Uniform refereeing standards, guarantee the rights and interests of seafarers, regulate the order of shipping market
——The person in charge of the Fourth Civil Division of the Supreme People’s Court answered reporters’ questions on the Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Cases Involving Crew Disputes
On September 27, the Supreme People's Court issued the "Regulations on Several Issues Concerning the Trial of Crew Dispute Cases", which will come into effect on September 29, 2020.
In order to better understand and apply this judicial interpretation, the relevant person in charge of the Fourth Civil Division of the Supreme People's Court accepted an interview.
Question: The Supreme People's Court has formulated and issued judicial interpretations for the trial of disputes involving seafarers, which shows that it attaches great importance to the trial of disputes involving seafarers.
Can you briefly introduce the drafting background and main content of the judicial interpretation?
Answer: Shipping is the most important mode of transportation in international logistics, and 90% of global trade is done by shipping.
90% of China's total import and export freight is also carried out by sea.
my country is not only a big trading country, a big shipping country, but also a big crew country.
According to statistics, the total number of Chinese crew members currently ranks first in the world, with a total of more than 1.4 million people.
More than 140,000 seafarers are dispatched every year.
Shipping has high requirements on the quality of crew.
A crew with good physical and mental health is of great significance to ensure maritime traffic safety, maintain the healthy and stable development of the shipping industry, and promote the development of my country's national economy.
The crew is the unsung hero who advances the operation of the global economy.
Maritime justice plays an irreplaceable and important role in protecting the rights and interests of seafarers.
In my country's maritime judicial practice, disputes involving crew members account for a large proportion.
Since 2016, the number of cases of seafarer labor contract disputes and personal injury compensation disputes in the national maritime courts accounted for 30.98%, 21.78%, 17%, 17.95%, and 29% of all cases, respectively.
However, the different scales of referees have always plagued the trials of crew disputes.
The main reasons are: First, my country has not formulated a special crew law, and the number of provisions on crew members in the current maritime law is relatively principled.
The content of the relevant administrative regulations focuses on the administrative management of the crew, and the content that can be directly invoked to determine the rights and obligations of the parties is limited.
Second, as workers in the general sense, the rights and obligations of seafarers are regulated by labor laws, relevant laws and regulations. At the same time, relevant administrative agencies have formulated different administrative management standards for seafarers in different industries.
Understanding the interrelationships between different laws, regulations, and rules is a challenge that maritime judges face when they hear crew disputes.
The formulation and promulgation of judicial interpretations for disputes involving crew members is not only a need to resolve the inconsistent standards of trial practice, but also a practical need to safeguard the legitimate rights and interests of the parties, regulate and guide the crew market, and the order of the shipping market, and build a higher level of openness for serving and guaranteeing my country The new economic system, maritime power strategy, and the construction of the “Belt and Road” are of great significance.
In 2015, the Fourth Civil Tribunal launched the preliminary research work on judicial interpretation of cases involving crew disputes.
Maritime judges engaged in first-line trials formed a research team, and went to the maritime courts where the most concentrated cases of this type of cases were dispatched to discuss with frontline judges. Several symposia were held to listen to the opinions of maritime judges, business representatives, and experts and scholars.
Through the collection, refinement and solicitation of opinions, it has been roughly clarified that the most controversial issue in trial practice is urgently needed to be resolved.
After the draft judicial interpretation was formed, the opinions of relevant industry associations, representative companies, universities and scientific research institutes, maritime courts and their high courts for appellate trials, arbitrator representatives and lawyer representatives were further heard.
Finally formally solicit opinions from the legislature.
Based on feedback from the legislature, relevant ministries and commissions, relevant departments in the court, local courts, and all sectors of society, the judicial interpretation provisions have been revised.
There are 21 judicial interpretations on the identification and resolution of different legal relationships between the crew’s labor contract, labor service contract, and intermediary contract that involve crew disputes, the confirmation, exercise and transfer of maritime liens, and the composition and legal protection of crew compensation , Whether wages should be protected in the case of illegal operations of seafarers, the assumption of tort liability in the case of labor services, the relationship between work-related injury insurance benefits and civil damages in the case of work-related injuries, and the application of law in foreign-related labor contracts and other issues that urgently need to be resolved in maritime judicial practice, Clearly stipulated.
Question: The supervisory issue of cases involving seafarers' disputes has always been an issue of concern to the majority of seafarers and shipowners. What are the specific provisions on the supervisory judicial interpretation of such cases?
How to connect and cooperate between different dispute resolution methods?
Answer: The issue of supervisory issues in disputes involving crew members is the difficulty of this judicial interpretation.
As far as general labor disputes are concerned, according to the Labor Dispute Mediation and Arbitration Law, "first arbitration before trial" and "one arbitration and two trials" are the basic dispute resolution procedures.
Because crew disputes often involve the strong professional issue of ship lien, the Special Maritime Procedure Law and its judicial interpretations stipulate that if a crew member directly brings a lawsuit to a maritime court for a labor contract dispute, the maritime court can directly accept it.
It should be noted that in the field of maritime legislation and maritime trials, there has been only a broad concept of seafarer labor contract disputes for a long time.
This "crew labor contract dispute" covers both crew labor contracts (mainly including contracts between overseas shipping companies and Chinese crews, overseas shipping companies and foreign crews, individual shipowners engaged in coastal inland water transport, and individual shipowners engaged in fishing Temporary employment of crew members to provide services, etc.) disputes also cover crew labor contract disputes.
Both types of disputes have always been directly accepted by the maritime court.
With the development of maritime trial practice, there has been a phenomenon that the crew's litigation request does not involve boarding services and has nothing to do with the priority of the ship.
In response to this, the maritime trial practice and theory gradually emerged in the voice of distinguishing "boarding service" and "non-boarding service", and proposed labor dispute cases arising from non-boarding service and non-crew and ship owner. Or disputes arising from the labor contract of the employing unit do not involve the issue of maritime liens. They are general labor dispute cases and should be subject to arbitration pre-arbitration in accordance with the provisions of the labor law.
In recent years, some maritime courts have followed this approach and achieved good results.
In 2016, the Supreme People’s Court "Regulations of the Supreme People’s Court on the Scope of Cases Accepted by Maritime Courts" formally distinguished between "crew labor contracts" and "crew labor contracts", and the two types of disputes of different nature should be determined respectively. The method of dispute resolution is a problem to be resolved in this judicial interpretation.
According to the provisions of the currently valid laws and judicial interpretations, and on the basis of summarizing the maritime trial experience, Article 1 of this judicial interpretation stipulates that for crew labor contract disputes, if the crew has nothing to do with the crew’s embarkation, work on the ship, or disembarkation and repatriation, that is If the dispute does not involve the issue of maritime liens, the parties shall be notified in accordance with the "Labor Dispute Mediation and Arbitration Law of the People's Republic of China", and shall be handled in accordance with the procedures of "first adjudication and then trial" and "one arbitration and two trials".
As for seafarers’ labor contract disputes, which are not labor disputes, they are still accepted by the maritime court with jurisdiction in accordance with Article 2 of the judicial interpretation.
Regarding the coordination and coordination of arbitration procedures and litigation procedures, Article 5 of this judicial interpretation stipulates that labor disputes not related to crew boarding, working on the ship, or disembarking repatriation shall be submitted to the Labor Dispute Arbitration Commission for arbitration. Wages and other labor remuneration, work-related injury medical expenses, economic compensation or compensation awards that are executed first shall be transferred to the local people’s court for review.
Where a crew member applies for arrest of a ship, the arbitration tribunal shall submit the application for arrest of the ship to the maritime court where the registry port is located or where the ship is located for review, or to the maritime court where the registry port is located or where the ship is entrusted by the local people’s court for review.
It should also be noted that the litigation requests filed by the crew may cover both matters related to the priority of the ship and matters not related to the priority of the ship. In order to facilitate the crew's litigation, avoid requiring the crew to split the litigation request through arbitration and direct litigation. In order to resolve disputes, the maritime court may consider accepting both types of requests.
Question: Regarding the exercise of the maritime liens, we have noticed that in recent years, there has been a practice of crew members only requesting confirmation of the maritime liens without requesting the arrest of the ship. Whether this request should be supported, the practical and theoretical circles have different views. Explain how this issue is regulated?
What are the main considerations?
Answer: According to the Maritime Law, the maritime liens are exercised by arresting the ship.
However, it is always required to exercise maritime liens by arresting ships. In recent years, there have been some new phenomena that have triggered thinking.
One is that the amount of the various expenses requested by the crew is relatively low, which is seriously out of proportion to the value of the ship and the adverse effects of the arrest of the ship on the ship, and the shipowner and the crew can generally reach an agreement or deferred payment for the wages in arrears; The ship’s whereabouts are unknown when the crew claims the ship’s priority to the court, and the ship’s priority cannot be exercised; third, although the ship knows the whereabouts of the ship, the ship’s arrest measures cannot be implemented because the ship is engaged in production and operation abroad or is evading debts; fourth, the ship has been due to other reasons The reason is detained, and there is no need to seize and so on.
For this reason, some methods of separating the confirmation of the priority of the ship and the exercise of the priority of the ship have gradually emerged in maritime trials, that is, the crew only requests judicial confirmation of the priority claims, and did not apply for the arrest of the ship at the same time. Yes, be allowed.
Those who support this approach believe that this approach is not only conducive to the protection of the rights and interests of the crew, but also conducive to the settlement of the final debt through the normal continuous operation of the ship, which is beneficial to both the crew and the owner.
The opinions opposed to this approach are that, first, the maritime liens are concealed. If the parties are allowed to only request confirmation of the maritime liens without arresting the ship, the maritime liens cannot be known to outsiders, and the result of judicial confirmation may not necessarily be for the outside world. It is known that it may harm the interests of other maritime creditors in the future.
The arrest of ships will also help subsequent creditors understand the ship's dynamics and avoid subsequent creditors from assuming responsibility for unforeseen maritime liens.
Second, the right of maritime liens is essentially a procedural right, which must be exercised through a specific procedure of arresting ships.
If it is allowed to only request confirmation of the maritime liens, it is inconsistent with the nature of the maritime liens.
In the way of exercising priority, all creditors with maritime priority should be treated fairly.
In order to achieve a better publicity effect, and to avoid the extinction of the maritime liens caused by the expiration of the mandatory sale or transfer announcement period for other courts, the crew should exercise the maritime liens by applying for arrest of the ship.
Both of the above viewpoints are reasonable.
The essence of this issue is how to balance the interests of the crew, shipowners and other maritime creditors.
Considering: First, the maritime liens arise from the provision of labor or services by the crew. Even if the judicial system does not confirm the relevant facts, the crew still has the right to claim the right holders or future buyers of the ship’s security rights when exercising relevant rights. Priority request.
The lack of judicial confirmation does not mean that these rights do not exist or disappear; secondly, when a crew member applies for the maritime court to arrest the ship when exercising the priority of the ship, the maritime court cannot review the application by the crew member and whether the maritime claims are related to For the core facts related to the disputed ship, the amount of maritime claims, and the time when the maritime claims were generated, there is also a process of review and confirmation before the maritime court allows the arrest of the ship. The provisions of Article 6 only confirm the relevant facts in advance; Third, there are indeed objective circumstances such as the crew’s inability to know the whereabouts of the ship and the inconvenience of the ship’s arrest abroad. The interests of the crew can be protected to the maximum extent through judicial confirmation, and the burden on the shipowner and other creditors will not be increased.
Therefore, Article 6 stipulates that the maritime court shall support the application of the crew not requesting the arrest of the ship but only requesting confirmation of the priority of the ship.
Because the maritime liens will be extinguished if they are not exercised within one year from the date of their emergence, the second paragraph of Article 6 stipulates that the period required by the crew shall be limited to one year from the date of liens.
As for the specific method of seizure, that is, whether "live seizure" also constitutes a ship seizure under Article 28 of the Maritime Law, there have been controversies between the practical and theoretical circles.
One opinion holds that “dead deduction” ships have the function of publicizing the priority of the ship, but “live deductions” cannot achieve this effect.
"Live deduction" is not conducive to subsequent creditors to understand the ship's dynamics, and may harm the interests of subsequent maritime creditors.
Another opinion is that "live deduction" also has a certain degree of publicity effect. "live deduction" is conducive to the continued operation of ships, and that through "water release and fish breeding", it is conducive to shipowners to pay off various claims including the crew's wage claims. , To achieve a win-win situation for the interests of seafarers, shipowners and other creditors.
Taking into account: First, after the crew’s claims with the nature of the priority of the ship are generated, even if the ship cannot be “detained” temporarily due to objective reasons, the judicial interpretation has given the crew the right to only confirm their priority first, and the interests of the crew have been A certain degree of protection has been obtained; secondly, the auction can only be carried out after the ship is arrested, so as to finally guarantee the realization of the priority of the ship. However, only the "live seizure" measure is adopted for the ship, and the auction of the ship cannot be realized, and the ship cannot be protected. The realization of the right of priority; third, the arrest convention uses the expression "arrest" for the arrest of the ship, and "dead arrest" is in line with the original meaning of "arrest".
Article 7 of the judicial interpretation stipulates that "live seizure" does not constitute a ship seizure under Article 28 of the Maritime Law.
Question: Disputes between seafarers and ship owners about wages and remuneration account for a large proportion. Among the specific components of seafarers’ wages and other labor remuneration, which parts have the nature of ship priority, involving the interests of the crew and other creditors, especially How does the judicial interpretation provide for the balanced protection of the interests of creditors who have secured real rights on ships?
Answer: The Maritime Law stipulates that seafarers’ wages and other labor remunerations have the nature of maritime liens, but how to understand the scope of seafarers’ wages and other labor remunerations with the nature of maritime liens? Does the specific components of seafarers’ wages and other labor remuneration have Maritime liens is one of the most controversial issues in judicial practice.
Generally speaking, crew remuneration consists of two major parts: on-going salary salary and guaranteed salary. "Get paid on board and no salary on disembarkation" is a common practice in the international shipping industry.
Remuneration or basic salary during normal ship work, overtime pay for extended working hours, overtime pay for rest days and statutory holidays, bonuses during ship service, related allowances and subsidies, and wages paid under special circumstances, and The fruits of the above payment on schedule are all related to boarding, working on the ship, and repatriation off the ship. They are all debts attached to the ship, so they are all wage claims with the nature of ship priority.
As for the relevant economic compensation and compensation stipulated in the labor law and labor contract law, the double wages that should be paid without a written labor contract, and the corresponding fruits due to delays in payment, etc., because they are not directly caused by the ship During the working period, on the premise that the ship’s relevant overtime wages, bonuses, subsidies and fruits have been assigned to the ship’s priority attribute, in order to appropriately take into account the interests of other rights holders who have secured real rights to the ship, the judicial interpretation stipulates the relevant economic Compensation money, compensation money and its fruits do not have the nature of maritime liens.
As for whether wages to be dispatched and vacation wages have the attribute of maritime priority, there are still major disputes in the drafting of the judicial interpretation provisions, and there is no provision for this issue.
Question: We know that my country’s marine ecological and environmental protection is currently under great pressure, and illegal fishing in closed fishing seasons, prohibited fishing areas, cross-border fishing, and fishing of rare and endangered marine organisms have not been completely banned.
Whether the wages of seafarers should be protected under illegal operations is one of the most controversial issues in maritime trials.
How does the judicial interpretation seek the greatest balance between the urgent needs of the marine ecological environment and the reasonable protection of crew rights?
Answer: my country's marine ecological environment is indeed facing greater pressure.
According to related reports, my country's coastal fishery resources are almost exhausted.
However, illegal fishing in closed fishing seasons and prohibited fishing areas still appears from time to time, and the marine ecological environment is becoming increasingly severe. Cross-border fishing and overfishing of rare and endangered marine life in other countries' waters have also triggered diplomatic disputes from time to time.
In order to protect the marine ecological environment, my country's Criminal Law, Fishery Law and Marine Environmental Protection Law have all set up relevant provisions to regulate.
In the practice of maritime trials, the most controversial issue is whether the salary and remuneration of seafarers should be supported in the case of illegal operations.
One opinion is that for illegal fishing, especially the prohibition of fishing during the closed fishing period, almost all fishing boat crews are aware of the prohibition.
If the crew is aware that there is a risk that they will not be able to obtain wages for participating in illegal operations, their willingness to participate in illegal operations will be greatly reduced. Fishing vessel owners who intend to fish illegally will face the situation of unemployed, and the number of illegal operations will therefore be greatly reduced. This is beneficial to the protection and gradual restoration of the marine ecological environment.
Another opinion is that the crew is a vulnerable group, even if they conduct illegal operations, they are generally assigned by the shipowner.
The labor or labor relationship between the crew and the shipowner, and the administrative management relationship formed between the relevant department and the shipowner and crew, are legal relationships of different nature, and the wages and remuneration of the crew should still be protected in the event of illegal operations.
During the investigation and drafting of the judicial interpretation, we paid full attention to the opinions of all parties and fully realized the urgency of the marine ecological environment and the importance of protecting the rights and interests of the crew. To this end, in response to the feedback from relevant departments, we changed the number of drafts of the article, repeatedly deliberated, communicated with relevant departments many times, and formed the current opinion, that is, the crew members are involved in illegal operations due to fraud and coercion. For wages and other remuneration, the crew’s request shall be supported. However, if the shipowner provides evidence that the crew is willing and knowingly about the illegal operations, the crew’s request will not be supported. If the actions of the shipowner or crew are subject to administrative punishment or constitute a criminal offence, they shall be dealt with in accordance with relevant legal procedures. (Jiang Peishan)