restricted in a trial period. "The provisions of Article 4 judicial interpretation of the limitation of action", the parties do not raise a defense against limitation of action in the first instance, put in during the trial of second instance, the people's court shall not support. Belongs to the defense right of limitation of liability for maritime claims, with reference to the provisions of the limitation of liability, liability defense should be limited in the first instance.

ArticleArticle 16 [without the limitation of liability for maritime claims, defenses of judgment documents or the arbitration award, may apply for enforcement of funds, property, unless it has applied for registration of claims and court ruling permitted]

Article sixteenth responsibility of maritime law 207th stipulation of maritime claims of limitation of liability for maritime claims defense did not put forward, on the basis of the relevant creditors of judgment documents or the arbitration award, the application execution responsibility beyond the limitation fund for maritime claims of property, the people's court shall support, but the above documents as evidence of creditors' rights to register the claim and the maritime court shall order to approve except.

If the responsible person did not put forward the limitation of liability for maritime claims defense, the creditor may according to the effective judgment or arbitral award for execution outside the property fund. That is, although the creditor's rights belonging to the provisions of article 207th of CMC limited rights, but because the responsible person did not put forward the limitation of liability for maritime claims defense, the creditor's rights that can serve as a non restrictive debt required to fund the property except.

But if the creditor and as evidence of creditors' rights to register the claim and the maritime court shall order to approve, the equivalent of the creditors and abandoned as unrestricted right of creditor's rights, can only be assigned in the fund.

ArticleArticle 17 [salvage claim does not belong to the limited rights, but to each other collision phase recovery, each other is entitled to limitation of Liability]

Article seventeenth the maritime law 207th stipulation may limit their liability of maritime claims does not include the ship sank, abandoned by the victims, stranded or floating, removal, demolition or rendered harmless filed a claim, or bring an innocuous clearance, cargo ship demolition or make claims.

Because the ship collision resulting from the provisions of the preceding paragraph claims responsibility, responsibility is resulting in losses to the other ship by the claimant claims recovery, according to maritime law the provisions of article 207th of the limitation of liability, the people's court shall support.

ArticleArticle 18 [loss of limitation of liability for maritime claims conditions]

Article eighteenth the maritime law 209th stipulation "responsible person" refers to the maritime accident responsibility person.

Maritime law article from "Convention on limitation of liability for maritime claims" in 1976, should be based on the Convention and the international common knowledge to be understood, the maritime law article 209th in the "responsible person" should be understood as responsible person, specifically what is responsibility person, shall be explained by case.

ArticleArticle 19 [only proved unseaworthy ship maritime accident. People do not lose the limitation of liability, liability]

The ship nineteenth where a maritime claimant to maritime accident unseaworthiness of the vessel on the grounds that the responsible person shall not be entitled to limit liability to pay compensation, but cannot prove cause claim is due to the loss of responsibility I intentionally or knowingly may cause losses and reckless act or omission is made, the people's court shall not support.

ArticleArticle 20 [currency] fund

Article twentieth the limitation of liability for maritime claims shall be set up to RMB funds, conversion method the amount according to the court granted the fund's ruling on the date of entry into force of the SDR currency calculation.

ArticleArticle 21 [interest] how to calculate

Article twenty-first the maritime law the 213rd regulation of interest, since the date of the accident fund set up to date, the people's Bank of Chinese determined according to the financial institutions of the same period the benchmark one-year lending rate calculation.

A limitation fund for maritime claims set up by the way of security, fund during the period of interest determined by the people's Bank of Chinese financial institutions over the same period the benchmark one-year lending rate calculation.

"Maritime law" article 213rd, responsible for the limitation of liability under this code, can be in any court of competent jurisdiction constitute a limitation fund. The amount of funds are the 210th article of this law, the provisions of the 211st limit, the corresponding interest with the self responsibility of date to the date of the constitution of the fund.

Twenty-second the provisions already before the implementation of the case, the people's court for a retrial, the provisions do not apply.

Article twenty-third the implementation of the present Provisions inconsistent with this court before the judicial interpretation released with these Provisions, these Provisions shall prevail

Interpretation of the Supreme People's court "about the regulations of" limitation of liability for maritime claims disputes trial