i-law

Maritime Law and Practice in China

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CHAPTER 22

Preservation of maritime evidence

Introduction

22.1 Preservation of maritime evidence means the compulsory measures imposed by the maritime court, upon the application by a maritime claimant, to take, preserve or seal up the evidence relating to a maritime claim.1 22.2 The basic requirements for making an application for preservation of maritime evidence are generally set out in chapter V of the Special Maritime Procedure Law (the “SMPL”).2 22.3 The relevant provisions in the Interpretations on SMPL regarding the preservation of maritime evidence will also be discussed below in conjunction with the above chapter V of the SMPL.

The general nature of the remedy

22.4 Unlike other civil cases in which the court has the power to preserve the evidence when it considers necessary,3 the measures of preservation of maritime evidence can only be taken upon application by a maritime claimant. 22.5 The provisions in relation to preservation of maritime evidence only apply to maritime cases. In other words, one cannot, by applying for the preservation of maritime evidence, apply to preserve those types of evidence unrelated to a maritime claim. The SMPL does not provide what kinds of evidence could be preserved. In practice, the maritime court would refer to article 63 of Civil Procedure Law (the “CPL”), which sets out the eight types of evidence that can be preserved in civil cases, namely (1) statements of the parties, (2) documentary evidence, (3) physical evidence, (4) audio-visual material, (5) electronic data, (6) testimony of witnesses, (7) expert evidence, and (8) records of inspection. The typical examples of maritime evidence that a claimant would apply to preserve in a collision case (if applicable) are:
  • (1) certificate of registry;
  • (2) international tonnage certificate;
  • (3)

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    safe manning certificate;
  • (4) ISM document of compliance;
  • (5) crew list;
  • (6) certificates of officers and engineering officers;
  • (7) ship’s particulars;
  • (8) turning circle and manoeuvering data;
  • (9) radar specification;
  • (10) bridge layout plan with specification/list of bridge equipment;
  • (11) cargo details;
  • (12) passage plan;
  • (13) last port departure condition report/details;
  • (14) original working chart;
  • (15) GPS position log;
  • (16) noon reports;
  • (17) radar log;
  • (18) radar blind sector diagram;
  • (19) course recorder trace;
  • (20) deck log book;
  • (21) official log book;
  • (22) radio log;
  • (23) VHF log;
  • (24) bridge bell;
  • (25) weather reports/facsimiles;
  • (26) collision damage sketch/plan;
  • (27) sketch of angle of blow between the two ships;
  • (28) written communications to/from other ship concerning the collision;
  • (29) written communications to/from owners/managers concerning the collision;
  • (30) written communication to/from flag State concerning the collision;
  • (31) any written report(s) concerning the collision;
  • (32) any statement(s) of fact;
  • (33) note of protest;
  • (34) electronically preserved data (e.g. ECDIS, VDR);
  • (35) captain’s standing orders and night order book;
  • (36) bridge departure checklist;
  • (37) engine room log;
  • (38) engine telegraph logger printout;
  • (39) engine room bell book;
  • (40) engine alarm printout.
22.6 The application for preservation of maritime evidence will only be permitted in a situation of emergency where the evidence might be lost or would be difficult to be obtained in the future unless immediately preserved.4 Sea carriage compared to carriage by land has the feature of high risks and uncertainties. When a casualty occurs on the open sea, such as collision or grounding, it is difficult to preserve the evidence at the casualty

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site and it is essential for the parties to immediately take measures to preserve the evidence in aid of further dispute resolution as much as possible once the vessel arrives at the first port after the accident. 22.7 The specific measures taken against the evidence, depending on the specific circumstances, could be to seal up the evidence, or take reproductions, duplicates, photographs into evidence, or make video recordings, extracts or records of inquests.5 Sometimes, it would be permitted to take in the original evidence where the court considers necessary.6

Application for preservation of maritime evidence

Before or during the arbitration/litigation

22.8 Preservation of maritime evidence can be applied for not only prior to arbitration or litigation, but also after a party has commenced proceedings.

The court

Before arbitration/litigation

22.9 When a party makes an application for preservation of maritime evidence before bringing proceedings, it will not be bound by the jurisdiction agreement or arbitration agreement between the parties7 and such an application shall be made to a maritime court of the place where the evidence is to be preserved.8 22.10 Where a party applies for preservation of evidence before the commencement of arbitral proceedings administered by an arbitration commission such as CMAC,9 it shall, according to the provisions of SMPL or other provisions concerned, submit its application directly to the maritime court or other people’s court at the place where the evidence to be preserved is located. 22.11 The maritime court that has undertaken the preservation of the maritime evidence may also exercise jurisdiction over the underlying disputes if the parties submit the disputes to the same court, provided that there is no jurisdiction agreement or arbitration agreement between the parties.10 Of course, the parties are entitled to submit the underlying disputes to other competent maritime courts thereafter.11 If there is no jurisdiction agreement or arbitration agreement, the parties may also submit the underlying disputes to another competent maritime court that has jurisdiction over the matter in accordance with the law.

After the proceedings have been commenced

22.12 It is not clear under the law which court has the jurisdiction to hear the application for preservation of maritime evidence after the proceedings have been brought. In

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practice, it is deemed that the application shall be made to the same maritime court that hears the case. 22.13 When a party applies for preservation of evidence in an arbitration proceeding in an arbitration commission such as CMAC arbitration, the arbitration commission shall submit the party’s application to the maritime court or other people’s court at the place where the evidence to be preserved is located.12 Therefore, the party shall first make an application to the arbitration commission according to the arbitration rules and the arbitration commission will then pass on such an application to a competent maritime court. 22.14 If a foreign court has seized the case or relevant disputes have been referred to arbitration the seat of which is not China, any party to the proceedings may still apply to a competent maritime court of the PRC for the preservation of maritime evidence, namely, the maritime court in the place where the evidence is to be preserved.13

Making the application

22.15 The court can only make such an order upon the claimants’ application and cannot preserve any maritime evidence ex officio. 22.16 A party shall apply to the maritime court for preservation of maritime evidence seven days before the time limit for producing evidence is due.14 22.17 The application papers shall set out the following items:
  • (a) the list of evidence to be preserved;
  • (b) the connection between the evidence and the maritime claims, namely, the evidential purpose of the evidence on the maritime claims;
  • (c) the reasons for the application. In the part of requested reasons, an applicant shall set out the basic background of the maritime claim and make a prima facie case that the claimant is entitled to make such a claim as well as explain the emergency for obtaining such an order.

Security

22.18 The maritime court, having entertained an application for preservation of evidence, may enjoin the claimant to provide security. If the claimant fails to do so, the court shall reject the application.15 It is noteworthy that the counter security will be provided to the court only. 22.19 In practice, the counter security may be in the form of:
  • a) a bank guarantee to be issued by a Chinese bank;
  • b) a letter of undertaking issued by a reputable Chinese insurance company or reinsurance company;
  • c)

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    a letter of undertaking issued by a Chinese P&I Club;
  • d) a corporate guarantee issued by a reputable Chinese company (this form has become rare now);
  • e) cash deposit;
  • f) a guarantee issued by court-recognised guarantee companies. In some maritime courts, such as Ningbo Maritime Court and Qingdao Maritime Court, a guarantee to be issued by their recognised guarantee companies can be accepted. Such guarantee can be arranged by entering into an agreement with the guarantee companies against some paid fees.
22.20 For each individual case, local Chinese lawyers shall discuss with the court in respect of the acceptable form of a security. The amount of the security would not be a substantial amount given that the damages or losses caused by the execution of such preservation would be very limited. 22.21 The security should be sufficient to compensate any loss caused by preservation of maritime evidence, if wrongfully obtained. The amount differs in different maritime courts and will be subject to the discretion of the court. The amount of the counter security may be negotiable.

Conditions for obtaining an order to preserve maritime evidence

Qualifications of subject – a claimant is a party concerned of a maritime claim

22.22 The conditions for being a subject of application for evidence preservation are satisfied only if a party concerned has both the elements of having a maritime claim and being the party concerned of such maritime claim.16 22.23 A maritime claim is a substantive claim arising from a certain statutory maritime cause in fact. The so-called maritime cause in fact is the legal relation between a claimant and a person against whom the claim is made in maritime transportation, production and operation, or operational activities related to a ship. The scope of a maritime cause in fact shall be consistent with the scope of maritime cases accepted by Chinese maritime courts. 22.24 Further, a claimant must have a direct interest in the maritime claim. In respect of pre-trial evidence preservation, parties concerned with a maritime claim are usually the subjects of the substantive legal relation in dispute; in respect of evidence preservation during litigation, a party concerned with a maritime claim is usually a plaintiff, a defendant and a third party of the lawsuit. Therefore, the scope of a claimant of maritime evidence preservation not only includes the subject of civil rights of a maritime claim but also includes the subject of obligations to a maritime claim. As long as there is a possibility of loss of evidence or difficulty in obtaining evidence, anyone who has an interest in the civil rights and interests in dispute is entitled to apply for evidence preservation to prove the existence of a maritime claim.

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Standards of evidence – evidence to be preserved on claims must have evidential effect on a maritime claim

22.25 The purpose for a claimant to apply for evidence preservation is to prove whether its maritime claim exists or not. Therefore, evidence to be preserved on claims shall have evidential effect on a maritime claim. It includes two aspects of meaning as below. 22.26 Firstly, there is relevance between the evidence to be preserved and a maritime claim. Relevance is an important legal nature of litigious evidence. Evidence that is able to become the evidence for determining the facts of a case shall inherently have certain relevance to the facts to be proved. Otherwise, it does not have the litigious value. In other words, evidence to be preserved on application made to the court by a party concerned must be evidential materials relevant to the facts to be claimed. In a case of ship collision, evidential materials are anything relevant to the occurrence of collision such as log books, sea charts, traces of collision, paint samples of collided position(s), etc of the ship of the opposite party, which can all prove that the collision incident has certainly taken place, which helps to determine the liability for collision. 22.27 Secondly, evidence to be preserved on claims will prove a maritime claim. Evidence to be preserved on claims must also have evidential effect on the maritime claim. This evidential effect could be direct evidence, i.e. the evidence to be preserved must have direct relevance to the maritime claim, which solely proves whether the maritime claim exists or not; or it could be an indirect evidence, i.e. the evidence to be preserved has indirect relevance to the maritime claim, which cannot prove the maritime claim by itself but it is necessary to combine with other evidence to prove so.17 22.28 Indeed, in a case, there is probably a lot of evidence relevant to the case. Evidence of litigious value refers to the evidence that has evidential effect on the actual situation of the case. The same evidence in different cases may not have exactly the same evidential effect on the facts of cases because the specific situations vary. It depends on the specific situation of a maritime claim to see if certain evidence to be preserved on claims has evidential effect on the maritime claim.18

Requirements for targets – a person against whom the claim is made is relevant to the evidence to be preserved on claims

22.29 The scope of persons against whom the claim is made in respect of maritime evidence preservation has a wider range than the scope of the claimant of a maritime claim. A person against whom the claim in respect of maritime evidence preservation is made is a person relevant to the evidence to be preserved on claims. The so-called “a person relevant to” refers to a party concerned of a maritime claim or other persons related to the evidence to be preserved on claims, who not only includes a party concerned of a maritime claim but also includes a body and an individual who holds the evidence other than a party concerned of a maritime claim as well as a body and an individual who is aware of the situation of the case. For example, under the specific context of maritime pre-trial evidence preservation,

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some witnesses have no legal relation with a claimant of evidence preservation but the materials held by these people is very likely to prove the actual situation of the maritime claim in dispute and they are favourable to the investigation of future cases. Therefore, it is necessary to preserve these evidential materials held by these witnesses.

Applicable situations – an urgent situation where no immediate steps to preserve evidence taken will lead to the loss of evidence or difficulty in obtaining evidence

22.30 The possibility of loss of evidence or the difficulty in obtaining evidence is a prerequisite of evidence preservation. Loss of evidence means that evidence no longer exists, e.g. the decomposition or deterioration of physical evidence, the death of a witness. Difficulty in obtaining evidence means that evidence still exists but it is difficult to obtain the same objectively, e.g. evidence on board of a foreign outgoing ship. Furthermore, the difficulty in obtaining evidence not only means that it is difficult for a party concerned to obtain the same but it is also difficult for the court to collect. If a party concerned is unable to collect the evidence of its own accord due to objective reasons but it could do so through the investigation of a court, this does not fall within the difficulty in obtaining evidence and thus this does not satisfy the condition for evidence preservation.19 22.31 Loss of evidence or difficulty in obtaining evidence has a distinction of urgency and non-urgency in terms of time. Maritime evidence preservation shall be done on the condition that the situation is urgent. The so-called “urgent situation” means that under certain circumstances where no immediate evidence preservation taken will probably cause the loss of evidence of a maritime claim or the difficulty in obtaining the same subsequently, or inability to obtain the same of one’s own accord due to objective reasons. 22.32 Maritime evidence has special features. Firstly, a maritime dispute often involves parties concerned from different countries. Therefore, what often happens is that a foreign ship relies upon relevant provisions to reject a claimant to collect evidence for an investigation against her, or provides no cooperation with the claimant in the investigation and collection of evidence, which makes it unable to collect evidence for the relevant maritime claim. 22.33 Secondly, subject to the restriction of objective conditions, a claimant is neither able to control nor grasp the timing of investigation and collection of evidence because the situation is urgent. For example, it is impossible for a claimant to go to a foreign ship to obtain evidence such as the navigation information of a foreign ship, the record of cargo loading and unloading, communication record, etc. A trace of collision of ships is left on the marine equipment, which will be flooded by the water if no preservation is undertaken.20 For example, pollution caused in the sea water area by oil spill of a ship, trace of collision left on a ship after collision of ships, trace left on portal facilities struck by a ship, the sea condition and weather condition of the place where general average has taken place, etc.21 Indeed, it is unnecessary to embark on evidence preservation before litigation and during

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litigation if the situation is not urgent and it is impossible that the evidence would be at a risk of loss or it would be difficult to obtain the evidence. Evidence may be collected by a party concerned of his/her own accord after entering litigation, or collected and investigated by a maritime court.

Review and issue an order to preserve the evidence

22.34 The court after reviewing the application for preservation maritime evidence must make an order to either grant or reject the application. Article 68 provides that the maritime court, having accepted an application, shall make an order within 48 hours. 22.35 In practice, it may be easier to obtain an order to preserve the maritime evidence if such an application is made together with an application for preservation of maritime claims.

Execution

22.36 The preservation of evidence shall be executed by the court. In practice, the judge will physically attend the vessel on board to execute the preservation on board the vessel. 22.37 The respondent shall cooperate with the court in the preservation of the evidence. The evidence preserved by the court shall be kept by the maritime court. After the claimant brings an action before the same maritime court, he will be entitled to apply to the court to make a copy of the evidence. If the claimant brings an action in other competent maritime courts in China or commences arbitration administered by a Chinese arbitration institution, the claimant could apply to the court hearing the case or the arbitration institution for making a copy of the evidence preserved by the previous maritime court.

Reconsideration and objection

22.38 Where the respondent is not satisfied with the preservation order, he may, within five days after receipt of the order, apply to the same maritime court for reconsideration.22 Such application for reconsideration can only be made once.23 The court upon receipt of such application shall within five days after receipt of the application make a decision.24 During the reconsideration period by the court, the execution of the order shall not be suspended.25 If the court considers the reasons are justified not to make an order to allow the preservation, it shall withdraw the order in a timely fashion and return all the evidence.26 22.39 A party with interest may also file an objection to the maritime court, and the maritime court, having reviewed such objection, shall either withdraw the order for preservation if they find the reasons are justified, or notify the party in writing that the court considers

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their objection to be not grounded.27 “A party with interest” refers to those who have legal interest in the actions or omission of the respondent under the law. 22.40 A foreign master may request the court to allow him to report to his employer before he complies with the court’s order. Normally, this will be allowed. If the ship master does not comply with the court’s order, he may be subject to a criminal or fine sanction. According to article 110 of the CPL, if any person using violence, threats or other means to hinder judicial officers or personnel from performing their duties, the people’s court shall, according to the seriousness of the act, impose a fine on him or detain him; if the act constitutes a crime, the offender shall be investigated for criminal responsibility according to the law.

Wrongfully obtained order for preservation of maritime evidence

22.41 If the order for preservation of maritime evidence is wrongfully obtained, the claimant shall indemnify the person against whom the injunction is made or the other interested parties for the losses they have incurred.28 Such claim shall be submitted to the same court that made the order for preservation.29 22.42 However, the law does not provide the test for determining what is “wrongful”. In practice, the claims for wrongful application would be very rare because the court will take steps to ensure the order is made on a sound basis, otherwise, the court will reject the application so long as there is some suspicion for such risks.