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Disputes over towage contract of seafood boat

SOURCE: TIME:2018-09-10

[case]

Plaintiff: Business Department of Guangdong Branch of the people's Insurance Company of China.

Defendant: Guangzhou port shipping company.

On February 20, 1993, Jiedong County Dongqiao Enterprise Economic Development Corporation (hereinafter referred to as Jiedong company) purchased the "triumphal arch" seafood boat (hereinafter referred to as seafood boat) berthed on the North Bank of Guangzhou Bridge from Lu Songyao, No. 12, Micang lane, Zhaoqing City, for 730000 yuan. Before the deal, Jiedong company asked Guangzhou cross sea equipment company whether the seafood boat could be safely towed to Jiedong. The cross sea company confirmed that the ship could be towed to Jiedong by taking corresponding measures for the ship structure, stability and other issues. On February 18, the seafood boat was towed into the new China shipyard for modification and structural adjustment. On November 22, China Classification Society issued the inspection report of hull technical condition to confirm that the ship's technical condition is normal. The certificate of towage was issued on March 13. On March 10, Jiedong company and the defendant signed port ship 93-048 towing agreement. Article 4 of the agreement stipulates that the defendant Guangzhou port shipping company shall not be liable for compensation in case of any accident of the seafood boat during the towing.

At 1330 hours on March 15, "Suigang tug 601" set sail at Huangpu port to Jiedong. At 2030, "Suigang tug 601" broke down outside the Chiwan Port and tied the seafood boat to the tugboat for sailing. At that time, the weather was good, and the southeast wind was 2-3. At 0200 on the 16th, the tugboat watchman found that the bow of the seafood boat sank about 10 cm. After inspection, it was found that there was a small sound of water leakage in the right side of the bow. The crew found two pumps in the seafood boat, but they couldn't use them. After further observation, it was found that the sinking speed of the seafood boat was slow, so it was decided to drag it back to Huangpu port for treatment. At 0330, the boat was towed back to the stern. At 0830 hours, we sailed to the water area of Shajiao and anchored in dense fog. At about 1000 hours, the anchor took off for a long time. At about 1400 hours, the boat was towed to No. 41, Lianhuashan road. It was found that the seafood boat tilted to the left and sank obviously. It was immediately towed to the West Bank of the waterway and stranded. At 1430, the seafood boat sank to the left on the shoal. Sinking potential: 22 ° 58 ′ 16 ″ n, 113 ° 31 ′ 24 ″ E. Guangzhou Maritime Safety Supervision Bureau of the Ministry of communications, in the accident cause analysis of the investigation report on the sinking accident of the "triumphal arch" seafood boat, believed that "the ship sank due to the potential defect of the hull, leakage and water inflow".

In addition, the seafood boat is made of steel, with a total length of 34.20 meters, a maximum width of 7.84 meters and an average eating level of 0.9 meters. On March 13, 1993, Jiedong company insured the ship with the plaintiff for 730000 yuan. Navigation area: Huangpu port, Guangzhou to Quxi, Jiedong county. After the accident, the plaintiff paid 350000 yuan and 379900 yuan to Jiedong company on June 28, 1993 and April 11, 1995 respectively, totaling 729900 yuan, and obtained the right of subrogation of Jiedong company. On June 29, 1993, the plaintiff accepted the entrustment of Jiedong company, and on September 2, 1993, the plaintiff sold the remains of the seafood boat to Linqian, Luosong village, Fusha Town, Zhongshan City for 60000 yuan.

The plaintiff filed a lawsuit with the maritime court on August 5, 1993, holding that article 4 of the towage agreement signed by Jiedong company and the defendant stipulates that the defendant shall not be liable for compensation in case of any accident of the seafood boat during the towage. This clause is invalid if it violates relevant laws and regulations, and the defendant has serious negligence in the course of towage. The defendant is requested to compensate 729900 yuan and interest, and bear the litigation cost of this case.

The defendant replied that: this case is a special towage of large-scale water-borne devices, and the towage agreement signed by Jiedong company and the defendant is legal and effective; the seafood boat is in an uncomfortable towage state, and its sinking is caused by the potential defects of the hull, leakage and water inflow; after the sinking of the seafood boat, the defendant has been told to handle it with care, and Jiedong company shall bear all the responsibilities for the accident of the seafood boat; The defendant has nothing to do with the plaintiff. The defendant has no idea how the plaintiff underwrites the seafood boat. After investigation by Guangzhou Maritime Safety Supervision Bureau, the accident was believed to have sunk due to the potential defect of the ship. Therefore, the defendant shall not be liable for the sinking of the seafood boat.

[trial]

According to the maritime court, the plaintiff is the insurer of Jiedong company. After paying compensation to Jiedong company for the loss of the seafood boat, the plaintiff obtained the right of subrogation against the defendant according to law. The towage contract relationship involved in this case occurred before the implementation of maritime law of the people's Republic of China, so the laws at that time shall apply. The object towed in this case is a 417 ton seafood boat, which does not belong to the special towing of large-scale aquatic devices, and there is no exception in the law. Therefore, Article 4 of the towage agreement signed by the defendant and Jiedong company violates the principle of fault liability stipulated by law and shall be confirmed as invalid. But other terms are still binding on both sides. The defendant shall safely tow the seafood boat to the destination as agreed in the contract. During the 12-and-a-half hours after the discovery of the leakage of the seafood boat, the defendant failed to open the cabin to check the leakage, try to make up the leakage, contact the relevant departments for rescue or take other safe and effective measures to prevent the accident. Instead, the defendant was too confident and rash to think that dragging the seafood boat back to Huangpu from the Chiwan Port was the only effective measure and delayed The rescue opportunity eventually led to the sinking of the seafood boat. Therefore, the defendant shall compensate the plaintiff for the economic losses incurred. Based on the cause analysis in the investigation report on the sinking accident of the "triumphal arch" seafood boat issued by Guangzhou Maritime Safety Supervision Bureau of the Ministry of communications, the defendant argued that the seafood boat was not suitable for towing, and that the sinking of the seafood boat was caused by the potential defects of the ship's hull, thus the defendant was not responsible. But there was a 12-and-a-half-hour gap between the discovery of the leak and its sinking


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