China Supreme Court Opinions on Cases with Foreign Elements Involving COVID 19 Epidemic (3)

 2020-07-28  111


                                                                                              

VI.About trial of a case concerning a contract of carriage

10.In accordance with the provisions of Article 291 of the Contract Law of China, the carrier shall carry the goods to the agreed place by the agreed or usual route. If the carrier provides evidence to prove that he has changed his route due to the occurrence of an epidemic disease on the means of transport in the course of carriage, and the carrier has promptly notified the shipper, the people's court shall not support the shipper's claim that he has violated his obligations under this article.

 

The court shall support the claim by the carrier in accordance with the law if the carrier provides evidence proving that the delay in delivery resulted from the change of transportation route, restriction of loading and unloading operations, etc. due to the epidemic situation or epidemic prevention and control measures taken at the place of departure or arrival, and has promptly notified the shipper of the claim.

 

VII.The trial of maritime and maritime business cases

11.The carrier is under the obligation to exercise due diligence to make the ship seaworthy before and at the time of sailing. The court shall support the shipper's claim that the ship is unseaworthy due to the carrier's failure to take such precautions as disinfection, fumigation and other epidemic prevention and control measures, as a result of which the ship is not suitable for carrying specific goods, or the number of certified healthy crew members cannot meet the requirements for seaworthiness.

 

The court will not support the shipper's claim that the ship is unseaworthy only on the grounds that the ship has docked in the affected area or that someone among the crew has infected COVID-19.

 

Before sailing, because of the outbreak or epidemic prevention and control measures in the following circumstances, lead to the contract of carriage is unable to perform, the carrier or the shipper requests to terminate the contract according to Article 90 of China Maritime Law, the court shall support: (1) cannot be equipped with the necessary crew, material;(2) The ship cannot reach the port of loading and destination;(3) Once the ship enters the loading port or the port of destination, it can no longer continue normal navigation or berthing;(4) The goods are included in the scope of temporary import and export ban by the country or region where the port of loading or destination is located;(5) The shipper is unable to deliver the goods to the loading port wharf within a reasonable period due to the obstruction of land transport;(6) failure to perform the contract due to other reasons not attributable to the carrier and the shipper.

 

If the carrier discharges at a safe port or place adjacent to the port of destination because of the epidemic or the epidemic prevention and control measures, and the shipper or consignee requests the carrier to assume the liability for breach of contract, unless otherwise agreed in the contract, the people's court shall not support it.

 

Where the carrier fails to make proper arrangements for the custody of the goods after discharge and timely notifies the consignor or consignee, and the consignor or consignee requests the carrier to bear the corresponding responsibility, the people's court shall support it in accordance with law.

 

The people's court shall, as far as possible, guide the parties concerned to seek a solution through consultation if the consignee or consignor requests a reduction of the usage fee for containers overdue due to the epidemic situation or the epidemic prevention and control measures.If no agreement can be reached through consultation, the people's court may, in light of the actual situation of the case, make a reduction as appropriate. In general, the replacement price of a similar container shall be taken as the upper limit of the amount of the demerit fee.

 

If, after booking space with the carrier in the name of the shipper, the carrier cancels the voyage or changes the voyage date due to the epidemic situation or the epidemic prevention and control measures, the court shall not support the shipper's claim that the freight forwarder shall compensate for the loss. However, if the freight forwarding enterprise fails to fulfill its duty of diligence and prudence, fails to inform the shipper of the cancellation of the voyage or change of the voyage date in time, or makes mistakes in cooperating with the shipper in handling relevant follow-up matters, and the shipper requests the freight forwarding enterprise to bear the corresponding responsibility, the court shall support it according to law.

 

Unless otherwise provided for in the contract, if a ship repair and construction enterprise requests an extension of the time limit for ship delivery on the grounds that the epidemic situation or epidemic prevention and control measures have caused insufficient labor force, delayed delivery of equipment and materials and prevented the vessel from resuming work in a timely manner, the court may, as appropriate, support the extension according to the extent to which the epidemic situation or epidemic prevention and control measures have affected the progress of ship repair and construction.

 

Because affected by the outbreak or epidemic prevention and control measures, shipping delays lead to apply new ship construction standards, unless otherwise agreed in the contract, the parties concerned request share therefore increase the costs and expenses, the court shall consider the outbreak or epidemic prevention and control measures for the influence of delay in delivery of the vessel and the parties to the contract whether factors, such as can blame reason, appropriate support.

 

17.On January 29, 2020, the Emergency Notice of the Ministry of Transport on Coordinating Epidemic Prevention and Control and Water Transport Guarantee stipulates that port operators are strictly prohibited from taking measures such as restricting cargo ships from operating in ports or isolating them from anchorage for 14 days in the name of epidemic prevention and control.Where a port operation enterprise arbitrarily restricts the time limit for berthing on the grounds of quarantine and isolation, and the shipowner or the operator claims that the vessel is liable for compensation, the court shall support such claim in accordance with law, without specific requirements from the maritime department or the port administrative department where the port operation enterprise is located.