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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- (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.
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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. InPage 272
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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- 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.