Diver Mr. Kong disappeared on a stormy day and his body was found on the seaside a week later. The family said that the employer let Mr. Kong go to the sea on the same day, but the employer denied it. The court found that Mr. Kong died of drowning at work and ordered the employer to compensate more than 660,000 yuan.
Cell phones, clothes and motorcycles were there, and people were missing
Mr. Fu farms in Baohai near Dalian's Donggang Business District, and he hired Mr. Kong, a diver, to work underwater for him. On July 7, 2017, the Dalian area was windy and rainy. Mr. Kong's wife, Ms. Ju, said that at about 6:30 a.m. that morning, Mr. Kong received a call from the boss, Mr. Fu, who said that the wind was strong that day, and asked Mr. Kong to go to the breeding area contracted by Mr. Fu near the Eighteen-Pan Lighthouse in Dalian's Donggang Business District to collect the oxygen pipe that went down to the sea, so as to avoid the oxygen pipe being washed away by the waves.
Ms. Ju said that after her husband answered the phone, he rode a motorcycle to the breeding area alone. At that time, the weather was particularly bad, and it was stormy, and Ms. Ju was worried about her husband's safety. At about 7 o'clock, she also called her husband, and Mr. Kong said that he was about to reach eighteen plates, which reassured Ms. Ju. But after 8 o'clock on the same day, Ms. Ju called her husband again and no one answered, and no one replied to the text message.
At about 13:00 on the same day, Mr. Fu came to Mr. Kong's home and informed Ms. Ju that Mr. Kong was missing. Because in the warehouse near the breeding area, only Mr. Kong's mobile phone, clothes and motorcycle were seen, and they did not see Mr. Kong in the whole breeding area, and they suspected that Mr. Kong was swept away by the waves.
The family demanded compensation of more than 1.1 million yuan
Everyone searched for many days, but unfortunately they never found Mr. Kong. On July 10, 2017, Mr. Kong's wife went to the police station to report the above incident. But the owner, Mr. Fu, said that he did not notify Mr. Kong to work in the sea that day, "The weather conditions were not good that day, the storm was stormy, and it was not suitable for working in the sea, so I specially called Mr. Kong to let him not work at the beach." Mr. Kong's co-workers confirmed that they did receive a notice from Mr. Fu not to let them work in the sea that day.
On July 14, 2017, a week after Mr. Kong disappeared, his body was salvaged on the shore of a petrochemical plant in Ganjingzi District, wearing blue overalls, a naked lower body, and covered in mud. According to the forensic medical examination, Mr. Kong died of drowning before his death.
After the incident, Mr. Kong's family sued Mr. Fu to the court, demanding compensation for death compensation, funeral expenses, spiritual consolation, and maintenance expenses totaling more than 1.1 million yuan.
The court of first instance found that Mr. Fu and Mr. Kong were in an employment relationship, and due to the weather on that day, it was more common sense for Mr. Fu to notify Mr. Kong to go to work at the work place through four telephone calls. Moreover, Mr. Kong went to Mr. Fu to work in the sea area contracted, and was still wearing overalls when he died, and his mobile phone, diving suit, etc. were placed in Mr. Fu's building, and Mr. Kong, as a diver hired by Mr. Fu, could be identified as Mr. Kong was engaged in "employment activities" at that time.
Mr. Kong is an employee of Mr. Fu, the party providing the labor service, and due to the damage caused by the employment activities, resulting in drowning death, Mr. Fu should bear the corresponding responsibility according to the degree of fault. When providing labor services, Mr. Kong lacked safety protection measures, knew that the weather was bad that day, the seaside wind and waves were high, did not take safety precautions, and there was a certain fault in the occurrence of the damage results, and the court determined that Mr. Kong bore 20% of the responsibility and Mr. Fu bore 80% of the compensation liability.
The court of second instance held that the employer bore 60% of the liability
The Shahekou District People's Court ruled in the first instance that Mr. Fu should compensate the family of the deceased for more than 880,000 yuan.
Mr. Fu appealed. Mr. Fu said that on July 7, 2017, Mr. Kong disappeared from his family, and on July 14, the body was salvaged from the shore of the petrochemical plant in Ganjingzi District, and the sea area he contracted was the Donggang sea area in Zhongshan District, and there was no evidence to prove that Mr. Kong had an accident in the sea area he contracted, nor did it prove that Mr. Kong went to sea at work and caused his death. Mr. Kong has many years of diving experience, and is a person with full civil capacity and a complete sense of self-defense. In addition, other workers confirmed that they were not at fault for mr. Kong's work at the beach because of the bad weather.
The court of second instance confirmed that Mr. Kong died of drowning at work, and Mr. Fu should bear the main responsibility according to the degree of fault. Mr. Kong was engaged in diving work and knew that the weather was bad that day, and the wind and waves at the seaside were not suitable for sea operations, but he did not take safety precautions, and he was also responsible for the occurrence of certain faults in the occurrence of damage results.
The court of second instance comprehensively considered the fault liability of both parties and found that Mr. Kong should bear 40% of the accident responsibility and Mr. Fu should bear 60% of the accident responsibility.
Recently, the Dalian Intermediate People's Court finally ruled that Mr. Fu should compensate the deceased's family for death compensation and funeral expenses totaling more than 660,000 yuan.
Peninsula Morning News, Haili Network reporter Tong Liang
(Source: Peninsula Morning Post)