2020 年7月15日
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I.  Overview

(Ⅰ)Basic statistics

1.  Statistics on cases accepted and concluded

Throughout the year of 2018, the Court in total handled 2151 cases and concluded 1904 cases with 247 cases pending, achieving a clearance rate of 88.52%.

In 2018, the Court in total handled 1329 contentious cases, including 1194 newly-accepted cases (a decrease of 43.41% compared with that in 2017) that involved a total value of RMB 2,573,752,000 (an increase of RMB 282,683,600 compared with the amount of RMB 2,291,068,400 in 2017), and concluded 1241 contentious cases (a decrease of 42% compared with that in 2017) that involved a total value of RMB 1,530,747,800, including 303 cases concluded by judgment, 208 cases settled through mediation, 128 cases voluntarily dismissed and 602 cases concluded by other means (including non-litigation means and others). The clearance rate of contentious cases in 2018 was 93.38%, showing a decrease of 0.69% compared with the rate of 94.07% in 2017.

In the year, the Court in total handled 822 enforcement cases. Amongst, there were 447 newly-accepted cases (including 14 administrative enforcement cases), showing a decrease of 54.2% compared with that in the previous year, and the value of the subject matters of enforcement in these newly-accepted cases totaled RMB 3,246,509,900. Totally, 663 enforcement cases (including 15 administrative enforcement cases) were concluded, showing a decrease of 33.77% compared with that in the previous year, and the value of the subject matters of enforcement in these cases totaled RMB 1,565,874,400. The clearance rate of enforcement cases reached 80.66%, showing an increase of nearly 8% compared with the rate of 72.78% in the previous year.

2.  Quality and efficiency of trials

(1) The conclusion/acceptance ratio of contentious cases throughout the year reached 104% and ranked number one in the intermediate courts throughout Fujian Province. There were 135 cases left over from previous years, amongst which 125 cases were concluded and 10 cases were pending, showing a clearance rate of 92.59%. In 2018, there were 10 cases pending for over one year in the Court and all of them were foreign-related or Taiwan-related cases. There was no case pending for over two years. The clear-up of long pending cases got greatly improved.

 (2) The indexes of average trial time and average enforcement time were respectively 0.82 (an increase of 0.01 compared with that in the previous year) and 0.21 (a decrease of 0.28 compared with that in the previous year). The index of average trial time was higher than most of the intermediate courts throughout Fujian Province.

(3) The rate of application of summary procedure in first instance was 35.53%, showing a relatively substantial increase compared with the rate of 25.78% in the previous year.

(4) The rate of amendment of judgment and remand for retrial of cases handled by the Court was a bit high, reaching 5.61%, including 20 judgments amended and 6 cases remanded for retrial.

(5) The rate of mediation and voluntary dismissal reached 33.64%, showing a decrease of 35.1% compared with the rate of 68.74% in 2017.

(6) The rate of juror participation in first instance was 68.56%. In 2018, the Court concluded 652 cases under ordinary proceedings of first instance, in which 447 cases had juror participation, making a significant increase of the rate of juror participation compared with that in the previous year.

3.  Other statistics

(1)  Online publication of judgments

In 2018, there were 1247 judgments of the Court published online. As shown in the system of online publication of judgments, by the end of 2018, no effective judgment required to be published online had not yet been so published. The Court maintained good performance in this regard.

2Live broadcasting of hearings

In 2018, 184 hearings of the Court were live broadcasted.

3Electronic documentation

By the end of 2018, the rate of electronic filing of the Court reached 96.65%. The Court had good performance in preparing electronic files for the newly-accepted cases, but some electronic files fail to synchronize with the hard-copy case files.

(Ⅱ)Highlights

1. The serial cases of application by First Investment Corporation of the Marshall Islands for recognition and enforcement of the LMAA arbitration award were included into the Selected Cases on China’s Practice in International Law compiled by the Treaty and Law Department of the Ministry of Foreign Affairs of the People’s Republic of China, and the case of dispute over liability for damage arising from ship collision between M/V “LI PENG 1” and M/V “BI HUA SHAN” was recognized as one of the Ten Model Maritime Trial Cases.

2. A number of major cases concerning marine ecological environmental protection were concluded by the Court, such as the case of dispute over ocean exploitation and utilization filed by Lin Renfa and other 1041 persons against the People's Government of Liushui Town, Pingtan County, Fujian, China, et al., the marine environmental public interest litigations filed by the China Biodiversity Conservation and Green Development Foundation, and the administrative litigation filed for dissatisfaction with marine environmental administrative penalty reaching a record high at RMB 103,000,000. By sending notices and special recommendations on matters concerning handling of non-contentious cases to maritime administrative organs throughout Fujian Province according to law, the Court promoted the standardized law enforcement by administrative organs and effectively enhanced and strengthened the protection of marine ecological environment.

3. By formulating the Implementation Opinions on the Acceptance Scope of Admiralty and Maritime Cases Involving Free Trade Zone, the Court defined the scope and types of the admiralty and maritime cases involving free trade zone, clarified the division of trial work, optimized the allocation of judicial resources and offered precise services to secure the development of free trade zones.

4. The Court published to the public its first bilingual white paper on the annual trial work and compilation of annual model maritime trial cases in English and Chinese, and provided English version of its website for the first time, further increasing the judicial openness to the public. Relying on the big data concerning nationwide admiralty and maritime trials, the Court produced study reports on special topics to guide and standardize the development of the industry and was widely praised by the industry.

5. The Court improved and perfected the mechanism for withdrawal and supplement of judges; completed the contract execution and appointment of employed clerks, and hosted swearing-in ceremonies for people's jurors and employed clerks; elaborated the standards for distribution of complicated maritime cases from simple ones, and implemented the reform requirements of “distributing complex and simple civil and commercial cases in order, mediating the cases with proper method, making decisions in fast manner”. The Court continued to push forward the judicial reform.

6. The Court completed a group of information engineering projects, including the construction of the hotline 12368 voice service platform, the speech recognition system for court hearing and the enforcement command center, as well as the update of the single-soldier system, etc. The Court achieved new improvements in the informatization level.

II. Main features of cases

Newly-accepted cases presented a significant decrease in number and were much fewer than cases concluded.

Compared with 2017, the year of 2018 witnessed a relatively great decrease in the numbers of cases both accepted and concluded by the Court. Throughout the year of 2018, there were 1641 new cases accepted by the Court, showing a decrease of 1445 cases or 46.82% compared with 3086 cases in 2017, and there were 1904 cases concluded, representing a decrease of 1237 cases or 39.38% compared with 3141 cases in 2017. These significant decreases were primarily ascribable to the acceptance and conclusion in 2017 of over 1300 serial cases caused by the same admiralty accident, while the number of such large serial cases decreased greatly in 2018. In the aspect of case conclusion, the Court continued enhancing management of balanced conclusion of contentious cases and pushing clear-up of long pending cases, and achieved quite good results. The conclusion/acceptance ratio of contentious cases throughout the year reached 104%, higher than the preset goal. Pending cases also showed a notable decrease of 51.57% compared with the previous year. The number of cases concluded exceeded that of cases accepted for consecutive two years, making the recent years’ backlogs of cases continue to be reduced and the stress of concluding cases get further relieved.

Comparison of Cases Accepted and Concluded from 2014 to 2018

Year

2018

2017

2016

2015

2014

Cases accepted

1641

3086

2261

2231

1176

Cases concluded

1904

3141

2080

2015

1135

 

 

(Ⅱ)Non-traditional cases increased sharply

From the perspective of case type, in the new cases accepted in 2018, the following three types of cases increased sharply in number: 1) admiralty and maritime cases related to exploitation, production and utilization of marine resources, including 222 cases of dispute over exploitation and utilization of marine sources that accounted for the highest proportion in the new cases accepted in 2018, and cases of dispute over channel or port dredging contract that became one of the top 15 types of new cases accepted, involving a total value of RMB 297,000,000 that accounted for 11.54% of the total amount of subject matters of all new contentious cases accepted in 2018; 2) maritime administrative cases (73 new cases were accepted throughout the year, nearly 3 times of the 26 cases in 2017, including 13 administrative litigation cases, 46 administrative review cases and 14 administrative enforcement cases), amongst which the number of administrative cases caused by failure to obtain the license to use sea area, illegal occupation and filling of sea areas, and destruction of marine ecology was especially prominent; and 3) cases of application for confirmation of effectiveness of people’s mediation agreement that increased to 58 cases in 2018, from 0 case in 2016 and 10 cases in 2017. To the contrary, as past debts were progressively settled and the operational difficulties encountered by shipping companies were eased, the number of cases of dispute over seaman service contract showed a decrease of 143 cases or 48.75% compared with 279 cases in 2017, making this number continue decreasing for consecutive 4 years.

All these three types of cases are non-traditional admiralty and maritime cases. Particularly for the cases of dispute over exploitation and utilization of marine sources and cases of dispute over marine ecological protection, due to their involvement of large sea area and numerous persons and their wide influencing scope, it is not easy to examine and verify the evidence, and some even involve complicated legal issues, so it is rather difficult to try and enforce these cases.

 

Comparison of Types of Admiralty and Maritime Cases Accepted

2017

2018

No.

Cause of Action

Number of Cases

Cause of Action

Number of Cases

1

Application for registration of maritime claims and compensation

649

Dispute over exploitation and utilization of marine resources

222

2

Dispute over confirmation of maritime claims

349

Dispute over seaman service contract

143

3

Dispute over seaman service contract

279

Dispute over confirmation of maritime claims

97

4

Dispute over liability for damage caused to aquaculture at sea or at waters leading to the sea

213

Dispute over contract of carriage of goods by sea or by waters leading to the sea

83

5

Dispute over contract of carriage of goods by sea or by waters leading to the sea

58

Application for confirmation of effectiveness of people’s mediation agreement

58

6

Dispute over liability for personal injury at sea or at waters leading to the sea

56

Application for registration of maritime claims and compensation

55

7

Dispute over contract of ship mortgage

54

Dispute over liability for personal injury at sea or at waters leading to the sea

53

8

Dispute over contract of freight forwarding by sea or by waters leading to the sea

42

Dispute over contract of freight forwarding by sea or by waters leading to the sea

47

9

Dispute over shipping loan contract

31

Dispute over contract of ship mortgage

31

10

Dispute over contract of supply of ship stores and spares

28

Dispute over contract of supply of ship stores and spares

25

11

Dispute over contract of sale and purchase of ship

23

Dispute over shipping loan contract

25

12

Dispute over voyage charter party

21

Dispute over channel or port dredging contract

17

13

Dispute over insurance contract arising at sea or at waters leading to the sea

18

Dispute over insurance contract arising at sea or at waters leading to the sea

16

14

Dispute over port operations

17

Dispute over contract of sale and purchase of ship

14

15

Dispute over shipbuilding contract

16

Dispute over charter party

13

 

(Ⅲ)Quality and efficiency of enforcement maintained upward tendency

In the year of 2018, except for administrative enforcement cases[1], the Court accepted 807 enforcement cases and concluded 648 enforcement cases, achieving a clearance rate of 80.3%, which showed another increase following the last two years (63.2% in 2016 and 72.78% in 2017). 159 enforcement cases were pending, showing a significant decrease of 57.6% compared with the previous year. The rate of clearance within statutory period of cases where property is available for enforcement reached 91.95%, and the pass rate of cases concluded by termination of current enforcement proceedings reached 96.95%. Various enforcement quality and efficiency indicators of the Court were higher than most of the immediate courts throughout Fujian Province, with the core indicators of enforcement completion rate (i.e., the rate of fully-realized enforcement cases), average rate of realization amount (i.e., the average rate of realization amount in individual cases) and actual clearance rate (i.e., the rate of cases concluded by proceedings other than termination of current enforcementranking in top 3. The four fundamental goals for basically solving the difficulties in enforcement, namely, “the rate of clearance within statutory period of cases where property is available for enforcement, the pass rate of cases concluded by termination of current enforcement proceedings due to unavailability of enforceable property, and the clearance rate of cases of complaints about enforcement issues filed by letters and visits must at least reach 90%, and the overall clearance rate of enforcement cases in three years must reach 80%”, were all achieved. All tasks for “basically solving the difficulties in enforcement” were successfully accomplished.

(Ⅳ)New increase emerged in cases involving Hong Kong, Macau, Taiwan and foreign affairs

In 2018, there were 34 cases left over from previous years involving Hong Kong, Macau, Taiwan or foreign affairs, as well as 166 new cases accepted. Though the number of new cases was less than the 586 cases in 2017 (in which, however, there were 503 serial cases), the number of non-serial cases was doubled. As disputes unceasingly arose from integration of international trade, shipping and finance, and new problems sprang up continuously in the review of electronic evidence, determination of governing law, parallel proceedings and service of processes overseas, the Court were required to try cases more detailed. Throughout the year, the Court concluded 188 cases involving Hong Kong, Macau, Taiwan and foreign affairs and achieved a clearance rate of 94%.

III. Special issues in the 2018 trials

(Ⅰ)Governing law in civil cases involving Hong Kong, Macau, Taiwan and foreign affairs

Determining governing law is the primary issue in trying international (inter-regional) civil cases. In 2018, the Court further intensified research on issues, ascertainment of legal provisions and interpretation of judgments in respect of the application of governing law. Firstly, the Court correctly grasped the value orientation inherent in the rules of private international law. For example, in a case of dispute over labor protection benefits under a service contract concerning dispatching seaman overseas, the Court based on the legislative purpose of protecting labors and determined the governing mandatory labor laws and regulations. Secondly, the Court refined the characterization of disputed facts and legal issues. For instance, in a dispute over incorporation of a charter-party clause into a bill of lading, the Court treated separately the issue whether the bill of lading had effectively incorporated the charter-party clause and the issue whether the provision of the charter-party clause could bind the holder of the bill of lading, and exhausted analysis on the governing law that was applicable to such incorporation. Thirdly, the Court intensified the ascertainment of the specific provisions of foreign laws. In a case involving dispute over effectiveness of arbitral agreement, the Court took the initiative to look up directly by network search the Arbitration Ordinance of Hong Kong Special Administrative Region and other relevant materials, and rendered the judgment after actively ascertaining the provisions of the governing law. Our coping with issues related to the choice of law for civil relationships involving Hong Kong, Macau, Taiwan and foreign affairs is heading for being more detailed.

(Ⅱ)Review and admissibility of electronic evidence

With the popularization of mobile communication as well as development of e-commercial platforms and shipping technologies, more and more electronic evidence came out in the admiralty and maritime litigations. In 2018, the Court further regulated the adducing and cross-examination of electronic evidence and properly reviewed, admitted and made determinations as to electronic evidence by the following three perspectives: 1. Enhancing procedural guidance—in addition to elucidating requirements on evidence adducing, also encouraging and procuring litigants to reach an agreement through negotiation on the collection, submission and cross-examination of evidence so as to clear obstacles and difficulties in both terms of law and technology and improve the legitimacy and effectiveness of evidence adduced; 2. Emphasizing the duty of good faith in lawsuits—clarifying requirements on faithful representation and information disclosure, and applying evidence rules such as implied admission and spoliation of evidence, to substantially solve the problem of verifying identities of the sender and the receiver of immediate communication messages including online chats, emails and text messages on mobile, and reduce the burden of proof and litigation costs shouldered by litigants; and, 3. Fixing reasonable proving standards—in full consideration of the factual backgrounds of transactions, taking flexible methods including notarization by notary public, authentication by authentication institutions and evidence collection from third parties and further considering the legal, technical and other factors, to review and determine the objectivity, integrality and probative force of electronic evidence according to the criteria of “high probability”. The above measures brought relative good results in practice, and effectively protected and confirmed the effectiveness of relevant online transactions.

(Ⅲ)New issues in cases of dispute over freight forwarding contract

1. Duty of good faith assumed by freight forwarder after cargo release without presentation of original bill of lading

Where a shipment of cargo is released at its destination port without presentation of original bill of lading, the exporter as the consignor of the shipment usually will contact the freight forwarder to learn the situation and make subsequent arrangements. In respect of the obligations and responsibilities of the freight forwarder in such kind of cases, the Court in a case adjudged the defendant to compensate the claimant for 20% of the loss on the ground that the defendant blurred the identity of the liable party and gave false information of the situation after the cargo release without presentation of original bill of lading, which caused the claimant lose the opportunity to initiate an action against and get recovery from the carrier within the one-year time bar. The judgment has made it clear that in accordance with Article 92 of the Contract Law of the People’s Republic of China, after a cargo is shipped out, in face of the consignor, i.e. the shipper, the freight forwarder who books shipping space for the cargo shall still abide by the principle of good faith and post-discharge obligation such as notification, assistance and confidentiality in accordance with trading practices to timely inform the shipper of the time when the cargo arrived at the port of destination, how the cargo was delivered and the reason why the cargo failed to be delivered as per normal practice. Especially under the circumstance where the carrier is appointed by the freight forwarder and the shipper could only rely on the shipper to contact the carrier and the port of destination, the freight forwarder shall fulfill the necessary obligations to relay information and assist in handling of aftermath, so the freight forwarder who breached the post-discharge obligation and caused loss to the consignor should bear corresponding compensatory liability.

2. Exercise of lien on cargo by freight forwarder via terminal

In most freight forwarding contracts providing for periodic settlement, the freight forwarder is granted the lien on cargo for outstanding advances and remunerations. As freight forwarders usually do not possess cargo directly, some contracts further stipulate that the freight forwarder has the right to exercise the lien on cargo via terminals. With respect to the issue whether the lien agreed under such contracts is effective, the Court adjudged in a case that the exercise of lien should be subject to the claimant’s lawful possession of the debtor’s movable property, but the lien agreed under the contract concerned that provided for detention by the terminal who actually possessed the container when the container was not under the actual possession of the claimant failed to satisfy the essentials required by law for exercise of the lien, and that the freight forwarder neither had actual possession nor had actual control over the cargo, and hence the claimant’s litigation request for confirmation of lien on cargo lacked legal basis. The Court suggested freight forwarders and port companies pay special attention to and exercise due diligence to this issue in the future, so as to avoid disputes arising from improper detention.

IV. Conclusion

In the year of 2018, Xiamen Maritime Court adhered to the work theme of administrating justice for the people and maintaining judicial fairness, fully exerted the judicial function in admiralty and maritime matters, deepened the implementation of the strategy of producing fine works on trial of admiralty and maritime cases, properly tried and adjudged different disputes, made great efforts to improve the judicial quality and efficiency, and attained new progresses in various aspects. In the future, the Court will keep giving top priority to the work of case trial and law enforcement, continuously perfect our work mechanism, improve litigation services, and promote implementation of the judicial reform measures and further escalation of informatization level, so as to serve people’s judicial needs better, provide strong judicial protection for the national reform and opening-up and the development of ocean economy, and make active contribution to the building of an international maritime judicial center.

 


 



[1] Because of the limited number, administrative enforcement cases were separately handled by a special team, and therefore are not taken into account in this analysis. Administrative enforcement cases in 2018 have all been concluded.