How to take pre litigation property preservation measures
Question: Our company's vessel collided with another company's vessel, causing significant damage to our vessel, and the other party bears the main responsibility. The local maritime bureau has intervened and is currently investigating the accident. Based on the current understanding, it will take some time to handle the accident, and the other company is not very sincere in negotiations. In order to protect our interests, how should we specifically protect our own interests before filing a lawsuit with the court? If preservation measures are taken, can we apply for the detention of other vessels of the other company? And if the other party provides a guarantee deposit, how should we determine the amount of the guarantee deposit in the current situation where the loss is not very clear?
Answer: Your company's question mainly involves legal issues related to property preservation before maritime litigation after ship collision. After a ship collision, in order to protect the interests of the parties as much as possible, the party with greater losses may apply for pre litigation preservation to the local maritime court with jurisdiction in a timely manner before filing a lawsuit. Usually, the pre litigation property preservation measures are reflected in applying for the arrest of the other party's vessel.
As for the specific issue of how to apply for pre litigation preservation, relevant provisions of China's Maritime Procedure Law clearly stipulate that the applicant should provide sufficient evidence for the claimed maritime claim. That is to say, under normal circumstances, if the applicant applies for pre litigation preservation, they should submit sufficient evidence and guarantees to the maritime court. However, in this case of ship collision, due to the urgency of the situation, it is difficult to obtain or immediately organize other materials. In this case, the maritime court applying for pre litigation preservation can provide the "Marine Accident Report" issued by the local maritime bureau.
The Maritime Safety Administration is the competent authority for maritime traffic safety, and the maritime report issued by it is the most effective proof of whether a ship collision accident has occurred or not. In the "Marine Accident Report", the names and affiliations of both parties involved in the accident, their addresses, ship profiles (including length, width, quality, horsepower, tonnage, etc.), the time and location of the collision, the name of the other party's ship, the course of the accident, the damage to the ship, sea conditions (including wind speed, wind direction, flow velocity, direction, visual range, etc.), and ship collision diagrams are usually stated, and signed by the captain, duty officer, engineer, and witnessing crew, which can fully prove the course of the accident and the maritime claims of the parties involved. Of course, if time permits, the applicant should submit as much evidence as possible.
As for the question of whether it is possible to apply for the detention of other ships of the other party's company, in order to ensure the maritime rights of the parties involved, in the pre litigation preservation measures after a collision of ships, not only can the parties' ships be detained, but other ships belonging to the same ship owner as the parties' ships can also be detained. Especially in cases where the responsible party's vessel suffers significant damage or basic total loss, and the residual value of the vessel may not be able to compensate the applicant for the loss, it is even more necessary to apply for the detention of other vessels owned by the same vessel owner.
For the issue of the amount of guarantee deposit, the losses suffered by a ship in maritime accidents are often not single, and there may be various losses such as ship damage, cargo damage, operational losses, etc. Therefore, applicants generally need the assistance of professionals such as lawyers and accountants to sort out the loss items as much as possible in a short period of time and estimate the approximate amount.
Of course, it is unlikely to list all the loss items one by one and calculate the amount accurately after an accident occurs. This requires some time to organize, and as the case develops, the originally calculated amount may also change. Therefore, when organizing loss items, it is generally only necessary to list the main loss items, and the amount allows for some flexibility. When necessary, unforeseeable expenses can be added to ensure that the required guarantee amount is appropriately higher than the actual loss or claim amount.
