Introduction

The Putuo District Court in Zhoushan recently handed down a verdict on a maritime collision case, finding the captain of a fishing vessel criminally liable. According to the court, the captain violated the laws and regulations which govern traffic and transport. The captain had hit a vessel and fled after the accident with the intention of evading legal penalties and the legal obligation to rescue the victim. The decision has sparked a new round of debate as to whether the captain of a vessel can be held criminally liable for personal injury or death caused by a collision at sea.

This article discusses the legislation governing maritime accidents, particularly in the event of a hit-and-run accident.

Facts

On 13 December 2018, while sailing through the south entrance of Shuangyumen, the fishing vessel Zhepu 98785, which was sailing from Zhoushan to Xiangshan, collided with the dry cargo vessel Zhe Jiaoji 915. After the accident, Zhepu 98785 left the scene without rescue. The accident caused Zhe Jiaoji 915 to eventually sink and resulted in the death of one crew member on board.

Legal background

In practice, although many maritime collision accidents occur in China every year, few captains are held criminally liable even in the event of a hit-and-run situation. Once vessels have been involved in a collision, the person responsible for the accident (eg, the captain, crew and pilots or shipowner) is often liable only for civil compensation and administrative penalties.

One of the important reasons for this is that under current Chinese maritime laws and regulations – including the Maritime Law, the Maritime Traffic Safety Law and the Regulations on the Investigation and Handling of Marine Traffic Accidents – there are no clear provisions on the criminal liability of the related captain or crew for their breach of statutory obligations, such as rescue, report and watchful waiting after an accident occurs. The only penalties for them may be a warning, the withholding or revoking of the certificate of office and a fine.

Notwithstanding that, an increasing number of courts have recognised that it can neither satisfy victims nor fulfil the purpose of preventing collisions at sea just to hold perpetrators solely accountable for civil and administrative liabilities. Despite there being no formal judicial interpretations to support the application of the criminal offence of traffic delinquency to collisions at sea, the courts have applied Article 133 of the Criminal Law(1) more frequently to hold responsible perpetrators criminally liable, particularly where a vessel flees the scene of a collision after a deadly incident has occurred.

For example, in the landmark case Van Manila, Captain Choi Soo-woong (a Korean national) was sentenced to five years' imprisonment and deported from China for violating traffic and transport regulations. He was accused of causing a major accident that resulted in the sinking of the other vessel and the drowning of 12 crew members and of directing the vessel to flee to avoid legal prosecution. Knowing that a collision had occurred, the captain did not stop the vessel, render assistance or report the collision in due time. On the contrary, he turned off the automatic identification system device and directed the vessel to flee. In addition, he turned off the voyage data recorder and then turned it back on, resulting in the accident data being overwritten.

Qualifying criteria

However, not all collisions at sea constitute a traffic offence under Article 133 of the Criminal Law. In order for a traffic offence under said legislation to have occurred, the following criteria must have been met:

  • There must be a violation of laws and regulations governing traffic and transport at sea, which include safety rules, institutions and disciplines established to ensure that the traffic and transport of vessels at sea is conducted properly and safely.
  • There must be a major accident resulting in serious injury or death or causing substantial damage to public or private property. If the perpetrator has violated the laws and regulations without causing the abovementioned statutory serious consequences, the offence does not constitute a traffic offence.
  • The serious consequences must be caused by the violation, and there must be a causal relationship between the two. If the violation committed by the perpetrator does not lead to serious consequences and there is no prior-subsequent relationship in time (ie, a chain of causation), the offence does not constitute a traffic violation.
  • The violation which causes serious injury or death or substantial damage to public or private property must take place in the course of ongoing traffic and transport activities at sea. If it takes place at the harbour which the vessel berths for repair or maintenance, the offence does not constitute a traffic violation.

Criminal penalties

If all of the above conditions have been met, the criminal penalty for the related person (eg, the captain) can be summarised as follows.(2)

Maximum imprisonment of three years or detention

This sentence applies if:

  • the accident results in the death of one person or causes serious injury to three or more persons and the perpetrator and vessel are wholly or mainly responsible for the accident;
  • the accident results in the death of three or more persons and the perpetrator and vessel are equally responsible for the accident; or
  • those who have caused direct damage to public or other property are wholly or mainly responsible for the accident and are unable to pay compensation of more than Rmb300,000.

Imprisonment between three and seven years

This sentence applies if:

  • the accident results in the death of more than two persons or causes serious injury to more than five persons and the perpetrator and vessel are fully or mainly responsible for the accident;
  • the accident results in the death of more than six persons and the perpetrator and vessel are equally responsible for the accident; and
  • those who have caused direct damage to public or other property are wholly or mainly responsible for the accident and are unable to pay compensation of more than Rmb600,000.

Minimum imprisonment of seven years

This sentence applies if the perpetrator and vessel flee the scene of a traffic accident to avoid legal action and this action results in the death of another person.

Comment

In recent years there has been an upward trend of captains and crew members being convicted of criminal liability for maritime collisions in China, which urgently accelerates the study of this section of law. Historically, the only punishments for captains and crew members have been pecuniary redresses and administrative penalties. However, this appears to be changing.

Referring to the Notice on Jurisdiction and Other Issues Relating to Criminal Cases at Sea, it does not matter if the collision occurs within China's territorial waters or on the high sea, or if the perpetrator is a foreign national; the Chinese courts have jurisdiction as long as one of the parties to the accident has Chinese nationality. In other words, the captain and crew involved in the accident will likely face a criminal trial in China if they fail to perform their legal obligations.(3)

Endnotes

(1) Article 133 of the Criminal Law reads as follows:

Whoever violates regulations governing traffic and transportation and thereby causes a serious accident, resulting in serious injuries or deaths or heavy losses of public or private property, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. Whoever runs away from the spot after he has caused a traffic accident or is involved in other especially flagrant circumstances shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; if his escape results in the death of another person, he shall be sentenced to fixed- term imprisonment of not less than seven years.

(2) Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Traffic Accidents.

(3) The cases alluded to in this article are (2020) Zhe 0903 Xing Chu 309 and (2018) Hu 0110 Xing Chu 657.