China seizes Japanese cargo ship over pre-war debt

Compersion

Senior Member
Joined
May 6, 2013
Messages
2,258
Likes
923
Country flag
I made a grammatical mistake - Mitsui shall HAVE hired u. FYI Mitsui OSK was involved in another similar suit with Continental / Lin Family, which was settled out of court in goodwill finally early 2013. But not much of luck with Chen Family hence the ship seizure.
No issues also do not worry about that. You also know my main point is the judgement(s) and if you can post it here. It would be good to look at the actual reasoning. There was also a mention about the appeal what was the reasoning for rejecting that. Also it must state in the appeal why Mitsui is appealing.

Mitsui appealed against the decision, but it was upheld in 2012, Kyodo said
Also you mention the out of court settlement - what were the terms of the settlement and any liability on anyone. Also out of court settlement are done for reasons that are not always equitable and in fact you mention one such instance it was done in "goodwill". Also got a question is Continental a Chinese company and what was the facts of that case - did the settlement agreement relate to this situation.

The Chinese ships were later used by the Japanese army and sank at sea, Japan's Kyodo news agency said.
All cases are different. A bit like individuals. If i were to read the judgement my analysis would be primarily on the facts how Mitsui OSK was involved in the first place and how the Japanese Army got hold of the ships and how it was sunk. After that the principle of international law, and contract law would apply (in that order). Because ultimately there is a loss component caused by Japanese Army and the War. Also what law and provisions is actually applied.

Would be great if you can post the judgement(s) here. Is there a reason why you cannot get them - is there a delay in issuing them - is there restricted reasons - the judgement is not there.

Like i said I am sure the PRC foreign office and PRC leadership thought that through ... there must be reasoning in the judgement (for example the force majeure principle can be overcome.)

Seizure of the ships also implied that the reasoning is there - since that would be hugely provocative.
 
Last edited:

amoy

Senior Member
Joined
Jan 17, 2010
Messages
5,982
Likes
1,849
According to a timeline of the dispute released Monday by Mitsui O.S.K. Lines, in 1936, a Japanese company called Daido Kaiun – a predecessor to Mitsui O.S.K. Lines – chartered two ships from Chung Wei Steamship Co. They were later expropriated by the Japanese government and sank or were lost at sea during the Sino-Japanese war. Heirs to the owner of Chung Wei sought multiple times to pursue damages and reparations in Japanese courts in the 1970s, to no avail.
That's why I think Mitsui OSK shall HAVE had @Compersion 's service, though none of outsiders have access at this moment to any contracts set btwn concerned parties Chung Wei Steamship (Zhongwei), Continental and Mitsui (formerly Daido)

Force majeure - Wikipedia, the free encyclopedia
Other events that are candidates for force majeure in French law are hurricanes and earthquakes. Force majeure is a cause of relief from responsibility that is applicable throughout French law.

On the other hand, the German understanding goes under the German translation of vis major (höhere Gewalt) but seems conceptually synonymous with the common law interpretation of force majeure, comprehending both natural disasters and events such as strikes, civil unrest, and war. However, even in the event of force majeure, liability persists in the face of default by a debtor (Schuldnerverzug, cf. BGB §287 (in German)) or deprivation of property (Sachentziehung, cf. BGB §848 (in German)).

Because of the different interpretations of force majeure across legal systems, it is common for contracts to include specific definitions of force majeure, particularly at the international level. Some systems limit force majeure to an Act of God (such as floods, earthquakes, hurricanes, etc.) but exclude human or technical failures (such as acts of war, terrorist activities, labor disputes, or interruption or failure of electricity or communications systems). The advisory point is in drafting of contract make distinction between act of God and other shape of force majeure.

As a consequence, Force Majeure in areas prone to natural disaster requires a definition of the magnitude of the event for which Force Majeure could be considered as such in a contract. As an example, in a highly seismic area a technical definition of the amplitude of motion at the site could be established on the contract, based for example on probability of occurrence studies. This parameter or parameters can later be monitored at the construction site (with a commonly agreed procedure). An earthquake could be a small shaking or damaging event. The occurrence of an earthquake does not imply the occurrence of damage or disruption. For small and moderate events it is reasonable to establish requirements for the contract processes; for large events it is not always feasible or economical to do so. Concepts such as 'damaging earthquake' in force majeure clauses does not help to clarify disruption, especially in areas where there are no other reference structures or most structures are not seismically safe.[6]

Force majeure and cas fortuit are distinct notions in French Law.
With or without alleged "PRC leadership" involvement it's good justice has been done to the Chinese firms (and heirs) with compensation.
 
Last edited by a moderator:

Compersion

Senior Member
Joined
May 6, 2013
Messages
2,258
Likes
923
Country flag
That's why I think Mitsui OSK shall HAVE had @Compersion 's service, though none of outsiders have access at this moment to any contracts set btwn concerned parties Chung Wei Steamship (Zhongwei), Continental and Mitsui (formerly Daido)

Force majeure - Wikipedia, the free encyclopedia


With or without alleged "PRC leadership" involvement it's good justice has been done to the Chinese firms (and heirs) with compensation.
I am not sure what you are trying to say. Also why you do not use and highlight the rest of the link you use. What is definition of force majeure and also why you are applying German Law. Also in your use of highlighting your point by making bold text that is applying principles of International law. Why do you use German Law and not Japanese Law. In fact why not Hong Kong Law and why not PRC law. Even why not American Law and Indian Law.

Also in the second bolded part you allude to a specific definition contract term for force majeure. Where is the contract term from the contract between the parties. Are you having it with you.

Like i have said there must be reasoning in the judgement (for example the force majeure principle can be overcome.) How was that done - how was force majeure principle overcome and also what about the 1972 treaty how was the overcome. Even more basically which law was applied and provision in PRC and why the Japanese company that must be operating and doing business in PRC is not complying with it.

You are jumping the ship without the judgement the justice and injustice cannot be judged and analysed to determine if this is a situation where justice is to be analysed if not it is a diplomatic situation where PRC is doing this for other motives. The seizure of the ships needs to be seen according to the judgement. Is there a reason why you cannot get the judgement(s) - is there a delay in issuing them - is there restricted reasons - the judgement is not there. If you can get the main one that would be great.

Frankly i personally do not have any preference and if the judgement is sound - credit to PRC for bringing economic justice to the heirs.

But if the seizure is in lieu of payment until a final judgement and comply of the judgement is done that is creepy and hugely provocative. Where is the legal grounds for seizure of the ships. There must be a legal judgment on seizure also - and why the company is not complying of the PRC law where it is doing business. That is why I am asking where the judgement(s) are.

On Saturday, Shanghai Maritime Court said it had seized "the vessel Baosteel Emotion owned by Mitsui O.S.K. Lines ... for enforcement of an effective judgement" made in December 2007.

"The arrested vessel will be dealt with by the law if Mitsui O.S.K. Lines, Ltd. still refuses to perform its obligations," the court said.
Japan warns China over ship seizure - Australia Network News (Australian Broadcasting Corporation)

Japan lodges protest against China ship seizure - The Economic Times

Commandeer definition:
officially take possession or control of (something), especially for military purposes.
"a nearby house had been commandeered by the army"


If this is the application of PRC law to bring justice - without principles and gruffly. What is the reasoning. That means this is a diplomatic incident and this will eventually be resolved in a diplomatic way. The PRC will ask for something from the Japanese and point to the Shrine visit. The way the Japanese will respond will be done in conjunction with the Americans.

Also since there is a Hong Kong element involvement is there a reasons why PRC is doing that. Perhaps to get the Hong Kong area and people to have some intersection and connection together on some point since there is a lot of issues and situations that need to be dealt with and many where the PRC is not viewed favorably in Hong Kong. Perhaps one of the reasons is that this incident allows PRC to get Hong Kong people to connect with it. Sure it can be smart and Hong Kong people can be told that whole relationship with Japan is suffered to defend the Hong Kong justice.

I am not making any critique that what happened to Chinese people by the Japanese was right and wrong. And in the article there is mention of forced labour cases ...

A Beijing court has agreed for the first time to hear a lawsuit by Chinese citizens demanding compensation from Japanese firms over forced labour, their lawyer said last month.
What I am saying is what is the reasons for the judgement and I am sure the PRC foreign office and PRC leadership is leading this from the top and its reasons are not to only bring justice but multi-purpose and involves internal audience and geo-poliical concerns. My belief is that this is a diplomatic incident and was planned and is being directed from the PRC foreign office and PRC leadership.

But with most of these things when people start asking questions on principles and reasoning like in the DK affair a different story comes out. Also when people plan such things they always leave some cracks open.

This can be a huge diplomatic incident and the Japanese are much more economically and technologically powerful compared to PRC. I sure wish the PRC has evaluate the the Japanese will think worse of PRC (that is already there) and also will other nations also think worse of PRC and in a certain way of PRC (probably that is already there also).

Is it worth it - perhaps in view of PRC dealing with Hong Kong yes - since there is a lot of gigantic issues that need to be dealt there.
 
Last edited by a moderator:

Compersion

Senior Member
Joined
May 6, 2013
Messages
2,258
Likes
923
Country flag
Japan's brutal occupation of China remains a source of friction between the two countries, and many people in China believe that Japan is not sufficiently remorseful for events that took place during the war. Japan considers the matter of reparations to have been settled by the joint communiqué in 1972 that re-established diplomatic relations between Tokyo and Beijing.
The seizure of the Japanese vessel on Saturday set off expressions of official concern in Tokyo. "This shakes the very foundations of our diplomatic normalcy with China," the chief cabinet secretary, Yoshihide Suga, said on Monday. "It will have a withering effect on Japanese businesses still operating in China. The Japanese government is gravely concerned and expects the Chinese to handle the matter appropriately."

A spokesman for the Chinese government said that the court ruling should be seen as a commercial matter, and that China continues to abide by the 1972 communiqué.
"This case has nothing to do with Chinese-Japanese war compensation," Qin Gang, a Foreign Ministry spokesman, said at a regular news briefing.
A Chinese Foreign Ministry spokesman sought to play down any tensions, however, saying the decision was a matter of contract law and not of wartime reparations.
http://sinosphere.blogs.nytimes.com...f-japanese-vessel/?_php=true&_type=blogs&_r=0



Chinese Authorities Impound MOL Vessel | Mitsui O.S.K. Lines

TOKYO-Mitsui O.S.K. Lines, Ltd. (MOL; President: Koichi Muto) today announced that on April 19, 2014, the MOL-operated iron ore carrier BAOSTEEL EMOTION was impounded by Chinese authorities in Zhejiang province, China.

The impounding is connected to the two freighters that were chartered from Chinese shipowner (Chung Wei Steamship Co.) by Daido Kaiun (predecessor of Navix Line, Ltd. which merged with MOL in 1999), commandeered by the Japanese government and subsequently lost at sea. The Shanghai Maritime Court issued an order to MOL to pay some ¥2.9 billion the plaintiff including the shipowner. MOL filed an appeal with the Supreme Court of the People's Republic of China, but the appeal was not recognized. Therefore, MOL was looking to conduct negotiations with the plaintiff toward the possibility for out-of-court settlement.

(Reference):
The sequence of events in the case
This incident occurred in June and October 1936. Daido Kaiun, one of predecessors of MOL, chartered two vessels, SHUN FOONG and HSINTAIPING from Chung Wei Steamship Co., but the vessels were expropriated by the Japanese government before their charter contracts were terminated. Both vessels then sank or were lost at sea.
In 1964, the heir of the president of Chung Wei Steamship Co. brought a plea for arbitration against the Japanese government in the Tokyo Summary Court, but it ended unsatisfactorily for him in 1967. In 1970, the plaintiff filed the case in the Tokyo Summary Court, but it was refused due to laches.
In 1987, statute of limitations of the civil law was introduced in China and the year-end of 1988 was to be the limit for filing the case. The heir of the president of Chung Wei Steamship Co. brought suit for damages and reparations for nonfulfillment of financial obligations on the charter contract in the Shanghai Maritime Court against the successor to Daido Kaiun, Navix Line, Ltd. (now Mitsui O.S.K. Lines, Ltd.) in 1988 before the time limit.
On December 7, 2007, the Shanghai Maritime Court instructed MOL to pay the plaintiff Chung Wei Steamship Co., the equivalent of ¥2.92 billion. MOL disagreed with the verdict of the ruling and appealed to the Shanghai Municipal Higher People's Court (Second Judgment).
On August 6, 2010, the Shanghai Municipal Higher People's Court issued a second judgment upholding the initial judgment. MOL filed a motion for a new trial to the Supreme Court of the People's Republic of China, but the motion was refused and notification of the refusal was sent to MOL on January 17, 2011.
MOL, getting in touch with the Shanghai Maritime Court, was seeking the possibility of out-of-court settlement when the vessel was suddenly impounded and we were notified of that fact.
Out-of-court settlement and no adherence to PRC law -> diplomatic resolution. "Good-will" per se.

There was injustice to the Hong Kong company but it would be done not through legal principles and the PRC courts and Japanese courts and even international law but by "Out-of-court" settlement. That is fair and reasonable and i support the justice to Hong Kong company that way. But this might open a can of worms - since there is a huge amount of Japanese investment in PRC.

But again judgment might be sound and credit to PRC for applying contract law principles. But where is the judgement(s).
 
Last edited:

Compersion

Senior Member
Joined
May 6, 2013
Messages
2,258
Likes
923
Country flag
Japanese ship seized in wartime claims row - FT.com

One ship was sunk by a typhoon (1938) and the other by a torpedo (1944).

A reasonable analysis.

This incident is really juicy and touches a lot of dimensions - from Hong Kong, to South Korea to Japanese visit of Shrine to PRC domestic issues to American alliances and Pivot and even North Korea.

There must be a lot of such contractual claims and the Japanese are invested massively in PRC (refer to what the ex premier Zhou Rongi said about Japanese investment). I presume PRC will say the Japanese have suddenly and abruptly brought the Shrine visit into the dimension and PRC did the same with this. If one wants normal relations they have to stop doing such things - diplomatic resolution.

I suspect the Americans will guide the response for the Japanese from now. Is it a new Japan we will see that will respond more assertively to PRC that is the question.
 
Last edited:

rock127

Maulana Rockullah
Senior Member
Joined
Aug 12, 2009
Messages
10,569
Likes
25,230
Country flag
More tensions being created.

If the issue of war-related compensation was settled by a 1972 agreement between the two sides, then China has violated the Agreement.

It means that any Agreement with China will always be a piece of trash.
China is WAR-MONGERING.
 

CCP

Senior Member
Joined
Jan 19, 2014
Messages
1,204
Likes
196
Japanese paid fine and interest (4 billion yen)today, their ship may be released soon.
 

CCP

Senior Member
Joined
Jan 19, 2014
Messages
1,204
Likes
196
It is just a warning.

More fines are coming if Japan signs TPP.
 

amoy

Senior Member
Joined
Jan 17, 2010
Messages
5,982
Likes
1,849
It is just a warning.

More fines are coming if Japan signs TPP.
:confused:nah how does TPP hv anything to do with this?! is Japan ready to open up its agri market for TPP ? bearing in mind farmers a key votebank for the ruling party LDP.

Sent from my 5910 using Tapatalk 2
 

Ray

The Chairman
Professional
Joined
Apr 17, 2009
Messages
43,132
Likes
23,834


Another issue that will get China's goat.
 

Latest Replies

Global Defence

New threads

Articles

Top