最高院船舶油污损害赔司法解释-英文版.doc

The Supreme Court of the Peoples Republic of ChinaThe Regulations on Several Matters With Regard To Trial on Compensation for Oil Pollution Damage from Ship(Adopted at the 1509th Meeting of the Judicial Committee of the Supreme Peoples Court on 10 January 2011)Fa Shi (2011) No. 14The announcement of the Supreme Court of Peoples Republic of ChinaThe Regulations on Several Matters With Regard To Trial on Compensation for Oil Pollution Damage from Ship of the Supreme Court of the Peoples Republic of China was adopted at the 1509th Meeting of the Judicial Committee of the Supreme Peoples Court on January 10, 2011, promulgated on May 4, 2011, and effective as of June 1, 2011.With a view to correctly trying cases concerning disputes on compensation for oil pollution damage from ship, this Regulations is enacted according to the laws and regulations such as General Principles of the Civil Law of the Peoples Republic of China, Tort Liability Law of the Peoples Republic of China, Marine Environment Protection Law of the Peoples Republic of China, Maritime Code of the Peoples Republic of China (CMC), Civil Procedure Law of the Peoples Republic of China, Maritime Procedure Law of the Peoples Republic of China, and the international treaties concluded or acceded to by the Peoples Republic of China, and. based on the judicial practice.Article 1 This Regulations shall apply when oil pollution damage or such threat caused by an oil pollution accident from ship occurred in the territory of the Peoples Republic of China and in other sea areas within the jurisdiction of the Peoples Republic of China.Article 2 A person involved shall file a lawsuit with respect to the oil pollution damage caused by persistent oil carried on board an oil tanker, or apply for constituting a limitation fund with the maritime court in the place where the oil pollution accident from ship has occurred.Where such pollution accident has occurred outside the territory of the Peoples Republic of China or the other sea areas within the jurisdiction of the Peoples Republic of China and caused oil pollution damage or such threat to the territory of China and the other sea areas within the jurisdiction of the Peoples Republic of China, the person involved shall file a lawsuit with respect to the oil pollution damage from ship, or apply for constituting a limitation fund with the maritime court in the place where the oil pollution damage has occurred or measures for preventing oil pollution have been taken.Article 3 When oil escaped from twoormoreships and oil pollutiondamage resultstherefrom, and a person who suffered damage claims for compensation against the owners of all the ships which escaped oil, the owners of all the ships which escaped oil shall be liable severally for the damage which is reasonably separable in accordance with the factors such as the quantity of the oil escaped and harmfulness of the oil escaped to the environment; The owners of all the ships which escaped oil,unlessexonerated,shall be jointly and severally liable for all such damage which is not reasonably separable.When the owners of all ships which escaped oil shall be jointly and severally liable to the person who suffered damage, the payment of compensation shall be contributed between the owners of all ships which escaped oil in proportion to their respective liabilities; The payment of compensation shall be contributed equally between them while the proportion of their liabilities is indefinable. If one of the owners of the ships which escaped oil paid compensation beyond the amount he is liable, he shall be entitled to recourse against the other owners of the ships which escaped oil.Article 4 Where the oil pollution damage arises from a both-to-blame collision of ships, the person who suffered damage may claim for full compensation against the owner of the ship which escaped oil.Article 5 The limitation amount of liability for claims for the pollution damage caused by persistent oil carried on board an oil tanker shall be calculated according to the provisions provided for in Administrative Regulations on the Prevention and Recovery of Marine Pollution from Ship and Civil Liability for Oil Pollution Damage of 1969 and its Protocol of 1992.The limitation amount of liability for claims for the pollution damage caused by non persistent oil carried on board an oil tanker or by bunker oil carried on board a ship other than an oil tanker shall be calculated according to the provisions concerning limitation of liability for maritime claims provided in CMC.Article 6 The peoples court shall not approve the owner for limiting his liability if it is proved that the pollution damage resulted from his personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.Article 7 The peoples court shall not approve the person who suffered damage for applying for compensation against the liability insurer of liability for oil pollution damage from ship or other person providing financial security, if it is proved that the pollution damage resulted from the personal act or omission of the shipowner, committed with the intent to cause such damage.Article 8 In the case that a claim for compensation for pollution damage is brought up directly against the liability insurer of liability for oil pollution damage from ship or other person providing financial security, the liability insurer of liability for oil pollution damage from ship or other person providing financial security may invoke the defences which the shipowner would have been entitled to invoke.The peoples court shall not approve the liability insurer of liability for oil pollution damage from ship or other person providing financial security for invoking the defences which he might have been entitled to invoke in proceeding brought by the shipowner against him, except for the defence that the oil pollution damage resulted from the willful misconduct of the shipowner.Article 9 The compensation for oil pollution damage from ship shall cover: - (1) the costs of preventive measures to prevent or minimize the oil pollution damage from ship and further loss or damage caused by preventive measures; (2) the damage of the properties other than the ship involved arising from the oil pollution accident from ship and the loss of income arising therefrom; (3) the loss of income arising from the damage to the environment caused by oil pollution; (4) the costs of reasonable recovery measures which has been taken or to be taken on the environment which has been polluted.Article 10 The costs of preventive measures and further loss or damage caused by preventive measures shall be determined reasonably by the peoples court in consideration of the factors such as extent and degree of the pollution, quantity of the oil escaped, reasonableness of the preventive measures, persons who have taken party in the oil pollution clean-up operation and the costs of the equipment used.Article 11 If at the beginning of taking the measures to prevent pollution from ship in distress, the main purpose thereof is only to prevent or minimize the oil pollution, the costs arising therefrom shall be deemed as the costs of preventive measures.If taking the measures has the dual of salving the ship and other properties in distress and preventing or minimizing the oil pollution, the costs of preventive measures and those of salvage shall be reasonably divided in accordance with the proportion of the primary purpose and that of the secondary purpose; If there is not reasonable basis to distinguish the primary purpose from the secondary purpose, the relevant costs shall be divided equally. However, the costs incurred after the risk of pollution was eliminated shall not be deemed as costs of preventive measures.Article 12 Where oil pollution from ship polluted the properties such as a ship other than the ship which escaped oil, fishing tackle and aquaculture facilities, a claim for compensation for the reasonable cost of cleaning and repairing the polluted properties brought up by the person who suffered damage against the person liable for the oil pollution shall be upheld by the peoples court.If the polluted properties could be neither cleaned nor repaired, or the costs of cleaning and repairing is in excess of the value of them, a claim for compensation for the reasonable costs of replacing brought up by the person who suffered damage against the person liable for the oil pollution shall be upheld by the peoples court. However, amount shall be reasonably subtracted from the compensation referring to the proportion of the actual useful year of the polluted properties to the expected life of them.Article 13 The person who suffered damage could not normally produce or run his business, for his properties suffered oil pollution from ship. In this case, the loss of his income shall be calculated within a reasonable period to clean, repair or replace the properties.Article 14 Claims for compensation for loss of income arising from pollution to the environment by an entity or person running marine fishery, seashore tourism and other marine or seashore-based business shall be held by the peoples court, provide that all the following requirements are met to prove the direct causation between the loss of income and the pollution on the environment: (i) the place of business and/or operation of the claimant is located in or near the polluted area; (ii) the business and/or operation of the claimant mainly relies on the polluted sources or seashore; (iii) it is difficult for the claimant to find substituted source or business opportunity; (iv) the business and/or operation of the claimant is of a relatively stable local industry.Article 15 Claims for compensation for loss of income of mariculture or sea fishery by a person who suffered damage shall not be held by the peoples court in the circumstance that the person engaged in mariculture or sea fishery without permission of the relevant administration department. However, a claim for compensation for the reasonable cost of cleaning, repairing and replacing the facilities of mariculture or sea fishery shall be upheld by the peoples court.Article 16 Where the person who suffered damage claims for loss of his income arising from pollution to his properties or from pollution to the environment, the loss of income shall be determined according to the average net income at the same time in the last three years and deducting the actual net income during the period of damage together with appropriate consideration of other factors affecting income.If the loss of income cannot be determined according to the provision in the preceding paragraph, it may be reasonably determined by referring to the relevant statistics and information from the government department or to the average income of the business operators of the same kind in the same area during the same period.If the person who suffered damage took reasonable measures to avoid loss of his income, a claim for compensation for the costs of the reasonable measures brought up by him shall be upheld by the peoples court. However, the compensation amount shall be limited to the amount of the anticipated loss of income which has been avoided.Article 17 Where the oil pollution accident from ship caused damage to the environment, the compensation for the damage to the environment shall be limited to the costs of reasonable recovery measures which has been taken or to be taken. The costs of recovery measures include the costs of supervision, assessment and investigation.Article 18 Where the ship is covered by effective civil liability insurance or correspond- ing financial security, the assertion of maritime liens by a person who suffered oil pollution damage shall not be upheld by the peoples court.Article 19 Claims for pollution damage caused by non-persistent bunker oil carried on board an oil tanker or by bunker oil carried on board a ship other than an oil tanker shall be governed by the provisions concerning limitation of liability for maritime claims in CMC.Where pollution damage specified in the preceding paragraph and other claims subject to limitation of liability provided for in Article 207 of CMC arise from the same maritime accident, the assertion of the shipowner that liability be limited to the extent of a single limitation amount according to provisions in Chapter 11 of CMC shall be upheld by the peoples court.Article 20 Where measures are taken to refloat, remove or make harmless of a ship which is sunken, aground and in distress to prevent oil pollution damage caused by non-persistent bunker oil carried on board an oil tanker or of bunker oil carried on board a ship other than an oil tanker, the assertion of the shipowner that liability for the costs incurred therefrom be limited according to the provisions in Chapter 11 of CMC shall not be upheld by the peoples court.Article 21 In the event of oil pollution damage caused by persistent oil carried on board an oil tanker, the shipowner or the liability insurer of liability for oil pollution damage from ship or other person providing financial security shall, to limit their liability, constitute a limitation fund for oil pollution damage.Where the limitation fund for oil pollution damage is constituted by depositing cash, the amount of the limitation fund shall be ascertained according to the provisions provided in Administrative Regulations on the Prevention and Recovery of Marine Pollution from Ship and International Convention on Civil Liability for Oil Pollution Damage of 1969 and its Protocol of 1992. Where the limitation fund for oil pollution damage is constituted by way of security, the amount of the security shall cover the amount of the limitation fund and any interest accruing thereon during the period of such constitution.Article 22 Where the shipowner or the liability insurer of liability for oil pollution damage from ship or other person providing financial security applies for constituting a limitation fund for claims for oil pollution damage, any interested party who has objection to the shipowners assertion of limitation of liability for oil pollution damage shall file the objection in writing within the period provided for in Article 106(1) of Special Maritime Procedure Law of the Peoples Republic of China. The filing of objection shall not affect the constitution of the limitation fund.Article 23 In the event of oil pollution damage caused by persistent oil carried on board an oil tanker, the interested party failed to file an objection against the shipowners assertion of limitation of liability within the objection period. In this case, after the limitation fund of liability for claims for oil pollution damage has been constituted, the maritime court shall discharge the preservation against the properties of the shipowner or return the security provided for discharging the preservation.Article 24 In the event of oil pollution damage caused by persistent oil carried on board an oil tanker, the interested party filed an objection against the shipowners assertion of limitation of liability within the objection period. In this case, the peoples court, after its order of ascertaining that the shipowner shall be entitled to limit his liability comes into effect, shall discharge the preservation against the properties of the shipowner or return the security provided for discharging the preservation.Article 25 In the event of oil pollution damage caused by persistent oil carried on board an oil tanker, the person who suffered damage, while filing a litigation, file an objection against the shipowners assertion of limitation of liability. In this case, the maritime court may try the case as to whether the shipowner shall be entitled to limit his liability in advance and make a judgment.Article 26 In the event of oil pollution damage caused by persistent oil carried on board an oil tanker, the person suffered damage who failed to apply for registration of their claims within the specified time limit for registration of claims shall be deemed to have abandoned his right to be compensated from the limitation fund for oil pollution damage.Article 27 Where the limitation fund for oil pollution damage is not enough to fully compensate for the oil pollution damage, the limitation fund shall be distributed pro rata by virtue law in accordance with the confirmed amount of compensation.Article 28 In the event of oil pollution damage caused by persistent oil carried on board an oil tanker, the application for constituting a limitation fund for oil pollution damage filed by the shipowner or the liability insurer of liability for oil pollution damage from ship or other person providing financial security, and the application for registration and repayment of debts filed by the person who suffered damage, if not provided in this Regulations, shall be governed by provisions in Maritime Procedure Law of the Peoples Republic of China and the relevant judicial interpretations.Article 29 If before the limitation fund for oil pollution damage is distributed, the owner or the insurer of the shipowners liability for oil pollution damage from ship or other person providing financial security has paid compensation for oil pollution damage, such person shall, up to the amount he has paid, apply in writing for subrogating the right which the person so compensated would have enjoyed by law.Having entertained the application for right of subrogation, the maritime court shall notify in writing all the interested parties who submitted claims against the limitation fund for oil pollution damage. If an interested person has objection to the applicants asse