Who bears responsibility for accidental death during sea fishing?

Compiled from: Ningbo Maritime Court, Zhejiang Tianping
 
Sea fishing, as an emerging sports and leisure activity, not only allows anglers to enjoy the thrill and fun of venturing out to sea but also brings commercial value to coastal fishing areas. However, dangers may arise during sea fishing. If an accident occurs, who should bear the responsibility? Let's find out through the following case.

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Case review
Li Mougen and Zhang Moumou and others were sea fishing enthusiasts. Starting in 2018, the two frequently arranged to participate in sea fishing activities together. On November 18, 2020, Zhang Moumou created a WeChat group and invited Li Mougen, Chen Moumou, and Pan Moumou, the owner of a certain Xiang fishing supply vessel, among others, to join the group.
 
On the early morning of November 21, 2020, Li Mougen, Zhang Moumou, and four others took a fishing boat captained by Pan Moumou to reach Yushan Island. The fishing boat was affiliated with a sea fishing company. The six sea anglers were dropped off one by one from south to north along the island at the fishing spots they had chosen. At around 16:00 that day, as the boat was preparing to return, Pan Moumou picked up Zhang Moumou and four others sequentially from north to south, but when he arrived at Li Mougen's fishing spot, Li was not found. After a search, Li Mougen was eventually discovered floating face down in the water wearing a life jacket, already deceased.
 
In June 2021, four relatives of Li Mougen filed a joint lawsuit with the Ningbo Maritime Court against Pan Moumou, the sea fishing company, and five other fellow sea fishing participants including Zhang Moumou, seeking a court order holding the seven defendants jointly and severally liable for death compensation and other losses totaling over 1.79 million yuan.
 
 
[1] Court Opinion
The court, after trial, held that Li Mougen and five other sea fishing enthusiasts had established a tourism service contract relationship with boat captain Pan Moumou and the affiliated company. Pan Moumou and his affiliated company, as operators of the sea fishing business, owed sea fishing participants an appropriate duty of safety protection. However, this duty of safety protection should be determined within reasonable limits, taking into account the inherent characteristics of sea fishing activities and the operator’s ability to control sources of danger.
 
The fishing spot in this case is located on Nanyushan Island in Xiangshan County, approximately 27 nautical miles from Shipu Port, with a boat journey of about 2 to 3 hours, and the sea conditions are complex and changeable. In addition, large vessels passing through the open sea not far from the island generate sudden and unpredictable swells. According to the incident response records of the Zhejiang Coast Guard Bureau, the sea conditions near Nanyushan Island on the day of the accident were waves of 2 to 3 meters and winds of force 6 to 7. Furthermore, the images of the fishing spots provided by Pan and others show that the fishing spots on Nanyushan Island consist of uneven reefs, with rough and difficult-to-walk terrain. In summary, it can be determined that sea fishing activities are inherently quite dangerous, and the source of such danger is not within the management and control of the sea fishing company and Pan.
 
[2] At the same time, tourism operators should remind tourists to purchase personal accident insurance. The sea fishing company and Pan Moumou failed to provide evidence that they had fulfilled this reminder obligation, and thus should bear corresponding responsibility.
 
In this case, considering the accidental nature of the incident, namely that the risk was primarily inherent in the sea fishing activity itself and fell outside the control of Pan Moumou and the sea fishing company, as well as the absence of a complete causal link between the tourism operator's safety assurance obligations and the damage incurred, and that the insurance-related obligation consisted only of reminding Li Mougen to purchase insurance rather than purchasing it on his behalf, the court, in its discretion, determined that the sea fishing company and Pan Moumou should bear 10% of the compensation liability for the incident.
 
Regarding the issue of liability borne by Zhang and four other fellow sea anglers. The court held that the sea angling activity in this case, in which Zhang and four others participated alongside Li Mougen, was characterized by self-organization, voluntary participation, and temporary nature, constituting a temporary companion relationship without any special organizational structure. The close relatives of Li Mougen alleged that the five companions were at fault for unreasonable arrangement of fishing positions and routes, failure to exercise necessary care and attention toward one another, and delayed rescue. The factual basis and grounds for these claims were insufficient, and the court did not support them. Furthermore, Zhang was merely the convener of the activity and did not require the sea anglers to submit to his organization and management. He enjoyed no managerial authority in this activity and derived no profit from it, standing on equal footing with the other sea anglers. The close relatives of Li Mougen demanded that he bear a higher duty of safety precautions and care, which has no legal basis, and the court did not support it.
 
[5] Regarding the determination of Li Mougen's own responsibility, the court holds that sea fishing is a leisure activity with relatively high risk, especially rock fishing, where the fishing spots are on narrow, slippery, and uneven reefs, compounded by variable sea conditions, particularly large swells around the reefs, which can easily cause people to slip, fall, or be swept into the sea. As a person with full civil capacity and many years of sea fishing experience, Li Mougen should have fully foreseen the risks of sea fishing activities and exercised the utmost duty of care for his own safety, and thus should bear primary responsibility for the accidental incident in this case.
 
 
Civil Code of the People's Republic of China
Article 1176 
[6] Those who voluntarily participate in cultural or sports activities with certain risks and suffer harm due to the actions of other participants shall not request other participants to bear tort liability; however, this does not apply if other participants have intentional or gross negligence in causing the harm.
 
 
[1] The author's perspective
A core point of the judgment in this case is what we commonly refer to as "assumption of risk," meaning that if a tourist voluntarily chooses to participate in an activity or program despite knowing that it involves certain risks, this is deemed a voluntary acceptance of the occurrence of harm. If an accident resulting in personal injury or death occurs as a result, the victim cannot demand compensation from the party causing the harm and must bear the consequences of the harm themselves.
 
In this case, sea anglers should be well aware of the risks involved in sea fishing. Before going out to sea, they should thoroughly prepare, fully anticipate the risks of the activity, exercise the utmost duty of care for their own safety, enhance self-protection awareness, take appropriate safety measures, and consciously follow activity rules to avoid causing harm to themselves or others. Additionally, as a sea fishing operator, one must sign contracts with anglers, fully inform them of the risks associated with sea fishing before departure, advise them to purchase personal accident insurance, and fulfill necessary safety obligations.