BRIEF
　　　"M/V NO.1 CHUNGMU" collided with another ship while putting in a harbor in China, which resulted in the leakage of poisonous material and polluted the sea area near the harbor. The ship-owner applied for the limitation of liability for maritime claims. The maritime court holds that the damage leading compensation petition resulted from the ship-owner's reckless action with knowledge that such loss would probably result. According to the Maritime Law, the ship-owner is deprived of the right of limitation of liability for maritime claims.
　　　 DETAIL
　　　 Applicant: KOREA DEVELOPMENT LEASING CO.LTD (hereinafter referred to as party A)
　　　 Interested Person: Fishery Association of Zhanjiang, Guangdong (hereinafter referred to as party B)
　　　 The Korean-registered "M/V NO.1 CHUNGMU" belonged to party A. On March 4, 1995, "M/V NO.1 CHUNGMU" loaded with 3,865,508K/L cargo sailed from DEASAN, Korea. On March 9, 1995, the ship reached the harbor at Zhanjiang and waited at No. 2 anchorage ground to put in guiding by a pilot. At that time, the wind power on the offing near the harbor of Zhanjiang was 3 to 4 level northeasterly. The visibility was about one sea mile due to the heavy fog. The seawater ebbed towards southeast with light wave and the velocity of flow was about two knots. After communicated with a pilot with VHF at 6:20, the ship put in without the guidance of pilot in the speed of seven knots. The pilot planed to go on board at the No. 16 light mark and then bring to the dock at 2 District for unloading. At 7:00 o'clock, the radar detected "M/V CHON STONE No. 1" one sea mile away near the eyes of the ship when the ship turned 323° at No. 13 light mark, and stopped. Soon, while finding that two ships became closer and would collide at once, the captain ordered right rudder 10°, right full rudder, in order to steer past the eyes of "M/V CHON STONE No. 1", but failed. At 7:08, the second cargo hold on the larboard collided with the eyes of "M/V CHON STONE No. 1" at 60°, which resulted in the collapse of shipboard in water of No. 2 cargo hold and about 209.108-ton chemical liquid leaked into sea. The collision took place near the No. 14 light mark of the harbor of Zhanjiang（21°05′12″N、110°27′10″E）. 　　　"M/V NO.1 CHUNGMU" is 82.15-meter long, 14.00-meter wide and 6.50-meter deep. The horsepower of its mail machine is 2,330HP. Its speed is 12 sea miles per hour. The load draught is 5.72 meters and the empty draught is 1.895 meters. The total tonnage is 1, 589 tons, the net tonnage is 975 tons and load tonnage is 3,335.57 tons. "M/V NO.1 CHUNGMU", a ship for carrying dangerous chemicals in bulk especially with automatic machine and complete equipment, launched on January 29, 1994. This ship didn't prepare the required material for shipping, including the guide in any language of sea-lane about the harbors in every countries (including the harbor of Zhanjinag and others along the coast in China), the list of light station, the announce of shipping, the guide of passing in and out, the management rules of passing in and out, etc. The charts on board had never been corrected after its launching. The captain had never received the professional training on radar observation and simulation, auto-radar marking instrument, radiotelephone communication and had no relevant certificates; the chief mate had never received the professional training on radar observation and simulation, radiotelephone communication and had no relevant certificates; the second mate had never received the professional training on auto-radar marking instrument, radiotelephone communication and had no relevant certificates.
　　　 The chemicals loaded on the ship is ranked as the second sort of poisonously liquid material in the Appendix I and Appendix II of the Supplementary Articles of "Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973".
　　　 The united investigation carried out by the station in South China Sea of the Observation Center of Fishery Environment affiliated Agriculture Department, the station of the Observation Center of Fishery Environment of Guangzhou, and the Observation Center of Fishery Environment of Zhanjiang indicated: the environment of sea water and atmosphere around the harbor of Zhanjinag had been polluted by the chemicals leaking from "M/V NO.1 CHUNGMU" in evidence. The polluted sea area was 160 sq.km, in which covered 3,050.7 sq.km. of aquatic-breeding and 38.48 sq.km. of sands-cultivation-multiplication. The direct loss of these two items was RMB27,250,700 in total. It would cost RMB585,540 for cleaning the polluted fishery. The direct loss of piscatorial output in the harbor was RMB3,249,960. The direct loss of resource of swimming was RMB3,290,000. And the indirect loss of piscatorial resource was RMB14,150,800. On July 19, 1996, party B brought an action on the maritime court for the compensation of the pollution of the sea in behalf of those units and individuals who suffered the loss, and asked to enjoin party A to pay the damages in the amount of RMB34,376,260 (being heard in a separate case).
　　　 On August 13, 1996, party A applied for the limitation of liability for maritime claims to the maritime court, and asked to limit the liability for compensation of party A caused by the chemicals pollution, within SDRs348,863 (amounting to $518,759.30) in accordance with Maritime Law of the People's Republic of China (hereinafter referred to as Maritime Law).
　　　 On April 22, 1997, the maritime court issued a proclamation on South Daily, China Daily and Zanjiang Daily: the interested person of this accident in opposition shall submit exception petition to the maritime court within 30 days after the publish of this proclamation.
　　　 On May 23, 1997, party B alleged in the bill of exception: the objects regulated by Maritime Law are the relationship of marine freight and ship. But the claimant whom party B acted for is the aggrieved party having no any above relationship with party A. Hence, Maritime Law shall not be applied to regulate the relationship of right and obligation between party A and the claimant, and party A has no right to apply for the limitation of liability for maritime claims caused by the chemicals pollution. The liability for compensation of party A shall be determined according to Law of the People's Republic of China on Maritime Environmental Protection (hereinafter referred to as Law on Maritime Environmental Protection), Law of the People's Republic of China on Environmental Protection (hereinafter referred to as Law on Environmental Protection) and Regulations of the People's Republic of China on the Protection of Watercraft Pollution to Sea Area (hereinafter referred to as Regulations on the Protection of Watercraft Pollution to Sea Area). Even though this case is applied to Maritime Law, it shall be the Article 209 that is applied. Because it is serious mistake of party A, including failing to ensure the seaworthiness of "M/V NO.1 CHUNGMU" and to assign qualified captain and driver, that resulted in the accident of collision and pollution. Hence, party A's right of limitation of liability have been deprived and the application shall be dismissed.
　　　 INVESTIGATION AND JUDGEMENT
　　　 The maritime court holds:
　　　 In this case, the law be applied to shall be the law of China because the pollution damage accident took place in the sea area near the harbor of Zhanjiang, China. The principle that a person liable whose act results in the pollution of sea water shall bear the liability for compensation regulated in Law on Maritime Environmental Protection, Law on Environmental Protection, Regulations on the Protection of Watercraft Pollution to Sea Area, and the legal system of the limitation of liability for maritime claims in Maritime Law are both applied to this case. Maritime Law, being the special law regulating the relationship of marine transportation, stipulates clearly on the limitation of liability for maritime claims, and shall be the legal support for dealing with this dispute. Being pursuant to Article 207,208 of Maritime Law, the right of compensation petition for poisonous material pollution shall fall into restrictive credit.
　　　 The port of delivery was harbor of Zhanjiang, but party A, being the ship-owner of "M/V NO.1 CHUNGMU", did not prepare those required material for shipping about the harbor of Zhanjinag according to International Convention for the Safety of Life at Sea, 1974 (hereinafter referred to as Convention for the Safety of Life) and International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (hereinafter referred to as Convention on Standards for Seafarers), such as the guide of sea-lane, the list of light station, the announce of shipping, the guide of passing in and out, the management rules of passing in and out, etc.. As a result, the captain did not know Rules of the People's Republic of China on the Control of Foreign-registered Ships (hereinafter referred to as Rules on the Control of Foreign-registered Ships) and Rules of the Ministry of Communication of the People's Republic of China on the Supervision of Dangerous Lading (hereinafter referred to as Rules on the Supervision of Dangerous Lading). Moreover, the captain, the chief mate and others had never received the professional training on radar observation and simulation, auto-radar marking instrument, radiotelephone communication and had no relevant certificates. All of these have violated Article 13, 20 of Convention for the Safety of Life, and Article 2 of Chapter 2 and the provision in the appendix of Convention on Standards for Seafarers. Therefore, "M/V NO.1 CHUNGMU" is a shipping without seaworthiness. 　　　　　　Article 20 of Rules on the Supervision of Dangerous Lading stipulates: the ship with dangerous lading must strictly abide by the regulation and rules of collision avoidance of the harbor. It shall be forbidden to pass in and out, to put to dock, if the weather and the visibility are badly which makes it uncertain to sail safely. Rules on the Control of Foreign-registered Ships also stipulates that foreign-registered ship shall wait for pilot at the anchorage ground, and is not permitted to sail on the inner water area without the guidance of pilot, which is stipulated in Rule of Harbor of Zhanjiang and Shipping Announcement issued by the harbor superintendency administration. Since "M/V NO.1 CHUNGMU" was not equipped with those required material and the captain cannot know above regulation, the ship put in blindly and riskily under the condition that the weather and the visibility are badly which makes it uncertain to sail safely. The behavior violated the stipulation of harbor management and resulted in the accident of collusion and pollution. Article 5 of Convention on the International Regulation for Preventing Collisions at Sea, 1972, stipulates every ship shall usually keep normal oversee using vision, hearing and all methods being effective under the condition at that time in order to estimate plenarily for the danger of collision. But the captain of "M/V NO.1 CHUNGMU" was unable to observe the circumstance around using radar correctly nor to estimate the danger plenarily. When the situation was dangerous, the captain failed to take effective measure for preventing collision. On the contrary, the captain ordered to steer pass "M/V CHON STONE No. 1". At last, the collision took place and the 209.108-ton poisonous chemicals leaked.
　　　 The facts that "M/V NO.1 CHUNGMU" put in blindly and riskily under the condition of seaworthiness resulted in the collision and poisonous chemicals pollution, and constituted the reckless action with knowledge that such loss would probably result which is stipulated by Article 209 of Maritime Law. Hence, Article 207, 208 of Maritime Law stipulating the restrictive liability of damage cannot support the reason brought forward by party A. The limitation of liability for maritime claims shall be dismissed.
　　　 On September 5, 1997, the maritime court hereby decided as follow pursuant to Article 209 of Maritime Law: to dismiss party A's the limitation of liability for maritime claims.
　　　 COMMENT
　　　 This case mainly involves the application of law, the seaworthiness of ship and the deprivation of right for the limitation of liability for maritime claims.
　　　 1.The limitation of liability for maritime claims is a kind of especially legal system differentiating from the principle of general civil damages. It is a kind of legal system for the ship-owner, operator and charterer to limit their liability for damages within a certain amount in case of the bad average accident. The aim of this system is to boost the development of carrying trade on sea, to encourage salvage, to meet the requirements of marine insurance and to accelerate the flow of merchandise. On the other hand, it maybe results in that the creditor cannot obtain enough damages impersonally due to the limitation of liability for the person liable. Therefore, the law restricts the situation that the person liable enjoys the limitation of liability. The person liable shall be deprived of the right of limitation of liability when the damage is caused by his intentional or reckless feasance or nonfeasance with knowledge that such loss would probably result.
　　　 2.In this case, the pollution accident took place at the harbor of Zhanjiang, China. Thus, it shall apply to the law of China in accordance with the principle that the tortious damage shall apply to the law of the place where the tort is committee. The principle that the person liable shall bear the liability for damage is stipulated in Law on Maritime Environmental Protection, Law on Environmental Protection and Regulations on the Protection of Watercraft Pollution to Sea Area. The legal system of liability for maritime claims for the ship-owner, operator and charterer has been stipulated in Maritime Law. There is no antinomy between the general principle that the person liable shall bear the liability for damage in Law on Maritime Environmental Protection, Law on Environmental Protection and Regulations on the Protection of Watercraft Pollution to Sea Area and the system of the limitation of liability for maritime claims in Maritime Law. Being the laws and regulations on the protection of maritime environment pollution, the provisions in Law on Maritime Environmental Protection, Law on Environmental Protection and Regulations on the Protection of Watercraft Pollution to Sea Area are mainly on the administrative management of maritime environment protection. They do not regulate the damage of sea area pollution. Being the special law on the relationship of marine transportation and the relationship of ship, Maritime Law shall be the legal support for the dispute over average damage. Although the limitation of liability for poisonous chemicals pollution is not stipulated specially in Maritime Law, it is also not listed among the non-restrictive credit in Article 208 of Maritime Law. According to the principle stipulated in Article 207, the damage petition for poisonous material pollution shall fall into restrictive credit. Therefore, the relevant stipulation in Maritime Law shall be applied for this case.
　　　 2.It is the ship-owner's (or carrier's) legal obligation to ensure the seaworthiness of ship before sailing and in the course of sailing. The seaworthiness means the ship can withstand the general risk at sea in every respect, including the proper assignation of seafarers, the proper equipment and the preparation of supply. It is stipulated in Article 13 of Convention for the Safety of Life that every ship shall be equipped with enough competent seafarers. In Article 20, it is stipulated that all ships shall prepare enough latest chart, the guide of sea lane, the list of light station, the announce of shipping, tide table and others for planning the shipping. It is stipulated in Article 2 of Chapter 2 of Convention on Standards for Seafarers and its appendix that the captain and the chief mate of the ship with 200-1600-total-tonnage shall be able to know the basic principle on radar and to use the radar simulator; shall be able to know the procedure of radiotelephone communication and to use the equipment; shall pass the relevant examination and obtain certificate Being the member country of Convention for the Safety of Life and Convention on Standards for Seafarers, this two conventions have take effect to Korea. IN this case, the port of delivery was harbor of Zhanjiang. But party A, being the ship-owner of "M/V NO.1 CHUNGMU", did not prepare those required material for shipping about the harbor of Zhanjinag, such as the guide of sea-lane, the list of light station, the announce of shipping, the guide of passing in and out, the management rules of passing in and out, etc. Moreover, the captain and the chief mate had never received the professional training on radar observation and simulation, auto-radar marking instrument, radiotelephone communication and had no relevant certificates. Therefore, "M/V NO.1 CHUNGMU" is a shipping without seaworthiness.
　　　 3.It is stipulated in Article 209 of Maritime Law: The person liable shall be deprived of the right of limitation of liability when the damage is caused by his intentional or reckless feasance or nonfeasance with knowledge that such loss would probably result after investigation. In this case, party A violated the stipulation in Convention for the Safety of Life and Convention on Standards for Seafarers, which resulted in the seaworthiness of "M/V NO.1 CHUNGMU". Since above reasons, the captain cannot timely know those regulations in Rules on the Control of Foreign-registered Ships, Rules on the Supervision of Dangerous Lading, Rule of Harbor of Zhanjiang and Shipping Announcement issued by the harbor superintendency administration. It is the essential reason that the ship loaded with dangerous chemicals put in blindly and riskily without pilot under the condition that the weather and the visibility are badly that makes it uncertain to sail safely. It is the main reason that the captain of "M/V NO.1 CHUNGMU" was unable to observe the circumstance around using radar correctly nor to estimate the danger plenarily. When the situation was dangerous, the captain failed to take effective measure for preventing collision.
　　　 The above error of "M/V NO.1 CHUNGMU" is the consequence of its non-seaworthiness. Party A shall know the non-seaworthiness is possible to result in average accident. Party A shall be deprived of the right of limitation of damage liability stipulated in Article 207 of Maritime Law due to his reckless nonfearance with knowledge that such loss would probably result which caused the collision and poisonous chemicals pollution.