Plaintiff: Maritime Salvage Bureau of Guangzhou
Address: No. 536, Bingjiang East Road, Guangzhou
Legal Representative: Zhao Jialing, director general
Authorized Attorneys: Liu Lei, attorney-at-law of Zhongcheng Law Firm of Guangzhou
Zhang Yixin, vice manager to Commerce Department of the First Fleet, Maritime Salvage Bureau of Guangzhou
Defendant: Ju Ye Far East Ltd.
Address: 11th floor, Fengshun Business Building, No. 592 of Wangjiaomidun Avenue, Kowloon, Hong Kong
Legal Representative: Liu Zhenming, general manager
Authorized Attorney: Xu Guangyu, attorney-at -law of Maritime Affairs Law Firm of Guangdong

　　　This Court, after filing the case of the dispute over the contract of towage Maritime Salvage Bureau of Guangzhou (plaintiff) v. Ju Ye Far East Ltd. (defendant) on July 16, 1999, has duly organized a collegial panel, summoned the parties concerned to exchange the evidence on the court on May 8 and May 15, 2000, respectively, and held a public trial on July 6. Liu Lei and Zhang Yixin, the authorized attorneys of the plaintiff, Liu Zhengming, the legal representative of the defendant, Xu Guangyu, the authorized attorney of the defendant, appeared at the trial for the hearing of the case. The case has now come to a close.
　　　The plaintiff alleges that, on December 2, 1998, the plaintiff concluded a contract of towage with the defendant. It was agreed upon in the contract that the plaintiff arranged its tugboat to tow the defendant's floating crane "0HI5000" from Shanghai to Guangzhou. The term of starting to tow as January 15 to 18, 1999. The demurrage was $7,000 per day. At 19:20 on January 15, the tugboat sent by the plaintiff arrived at Shanghai. At 2:15 on January 19, the tugboat left Shanghai towing the floating crane "0HI5000". According to the contract, the defendant shall pay the demurrage in the amount of $37,956 to the plaintiff for the three-day-three-hour-and-fifty-five-minute delay to start. On January 27, when arriving at Guangzhou, the destination of towage, the plaintiff asked the defendant to pay the balance of towage in the amount of $91,200, the demurrage in the amount of $37,956 and the fee for the sailors on the tugboat in the amount of $960. The defendant refused to pay. At the same day, the defendant asked the plaintiff to arrange the tugboat and four sailors to watch the floating crane "0HI5000" and promised the fee for watch $1,800 per day to the tugboat and $30 per day to the sailors. On March 31, the defendant asked the plaintiff to add another four sailors to watch. Till the date that the defendant took over the floating crane "0HI5000" on June 11, the defendant had defaulted the plaintiff the fee for watch $243,000 to the tugboat and $24,720 to the sailors in total. In addition, the defendant affirmed that the plaintiff refueled 150 tons and put in freshwater 50 tons to the floating crane "0HI5000", which is worth RMB315,000 and $450. The plaintiff had urged the defendant to pay the fee mentioned above, but the defendant refused. The plaintiff asks the court to enjoin the defendant to pay: 1. The towage in the amount of $91,200, the demurrage in the amount of $37,956, the fee for the sailors on the tugboat in the amount of $960 and the interest to the defaulted demurrage (counted from January 28, 1999, to the day of paying actually at the annual rate of 8.5%); 2. The fee for watch to the tugboat in the amount of $243,000 and to the sailors in the amount of $24,720, the cost of refueling in the amount of RMB315,000, the cost of putting in freshwater in the amount $450, and the interest to the fee mentioned above (counted from June 12, 1999, to the day of paying actually at the annual rate of 40 thousandth), and the cost of this case.
　　　The defendant alleges that the plaintiff delivered the floating crane "0HI5000" at 22°07′N/113°47′E (around the anchorage ground at Guishan). It was neither Guangzhou agreed upon in the contract nor the destination 22°10′N/114°07′E (the anchorage ground of Lamma, Hong Kong). In order to decrease the loss, the defendant suggested the plaintiff to tow the floating crane "0HI5000" southeastward about 2 sea miles (22°06′N/113°49′E) so that the defendant could arrange the tugboat "MAI PO" belonged to HONGKONG Salvage & Association to tow, and agreed to pay the relevant cost in the amount of $182,400 requested by the plaintiff. The plaintiff refused and insisted that it had fulfilled the contract of towage and had the right to collect all fee without any precondition. On June 11, the plaintiff towed the floating crane "0HI5000" southeastward about 4 sea miles (22°06′N/113°51′E) and delivered to the defendant. In sum: 1. The plaintiff did not tow the floating crane "0HI5000" to the destination agreed upon in the contract, and so could not ask the defendant to pay the balance of the demurrage; 2. The legal relationship to watch did not exist between the plaintiff and the defendant. The defendant shall not bear the fee resulted from watching, refueling and putting in freshwater because the plaintiff infringed the contract and refused the defendant's reasonable suggestion for decreasing the loss; 3. Since the defendant did not inform the plaintiff the date of starting to tow the floating crane "0HI5000", the last day of the period of start agreed upon in the contract, namely January 18, was the day of starting to tow. Even if adding one free day at the place of starting tow agreed upon in the contract, it was not later than the term of starting to tow agreed upon in the contract for the tugboat starting to tow the floating crane "0HI5000". The plaintiff's claims for the demurrage shall be dismissed because of the lack of factual evidence.
　　　The facts as follow are found after investigation:
　　　1.The conclusion of the contract
　　　Both the plaintiff and the defendant have no doubt on the following fact after cross-examination on the court: In December of 1998, the plaintiff and the defendant negotiated through Guangzhou Office of the Netherlands Fuji Ocean Shipping Ltd. The defendant consigned the plaintiff to tow its floating crane "0HI5000" and the parties concerned concluded the contract of towage finally. It was recorded in the contract that: the date of concluding the contract is December 23, 1998; The plaintiff is the party towing while the defendant is the tug party; The tugboat is "M/V Deshun" and "M/V Huijiu206"; It is the floating crane "0HI5000" belonged to the defendant being towed; the place of starting to tow is at 30°40′N/122°45′E (Shanghai) and the destination is at 22°10′N/114°07′E (Guangzhou). The accurate destination shall permit the tugboat and the object towed to enter, operate or leave safely and easily. At the same time, the destination shall also be permitted to deliver the object towed at according to the stipulation there or other ones and be accepted by the party towing; The party towing shall not refuse unreasonably; The term of starting to tow is January 15 to 18, 1999, and the tug party shall be ready within the period; The date of starting to tow would be the last day of the term of starting unless the tug party informs the party towing three days in advance; The free time at the place of starting and the destination are both one day in order to receive and deliver the towage or other relevant purpose, which is counted from the arrival of the tugboat at the place of starting to the arrival to anchorage ground of the destination or usually waiting water area outside; The demurrage in the amount of $7,000 per day shall be counted from the time that the tugboat and the object towed leaving the place of starting or the time the tugboat leaves the destination after delivery; The tug party shall pay the demurrage agreed upon in the contract as soon as the party towing shows the invoice; The cost of lump sum is $228,000; The tug party shall pay $45,600 when concluding the contract, $91,200 when the tugboat starting to tow, and $91,200 after arriving at the destination; The fee to the sailors arranged for the object towed shall be borne by the party who arranges the sailors; The tug party shall submit all license and warrant necessary for fulfilling the contract and the certificates when entering or leaving all ports of distress in the course of the planned navigation to the party towing freely; Otherwise, the tug party shall compensate the damage and fee the party towing suffered and pay the demurrage in addition to the party towing for the time delayed; The interest shall be counted from the date due at the rate of 8.5% if paying after that date; This contract shall be interpreted according to British Law and ruled by British Law. The collegial panel affirmed above facts.
　　　2.The fulfillment of the contract
　　　Both the plaintiff and the defendant have no doubt on the following fact after cross-examination on the court: After concluding the contract of towage, "M/V Huijiu206", "M/V Huijiu209" and "M/V Deshun" set sail from Guangzhou and arrived at 30°40′N/122°45′E (Shanghai) at 12:00 on January 14, at 16:27 on January 15 and at 19:00 on January 15 in 1999 respectively and are ready; At 23:15 on January 19, the above tugboats towed the floating crane "0HI5000" from the place of starting; At 22:30 on January 27, "M/V Huijiu209" towing the floating crane "0HI5000" arrived at 22°07′N/113°47′E (around the anchorage ground at Guishan) and delivered ; At 16:35 on June 11, "M/V Deshun" towed the floating crane "0HI5000" southeastward about 4 sea miles (22°06′N/113°51′E) and delivered to the defendant. The defendant did not pay the last part of demurrage in the amount of $91,200 to the plaintiff. The collegial panel affirmed above facts.
　　　The plaintiff claims that it sent the tugboat to the place of starting to tow after receiving the notice sent by the defendant without submitting relevant evidence. The defendant has doubt on this and denies sending the notice to the plaintiff. This collegial panel affirms that the defendant did not send the notice to the plaintiff before the tugboat sent by the plaintiff arrived because the plaintiff failed to prove it had received the notice.
　　　The plaintiff submits 59 copies of fax between the plaintiff and the defendant from the conclusion of contract to the delivery of the floating crane "0HI5000", and the defendant submits 33 copies. Both the parties concerned have no doubt on the authenticity to above faxes. The following facts could be verified by above faxes: On January 20, 1999, the defendant asked the plaintiff to tow the floating crane "0HI5000" to No. 5 anchorage ground at Shajiao of Guangzhou. On January 21, the plaintiff suggested to deliver the floating crane at 22°07′N/113°47′E (around the anchorage ground at Guishan). On January 27, the plaintiff delivered the floating crane at 22°07′N/113°47′E (around the anchorage ground at Guishan) and asked the defendant to pay the balance of towage, the demurrage and the fee for the sailors on board in terms of the commercial invoice it sent out. The plaintiff also asked the defendant to determine whether the tugboat needed to watch the floating crane, and the fee for watch are $1,800 per day to the tugboat and $30 per day to every sailor. At the same day, the defendant accepted the fee and asked the plaintiff to tow and deliver the floating crane at 22°46′N/113°37′E (the anchorage ground at Shajiao). The plaintiff informed the defendant that it had fulfilled the contract of towage. It needs to consign and quote again if towing the floating crane to the anchorage ground at Shajiao. On January 29 and 30, the defendant insisted that the anchorage ground at Guishan was not the destination agreed upon in the contract and asked the plaintiff to tow the floating crane to the anchorage ground at Shajiao. The defendant also pleased the plaintiff applying for the towage to the customs and submitting the schedule on behalf of itself. On February 1, the plaintiff informed the defendant that its obligation was to tow the floating crane to the destination. It had fulfilled the contract, for Guishan was an anchorage ground in Guangzhou. Moreover, the floating crane could not be towed to the anchorage ground at Shajiao, for the procedure for import had not been transacted. The plaintiff had no obligation to apply for towage, for the defendant shall submit all license and warrant necessary for fulfilling the contract freely, which agreed upon in the contract. On February 2, the defendant informed the plaintiff that it had consigned Nansha Foreign Deputy Company of Guangzhou to apply. The plaintiff could contact with Liang Dezhao, vice general manager of Nansha Foreign Deputy Company of Guangzhou, and towed the floating crane to the anchorage ground at Shajiao for quoting as soon as possible. On February 3, the plaintiff quoted the towage in the amount of RMB580,000 (including the auxiliary towage) or RMB400,000 (excluding the auxiliary towage which is collected separately). On February 5, the defendant informed the plaintiff that it had consigned Foreign Deputy Company of Guangzhou to apply for No. 5 and No. 7 anchorage grounds at Shajiao before the floating crane "0HI5000" was towed to Guishan; The reason that the floating crane could not be towed to the pointed place and anchored at Guishan was that the plaintiff had not declared at customs of Guangzhou for its tugboat before leaving there to tow the floating crane; The plaintiff shall finish the procedure of customs declaration as soon as possible and towed the floating crane to the pointed anchorage ground at Shajiao or 22°10′N/114°07′E (the anchorage ground of Lamma, Hong Kong). The plaintiff refused the defendant. On February 22, the defendant continuously asked the plaintiff to tow the floating crane to 22°10′N/114°07′E and faxed the bill of clearance which the deputy of the defendant needed when declared at the customs for entrance. On February 24, in its fax to the defendant, the plaintiff indicated that it had fulfilled the contract by towing the floating crane to Guangzhou; It is not necessary to declare at the customs for its tugboat because it is domestic voyage from Guangzhou to Shanghai; The reason that the floating crane could not enter Guangzhou is that the defendant did not transact the procedure of entrance, even the certificate when the floating crane exported from Japan, let alone the relevant procedure for the plaintiff's tugboat. On February 25, the defendant suggested the plaintiff to tow the floating crane southeastward about 2 sea miles (22°06′N/113°49′E) from Guishan so that the defendant could arrange the tugboat "MAI PO" belonged to HONGKONG Salvage & Association to tow, and agreed to pay the relevant cost in the amount of $182,400 requested by the plaintiff using the cashier's cheque on condition of reserving to claim for compensation to the plaintiff. The plaintiff refused and insisted that it had fulfilled the contract of towage and had the right to collect all fee without any precondition. On March 29, the plaintiff suggested to add another four sailors to watch the floating crane in order to insure the safety of the floating crane and the fee was all the same. On March 31, the defendant affirmed the plaintiff's suggestion in written form. On June 7, the plaintiff asked the defendant to determine a new and reasonable place to deliver the ship as soon as possible in order to decrease the loss. On June 10, the parties concerned agreed to tow the floating crane southeastward 4 sea miles (22°06′N/113°51′E). The collegial panel affirmed above faxes and facts.
　　　It is indicated on the bill of clearance to the floating crane "0HI5000" issued by Customs of Japan on January 9, 1999, which is submitted by the defendant: The floating crane "0HI5000" set sail from FURUSAWA STEEL NOHMI of Japan at 11:20 on January 9 and the destination is Shanghai, China. The defendant claimed that it had finished the procedure of clearance before the floating crane was towed from Shanghai to Guangzhou. The plaintiff has no doubt on the authenticity of the bill of clearance to the floating crane "0HI5000". The collegial panel affirmed the evidence and above fact.
　　　It is indicated on the fax shown by United International Ship Deputy Ltd. on January 19, 1999, which is submitted by the defendant: The defendant consigned United International Ship Deputy Ltd. to transact the procedure of entrance, and the floating crane was arranged to anchor at No. 5 anchorage ground at Shajiao. The defendant shall pay the groundage, the port charge, the fee to quarantine or so into the account pointed by United International Ship Deputy Ltd. The defendant claimed that it had forwarded above fax to the plaintiff on January 20 and informed the plaintiff that the floating crane was arranged to anchor at No. 5 anchorage ground at Shajiao. The plaintiff admits to receive above fax and has no doubt on its authenticity. But the plaintiff alleges that the fax could not prove the customs had confirmed the schedule and the defendant had paid above fee and finished the procedure at the port and the customs. The plaintiff does not submit opposite evidence. The collegial panel holds that it shall be affirmed Harbor Bureau of Guangzhou had agreed the schedule set down by the port on the ground that the plaintiff does not submit opposite evidence.
　　　It is indicated on the witness made by Zhangzhan, the clerk to Guangzhou Office of the Netherlands Fuji Ocean Shipping Ltd., which is submitted by the plaintiff: Around January 25, 1999, the defendant orally agreed the plaintiff to tow the floating crane to 22°07′N/113°47′E (the anchorage ground at Guishan) and deliver. The plaintiff claims that the parties concerned had determined orally the destination was the anchorage ground at Guishan of Guangzhou in the course of fulfilling the contract. The defendant has doubt on the plaintiff's claim and denies agreeing that. The plaintiff's claim is lacking factually. The collegial panel holds that, in accordance with Article 70 of Civil Procedure Law the People's Republic of China, the witness shall have the obligation to give testimony in court. When it would be truly difficult for a witness to appear in court, he may, with the approval of the people's court, submit a written testimony. Since the plaintiff failed to prove it was truly difficult for Zhangzhan to appear in court, his testimony unverified by other evidences could not be the basis of verdict without the approval of the court. Whereas the faxed between the parties concerned could not prove the defendant had agreed to determine the destination at Guishan of Guangzhou, the plaintiff's claim could not be supported. The plaintiff does not submit relevant evidence for its claim that it is unsafe to anchor the floating crane at Shajiao. The defendant has doubt on this. The collegial panel holds that the plaintiff's claim could not be supported because the plaintiff does not submit relevant evidence and the defendant has doubt on it.
　　　The plaintiff claims that it had requested the defendant to affirm the fact that the plaintiff refueled and put freshwater in the floating crane in order to insure the safety in the course of anchoring at Guishan. The defendant had affirmed that the plaintiff refueled 20 tons, 20 tons, 20 tons, 30 tons, 30 tons and 30 tons on January 28, February 11, February 25, March 19, April 17 and May 14 in 1999 respectively, which cost RMB315,000 in total with the unit price of RMB2,100 per ton; The defendant also had affirmed the plaintiff put in 50-ton freshwater on April 20, which cost $450 in total with the unit price of $9 per ton. The defendant has no doubt on these facts, but claims it did so for the sake of the safety of the floating crane and of the sailors and the plaintiff could not prove it had refueled and put in freshwater actually. The defendant denies the validity of the Bill of Allocation inside Maritime Salvage Bureau of Guangzhou submitted by the plaintiff, for the plaintiff worked out the bill unilaterally. The defendant does not submit opposite evidence. The collegial panel holds that it shall be affirmed that the plaintiff had refueled 150 tons and put in 50-ton freshwater with the approval of the defendant in the course of anchoring at Guishan because the defendant does not submit opposite evidence.
　　　The plaintiff had not adduced evidence to prove the defendant shall pay the fee for the sailors on board in the amount of $960 in the course of adducing evidence.
　　　3. Other facts
　　　The defendant demurs the jurisdiction of the court while submitting its bill of defense and asks to dismiss the plaintiff's claims. On August 27, 1999, this court judged to dismiss the demur applied by the defendant in the civil case judgement filed as 1999-Guang-Hai-Fa-Shang-Zi-71. The defendant refused to accept and submitted its appeal petition to the Higher People's Court of Guangdong. On February 24, 2000, the Higher People's Court of Guangdong judged to dismiss the defendant's appeal and to uphold the decision of the court of first instance in the final judgement filed as 2000-Yue-Fa-Jing-Er-Zhon-Zi-18.
　　　The defendant insisted that this case shall be judged in accordance with British Law agreed upon in the contract of towage, but did not provide relevant British Law within the period prescribed by this court. On December 18, 2000, this court decided to retain Chinese and foreign experts on law to provide relevant British Law for this case. At the same time, this court also informed the defendant, in the civil notice filed as 1999-Guang-Hai-Fa-Shang-Zi-71, to pay the fee for the legal service provided by Chinese and foreign experts on law to this court within 5 days after receiving the notice. The defendant did not pay above fee in advance within the period prescribed by this court.
　　　The collegial panel holds that this case involves the dispute over a contract of towage. It is agreed upon in the contract of towage that the contract shall be interpreted in accordance with British Law. In the course of hearing, the plaintiff prefers to apply for Chinese Law while the defendant insists to the application of law agreed upon in the contract, namely, British Law. In accordance with Article 193 of Opinion of the Supreme People's Court Concerning Some Issues on Carrying Out the General Principles of the Civil Law of the People's Republic of China (for Trial Implementation), the defendant has the obligation to provide British Law to this court. However, the defendant did not provide within the period prescribed by this court. It is accordant with the law for this court to find out relevant British Law by retaining Chinese and foreign experts on law. Since the defendant did not pay relevant fee for the legal service provided by Chinese and foreign experts on law in advance within the period prescribed by this court, this court decides to apply for Chinese Law to the dispute in this case according to law.
　　　The contract of towage is legal and valid, for it shows the authentic and accordant will of the parties concerned and does not violate the stipulation of law. The parties concerned shall be bound to the contract.
　　　There are two destinations in the contract of towage, 22°10′N/114°07′E (the anchorage ground of Lamma, Hong Kong) and Guangzhou. According to this contract, the defendant has the right to choose the accurate place on condition that it insures the tugboat and the object towed could enter, operate safely at the accurate place and the tugboat is permitted to deliver the object towed and could leave there safely. The plaintiff shall not refuse unreasonably. In this case, the defendant had informed the plaintiff that the destination of the voyage was Shajiao of Guangzhou on the second day of the tugboat set sail by towing the floating crane. As Shajiao of Guangzhou is a anchorage ground outside the port of Guangzhou, the plaintiff shall not unreasonably refuse the defendant's request to tow the floating crane to Shajiao. Therefore, Shajiao of Guangzhou is the destination of this voyage. It is lacking factually for the plaintiff to claim that the parties concerned had agreed to change the destination to Guishan of Guangzhou, which shall not be supported. It shall be regarded as the failure of fulfilling the contract that the plaintiff's tugboat delivered the floating crane when arriving at Guishan, which infringes the contract. Although the defendant had affirmed the fee for watching to the tugboat and to the sailors, for refueling and for putting in freshwater in the course of settling the dispute, and asked the plaintiff to tow the floating crane to Shajiao for quoting price, the defendant was compelled to do so in order to avoid more damage under the circumstance that the plaintiff had delivered the floating crane actually. It could not be affirmed that the defendant agreed to change the destination to Guishan merely in terms of the unauthentic will of the defendant. On the contrary, the defendant insisted in the faxes it sent to the plaintiff that the plaintiff should tow the floating crane to Shajiao of Guanghzou, which was the destination of the voyage. The plaintiff claims that it could not tow the floating crane to Shajiao of Guangzhou because the defendant did not transact the procedure of clearance when exporting from Japan and did not transact relevant procedures for the tugboat towing the floating crane to Shajiao of Guangzhou. The plaintiff's claim above could not be supported because the defendant submits the evidence that the Customs of Japan had agreed the floating crane being exported and Harbor Bureau of Guangzhou had also agreed to let the floating crane anchor at Shajiao of Guangzhou. It was agreed upon in the contract of towage that the defendant should pay the towage in lump sum before the plaintiff towed the floating crane to Shajiao of Guangzhou. The plaintiff is liable to insure the safety of the floating crane and has no right to request the defendant to bear the relevant fee. Therefore, the plaintiff's claim for above fee shall not be dismissed.
　　　The defendant did not send the notice to the plaintiff before the plaintiff arrived at the place of starting to tow. According to the contract of towage, the date of starting to tow shall be the last day of the term of starting to tow, namely, January 18, 1999. The plaintiff started to tow the floating crane on January 19, 1999, which is the free day agreed upon in the contract of towage. Therefore, the plaintiff's claim for the demurrage shall be dismissed because it is lacking factually. The plaintiff's claim for the fee for the sailors on board in the amount of $960 shall be dismissed because it did not submit relevant evidence within the period prescribed by this court. The destination had been changed after the parties concerned agreed to tow the floating crane southeastward 4 sea miles (22°06′N/113°51′E) finally on June 10, 1999. On June 11, 1999, the plaintiff fulfilled the contract by towing the floating crane to 22°06′N/113°51′E and delivering to the defendant. The defendant shall pay the balance of towage in the amount of $91,200 to the plaintiff. The plaintiff's claim that the defendant shall pay the towage in the amount of $91,200 shall be supported. As far as the loss of interest, it shall be counted from June 11, 1999, at the rate of 8.5% according to the contract of towage.
　　　In sum, this Court hereby decides as follow pursuant to Article 57 of General Principles of the Civil Law of the People's Republic of China, and Article 64 of Civil Procedure Law of the People's Republic of China:
　　　1.The defendant shall pay the plaintiff the towage in the amount of $91,200 and its interest (counted from June 11, 1999, to the day this judgement takes effect at the rate of 8.5%)
　　　2.The plaintiff's other claims shall be dismissed.
　　　The cost of this case is $12,260.24 and RMB7,240, and shall be borne jointly by the plaintiff with $8,780.24 and RMB7,240 and the defendant with %3,480. The fee paid by the plaintiff in advance would not be handed back, and the defendant shall pay the part it bears to the plaintiff directly.
　　　The obligation for payment above shall be implemented within 10 days after this judgement takes effect.
　　　If a party refuses to accept this judgement as final, it may submit its appeal petition to this Court within 15 days after service of this judgement, together with a sufficient number of duplicated copies for each person of the opposing party to have one copy, and the appeal shall be filed with the Higher People's Court.

　　　Presiding Judge: Zhan Weiquan
　　　Deputy Judge: Huang Qingnan
　　　Deputy Judge: Song Weili

　　　Date: December 26, 2000

　　　This copy is the same as the original one.

　　　Court Clerk: Yu Liqiong