CHINA Law and Practice Contributed by: John Wang, Xu Jun, Song Jia and Zhao Yuxuan, Wang Jing & Co
The determination of whether an event constitutes force majeure or hardship is contingent on the specif - ic circumstances of each case. Reported cases have include the Ukraine War, COVID-19 pandemic, etc. However, in such cases, the courts have applied a stringent standard when assessing the application of force majeure and hardship doctrines to disputes – eg, where they arose from the Ukraine war. 10. Additional Maritime or Shipping Issues 10.1 Other Jurisdiction-Specific Shipping and Maritime Issues PRC judicial practice is controversial with regard to certain seafarer-related disputes. In 2020, the PRC Supreme Court promulgated Provisions on Several Issues Concerning Trial of Cases Involving Seaman- Related Disputes, which mainly focused on the fol - lowing aspects. • First, the provisions provide guidelines on identify - ing the nature of and resolving disputes about the various seafarer-related contracts – ie, employ - ment contracts, service contracts and brokerage contracts (Articles 1 to 5). This part highlights that if a seafarer-related claim is irrelevant to a maritime lien, the claim shall first be referred to a labour dis - pute arbitration commission for arbitration accord - ing to the Labour Dispute Mediation and Arbitra - tion Law. For other disputes over a labour service contract between a seafarer and a vessel owner, the claim shall be brought to a competent Maritime Court.
• Second, the provisions provide guidelines on the recognition, enforcement and assignment of mari - time liens (Articles 6 to 10). This part highlights that a seafarer has the right to seek judicial recognition of their entitlement to a maritime lien independently of requesting a ship arrest; when a vessel owner fails to pay wages, other labour remuneration, seafarer-repatriation expenses, or social insurance expenses arising from embarkation, employment on a vessel, or disembarkation and repatriation of a seafarer as agreed; and when the seafarer assigns their corresponding maritime claim to a third party that advances all or part of the money. • Third, the provisions provide guidance on the com - ponents and calculation of a seafarer’s wages and other remunerations, specifying legal protection for seafarers’ entitlement to salaries in the case of them conducting illegal activities under fraud or duress (Articles 11 to 14). Other issues covered are outlined below. • When a seafarer sustains damage because of labour service, if the seafarer is found to be at fault, they shall assume the corresponding liability (Article 15). • A third party who is liable for a work-related injury substantiated by a seafarer cannot seek exemption of its civil liability on the ground that the seafarer has obtained relevant insurance benefits (Article 16). • The provisions stipulate which laws are applicable to foreign-related disputes (Article 17).
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