Plaintiff farmer concluded Contract of Shrimp Pond Leasing with the village committee, agreeing that Plaintiff contracted a shrimp pond in the village for the cultivation of sea cucumber seedlings, and at the same time agreeing that any compensation arising from national expropriation or other governmental constructions, would be attributed to Plaintiff in addition to those determined by negotiation. In a certain approval issued by the provincial government, the 5-km sea area around the village was a nuclear power utilization area. First Defendant project owner unit communicated with the municipal government on matters relating to the application of the sea area of the marine nuclear power project, requesting the municipal government to implement the use of the sea area of the nuclear power utilization zone as approved by the provincial government and to conclude a series of compensation agreements. Subsequently, Second Defendant construction unit contracted the national grid planning and construction of the project, and the implementation of the 500 kV transmission line tower base project, resulting in Plaintiff could not continue to engage in sea cucumber aquaculture in the contracted waters and damage to the aquaculture. Plaintiff filed an action before the court, requesting two Defendants to bear its economic loss. The court held that (1) Damage of farm animals of Plaintiff and construction of Defendant had a causal relationship, because according to the Tort Liability Law of the People’s Republic of China Article 66, “disputes arising from pollution of the environment, the polluter should bear the burden of proof in respect of the circumstances stipulated in the law not to bear responsibility or mitigate the responsibility of the circumstances of its behavior and the damage does not exist between causation”. Second Defendant failed to prove the existence of statutory exemptions from liability, and also failed to provide evidence to prove that there was no causal relationship between its behavior and the results of the damage. (2) Plaintiff’s request for damages based on the expected annual output value of the farmed material was unreasonable, as Plaintiff failed to submit a farming certificate, and its farming behavior was not approved by the state and was illegal, while Second Defendant’s construction was carried out within the scope of the right to use the sea area that it had already obtained, and Plaintiff’s request was unreasonable. (3) Second Defendant should bear part of the liability, because according to the scene of the survey weighing, survived breeding of Plaintiff basically in line with the harvest of the normal yield; according to the measurement report, Second Defendant’s construction of the impact of the area was small, and basically in the state approved within the scope of the legal right to use the sea area; specific harmful substances pollution impact was short, did not affect the sea floor sediment quality, Second Defendant’s construction would have some impact on Plaintiff’s aquaculture, but would not cause all the death of Plaintiff’s aquaculture; in addition, the construction did not lead to all the death of the aquaculture, and reached the harvesting season, Plaintiff could have completed the harvesting or transfer of aquaculture to other aquaculture to reduce the loss, Plaintiff did not fulfill the obligation to mitigate the loss of its own. (4) First Defendant was not liable for compensation, because First Defendant was neither the project construction unit nor the project contracting unit, and Plaintiff could not prove that First Defendant had facts of infringement.

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Yantai Jiali Sea Cucumber Seedling Cultivation Co., Ltd. v. Shandong Nuclear Power Co., Ltd. et al.

  • Martin Davies,
  • Jiang Lin

摘要

Plaintiff farmer concluded Contract of Shrimp Pond Leasing with the village committee, agreeing that Plaintiff contracted a shrimp pond in the village for the cultivation of sea cucumber seedlings, and at the same time agreeing that any compensation arising from national expropriation or other governmental constructions, would be attributed to Plaintiff in addition to those determined by negotiation. In a certain approval issued by the provincial government, the 5-km sea area around the village was a nuclear power utilization area. First Defendant project owner unit communicated with the municipal government on matters relating to the application of the sea area of the marine nuclear power project, requesting the municipal government to implement the use of the sea area of the nuclear power utilization zone as approved by the provincial government and to conclude a series of compensation agreements. Subsequently, Second Defendant construction unit contracted the national grid planning and construction of the project, and the implementation of the 500 kV transmission line tower base project, resulting in Plaintiff could not continue to engage in sea cucumber aquaculture in the contracted waters and damage to the aquaculture. Plaintiff filed an action before the court, requesting two Defendants to bear its economic loss. The court held that (1) Damage of farm animals of Plaintiff and construction of Defendant had a causal relationship, because according to the Tort Liability Law of the People’s Republic of China Article 66, “disputes arising from pollution of the environment, the polluter should bear the burden of proof in respect of the circumstances stipulated in the law not to bear responsibility or mitigate the responsibility of the circumstances of its behavior and the damage does not exist between causation”. Second Defendant failed to prove the existence of statutory exemptions from liability, and also failed to provide evidence to prove that there was no causal relationship between its behavior and the results of the damage. (2) Plaintiff’s request for damages based on the expected annual output value of the farmed material was unreasonable, as Plaintiff failed to submit a farming certificate, and its farming behavior was not approved by the state and was illegal, while Second Defendant’s construction was carried out within the scope of the right to use the sea area that it had already obtained, and Plaintiff’s request was unreasonable. (3) Second Defendant should bear part of the liability, because according to the scene of the survey weighing, survived breeding of Plaintiff basically in line with the harvest of the normal yield; according to the measurement report, Second Defendant’s construction of the impact of the area was small, and basically in the state approved within the scope of the legal right to use the sea area; specific harmful substances pollution impact was short, did not affect the sea floor sediment quality, Second Defendant’s construction would have some impact on Plaintiff’s aquaculture, but would not cause all the death of Plaintiff’s aquaculture; in addition, the construction did not lead to all the death of the aquaculture, and reached the harvesting season, Plaintiff could have completed the harvesting or transfer of aquaculture to other aquaculture to reduce the loss, Plaintiff did not fulfill the obligation to mitigate the loss of its own. (4) First Defendant was not liable for compensation, because First Defendant was neither the project construction unit nor the project contracting unit, and Plaintiff could not prove that First Defendant had facts of infringement.