Background Facts: The ship “Arteaga” is a Portuguese oil tanker. The shipowner is Ondinar Transportes Matrimos Ltda of Spain. The insurer for oil pollution damage is the Britannia Steamship Insurance Association (hereinafter referred to as P&I Club). On April 3, 2005, “Arteaga” sailed from Ras Isa Marine Terminal, Yemen with 949,986 bbls crude oil to Dalian Xingang Anchorage, China. While sailing enroute from Dalian Xinggang Anchorage to Dalian Xingang petroleum berth, “Arteaga” ran aground at Dalian Xinjiao Reef with the 3S hold damaged, which resulted in the leakage of crude oil and serious pollution to the sea area. Such pollution caused the serious death of baby sea cucumbers at the breeding house rented by Zeng. After the accident, Zeng engaged Dalian Fisheries University to carry out investigation in order to test the water quality in the breeding house as well as the baby sea cucumbers. The result showed that the entire cultivation pools were emptied due to the baby sea cucumbers’ inability to survive. On April 26, 2005, the Court commissioned Liaoning Oceanic Fishery Environment Supervising and Monitoring Station (hereinafter referred to as Liaoning Station) to carry out investigation and evidence collection for on-site evidence preservation. The water volume in the breeding room, the species of the baby sea cucumbers and the average habitat density were established and the rate of loss was confirmed to be 19.6%. In September 2006, Shandong Maritime Centre of Judicial Authentication, commissioned by the Court, delivered an Examination and Evaluation Report on the damages caused by the pollution. It confirmed that Zeng’s breeding house was located within the sea area affected by the pollution of oil leakage, which had caused certain damages to the baby sea cucumbers. Calculated a loss rate of 3.33% for the baby sea cucumbers, it was estimated that 87,599 baby sea cucumbers were lost. Zeng brought a claim against Ondimar Transportes Maritimos Ltda and P&I Club demanding that both companies make joint and several compensations for the damages caused by pollution at RMB5.5 million plus the corresponding interest.
Summary of Judgment: After the trial, the Court held that China is one of the signatories of the International Convention on Civil Liability for Oil Pollution Damage 1992 (hereinafter referred to as the CLC 1992). The oil which leaked in the accident was the persistent crude oil subject to the CLC 1992 and therefore such treaty ought to be applied in this case. The request for compensation for the damages to the breeding farm claimed by Zeng belongs to “Pollution Damage” under Article 1 of the CLC 1992. Article 3 Paragraph 1 of the Conventionclearly stipulates that the shipowner at the time of an accident should be liable for any pollution damage caused by the ship as a result of the accident. As the shipowner, Ondimar Transportes Maritimos Ltda should be liable for the damages of Zeng’s farmed animals. Although the CLC 1992 stipulates that a claim for the damages caused by oil leakage may be brought against the insurer who takes responsibilities for losses from pollution, the Convention does not clearly stipulate that Zeng may require the shipowner to take joint and several liabilities with the insurer for oil liabilities. Zeng had chosen to make a claim against the shipowner. Zeng’s claim that the insurer for oil damage liabilities take joint and several responsibilities for compensation was neither consistent with the provisions of the CLC 1992 nor consistent with the legal principle of joint liability. The Court refused to provide support for this request by Zeng. Though the probative force of the investigation report commissioned by Zeng himself was generally weaker than the report commissioned by the Court, the investigation reports delivered by both judicial expertise institutions had obvious defaults in the determination of Zeng’s damages. The investigation team engaged by Zeng had carried out repeated field tests and tracking, which could reflect Zeng’sactual damages. In the case, after taking into consideration of the loss and damages stated in Zeng’s investigation report together with the evidence about the quantity of baby sea cucumbersobtained in the evidence preservation process, the Court judged that Ondimar Transportes Maritimos Ltda pay Zeng RMB1,319,476 and the corresponding interest. Neither of the parties appealed after the judgment of the first instanceby the Court.
Typical Significance: The trial is about the loss and damages and other related issues arising from the oil pollution caused by a foreign oil tanker within the sea area in China, which establishes some rules in law application, subject of liability for compensation, distribution of the burden of proof and determination of loss and damages. They include: First, the priority application of international treaty in the case involving foreign interests. In foreign-related civil cases where there exists a situation in which an international treaty which our country has signed or participated in is applicable, the international treaty should be applied first. The CLC 1992 should be applicable in cases involving the loss and damages resulting from the pollution of oil leakage in order to determine the parties’ rights and obligations. Second, although the CLC 1992 stipulates that the party who suffers loss and damages due to the pollution damage can directly make a claim against the insurer of the oil pollution liability, such a treaty does not stipulate that the insurer for the liability has joint and several liability for the pollution damage. Under the legal principle of joint and several liabilities, the victim has no right to require the insurer of the liability to take joint and several liabilities. Finally, the probative force of the investigation report commissioned by Zeng himself is not necessarily weaker than that of the report commissioned by the court according to its authority.
