[2020] Fashi No. 11

For the purpose of correctly trying cases involving seaman-related disputes, these Provisions are formulated in accordance with the Labor Contract Law of the People's Republic of China, the Maritime Law of the People's Republic of China, the Labor Dispute Mediation and Arbitration Law of the People's Republic of China, the Special Maritime Procedure Law of the People's Republic of China, and other laws, in light of trial practice.

Article 1 For a labor dispute between a seaman and a vessel owner irrelevant to the embarkation, employment on a vessel, or disembarkation and repatriation of the seaman, if either party directly brings an action in the maritime court, the maritime court shall notify the parties of the application of the Labor Dispute Mediation and Arbitration Law.

Article 2 For a dispute over a labor service contract between a seaman and a vessel owner, if either party brings an action in the maritime court in the place of domicile of the plaintiff, the place where the contract was signed, the port of embarkation or disembarkation of the seaman, or the place of domicile of the defendant, the maritime court shall accept such action..

Article 3 When a seaman service provider only performs relevant procedures on behalf of a seaman, or only provides employment information for the seaman, instead of acting as a staffing agency, if the seaman service provider claims that it has established only a relationship of intermediary or mandate contract with the seaman, the claim shall be supported.

Article 4 When a vessel owner externally conducts operations in the name of an entity with which it is affiliated, without signing a written labor contract with each seaman, if a seaman employed by it is injured or dies at work and claims that the entity with which it is affiliated is subject to the liability for work-related injury insurance, the claim shall be supported, unless there is a labor relationship between the vessel owner and the seaman.

Article 5 When a labor dispute irrelevant to the embarkation, employment on a vessel, or disembarkation and repatriation of a seaman is referred to a labor dispute arbitration commission for arbitration, if the arbitration tribunal, on application from the seaman, awards prior execution with respect to the wages and other labor remuneration, medical expenses for work-related injury, or financial compensation or damages of the seaman, a transfer shall be made to the local people's court for examination.

If the seaman applies for arrest of a vessel, the arbitration tribunal shall submit the application for arrest of the vessel to the maritime court in the place where its port of registry or the vessel is located for examination, or to a local people's court to entrust the maritime court in the place where its port of registry or the vessel is located to conduct an examination.

Article 6 For a maritime claim secured by a maritime lien, if the seaman requests a confirmation that he or she holds a lien within a certain period of time on the vessel on which the maritime lien arises instead of the arrest of such vessel in accordance with Article 28 of the Maritime Law of the People's Republic of China, the request shall be supported.

The period specified in the preceding paragraph shall be limited to one year from the day when the lien arises.

Article 7 For a maritime claim secured by a maritime lien, if the seaman applies for the imposition of a restriction on disposition, a restriction on mortgage, or any other injunctive measure on the vessel, instead of a restriction on the continuing operation of the vessel, the application shall be supported. If the seaman claims that the injunctive measure constitutes the arrest of a vessel as provided for in Article 28 of the Maritime Law of the People's Republic of China, the claim shall not be supported.

Article 8 For the following wages and other labor remuneration arising from embarkation, employment on a vessel, or disembarkation and repatriation, if a seaman claims a maritime lien, the claim shall be supported:

(1) Remuneration or basic wages for normal working hours.

(2) Overtime pay for an extended shift, or pay for working overtime on the weekend or a legal holiday.

(3) Bonuses, related allowances and subsidies for period of service on the vessel and wages paid under special circumstances, among others.

(4) Fruits of the foregoing which fails to be paid on schedule.

For the relevant financial compensation or damages as stipulated in the Labor Law of the People's Republic of China and the Labor Contract Law of the People's Republic of China, the double wages payable arising from the failure to sign a written labor contract in accordance with Article 82 of the Labor Contract Law of the People's Republic of China, or the fruits arising from the failure to pay the foregoing money as specified in this paragraph on schedule, if a seaman claims a maritime lien, the claim shall not be supported.

Article 9 When a vessel owner fails to pay the wages, other labor remuneration, seaman repatriation expenses, or social insurance expenses arising from the embarkation, employment on a vessel, or disembarkation and repatriation of a seaman as agreed, and the seaman assigns his or her corresponding maritime claim to a third party which advances all or part of the money, if the third party requests a confirmation or exercise of the maritime lien with respect to the assigned maritime claim, the request shall be supported.

Article 10 When a seaman is abandoned during overseas work or otherwise encounters an emergency, and the vessel owner or its financial guarantor or seaman staffing agency fails to assume corresponding responsibilities, if the seaman requests the financial guarantor or seaman staffing agency to advance money required for emergency assistance from the financial guarantee fund or seaman staffing reserve fund, the request shall be supported.

Article 11 For whether the wages of a seaman include pay for working overtime on working days, weekends, and legal holidays during the period of the embarkation, employment on a vessel, or disembarkation and repatriation of a seaman, if the parties have an agreement and claim that the overtime pay of both parties should be determined as agreed, the claim shall be supported, unless the agreed standard is less than the statutory minimum wage standard.

Article 12 When under the normal working hours' standard, a seaman claims pay for working overtime on weekends, if the vessel owner presents evidence that it has made retroactive rest arrangements and is not required to give overtime pay in accordance with statutory standards, the claim of the vessel owner shall be supported. Under the working hour system of comprehensive calculation, if a seaman claims overtime pay for an excess of the total working hours over the total standard working hours for the period of comprehensive calculation, the claim shall be supported.

If a seaman claims pay for working overtime on legal holidays, and the vessel owner raises a defense that retroactive rest arrangements have made for working overtime on legal holidays and that pay for working overtime on legal holidays should not be given, the defense by the vessel owner shall not be supported, unless otherwise agreed by both parties.

Article 13 When the parties fail to agree, or have an ambiguous agreement, on the standard or method for payment of the wages or other labor remuneration of a seaman, if the parties claim determination according to the average standard for the same type of work, at the same level, in the market for the same period, the claim shall be supported.

Article 14 Where a seaman, as a victim of a fraud or under duress, catches an aquatic product during a closed fishing season or closed fishing area, or by using a banned tool or method, or catches rare or endangered marine life, or otherwise operates in violation of the law, the seaman's claim for the wages and other labor remuneration of the seaman for the period of embarkation, employment on a vessel, or disembarkation and repatriation shall be supported.

If the vessel owner presents evidence that the seaman willingly and knowingly operates in violation of the law, the above claim of the crew shall not be supported.

If the conduct of the vessel owner or seaman is administratively punishable or is a suspected criminal offense, the relevant statutory procedures shall apply.

Article 15 When a seaman sustains damage because of labor service, if the vessel owner presents evidence that the seaman is at fault and requests an order that the seaman assume the corresponding liability, the defense by the vessel owner shall be supported.

Article 16 When a seaman brings a civil action for civil damages for a work-related injury sustained because of a third party, if the third party raises a defense that it should not be liable for civil damages on the grounds that the seaman has obtained work-related injury insurance benefits, the defense by the third party shall not be supported. Nevertheless, if the seaman has already been reimbursed for medical expenses, the seaman's claim for medical expenses shall not be supported.

Article 17 Where a labor contract between a seaman and a vessel owner contains a foreign-related element, and the parties request the determination of the applicable law in accordance with Article 43 of the Law of the People's Republic of China on Choice of Law for Foreign-related Civil Relationships, the request shall be supported.

For a labor service contract between a seaman and a vessel owner, if the parties fail to choose an applicable law but claim the application of the law in the place of export of labor service, the main place of business of the vessel owner, or the flag state, the claim shall be supported.

For an intermediary or mandate agreement between a seaman and a seaman service provider, or between a seaman service provider and a vessel owner, if the parties fail to choose an applicable law but claim the application of the law in the closest association with the contract, the claim shall be supported.

Article 18 For the purpose of these Provisions, the term "vessel owner" includes bareboat charterers, vessel managers, and vessel operators.

Article 19 For a case awaiting final trial after the implementation of these Provisions, these Provisions shall apply; and for a case of which the final trial has been conducted before the implementation of these Provisions, if a party applies for retrial, or a decision is made to conduct a retrial in accordance with the trial supervision procedures, these Provisions shall not apply.

Article 20 In the case of any discrepancy between the provisions previously issued by the Supreme People's Court and these Provisions, these Provisions shall prevail.

Article 21 These Provisions shall come into force on September 29, 2020.