The Coral Island Ferry collided with the Huayu Ferry.

Author: Chief Editor: Dong Huimin
Publisher:
Publishing Date: 1998-12-01
Features: Excerpt: The first paragraph of Article 1083 of the Panama Commercial Code amended in 1982 stipulates: "The full or partial transfer of vessel ownership must be made through a public deed, which shall only be effective against third parties after filing for registration at the Mercantile Registry" (Ownership of vessels or part thereof must be transferred by means of a public deed, which shall only be effective as to third parties after filing for registration at the Mercantile Registry). Article 1089 further stipulates: "In any case, the transfer will only be effective against third parties as of its presentation at the Public Registry. To effect such presentation, the document must have been previously certified by a Consul of the Republic of Panama" (In any case, the transfer will only be effective against third parties as of its presentation at the Public Registry. To effect such presentation, the document must have been previously certified by a Consul of the Republic of Panama). This is also consistent with the provisions of the fourth article of the Maritime Code of the People's Republic of China. According to the records provided by the "Public Registry" of the Republic of Panama (the original of which has been submitted to your court), at the time of the vessel's arrest (May 9, 1996), the name of the "VNI-SONGREAT" was not cancelled, and the registered owner was still the defendant in this case, Fuchun Shipping Co., Ltd., until May 27, 1996, when the Public Registry of Panama registered the "UNISONGREAT" as renamed "SANWAI" and was owned by the third party in this case, Shengwei Shipping Co., Ltd. In short, from May 27, 1996, as to third parties outside the ship purchase and sale contract (including the plaintiff in this case), Shengwei Shipping Co., Ltd. could claim ownership of the "SANWAI," and third parties could not infringe on its ownership. Before May 27, 1996, the plaintiff had the right to believe that the detained vessel still belonged to the defendant in this case, Fuchun Shipping Co., Ltd., and thus the arrest of the vessel was in line with the Civil Procedure Law of the People's Republic of China and the provisions of the Supreme People's Court on pre-litigation vessel arrest.
II. Regarding the Basis for Requesting Compensation from the Defendant Fuchun Shipping Co., Ltd. for the Plaintiff's Losses
In its reply to the complaint submitted by the defendant on July 25, 1996, the defendant argued that it had no contractual liability to the plaintiff and no tortious conduct in the carriage and delivery of goods. The plaintiff believes that the defendant's claims are inconsistent with the facts and misinterpret the law. The defendant is the registered owner of the carrier vessel "UNISONPRAISE" and, for the ship charterer, the actual carrier, even if not the contractual carrier. The bill of lading was issued in Dalian Port, and the loading port was also Dalian Port, making this case closely linked to China. Therefore, the governing law of this case should be the Maritime Code of the People's Republic of China. According to Article 163 of the Maritime Code, Fuchun Shipping Co., Ltd. is jointly and severally liable to the plaintiff's shipper. The carrier, without the shipper's consent, issuing a second set of original bills of lading to a third party, constitutes both fundamental breach of contract and tort, and its legal liability is self-evident. As for the mutual indemnification between the actual carrier and the contractual carrier, it is unrelated to the shipper, and the shipper has the right to choose to claim and sue one of them. It is also worth noting that Fuchun Shipping Co., Ltd. has a one-sided understanding of the definition of the carrier under the Hague Rules, which is greatly at odds with the consistent judicial interpretations of China and other major maritime countries in the world. Here, it is appropriate to quote the "summary" by the renowned maritime law scholar Professor William Tetley in his classic work "Marine Cargo Claims" (3rd Edition), Part II, Chapter 10, "Who to Sue": "In cargo claims, the proper defendant is the vessel, the vessel owner, the contracting carrier, and the 'actual carrier,' because the vessel, vessel owner, and charter all share the liability under the Hague Rules and the Hague/Visby Rules and are jointly and severally liable. Therefore, as far as possible, a prudent claimant will sue the vessel, vessel owner, and charter. To ignore the liability under the Hague Rules and recognize that a carrier who has not actually issued a bill of lading is not a carrier would become an easy way to evade the Hague Rules, which would violate Article 3(8) of the Hague Rules." (See Zhang Yongjian et al.'s Chinese translation, pp. 186-187).