Criminal liabilities in China — an update

27 Авг

Впервые в истории КНР иностранные моряки были осуждены в уголовном порядке за вину в транспортном происшествии. Это стало большой сенсацией как в международной, так и внутренней жизни Китая, то есть событием, которое, по мнению автора публикации, невозможно переоценить и которое может создать впечатление, что имеется тенденция криминализации вины моряков, виновных в возникновении чрезвычайного морского происшествия. Тем не менее, автор предлагает судовладельцам и экипажам судов не поддаваться панике, а внимательно относиться к каждому подобному происшествию и своевременно информировать соответствующие власти и, в особенности, своих профессиональных юридических советников.

Legislation criminalising maritime accidents in China has previously only applied to Chinese seafarers. A new case suggests that international seafarers may also be affected.

In my previous article The Criminal Liability of Seafarers under PRC Laws (Seaways, January 2013), I outlined the criminal liabilities that seafarers may incur under PRC Laws if they are involved in a maritime accident. In many of these cases, seafarers were convicted. However, it should be noted that all of the concerned seafarers were Chinese nationals. To date, it has appeared that the relevant Chinese courts and authorities were hesitant to prosecute and convict foreign seafarers for criminal liability in this way. This situation may now have changed following a verdict handed down on 7 May 2013, when two seafarers from Myanmar were found guilty of traffic accident crime following a collision between the Singapore registered container vessel Kotanebula and the Chinese fishing boat Zhe Pu Yu 75185, resulting in the capsize of the fishing vessel, leaving four fishermen dead and two missing. They were sentenced to imprisonment for 4 years and 3 years respectively. This is the first case in the history of China where foreign seafarers have been convicted for traffic accident liability.

Case outline

On 2 April 2012, the Singaporean container vessel Kotanebula set sail from Shanghai Yang Shan port to Ningbo port, in Zhejiang, China. At around 1500, due to the second officer’s failure to keep proper lookout and proceed with safe speed in a complex navigation situation under poor visibility, the vessel’ collided with the fishing boat Zhe Pu Yu 75185 near Zhoushan sea area. However, when the Bosun took note of the collision and reported it to the 2/0, instead of slowing down or stopping the vessel to undertake rescue measures, the 2/0 reported the accident to the Master, and continued to make full speed away from the accident location. On receiving the accdent report, the Master made no attempt to undertake rescue or report the incident to the relevant authorities. He even ordered the crew to destroy evidence of the collision by removing the shattered glass of the fishing boat found on the bow deck.

At around 1753, the Zhoushan Maritime Safety Administration (MSA) received a report of the collision, and preliminarily identified the Kotanebula as the suspect vessel. The MSA ordered the Kotanebula to berth and accept investigation. The sea chart, log book and EDI data of the vessel were preserved for further investigation and interviews were carried out by MSA officers with crews onboard regarding the suspected collision. Despite the scrape found on both sides of the Kotanebula’s bow, the Master, 2/0 and duty AB denied the occurrence of any collision during initial interviews. Only on the third day of the investigation did one of the crew admit that he had heard the sound of a collision and saw the Kotanebula hit the fishing boat while he was working on deck at the ship’s bow. Relevant evidence regarding the condition of the vessel and the bridge at the material time was also available from the EDI data. In the face of the objective evidence against them, the 2/0 and the Master finally admitted the occurrence of the collision four days later.

Considering that the Master and the 2/0 had deliberately destroyed the evidence and sailed the Kotanebula away from the accident position without taking any measures to rescue the fishing boat and reporting to the relevant authority (a typical ‘hit and run’ incident), Zhoushan MSA decided to transfer the case to Zhejiang Border Control Department prosecution. The 2/0 and Master were subsequently arrested as criminal suspects, and prosecuted for traffic accident crime in an open trial on 9 January 2013.

The court found that the Kotanebula should take major responsibility for the maritime accident, and further failed to carry out rescue procedures, and left the accident position without reporting to the relevant authorities, violating the provisions of the Seaborne Traffic Safety Law (the STSL). The 2/0, as the seafarer operating the vessel at the time, was held to be the primary liable party, while the Master, who did not report the accident to relevant authority and ordered the crew to destroy evidence, was held liable for negligent management of the vessel. Both seafarer: were held responsible for the hit and run incident.

As set out in the previous article on the subject, according to criminal law of PRC and the judicial opinion of the Supreme Court, the person bearing the major liability for the traffic accident shall be sentenced to 3-7 years’ imprisonment if the liable parties ran away from the accident scene after the accident, or if the accident caused the death of more than two people or injured more than five. In view of the above, and considering that the two seafarers had obtained the forgiveness of the bereaved family, the court used its discretion to hand down a lighter sentence within the scope of the statutory sentence (3-7 years), ie 4 years for the 2/0 and 3 years for the Master.

Analysis

Unlike the hesitant attitude taken in the past, the Chinese authorities and Chinese courts are now attaching more and more importance to the investigation and prosecution of maritime traffic accidents. Given the increasing number of maritime incidents concerning foreign vessels and the pressing need to protect the safety and interests of Chinese fishermen, the authorities intend to strictly enforce the laws and regulations in this regard, the seafarers’ nationality notwithstanding.

In addition, it should be noted that although in the above case, only the seafarers were prosecuted and held liable, according to a relevant opinion handed down by the Supreme Court, if the the vessel left the scene of the accident under the instruction of the ship operator/ship owner, the person in charge may also be held liable for the traffic accident as an accomplice, even though that person in charge is not onboard the vessel at the material time.

China is not a common law jurisdiction, meaning that this case sets no binding precedent, but as the first case in the history of China convicting foreign seafarers for traffic accident liability, it has made a big splash both domestically and internationally. It has given rise to great concern about the potential criminal liability that seafarers incur.

Based on my experience in handling of dozens of major maritime accidents in China, I feel that the influence of this case should not be overstated. This trend points towards the prosecution of cases where there is criminal liability, rather than criminalisation of genuine accidents. There is no need for seafarers or vessel operators to panic and hold back from maritime adventure in Chinese waters. However, it is worth paying attention to the lessons on the handling of maritime accidents which emerge from this case:

In the event of a maritime accident, the Master and crew shall immediately report the accident situation and location to the local MSA, and shall cooperate with the MSA’s investigation in accordance with relevant laws and regulations. In addition, it is highly recommended that professional legal advice should be sought at the earliest possible opportunity following the accident, in order to ensure full protection of the seafarers and of the shipping company.

Members of The Nautical Institute benefit from our legal insurance policy, which provides coverage for legal costs in the event of a maritime accident.

Key information on the cover:

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•  Philip Purdie AFNI +44 7766 848717 info@ppa2.info

Автор:

Jon Lee (Li Rongcun), AFNI

Источник: Seaways. — 2013. — August. — P. 23 — 24.