I. Basic Case Facts

On the evening of August 22, 2000, Mr. Zhang, a staff member of a certain city's representative office in Shenzhen from Anhui, brought a friend to the seaside swimming area of Xiaomeisha Resort in Shenzhen. After purchasing tickets and entering the water, Mr. Zhang found the wind and waves too strong. As he prepared to return to the shore, he was knocked down by a huge wave. He was taken to the hospital and diagnosed with a comminuted fracture of the left tibia and fibula. He was later transferred to Shenzhen Red Cross Hospital, where the diagnosis of a comminuted fracture of the left tibia and fibula was confirmed.

Mr. Zhang underwent 64 days of hospital treatment, including a bone graft surgery. After being discharged, he rested for another six months before his leg injury was initially healed. The Red Cross Forensic Office of the Shenzhen Court's Disability Assessment Center assessed his disability as Grade 8. Due to Xiaomeisha Resort's fault—knowingly allowing ticket sales and operations despite strong winds and high waves that could endanger visitors' safety, and failing to fulfill its duty to inform and prevent—Mr. Zhang suffered his disability. After multiple unsuccessful negotiations with the resort, he entrusted lawyer Wang Tengfeng from Guangdong Zhiming Law Firm to file a lawsuit against Xiaomeisha Resort, demanding compensation for medical expenses, nursing fees, lost wages, and living subsidies for the disabled, totaling 316,044.39 RMB.

　II. Judgment

On November 15, 2001, the Yantian District People's Court of Shenzhen issued a first-instance judgment, holding that:

1. The defendant had passed the annual inspection by the industrial and commercial administration, and its business entity qualification was legal.

2. Waves are a natural phenomenon, not a labor product, and do not qualify as goods. The law does not require seaside swimming area operators to bear no-fault civil liability. Therefore, the principle of fault liability should apply to this case of damages.

3. On August 22, 2000, the typhoon center was 860 nautical miles from downtown Shenzhen, failing to meet the standard for a typhoon within 800 nautical miles. Shenzhen did not experience any legally mandated circumstances for closing the swimming area, such as typhoons, heavy rain, or red tides. The defendant sold tickets without impropriety and fulfilled their duty to inform through billboards, broadcasts, and other means.

4. The presence of waves in the sea is a common natural knowledge that any person with normal intelligence should possess. The defendant had no obligation to protect the plaintiff from dodging, as that responsibility lay with the plaintiff. Therefore, the plaintiff was at fault in this case, while the defendant was not.

5. Accordingly, the plaintiff's claims were dismissed. Mr. Zhang, dissatisfied, appealed to the Shenzhen Intermediate People's Court on November 29, 2001, which issued a final judgment upholding the original ruling on April 29, 2002.

　6. III. Case Analysis

7. This case is the first instance of injury caused by waves at a seaside swimming area. During the two trials, courtroom debates were exceptionally intense. Regarding the disputed issues, the plaintiff's representative argued:

8. (I) The defendant's qualification to operate was illegal, and their business conduct involved legal fault.

According to Article 5 of the "Guangdong Province Coastal Swimming Beach Safety Management Regulations," operating a coastal swimming beach requires safety review and approval by the tourism administrative department at or above the county level, and a "Coastal Swimming Beach Safety Certificate" must be obtained before registering with the industrial and commercial department. Article 12 also stipulates that coastal swimming beaches already in operation before the regulations were promulgated must complete the safety approval procedures within three months after the regulations are announced. In reality, although the defendant obtained industrial and commercial registration before the regulations were implemented in 1991, they have not yet completed the safety approval procedures or obtained the "Coastal Swimming Beach Safety Certificate" and the relevant "Sea Area Use Certificate" since the regulations were announced and implemented in June 1998. Thus, the defendant's 1991 industrial and commercial registration was based on the regulations at that time, and passing the 2000 annual inspection was due to the negligence of the industrial and commercial department. However, the defendant's lack of statutory qualifications for operation is certain! Without safety certification, the safety conditions for the defendant's operations have not been legally determined, and without determined safety conditions, tourist safety cannot be guaranteed. Operating without ensuring tourist safety violates the "Consumer Protection Law of the People's Republic of China," making such operations clearly illegal.

(2) The seawater waves in the specific sea area under the defendant's management and operation should be considered commodities.

The original judgment determined that "waves are a natural phenomenon beyond human control and are not labor products, thus not commodities," and inferred that the defendant had no legal fault for causing bodily harm to tourists while operating the coastal swimming beach and should not bear fault liability. Anyone with basic knowledge knows that the starting point and premise of the original judgment are erroneous. It not only shows ignorance of economics but also disregard for the law itself. It is understood that in a modern market economy, seawater (waves), like land and air, are not labor products and are originally natural things. However, once they are obtained and managed through certain forms of labor, they naturally become specific commodities. The management and operational behaviors, along with the costs incurred, indicate that the thing has been commodified. The labor and usage costs paid in management and operation are the origins of commodification. The original judgment not only severs the premise that waves are generated by wind acting on seawater but also ignores that the waves (seawater) in this case are produced under the defendant's management. Therefore, it is a commodified thing, and the defendant's operations should fully apply the "Consumer Protection Law of the People's Republic of China." According to Articles 7 and 11 of this law, the defendant should naturally bear fault liability for this case.

(3) The defendant should prohibit swimming under adverse weather conditions caused by typhoons.

Article 8 of the "Guangdong Province Coastal Swimming Beach Safety Management Regulations" states: "In cases where swimming is unsuitable due to adverse weather such as typhoons, rainstorms, red tides, or seawater pollution, the coastal swimming beach must stop selling tickets, prohibit swimming, and deploy security personnel to patrol and prevent tourists from entering the water." This regulation is an enumerative clause. Accordingly, situations unsuitable for swimming and requiring a ticket ban include: (1) typhoons; (2) rainstorms; (3) red tides; (4) other adverse weather; (5) seawater pollution; (6) other unsuitable swimming conditions.

Whether this case falls under the statutory category (4) "other adverse weather" can be clearly seen from the following facts: On the day of the incident, the typhoon center was 860 nautical miles from Shenzhen. Although it was outside the statutory 800-nautical-mile typhoon definition, it was on the periphery of the typhoon, severely affected by it, causing waves of 5-5.5 meters and winds of force 6-7 in the specific sea area of Xiaomeisha Coastal Swimming Beach. The "adverse weather" caused by this typhoon is undeniable, as evidenced by a specialized meteorological report from the Shenzhen Meteorological Observatory. Common sense tells us that while science defines a typhoon zone as within 800 nautical miles, the 860-nautical-mile area beyond can still cause harm. Just as boiling water at 100 degrees Celsius can burn, water at 99 degrees Celsius, though not boiling, can also burn—there is no essential difference in function or effect, only a scientific standard distinction. However, the court rigidly emphasized the absence of typhoons, rainstorms, or red tides themselves, ignoring the regulation's emphasis on "adverse weather such as typhoons, rainstorms, red tides, etc.," which should lead to a swimming ban in any unsuitable conditions. The court's erroneous judgment clearly results from a judicial misinterpretation of legislative intent.

(4) The defendant failed to fulfill its obligations.

According to Article 18 of the Consumer Protection Law of the People's Republic of China: "Operators of goods or services that may endanger personal or property safety shall provide consumers with truthful explanations and clear warnings." Therefore, the defendant is legally obligated to truthfully inform, warn, and protect. Although the defendant posted visitor notices on the pathways and made formal reminders via broadcasts, according to the aforementioned "Guangdong Province Safety Regulations for Seaside Swimming Pools," under severe weather conditions, security patrols should prevent swimmers from entering the water, rather than merely relying on perfunctory broadcast reminders. Particularly in the specific sea area of Xiaomeisha (a bay region), the sea winds and waves are far stronger than in other areas. As a professional operator, the defendant should have been more responsible for effectively preventing injuries caused by waves. However, under severe weather, the defendant took no additional protective measures for visitor safety different from usual days. Thus, it is evident that the defendant's efforts in fulfilling its obligations fell far short of legal requirements, and it fundamentally failed to meet its duties, unable to evade liability for the fault of failing to fulfill its protective obligations.

The need to avoid sea waves is a universally known principle, an instinct, and an obligation that does not require the court to invoke the law to mobilize people's conscious initiative. The court persistently emphasized that the plaintiff should be aware of the ever-changing nature of waves, have a duty to understand wave characteristics, and actively avoid wave injuries. In reality, the party obligated to prevent wave injuries is the professional operator profiting from this activity. For an inland tourist unfamiliar with the sea, there is no inherent need to understand such matters, let alone a duty of attention. Moreover, the plaintiff instinctively tried its best to avoid the waves. Yet the court subjectively assumed that the plaintiff failed to fulfill its obligations, persistently emphasizing the consumer's conscious initiative while completely ignoring the operator's proactive role. It also forcibly transformed the operator's statutory duty to protect consumer safety into a specific duty arising only from mutual agreement; otherwise, the operator would bear no responsibility for consumer safety. This not only constitutes obvious bias in favor of the defendant but also deliberately distorts national law and openly contradicts the Consumer Protection Law. Such an unreasonable and illogical ruling by the court severely undermines the "principle of fairness" stipulated in Article 4 of the General Principles of the Civil Law of China. Even when liability is difficult to determine, the assessment of damage liability must at least reflect the "principle of fairness"!

In summary, it is clear that the damage in this case resulted from the defendant's illegal operations and violation of statutory duties. The defendant should bear liability for damages based on facts and law. However, both trial courts, using extensive subjective analysis, disregarded legal provisions and employed overly emotional language to describe the objective facts of the case. From the perspective of exonerating the defendant, they rendered a highly erroneous judgment. This erroneous judgment not only shields the defendant and harms the plaintiff's legitimate rights but, more seriously, violates the principle of judicial fairness advocated by Chinese law. Such a ruling is indeed deeply disappointing and unjust.

(Wang Tengfeng's Commentary)

Zhiming Office

September 9, 2002