Shipping is the most important mode of transportation in international logistics, and 90% of global trade is completed by shipping. According to statistics, 90% of China's total import and export freight is also carried out by sea. my country is not only a big trading country, a big shipping country, but also a big crew country. At present, the number of Chinese seafarers ranks first in the world, with more than 1.4 million people, and more than 140,000 seafarers are dispatched every year. The crew is the unsung hero who advances the operation of the global economy. Safeguarding the legitimate rights and interests of seafarers in accordance with the law is of great significance to ensuring the safety of maritime traffic, maintaining the healthy and stable development of the shipping industry, and promoting the development of my country's national economy.
Maritime justice plays an irreplaceable and important role in protecting the rights and interests of seafarers. In my country's maritime judicial practice, disputes involving crew members account for a larger proportion. In the past five years, the number of cases involving seafarer labor contract disputes and personal injury compensation disputes in maritime courts across the country accounted for 30.98%, 21.78%, 17%, 17.95%, and 29% of all cases, respectively. The application of law is a major difficulty in the trial of cases involving crew disputes. The main reasons are as follows: First, my country has no specific legislation on crew members. The current Maritime Law has a limited number of provisions concerning crew members, and the content is relatively principled. Relevant administrative regulations emphasize the administrative management of seafarers, and their role in determining the basis for the rights and obligations of the parties is limited. Second, the legislation on crew members is relatively scattered. As workers in the general sense, the rights and obligations of seafarers are subject to the adjustment of labor law and related laws and regulations. At the same time, relevant administrative agencies have formulated different administrative management standards for seafarers in different industries. These factors have affected the uniformity of judgment standards. . A correct understanding of the interrelationship between different laws is the key to maritime judges in hearing cases involving crew disputes. On the basis of fully summarizing our country’s maritime trial experience, providing refereeing guidelines by publishing typical cases is conducive to eliminating differences and achieving the same trial in the same case.
June 25 is the "World Seamen's Day" determined by the International Maritime Organization. At this time, the Supreme People's Court issued a typical case involving the protection of the rights and interests of seafarers, demonstrating the people's court's clear position to play its maritime judicial functions and protect the legitimate rights and interests of seafarers in accordance with the law. A total of eight typical cases concerning the protection of seafarers’ rights and interests were released this time, with various types of cases. It involves not only international ocean-going crews, but also crews engaged in coastal inland water transport; both cargo ship crews and fishing crews; both Chinese crews and foreign crews. There are disputes between Chinese crew members and Chinese shipping companies, disputes between Chinese crew members and foreign shipping companies, and disputes between foreign crew members and foreign shipping companies. In terms of the types of disputes, the eight cases cover the main types of disputes involving seafarers, namely payment of wages, various remunerations and repatriation costs, and compensation for personal damages. In terms of the legal issues involved, it includes the specific determination of ship liens, compensation for personal damage to crew members, elimination of urban-rural differences and the realization of “same life and same price”, timely and efficient trial of crew members’ wage disputes arising outside the territory, and protection of third parties who advance crew related expenses. Issues such as the priority of ships obtained through transfers, and foreign cruise ships being seized and auctioned to repay the arrears of crew members. In general, the typical cases announced this time mainly have the following characteristics:
One is to have a clear value orientation. First, it reflects the protection of the interests of the crew as a group. The characteristics of shipping have caused the crew to work and live in a lonely and remote environment for a long time. Compared with the working environment on land, the working environment of the crew is more special, and their physical and mental health should be paid more attention. Typical cases reflect the distinctive features of safeguarding the legitimate rights and interests of seafarers; secondly, they reflect equal respect and protection for human life and health, and achieve "same life and same price". The Central Committee of the Communist Party of China and the State Council have issued reform opinions in 2019, proposing to reform the personal injury compensation system and unify the compensation standards for urban and rural residents. The Supreme People's Court recently also authorized relevant local courts to carry out pilot work in their jurisdictions according to their respective circumstances. In a typical case, the court's judgment of "same life and same price" for the personal damage of seafarers is the implementation of the reform measures of the Central Committee and the State Council in the field of maritime trials. Typical cases also reflect the core values of honesty and trustworthiness of socialism. For malicious collusion of fictitious wage claims to infringe on the legitimate interests of other creditors, the court will not support it after a fair trial.
The second is to provide clear refereeing guidelines. my country has not formulated a special crew law. The labor law, labor contract law, crew regulations and other laws and regulations provide the basic protection basis for the protection of crew rights, but lack more targeted regulations. Typical cases combine the characteristics of the protection of the rights and interests of seafarers, analyze the law and reason, and fill the gap between the norms and the facts through the refinement of the judgement, to make up for the lack of legislation, and the lack of principles in laws and regulations.
Third, it fully reflects the important role of maritime justice in protecting the interests of crew members. As far as the disputes raised by the crew are concerned, the most controversial issues are the payment of the crew's salary, repatriation costs, and compensation for personal damage. Wages and remuneration are the basis for the survival of the crew and their families. The crew repatriation costs are the costs that the crew needs to disembark during the ship’s service for some reason to return to the country, return home or other places and should be borne by the shipping company. Injuries and deaths suffered during work should be treated in time. Wages and related expenses are related to the basic survival, physical and mental health and personal dignity of the crew, and should be given priority protection in accordance with the relevant international conventions and the provisions of my country's maritime law. Typical cases fully reflect the important role of maritime justice in providing special protections such as remuneration and repatriation expenses for ship employees.
Since the global outbreak of the new crown epidemic, different regions and industries around the world have pressed the pause button to varying degrees at different times, shipping companies have suspended large-scale shipping, and nearly 2 million seafarers have been unable to change shifts and repatriate normally, and their living conditions have been significantly affected. At this special moment, we ushered in this year's "World Seamen's Day". The theme of this year's World Seafarers' Day is "Our Seafarers' Future". On the occasion of the arrival of World Seafarers’ Day, our Civil Code has just been promulgated. The Civil Code reflects the equal protection of the rights of the broad masses of people, including crews, and reflects the physical and mental health of the broad masses of people, including crews. And respect for human dignity. The issuance of typical cases is a response to the full protection of the relevant civil rights and interests of civil entities including crew members in the Civil Code, and will also promote the protection of the legitimate rights and interests of crew members from all walks of life.
Typical Cases of the Supreme People's Court on the Protection of Seafarers' Rights and Interests
Case number one
Open the green channel for crew rights protection
Promote the sustainable and healthy development of the cruise economy
——Liang Moumou et al. v. Diamond International Cruise Line crew service contract dispute series
1. Basic case
According to the "Crew Employment Agreement" signed by the plaintiff Liang Moumou and the shipowner’s agency, between 2017 and 2019, the defendant, Diamond International Cruise Line, was a member of the Bahamian "GLORY SEA" ship. Served as sailor, engineer, waiter, kitchen worker and other positions. During this period, Diamond International Cruise Line owed about 12 million yuan to Liang XX and other crew members. The seafarer filed a request for property preservation before the lawsuit, requesting judicial seizure measures for the "Huanghuang" ship, and the Shanghai Maritime Court ruled to allow it. Diamond International Cruise Line did not provide a guarantee to the court, and the ship has been detained at the Wusongkou Anchorage in Shanghai Port from March 7, 2019 to April 26, 2020. As Diamond International Cruise Line abandoned the ship and refused to provide a guarantee, the cost of maintaining the safety of the ship and berthing has been increasing day by day, and there are many potential safety hazards in the long-term seizure. For this reason, the crew applied for the auction of the "Splendid" ship during the litigation process, and the Shanghai Maritime Court ruled to allow it and initiated the judicial auction procedure, which successfully sold the ship on April 17, 2020.
2. Results of the referee
The Shanghai Maritime Court held that the plaintiff Liang Moumou and other crew members signed the Crew Employment Agreement with the shipowner’s agency, served on the “Huanghui” ship, and established a crew labor contract relationship with the defendant Diamond International Cruise Line. Now that the plaintiff has fulfilled the duties of the crew, but the defendant has not paid the labor remuneration, he shall bear the liability for breach of contract to compensate for the losses. Pursuant to Article 22, Paragraph 1, Item 1 of the Maritime Law of the People’s Republic of China, claims for payment of wages, other labor remunerations, crew repatriation costs, and social insurance expenses incurred during the crew’s on-board ship have priority for ships. Therefore, the defendant, Diamond International Cruise Line, was ordered to pay RMB 12 million to the crew and its interest losses, and confirmed that the crew’s request enjoys the priority of the ship.
3. Typical meaning
In recent years, the cruise industry has developed rapidly, and the urgency of protecting the rights and interests of cruise crews has become increasingly prominent. Compared with cargo ships, cruise ships have a large number of crews and multiple jobs, high costs and risks for seizure and maintenance, high difficulty in judicial auctions, and long periods. Once the rights and interests of cruise crews are violated, rights protection will face more obstacles. The case involved a large number of crew members, of which two-thirds were foreign crew members. The shipowner owed the ship’s employees up to RMB 12 million and abandoned the ship after the ship was arrested. To this end, the court opened a "green channel" for the protection of the rights and interests of seafarers, and coordinated the advancement of case filing, trial, and execution. At the first time, the crew labor dispatch company and the shipowners mutual insurance association are required to repatriate the foreign crew members stranded on the ship, arrange the ship care company for management, and take countermeasures during the typhoon to ensure the safety of the cruise ship around the clock. At the same time, speed up the pace of case trials, promptly initiate ship auction procedures during the litigation process, properly handle the objections of outsiders to ship auctions, and actively overcome the adverse impact of the epidemic on the disposal of cruise ships. After two auctions, the ships were successfully sold. The court’s series of measures not only ensured that the judicial procedures are legally regulated and orderly, but also avoided the further expansion of the cost and risk of seizure, effectively safeguarded the legitimate rights and interests of the 196 crew members, and fully demonstrated the importance of maritime justice to the protection of crew rights and the economy of cruise ships The support of long-term healthy development provides experience and reference for handling such cases in the future.
Case two
Applicable ship priority system
Support institutions assist crew members in defending their rights
——Hilong Company v. Glory Company in a dispute over maritime liens
1. Basic case
On November 12, 2009, Hilong Company signed an "Agreement" with North Company, the ISM manager of the "GLORY ADVANCE" ship, stipulating that Hilong Company would accept North Company's entrustment and arrange qualified crew to board the ship. Accordingly, Hilong and the crew entered into the "Crew Labor Service Intermediary Agreement", the "Crew Assignment Agreement" and the "Intern Labor Service Agreement", and introduced several crew members to work on the ship. Since June 2012, North Company began to owe payment, arrears with crew salaries and crew labor remuneration that should be paid to Hilong, repatriation fees and social insurance premiums, agency fees and interest.
In April 2013, 23 crew members signed a confirmation letter, agreeing to transfer the debts owed for various expenses and the maritime liens based on the debts to Hilong. Hilong declared that it would pay the crew members as consideration for the transfer of the claim right after obtaining the recovery money. Afterwards, Hilong Company filed a lawsuit against Glory Company, the owner of the ship "GLORY ADVANCE", requesting a judgment that Glory Company should pay the arrears of crew labor remuneration, repatriation fees, social insurance premiums, agency fees and interest, and confirm its remuneration for crew labor in the aforementioned claims. , Repatriation costs, and social insurance premiums have maritime liens for the ship "GLORY ADVANCE". Hilong applied for the court to arrest the vessel "GLORY ADVANCE" in April 2013, and then applied for auction of the vessel. On December 6, 2013, the ship was auctioned for 58.7 million yuan.
2. Results of the referee
The Xiamen Maritime Court held that the case was a dispute over foreign-related maritime liens caused by the dispatch of seafarers. According to Article 272 of the Maritime Law of the People’s Republic of China, the maritime liens shall be governed by the law of the court where the case is accepted. my country's legal treatment. As a seafarer dispatch company, the seafarers agreed to transfer the maritime claims rights such as labor remuneration, social insurance and repatriation expenses to the company. Due to the transfer of maritime claims, the maritime liens will be transferred accordingly. Hilong's exercise of maritime liens in respect of the above-mentioned creditor's rights complies with the law. The agency fee is generated based on the contract between it and North Company, which does not belong to the scope of priority. Hilong Company shall recourse to North Company. Glory Company is the owner of the ship involved in the case, and is a qualified defendant in the maritime litigation litigation. It should bear the responsibility within the scope of the auction price of the ship. The Xiamen Maritime Court then ruled that Hilong had priority over the ship "GLORY ADVANCE" with respect to the above-mentioned claims, and ordered Glory to pay Hilong for crew labor compensation, social insurance and repatriation fees and interest within the scope of the auction price. After the verdict was pronounced, both parties did not appeal.
3. Typical meaning
In order to strengthen the protection of the rights and interests of seafarers, the Maritime Law stipulates that seafarers’ wages, social security, and repatriation expenses have priority for ships. At the same time, in view of the fact that more and more crew members are employed through intermediary service agencies and dispatch agencies, relevant laws and regulations stipulate that service or dispatch agencies have the obligation to assist, support and protect crew members' rights to the actual employer. The judgment in this case confirms that after the crew dispatch unit accepts the transfer of the crew’s creditor’s rights, it has the right to exercise the priority of the ship in accordance with the law, give full play to and use the function of the priority system of the ship, which is conducive to enhancing the employer’s enthusiasm to pay for the wages of the crew, and is a service organization for crew labor dispatch Provided strong support to assist the crew in defending their rights. At the same time, through positive incentives and guidance, the standard development of the crew employment service industry has been promoted, and the judicial protection of crew rights has been further consolidated and strengthened.
Case three
The crew was abandoned and left alone overseas
The court's efficient rights protection helps to return home
——A series of disputes over labor contracts for the "Avlemon" crew of Liberia
1. Basic case
On November 8th, 2015, the "Ovillon" was handed over to Pacific Ocean Company for repair. Later, because the ship’s operator, Arroinia Shipping Company, failed to pay the repair costs as agreed, Pacific Company applied to the court to seize the “Ovi Lemeng” ship before litigation and filed for arbitration. In January 2018, the China Maritime Arbitration Commission ruled that Araiania Shipping Company should pay ship repair fees and other expenses to Pacific Company, and confirmed that Pacific Company has a lien on the ship "Ovie Lemeng". After the arbitration award took effect, Pacific Company applied to the court for enforcement. Because neither Arraea Shipping Company nor Ovilé Monas Shipping Company, the registered owner of the ship, provided a guarantee, the ship has been in seizure.
While the ship was docked at the Pacific Company for repairs, Aryainia Shipping Company hired 13 Ukrainian crew members including the plaintiff Kolesnik Yaroslav to serve as captain and other duties on the ship "Ovilomo". Since the end of December 2017, the ship’s operators and owners have no longer provided ship materials, and the “Ovi Lemeng” ship is cut off from water and electricity, and the crew’s lives cannot be guaranteed. The agency of the "Ovi Lemeng" arranged for the crew to stay in the hotel and paid for board and lodging in advance. On April 8, 2018, the court ruled in accordance with the law to auction the “Ovilman” round. During the auction of the creditor's rights of the ship "Ovie Lemeng", 13 crew members applied to the court for creditor's rights registration and filed a lawsuit for the crew's wages, accommodation, and repatriation expenses owed by the Arraea Shipping Company. On August 21, 2018, the round was successfully auctioned.
2. Results of the referee
The Ningbo Maritime Court ruled: Aryainia Shipping Company pays 13 crew members' salaries, repatriation fees, board and lodging expenses and corresponding interest; 13 crew members have priority over the above-mentioned claims against the ship "Aowei Lemeng" and are entitled to Priority is given to compensation in this round of auction funds.
3. Typical meaning
The case is a seafarer labor contract dispute with foreign-related factors. The 13 foreign crew members were forced to stay on the ship for a long time due to the “abandonment” of the foreign shipowners, and were owed wages and lacked basic living supplies. In the process of auctioning the "Ovilemont", the court coordinated the shipowners’ insurance and indemnity association, ship agency, etc. to arrange the repatriation of the crew, and guided the crew to defend their rights in accordance with the "Maritime Labour Convention 2006." And the law of the court is the relevant rights and interests that the law of our country should enjoy. Regarding the food and lodging expenses paid by the ship agency and other humanitarian agencies during the period when the crew was "abandoned" by the shipowner, the court recognized the corresponding creditor's rights and the nature of the ship's priority to encourage relevant units to advance the payment to protect the rights and interests of the crew in a timely manner. At the time when the judgment involved in the case was made, the vessel "Oviromeng" had been successfully auctioned, and the money from the sale had also been transferred to the court's execution payment account. In order to ensure the early realization of the interests of the crew, the court allocated the ship auction funds in advance without jeopardizing the interests of other creditors, and maximized efficiency while ensuring fairness.
Case four
Uniform compensation standards for personal injuries
Protect the rights and interests of the families of the crew members
——A series of disputes over liability for personal damage at sea caused by the collision between the Liberian ship "FS SANAGA" and the ship "Zhe San Yu 00011"
1. Basic case
On July 14, 2015, the vessel "FS SANAGA" (a Liberian-registered container ship) owned by Qibang Sanaga Co., Ltd. and the vessel "Zhe San Yu 00011" (a Chinese fishing vessel with Sanmen-registered status) owned by Ni XX were on the coast of Xiangshan, Ningbo. A collision in the waters caused the "Zhe San Yu 00011" ship to sink and all 14 crew members on board were killed. Among the crew members who died, except for one crew member with urban household registration, the remaining 13 were all rural household registrations. The family members of 14 crew members including Wu XX sued the Ningbo Maritime Court, requesting Qibang Sanaga Co., Ltd. and Ni XX as the owners of the two ships that collided to bear the liability for personal damages. Disposable income calculates death compensation.
2. Results of the referee
The Ningbo Maritime Court held that the 14 crew members who died in the collision between the "FS SANAGA" and the "Zhe San Yu 00011" ship were at fault in the first instance, and that the two ships were at fault. According to Article 169 of the Maritime Law of the People's Republic of China The three paragraphs stipulate that Qibang Sanaga Co., Ltd. and Ni XX, as the owner of the collision ship, shall be jointly and severally liable for personal injury or death caused by the collision. Regarding the calculation standard of death compensation, Article 17 of the Tort Liability Law of the People's Republic of China stipulates that “if multiple deaths are caused by the same tort, the death compensation may be determined at the same amount”. The incident involved the death of 14 crew members, and no special circumstances ruled out the application of this article, so the claim of Wu XX and others to calculate death compensation based on urban standards is protected. After accounting for various losses, the Ningbo Maritime Court ruled that the family members of the 14 crew members who died in the shipwreck could receive a compensation of 11.66 million yuan on the basis of the compensation of 3.5 million yuan. After the judgment of the first instance, none of the parties appealed.
3. Typical meaning
If multiple victims died in the same infringement incident, the same standard should be applied for compensation. If we follow the practice of distinguishing between urban and rural areas and making compensation based on different compensation standards that have been used for many years in the field of civil trials, not only will the result be unfair, but it will also be a great challenge to ordinary people's simple emotions. The dual urban-rural compensation standard for personal damage is caused by objective reasons in a special historical period. With the development of urban-rural integration and the concept of equal protection of human life and health, the concept of equal The voice of "fate at the same price" is increasing. In this case, 14 crew members were killed as a result of a ship collision accident. One of them was registered in an urban area. According to Article 17 of the Tort Liability Law of the People’s Republic of China, “If multiple deaths are caused by the same tort, the deaths can be determined by the same amount. "Compensation" provisions, combined with the spirit of reforming the personal injury compensation system proposed by the central government and unifying the compensation standards for urban and rural residents, the court finally decided to support the claim of 13 rural family members of the dead crew members to calculate death compensation based on urban standards. This case explores the unification of personal damage compensation standards in the maritime adjudication field, which is conducive to further promoting the equal rights and people-oriented judgment concept.
Disclaimer: This article is reproduced from the WeChat official account of the Supreme People's Court, thanks here!