The global financial crisis has intensified and spread to many economic fields such as manufacturing, trade, and transportation. Frequently, there have been anomalies in which no one picks up the goods after they arrive at the destination port. Especially in Southeast Asia, the consignee's credit is generally low, and some buyers do not appear after the goods arrive in Hong Kong, preferring to lose the deposit and not pick up the goods. In this case, once the goods are stored in the destination port for a long period of time, while the value of the goods itself decreases, the various costs attached to the goods increase day by day, and soon approach or even greatly exceed the value of the goods themselves. Recently, according to the relevant business personnel of some international freight forwarding companies in Shanghai, there have been many cases of unmanned pickup of goods after the goods arrived at the port of destination in the maritime business exported to Indian ports. This business is entrusted by the foreign consignee to the freight forwarding company (the destination port agent of the Shanghai freight forwarding company) in its place, and the Shanghai freight forwarding company handles the shipping booking and issues the bill of lading of the non-vessel carrier. After the goods are exported, they stay in the port area and incurred high container overdue fees and demurrage charges, and the shipping company requested the Shanghai freight forwarding enterprise to be the main body applying for booking and the shipper on the ocean bill of lading. The resulting container overage fee. For this reason, Shanghai freight forwarding enterprises may face recourse and bear certain economic losses.

According to Article 86 of the "Maritime Law of the People's Republic of China": "If no one picks up the goods at the port of discharge or the consignee delays and refuses to pick up the goods, the master may unload the goods in a warehouse or other appropriate place. The costs and risks are borne by the consignee. ”Article 3 of the Shanghai Maritime Court ’s 2007“ Questions and Answers on the Trial of Expiry of Container Container Expenses for Maritime Goods Transportation Contracts ”stipulates:“ If the destination does not pick up the goods, the bill of lading is still held by the shipper , The carrier has the right to claim against the shipper the container overage fee. "

Because the above-mentioned foreign designated cargo business is the main business source of many freight forwarding enterprises, the freight forwarding enterprises and the agency of the destination port are often cooperative relations of mutual agency. Once the overdue container usage fee is incurred, the shipping company will inevitably recover the consignee on the ocean bill of lading (MB / L) from the consignee on the ocean bill of lading (destination agent for the freight forwarding enterprise). This responsibility is passed on to the freight forwarding enterprise. When the freight forwarding enterprise bears the overdue use fee of the container, and then repays the consignee (foreign consignee) on the bill of lading with the non-vessel carrier bill of lading (HB / L) issued by it, not only the cost of recovery High, and freight forwarding enterprises will also face great uncertainty. Therefore, regarding how to effectively prevent the risk of container overdue fees and demurrage fees caused by unattended delivery at the destination port, lawyers provide the following legal opinions for reference.

1. Not issuing the bill of lading of the non-vessel carrier, directly transferring it to the ocean bill of lading

In order to circumvent the above risks, lawyers suggested that international freight forwarding companies may choose not to issue their own non-vessel carrier bills of lading, but only forward them to ocean bills of lading issued by shipping companies, if it is indeed possible. Then, if the container is overdue due to unmanned delivery at the destination port, the shipping company will directly recover from the foreign consignee (or the domestic shipper if the consignee cannot be found).

2. In the case of issuing a non-vessel carrier bill of lading, the shipper on the ocean bill of lading directly fills in the domestic shipper

If the customer must require the international freight forwarding company to issue the bill of lading of the non-vessel carrier, the shipper on the sea waybill will not fill in the international freight forwarding company, but directly fill in the name of the domestic shipper. In this case, if the shipping company chooses to claim the container overage fee from the shipper, it can directly claim it from the domestic shipper without requiring the international freight forwarding company to assume responsibility.

(Note: Although this operation makes the bill of lading seem irrelevant to the international freight forwarding company, in fact, this is only a workaround, because the consignee is still the agent of the destination port of the freight forwarding company, and the freight is also sent by the freight forwarding company If the company pays, if the shipping company must pursue the consignee or shipper, the freight forwarding company still has no regulations to avoid liability.)

3. The domestic shipper is required to issue a letter of guarantee

The lawyer believes that there is a more direct way to avoid such risks, that is, before carrying out such business, the domestic factory and the international freight forwarding company are required to sign a "sea freight export freight forwarding agreement" (the content includes the destination port no one picks up the goods Clause), or require the domestic factory to issue a "guarantee letter", and let the domestic factory expressly promise in such documents that when the goods are due to the container of the port of destination due to unused pickup, it will be used to bear this fee The ultimate subject. Of course, it is also necessary for international freight forwarding companies to perform certain qualification audits on the domestic parties that issue guarantees to ensure that they can assume the above responsibilities.

4. Require the agent at the destination port to fulfill the obligation of timely notification and try to control the loss

In view of the fact that in many cases, when the destination port agent is faced with an unmanned delivery situation, it fails to give timely notice to the freight forwarding company, which also leads to the failure of the relevant goods to be unloaded from the container in time, and the container cannot be returned to the shipping company on time As a result, high container overage fees are incurred. Therefore, the lawyer suggested that the international freight forwarding enterprise should clearly stipulate in the Mutual Agent Agreement with the agent of the destination port that if the goods are not picked up at the destination port and the duration of the situation exceeds ten days, the purpose The port agent should issue a notice to the freight forwarding enterprise without delay in order to promptly take follow-up measures such as return shipping.

If the international freight forwarding enterprise finds that the goods have stayed in the destination port for a long period of time and has already caused the container overuse fee, the freight forwarding enterprise should immediately request the destination port agent to unload the goods from the container as soon as possible and store it in the warehouse of the destination port agent, and promptly empty The container is returned to the shipping company, so as to reduce and control the loss as much as possible.

In summary, regarding the risk of unattended delivery of goods at the destination port in the operation of the designated goods of the foreign consignee, the freight forwarding enterprise needs to comprehensively prevent from all aspects, achieve comprehensive pre-warning in advance, full control in the event, and timely tracking after the event.

Recently, two serious road transportation accidents (one branch and one subsidiary) occurred to a client of our firm 8 years ago and 2 years ago. After several years of litigation, the case was closed by judgment and mediation. The two accidents caused a total of nearly 10 million yuan in economic losses. The painful lessons must be remembered. This article is specially written to warn the freight forwarding colleagues:

First, the two accidents involved were both marine import business. The imported goods are high-value machinery and equipment, which are precision instruments, but the relevant operators have not noticed the high risk of such goods, and the salesmen are in accordance with ordinary routines. Cargo operation;

Second, the inland transportation suppliers for the two-ticket business are small and micro companies with one or two vehicles, and they cannot afford high compensation liability accidents. The two fleet suppliers closed down within a year or two. There is no property available for recovery, which makes our huge losses impossible to pass on.

Third, neither of the two-ticket business has purchased liability insurance or non-recoverable freight insurance on behalf of customers.

Freight forwarding companies usually insure “cargo insurance” on behalf of customers. Generally, insurance companies are usually exempted from recovering the freight forwarding company based on long-term cooperation with the freight forwarding company (Note: The premise is that the freight forwarding company insures the insurance company every year Reached a certain scale); or the freight forwarding company itself bought logistics liability insurance or only bought the on-board cargo insurance. In short, the insurance purchased through the freight forwarding company, once the insurance is insured, the insurance company will bear the liability for claims and give up the freight forwarding company Recovery.

However, in these two accidents, because the cargo owner insured the cargo insurance on his own, the freight forwarding company thought that he could also sit back and relax. As everyone knows, the cargo owner's insurance company has to recover from it. Therefore, if the freight forwarding company repeatedly purchases freight insurance in order to prevent its own risks, even if the customer insures itself, when the insurance company claims after the insurance company recovers the freight forwarding company, the insurance company of the freight forwarding company will come forward to respond directly without the freight forwarding company being responsible Liability. However, neither of the two ticket businesses purchased freight insurance through the company, which caused the freight forwarding company to face the insurance company's recovery lawsuit.

Lessons learned from the past, teachers of later generations, the most fundamental reason for the two accidents is that the business department failed to declare to the company leaders in accordance with the requirements of high value-added goods and handled them in accordance with the prescribed procedures for the operation of high value-added goods. As a result, the freight forwarding company had to bear the responsibility independently after the huge losses occurred. Full responsibility, and the revenue of this two-vote business is not more than a thousand yuan, which is simply not matched with the loss of ten million yuan.

In summary, the author once again reiterates that when handling the land transportation business of valuable goods, we should pay attention to the following points:

First, when accepting the entrustment, you should promptly inquire about the value of the goods, especially the imported machinery and equipment. You should also be more vigilant, check the customs declaration or ask the customer to inquire in order to understand the risks you face. Once the value of a single goods exceeds RMB 500,000 Yuan, immediately report to the company leaders according to the process.

Second, pay attention to carefully choose land transportation suppliers. Especially for the transportation of high-priced goods, we cannot blindly pursue the cheap price, but we must conduct a comprehensive inspection of the fleet, select the operating specifications, the vehicle is in good condition, have certain solvency, and entrust the fleet with sufficient insurance.

Third, it is necessary to insure freight insurance in time. In order to prevent the risk of recovery by the cargo owner ’s insurance company, even repeated insurance is worthwhile.

Fourth, when signing the contract with the customer, sign the limit compensation clause as much as possible. In view of the serious mismatch between the low transportation fees charged by freight companies and the huge cargo risks they face, it is recommended that freight forwarding companies should add a limit compensation clause in the single-ticket contract with their customers to reduce operational risks. (Remarks: This point has some difficulties in operation. You can also negotiate with the customer to sign a similar agreement after the accident. The two-voice business involved in the case cannot be done after the event because one is a foreign company and the other is a large import and export company.)

Fifth, strengthen the supervision of high value-added goods. Since many high-precision equipment has no repair capability in China, after the equipment is in danger, the foreign party may report that the repair price may be higher than the shipment value, resulting in the identification company finally making a total loss. Therefore, the freight forwarding company is During the operation of high value-added goods, we must strengthen supervision and management, and arrange escort personnel when appropriate to reduce the probability of cargo damage.

I hope that this article can serve as a warning for the operation of inland transportation of valuable goods. It must be highly valued by freight forwarding companies, cooperate with regulated suppliers, minimize the probability of accidents, and pass it on by purchasing freight insurance or liability insurance. Risks and put an end to the situation of independently taking losses again.

(Lawyer Zhang Xinhua / text)

Question: Our company exports a batch of heavy goods, and entrusts a freight forwarding company to book a shipment with a shipping company. When the trailer was packed into our company, the empty container provided by the shipping company was used. When the goods arrived at the port of destination, the consignee picked up the box and received the goods, and then returned the empty container to the shipping company. The shipping company refused to accept the serious damage of the box body (the bottom nine beams were cracked) and demanded compensation for the loss.

Faced with the claims made by the shipping company, all parties blamed responsibility. The consignee believes that it purchased the goods in the container, not the container itself. The freight forwarding company believes that the shipping company will not allocate the boxes with problems to the customers. Even if there are problems with the boxes, the fleet should inform and refuse to pick up the boxes. The trailer team believes that if the box is damaged during loading, the box cannot enter the port at all, let alone board the ship, and the responsibility is not on the convoy. The shipping company believes that if the container is found damaged, it should inform and refuse to remove the box when picking up the goods.

Who should bear the responsibility for compensation for container damage? How to calculate the compensation amount? How to avoid such disputes?

Answer: As for determining the subject of compensation liability, from a legal perspective, there are two aspects of tort liability and contract liability. First of all, the person directly responsible for the damage to the container should bear tort liability. If there is evidence to prove that the damage to the container was caused by a traffic accident during the transportation of the convoy, or due to the improper operation of the loading and unloading workers at the terminal, etc., according to the relevant provisions of the Tort Law, the infringer should bear the damage to the container Liability.

Secondly, the fleet using containers (the fleet may be entrusted by the freight forwarder or directly entrusted by your company) shall bear contractual responsibilities. In the container transportation business, the fleet has signed the "Usage Agreement" with the shipping company all the year round, stipulating that the fleet should properly use and keep the containers, otherwise the shipping company will be compensated for the loss. At the same time, when the fleet picks up each container, it will receive a container exit coupon from the shipping company, and sign another container entry coupon when the container is used and returned. The tail of the above-mentioned appearance couplet is the description column of the six surface conditions of the container. If the team finds any damage to the box when picking up the box, it should be annotated. The unannotated is considered to be intact. If the container inspector finds that the container is damaged when returning the box, it will also make a comment in the description column at the end of the entry joint, and the shipping company will then claim compensation from the fleet based on the quotation of the repairing company.

Through the above analysis, the responsibility for container damage should generally not be blamed on your company or the consignee, but the actual situation is that, in view of the strength of the shipping company, the freight forwarder or the fleet is often unwilling to pursue the real person responsible for infringement, or unwilling to reconcile themselves. It assumes responsibility for breach of contract due to careless operation, but transfers the loss to the consignor or consignee. In order to avoid such disputes, lawyers suggest: First, in your contract with the freight forwarder or fleet, your company should clearly require that it uses intact and suitable containers for the proper transportation of goods (especially special goods such as heavy goods), and that At the same time, avoid damage to the container, otherwise the freight forwarder or the fleet will bear the loss; second, the team must carefully review the condition of the container before picking up the container. If any defect is found, it should be rejected and the intact container should be re-extracted; third, if due to each If it is necessary to extract the bad boxes for various reasons, the team must take photos to retain the evidence and mark them in detail in the container exit coupon to protect their legal rights and interests.

Tips

In recent years, due to the very downturn in the shipping market, shipping companies have no time to invest in new containers, resulting in some of the old containers that were originally being eliminated. Once the peak season is reached, sometimes the lack of containers will cause the shipper to use some Defective containers. After arriving at the destination port, this type of container may be required to pay cleaning fees or repair fees when the consignee returns the container, resulting in disputes. Please pay attention.

In the case of FOB export trade, the domestic freight forwarder is required to deliver the bill of lading to the actual shipper entrusted for delivery. But the identification of the actual shipper has always been an unclear issue. The author believes that when applying Article 8 of the "Provisions on Several Issues Concerning the Trial of Disputes in Maritime Freight Agents," the actual shipper and the object of delivery can be reversely determined from the perspective of the entrusted relationship. It not only conforms to practical operation, but also helps to clarify the judicial judgment rules.

One

Analysis of the reasons for the difficulty of actual shipper identification

       The "shipper" in the maritime cargo transportation contract stipulated in China's "Maritime Law" means:

       1. I or someone who entrusts others to sign a contract for the carriage of goods by sea with the carrier in their own name or for others;

       2. I or someone who entrusts others to deliver the goods to the carrier related to the contract for carriage of goods by sea in their own name or to entrust others.

      The two kinds of shippers mentioned above are contract shippers and actual shippers that we often say.

      Under the FOB trade terminology rules, the buyer is responsible for the carriage of goods by sea, so the contract shipper is not consistent with the actual shipper. In practice, the buyer generally entrusts an international freight forwarding company to handle the international transportation under the FOB trade item in the country. The freight forwarding company will designate the freight forwarding company in the country where the seller is located (that is, "designated freight forwarding") for specific bookings. Matters. At the same time, the buyer will (through the freight forwarder) ask the seller to deliver the goods to the designated freight forwarder, so as to deliver the goods to the carrier, and finally complete the transportation.

      2012 "Provisions on Several Issues Concerning the Trial of Disputes in Maritime Freight Forwarding" (hereinafter referred to as "Provisions") and "Understanding and Application of" Provisions on Several Issues Concerning the Trial of Disputes on Maritime Freight Forwarding Cases " After the introduction of "" and "applicable", it was clarified that in the freight forwarding business under the above FOB trade item, the designated freight forwarder accepted the imported freight forwarding instruction to book the cabin, and delivered the seller's goods to the actual carrier. After obtaining the bill of lading, the bill of lading should be delivered to the actual shipper.

      At the beginning of the interpretation, there was a view that the actual shipper ’s right to request a bill of lading should promptly deliver the premises, but in the long-term judicial practice after the promulgation of the "Provisions", including multiple retrial rulings of the Supreme Court [for example (2015) The No. 2851 Decision of the Chinese Communist Party stated that no matter whether the actual shipper proposes a bill of lading or not, the bill of lading obtained by the designated freight forwarder should be delivered to the actual shipper, that is, the priority of the actual shipper ’s bill of lading is absolute priority.

      The above is the current clear regulation on the formulation of freight forwarding documents, but there is still a problem without a clear answer, namely how to specify the freight forwarder to identify the actual shipper. Especially when it comes to complex trade relations, when multiple parties request bills of lading. How the court determines whether the party is the subject of the right to obtain the bill of lading in the trial of disputes over the agency contract for the carriage of goods by sea. These issues have not had clear standards since the introduction of the "Regulations", and there are different views, such as confirmation by the shipper recorded in the bill of lading, or by the export management contract of the customs declaration, or by the seller of the international trade contract and many more. Unclear standards also make freight forwarding companies, including judicial practitioners, lack guidance.

      The author believes that the designation of the object of freight forwarding, that is, the identification of the actual shipper, has become a difficult problem because everyone has not started from the "Regulations" themselves. Instead, the focus is on the delivery of goods, skipping the freight agency contract relationship, and thinking about this issue directly from the perspective of the actual shipper's identification in the Maritime Law, resulting in many obstacles. Since the actual shipper can have no contractual relationship with the carrier when delivering the goods in the Maritime Law, the delivery behavior represents who lacks an identified path.

      If we proceed from the "Regulations" and return to the freight agency contract relationship, we will find that this problem can be solved from the perspective of the authorization relationship.

two

Determine the legal basis of the object of delivery from the perspective of entrusted relationship

      The Supreme Court's "Understanding and Application" mentioned that the domestic seller as the actual shipper also has the right to request the carrier to issue a bill of lading, which is a breakthrough in the principle of relativity of the contract and is also the protection of domestic cargo owners under the current economic environment.

     The object of the delivery obligation of the designated freight forwarder in the "Regulations" is not purely based on who is the actual shipper, but the requirement is to form a trust relationship with the designated freight forwarder. The actual shipper ’s right to obtain the bill of lading as stipulated in Article 8 of the Regulations is that the designated freight forwarder accepts the contract shipper ’s entrustment to handle the booking, and “accepts the actual shipper ’s entrustment to deliver the goods to the carrier”. The designated freight forwarder forms an entrusted relationship with the "actual shipper". In the litigation cases of related disputes, the causes are all disputes over the contract of maritime freight forwarding.

     The content of the "Regulations" states that the entrusted relationship is an issue that must be considered when determining the object of the bill. Moreover, the author believes that the basis on which the actual shipper has the right to request the designated freight forwarder to deliver the bill of lading is not based on a similar "right to claim on property", but on a contractual basis. The legal basis is Article 404 of the Contract Law. The property obtained by the trustee in handling the entrusted affairs shall be transferred to the client.

      Therefore, when identifying the designated freight forwarding object, we can put aside the idea of ??the actual shipper's identification and turn to the identification from the perspective of the identification of the commission relationship, it is relatively easier to determine.

three

Judicial affirmation of the object of delivery through the commission relationship

      The identification of the objects of the "Regulations" from the perspective of the commission relationship has also been affirmed in the case No. 19 of the Supreme Court (2015). Let ’s take a brief look at the basic situation of this case,

       The Supreme Court confirmed the facts of the originally examined case as follows:

       On October 24, 2012, Company A signed a sales contract with foreign buyer B. Company A exported and sold freezer to Company B. Trade term FOB Ningbo. Company B entrusted Company C to book a cabin on December 11, 2012. Company A delivered the goods to Company C according to the requirements of Company B, and entrusted Baidu Company to handle the inland transportation and export declaration of goods. The export operation unit and the delivery unit are both Company A. Baidu Company picked up the container from the carrier on December 20, 2012, and then loaded the cargo from Company A and handed it to the sea carrier, China Shipping Container Lines. China Shipping Container Lines Co., Ltd. issued the bill of lading on December 24, 2012, and the shipper recorded in the bill of lading was Company B. After obtaining the bill of lading issued by CSCL, Company C did not deliver it to Company A, but delivered it to Company B. After the goods arrive at the port of destination, they are picked up. Company A sued Company C for compensation for the loss of goods caused by the failure to deliver the bill of lading.

      Both the Ningbo Maritime Court and the Zhejiang High Court believed that Company A was the actual shipper and Company C delivered the wrong bill of lading.

      The Supreme People's Court reexamined that Article 8 of the Regulations only applies to the situation where freight forwarding enterprises accept both the contracted shipper's entrusted booking and the actual shipper's entrustment to deliver the goods to the carrier. Company A is the actual shipper of the transportation involved, but in the transportation involved, it entrusted Company D to deliver the goods directly to the carrier. There is no evidence to show that the company was entrusted or transferred through Company D to Company C to handle freight forwarding and deliver the goods to the carrier. This case does not apply to the provisions of Article 8, Paragraph 1 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Disputes over Maritime Freight Forwarding". The final judgment was that Company C did not deliver the bill of lading by mistake.

      From the judgment of the Supreme Court, we can see:

      1. The actual shipper is not the inevitable object of bill of lading delivery of the designated freight forwarder;

      2. The actual shipper's request for delivery of the bill of lading is based on the premise of consignment delivery.

      The Supreme Court believes that the entrusted relationship is a necessary condition for determining the object of delivery of the bill of lading. If the bill of lading is delivered to the principal who has the entrusted delivery, the claim of the bill of lading by another third party as the actual carrier or the claim that the bill of lading is not obtained will not be supported .

four

The principal who delivers the goods to the carrier, designates the inevitable delivery object of the freight forwarder

      Although the Supreme Court (2015) Minti Zi No. 19 case confirmed that the entrusted relationship is a necessary condition for the formulation of the bill of lading for freight forwarding, it did not completely solve the problem of the designated freight forwarding for bill of lading.

      1. How can the actual shipper's rights in this case be protected?

      2. For the designated freight forwarder, if there is a consignor who entrusts delivery of the goods, is the consignor an inevitable object of bill of lading delivery.

      Regarding the first question, since it is determined that Company A is the actual shipper, according to the provisions of the Maritime Law, it has the right to require the carrier to issue a bill of lading. At the same time, according to the fifth point of the "Understanding and Application", its bill of lading claim has priority over the contract shipper.

      In this case, Company A may request the carrier to issue a bill of lading, or Company D, through its entrusted delivery, requires the carrier to issue a bill of lading. If Company D obtains the bill of lading, it should transfer the bill of lading to the principal according to its entrustment relationship with Company A. The precondition for the carrier to issue a bill of lading to the actual shipper is "at the request of the shipper". In practice, there are also disputes caused by the carrier issuing a bill of lading to the contract shipper or delivering the goods directly to the consignee without issuing the bill of lading. In this case, should the carrier be liable for compensation? In practice, there are also opposite conclusions, and I will not expand them here.

      Regarding the second question, the essence is to analyze whether the consignor who entrusts the designated freight forwarder to deliver the goods to the carrier is necessarily the actual shipper, that is, the inevitable object of delivery of the bill of lading.

      According to Article 8 of the Regulations, whether the prerequisites for obtaining the priority of the bill of lading must also be met:

      1. The identity of the actual shipper

      2. Entrust the designated freight forwarder to deliver the goods

     If there is only an entrusted relationship, rather than the actual shipper, does it mean that there is no absolute priority, and the designated freight forwarder can deliver the bill of lading to the contract carrier?

      The author believes that entrusting the designated freight forwarder to deliver the goods to the consignor is directly the actual shipper and has the priority to request the bill of lading for the following reasons:

      1. According to the Maritime Law and Regulations, the actual shipper refers to: the person who entrusts another person to deliver the goods to the carrier related to the contract of carriage of goods by sea in his own name or entrusts others. In the case of Article 8 of the Regulations, the first determination is that the designated freight forwarder delivers the goods to the carrier, stating that the designated freight forwarder is the person who delivers the goods, and the person entrusted to deliver the goods is the person who entrusts others to deliver the goods for himself. According to the definition of the actual shipper, the principal is the actual shipper.

      2. The difficulty for actual shippers is that complicated trade relations are often involved in practice. Although the inconsistency between the actual shipper and the contracted shipper stems from the FOB ’s trade relationship, the actual shipper itself is a concept in the contract for the carriage of goods by sea. It is the delivery of the main body of the goods to the carrier and does not require that it be under the FOB business The seller, although under normal circumstances, the two are consistent. Therefore, the trade relationship does not affect the identification of the actual shipper.

      Moreover, from the perspective of many judicial practices, when the court determines the actual shipper, it does not consider who the actual owner of the goods is, who the trade seller is, and the focus is still on the entrusted relationship of delivery. For example, in the cases of (2014) Huhai Fashangchuzi No. 30 and (2014) Hugaominsi (Sea) Final Word No. 109, both the Shanghai Maritime Court and the Shanghai High Court held that the domestic seller ’s export trade agent As the principal of formulating freight forwarding, it is the actual shipper.

      3. In judicial practice, the identification of the actual shipper should consider whether the carrier or freight forwarder knows or should know when handling the delivery of the goods, and should consider the freight forwarding ’s ability to identify, rather than simply determine the final state determined after the trial . [1] Therefore, there is no need to worry about the claims of the actual shipper's identity of other trade subjects that have not been in contact.

      4. Taking a step back, the basis for the forwarding of documents by the freight forwarder to the principal is based on the entrusted contract, and the trustee delivers the property obtained from the entrusted matters to the principal. Since accepting the commission to deliver the goods, the documents of the goods are delivered to the consignor, at least the appointed freight forwarder will not be at fault.

      In summary, the designated freight forwarder delivers the goods to the carrier after accepting the commission. The principal is the actual carrier and is also the object of the designated freight forwarder.

[1] Yang Chan, "Identification of Actual Shippers in FOB Transport Contracts", People's Justice 04/2013

Fives

Recognition rules

      According to the foregoing, since it is confirmed that the delivery object of the designated freight forwarder is the consignor who entrusts the delivery of the goods, it can be determined according to the rules of the consignor identification. Regarding the identification of principals, there are relatively certain standards, and there are relevant regulations for reference. The Shanghai Higher People ’s Court launched “Answers on Several Issues Concerning the Trial of Freight Agency Contract Dispute Cases” (hereinafter referred to as “Answers”) many years ago. Choose to provide a reference. We will analyze and confuse the situations that are easy to cause in practice as follows:

      1. In the case of the existence of a trade agency, the determination of the entrusted relationship

      According to the provisions of Article 14 of the Answer: "The existence of the foreign trade agency relationship does not affect the identification of the principal of the freight agency contract, and the provisions in the foreign trade agency contract concerning the transportation of goods and related businesses are not binding on the freight agent."

      Therefore, when identifying the principal, there is no need to consider the foreign trade agency relationship, and only need to be identified according to the common criteria for the identification of the principal relationship, such as the comprehensive facts such as the power of attorney, contact person, invoice, fee payment and so on.

      2. In case of inconsistency between the documentary right holder and the actor, the authorization relationship is determined.

      This situation is that the document right holder is a trading company, but the agent entrusted by the freight forwarding contract is another third party. In this case, how to identify the client. According to Article 15 of the Answer, if only the evidence shows that the agent and the document right holder handed over the freight forwarding affairs with the freight forwarder, the freight forwarder contract relationship between the agent and the freight forwarder is established.

      3. When the same delivery behavior represents delivery under two FOB contracts, the entrustment relationship is determined

      This kind of situation applies to the situation where there are overseas trade intermediaries. The delivery carrier of the goods is not only the domestic seller to fulfill the delivery obligation to the overseas intermediary, but also the foreign intermediary to fulfill the delivery obligation to the final buyer. In the Shanghai Maritime Court (2011) Hu Hai Fa Shang Chu Zi No. 594, although the intermediary was finally determined to be the shipper, the reason was that the freight forwarder was not aware of the existence of the domestic seller. What if the freight forwarder is aware of the existence of a domestic seller?

 China's "Maritime Law" divides shippers into two categories, one is "I or someone entrusting others to sign a contract for the carriage of goods by sea with the carrier in my own name or to entrust others", and the other is "I or entrust others The person who delivers the goods to the carrier related to the contract for the carriage of goods by sea in his own name or entrusts others ", both have the right to require the carrier to issue bills of lading to them. In the “Provisions of the Supreme People ’s Court on Several Issues Concerning the Trial of Disputes in Maritime Freight Agents”, the Supreme People ’s Court refers to the first category of shippers mentioned above as contract shippers and the second category as actual shippers, and stipulates, “Freight forwarding enterprises The people's court shall accept the contract shipper's entrustment to handle bookings and at the same time accept the actual shipper's entrustment to deliver the goods to the carrier. Support. "In judicial practice, the above judicial interpretation is usually understood as that the actual shipper has priority over the contract shipper to obtain the bill of lading. However, there are still major differences and controversies in theory and practice regarding the issues related to freight forwarding companies identifying actual shippers and transferring bills of lading. This article attempts to study the legal issues related to the forwarding of bills of lading by a freight forwarding company to an actual shipper by analyzing a dispute over a freight forwarding contract by the Supreme People's Court in 2015.

1. Case Introduction

In October 2012, Company A exported and sold freezer to foreign buyer B. The trade term FOB Ningbo. Company B entrusted Company C to book cabins on December 11, 2012. According to the requirements of Company B, Company A delivered the goods to Company C and entrusted Company D (hereinafter referred to as Company D) to handle inland transportation and export declaration of goods. The export operation unit and the delivery unit were Huayu Company. Company D picked up the container from the carrier on December 20, 2012, and then loaded the cargo from Company A and handed it over to Ocean Shipping Carrier E for shipment. After Company C obtained the bill of lading issued by Company E, it was not delivered to Company A, but was delivered to Company B. After the goods arrived at the destination port, they were picked up and Company A failed to collect the full payment.

The main controversy in this case is whether Company C delivered the bill of lading by mistake, and therefore should be liable for compensation for Company A ’s loss of goods. The court of first instance, the court of second instance, and the Supreme People's Court have different judgments about the focus of this dispute.

The court of first instance held that Company A, as an export seller of goods under FOB trade, entrusted Company D to handle inland transportation and export declarations. The delivery of goods to the carrier by Baidu Company conformed to the practice of freight forwarding operations, and Company A was the actual shipper. As a freight forwarder, Company C is responsible for carefully confirming the actual shipper of the goods through multiple ways such as the delivery person (inland transport carrier) to clarify the object of delivery of the bill of lading. In addition, Company A did not inform Company C of its actual shipper in time, and there was also a fault. Therefore, Company C and Company A should each bear half of the responsibility.

The court of second instance held that Company A, as a domestic seller, delivered the goods to the carrier China Shipping Container Line Co through Company D. The container equipment hand-over orders, packing slips, and yard receipts were all provided by Company C to Company D, so A was the actual case in this case. The shipper, Company A, as the actual shipper, establishes a contract relationship of sea freight forwarding with Company C. Company A, as the actual shipper, neglected to request the freight forwarding company to deliver the documents, and should bear some responsibility; the freight forwarding company failed to fulfill its reporting obligations, promptly asked the actual shipper how to handle the document, and obtained the actual shipper's written confirmation, also Should bear some responsibility. Therefore, the court of second instance recognized the opinion of the court of first instance that Company C and Company A should each bear half of the responsibility.

After review, the Supreme People's Court held that the price conditions agreed upon in the goods trade contract involved were FOB Ningbo, Company A was the seller in the trade contract, and the actual shipper was in the maritime cargo transportation contract; B was the trade contract buyer, and the contract for the maritime cargo transportation contract. Shipper. Company C and Company B entered into a freight forwarding contract and handled the booking as the freight forwarder of Company B. However, it cannot be assumed that Company C has also established a freight forwarding contract with Company A, the actual shipper, just because Company C handled the booking business of the involved transportation. Company A advocates that it establishes a freight forwarding contract relationship with Company C. Company C is its freight forwarding agent, and it should provide evidence to prove that it signed a freight forwarding contract or entrusted Company C to actually carry out freight forwarding business. After analysis, the Supreme People's Court held that there was no freight agency contract relationship between Company A and Company C, and the provisions of Article 8 of the "Supreme People's Court Provisions on Several Issues Concerning the Trial of Maritime Freight Agency Disputes" should not be applied.

Second, the judgment result analysis

The “Provisions of the Supreme People ’s Court on Several Issues Concerning the Trial of Disputes over Maritime Freight Agents” were published in 2012 and entered into force on May 1, of that year. Its first article stipulates that the scope of its application is that freight forwarding enterprises accept the entrustment of the principal to deal with marine goods Disputes in transportation-related freight forwarding matters. Therefore, the premise of applying the judicial interpretation is that the parties to the dispute have a freight agency contractual relationship. In the case of (2015) Mintizi No. 19, the court of first instance and the court of second instance based on the FOB trade terms between the buyer and the seller, and the fact that company A and company D delivered the goods, found that company A and company C also established freight The agency contract relationship is slightly sloppy. The Supreme People's Court believes that the nature of the rights and obligations stipulated in the written contract should be considered in accordance with Article 3 of the "Supreme People's Court Provisions Concerning Several Issues Concerning the Trial of Maritime Freight Agent Dispute Cases", and comprehensively consider the name and method of the remuneration of freight forwarding enterprises and issue The types of invoices and charging items, the trading habits between the parties, and other conditions of actual performance of the contract, it is indeed more reasonable to determine whether the contract relationship of sea freight forwarding is established. For Company C, if there has never been any communication or contact with Company A, or despite the communication, the two parties did not have the intention of establishing a freight agency contract relationship, and only by the fact of Company A's "delivery", the two parties are established The freight agency contract relationship is bound to cause great unfairness to Jincheng Company.

3. The Supreme People's Court identified Company A as the actual shipper through the sales contract relationship between Company A and the foreign buyer and the trade terms agreed by both parties, which the author considers inappropriate.

In practice, in order to protect the actual shipper's right to request a bill of lading, the carrier usually provides various forms of cargo receipts when the actual shipper delivers the goods, and issues the bill of lading on the basis of the cargo receipts provided by the shipper. If as determined by the Supreme People's Court, Company A entrusts Baidu Company to deliver the goods to the carrier, and Company C obtains the bill of lading from the carrier, but there is no freight agency contract relationship with Company A, the following doubts cannot be resolved, namely, Does Company C obtain the bill of lading based on the goods receipt?

The above question, if the answer is yes, it will inevitably lead to a series of subsequent questions: Where does Company C obtain the goods receipt? If it is obtained from Company D, has Company D obtained this instruction from Client A? If obtained from the carrier, did Company C participate in the delivery of the goods? If Company C participated in the delivery of the goods, did Company D deliver the goods to the carrier or Company C? If company C did not participate in the delivery of the goods, did the carrier deliver the goods receipt by mistake ...

In the facts identified in this case, Company D had issued a "Situation Statement", saying that it obtained materials such as packing slips, container handover orders, and station receipts from Company C. It can be seen that the delivery work of picking up boxes and delivery to the carrier is actually done by Company C or its entrusted third party, and the object of picking up and delivery by Company D is not the carrier but Company C. If the Supreme People's Court considers that Company A is an "actual shipper", then Company C, as the last link in delivery to the carrier, is bound to be the agent of Company A; and if Company C is not accepted by Company A to deliver to the carrier , Then Company A only delivered the goods to Company C through Company D, not the carrier. And because Company C is the agent of Company B, Company A actually delivered the goods directly to Company B at the port of shipment. In this case, Company B, through Company C, booked both the carrier and the delivery, and obtained the dual status of "contract shipper" and "actual shipper". The Supreme People's Court did not consider the actual performance of the maritime transport contract, and rashly identified Company A as the actual carrier, and also concluded that there was no freight agency contract relationship between Company A and Company C, which was in fact self-contradictory.

In addition, in practice, serial sales contracts are everywhere. In the sales of the same batch of goods, there are many sellers and a certain buyer, and in international sales contracts, there may still be Trade agent; in addition, the goods may go through multiple transfers before being delivered to the sea carrier, involving multiple "shippers". If the actual shipper's identity is judged only by the contract of sale and purchase, it will inevitably cause more than one person to meet the conditions of the "actual shipper" and cause difficulty in identification.

Finally, according to the principle of relativity of the contract, the agreement between the two parties in the sales contract should not affect the rights and obligations in the contract of carriage of goods by sea. The actual shipper as a party to a contract for carriage of goods by sea shall be judged by the actual performance of the contract of carriage. According to the relevant provisions of the Maritime Law and the Provisions of the Supreme People ’s Court on Several Issues Concerning the Trial of Maritime Freight Agency Disputes, the actual shipper refers to the person or the person entrusting others to deliver the goods to the sea goods The person of the carrier involved in the contract of carriage. Therefore, to determine the identity of the actual shipper, it should be considered whether it is the party of delivery and whether it is the last link to deliver the goods to the carrier.

In summary, judging the actual carrier ’s identity by the actual performance of the transportation contract rather than the contractual relationship is more in line with shipping practice and legal requirements.

4. The failure to identify the actual shipper in this case led to Huayu ’s final defeat, and it is worth learning experience and drawing lessons.

The Supreme People's Court has self-contradiction in the determination of the actual shipper and whether there is a freight agency contract relationship between Company A and Company C. In the final analysis, it is because the relevant facts of delivery to the carrier have not been fully investigated. First of all, the delivery of goods to the carrier is a matter of entrustment between Company A and Company D. If the facts are fully ascertained, regardless of whether Company D actually delivers to the carrier or Company C, Company D is obliged to ensure It is to directly or entrust a third party to deliver the goods to the carrier, and ask the delivery object for the receipt of receipt; and whether the carrier issues the bill of lading or company C forwards the bill of lading, the receipt of receipt in the hands of company D should be judged The basis of the actual shipper. After the relevant facts are fully identified, the identity of the actual shipper can be correctly judged, thereby judging the legal relationship between the companies A, D, C and the carrier. And further judge whether company D, company C and the carrier have faults in handling the business, and whether they should be liable for the loss of company A's right to control the goods.

The author believes that the facts of this case have not been fully ascertained, which is an important reason why Company A failed to protect its rights and eventually lost the lawsuit. Another important reason for losing the lawsuit is that Company A chose the wrong litigation strategy. Because Company A only sued Company C, the burden of proof to prove that there was a freight forwarding contract relationship between Company A and Company C all fell on Company A. If company A knows the carrier's delivery and bill of lading issuance from the carrier before prosecuting, and then sues company D and company C at the same time, on the one hand, company D and company C can be fully ascertained; on the other hand When Company C does not form a freight forwarding contract relationship with Company A, because Company D fails to deliver the goods directly or entrust other parties to the carrier, Company A may directly pursue its liability for breach of contract.

In addition, the Supreme People ’s Court not only held that there was no freight agency contract between Company A and Company C, but also found that the fact that Company D had delivered the goods to the carrier not only contradicted itself, but also blocked Company A ’s continued rights protection. . No matter whether Company A continues to sue, claiming that the carrier delivered the delivery voucher or bill of lading by mistake, or claiming that Company D was at fault in handling the freight forwarding affairs, it will be very passive. Therefore, although the view of the Supreme People ’s Court does not affect the judgment result of this case, it is not conducive to the protection of the rights and interests of Chinese sellers of FOB trade terms, the legislative intent of the Maritime Law on “actual shippers” and the Supreme People ’s Court ’s The spirit in the Provisions on the Trial of Certain Issues in the Trial of Disputes by Sea Freight Agents also contradicts. It is hoped that in the process of relevant legislation or revision of the law, the legislator can fully consider the particularity of the buyer and seller under the terms of FOB to entrust different freight forwarders to deal with booking, delivery and other matters separately, to further clarify the issue and protect the legality of domestic sellers rights and interests.

For SMEs to become bigger and stronger, they must first solve the problem of financing difficulties for SMEs. Because SMEs have poor risk resistance and limited physical assets that can be mortgaged, few banks are willing to accept the pledge of SMEs ’intellectual property rights and accounts receivable Pledges, equity pledges, order pledges, warehouse receipt pledges, and policy pledges are also for this reason, and SMEs have always lacked a platform to use financial leverage to grow bigger and stronger. In August 2013, the State Council issued the “Implementation Opinions on Financial Support for the Development of Small and Micro Enterprises”, which clearly clarified the pledge of intellectual property rights, accounts receivable pledge, movable property pledge, equity pledge, order pledge, warehouse receipt pledge and insurance Pledge and other pledged loan business; promote the establishment of commercial factoring, financial leasing and directional trust and other financing services. Appropriately relax the financial access standards for innovative and growing companies in the GEM market, and start refinancing listed small and micro enterprises as soon as possible. Establish and improve the national small and medium-sized enterprise share transfer system (hereinafter referred to as the "new three boards"), increase product innovation, and increase financing varieties suitable for small and micro enterprises. Further expand the pilot of SME private placement bonds, gradually expand the issuance scale of SME collective bonds and small and micro-enterprise collective bonds, and establish small-scale, Fast and flexible financing mechanism.

Therefore, small and medium-sized enterprises want to increase and strengthen financial leverage and obtain more financing channels, they must take the path of capital market, and the low threshold of the New Third Board and no filing system for financial indicators is the medium and small enterprises in this The best choice for bigger and stronger on the financing platform. Although the State Council has entrusted the New Third Board with the historical mission of providing financing services to SMEs, SMEs still need to weigh the urgency of capital market development from the enterprise's own development, whether to go to the New Three Board, to understand what is the New Three Board, and the enterprise Advantages and disadvantages, understand whether startups are suitable for listing on the New Third Board, understand how companies choose intermediaries, and avoid blindly listing on the New Third Board because they do not understand the capital market.

China's "Maritime Law" divides shippers into two categories, one is "I or someone entrusting others to sign a contract for the carriage of goods by sea with the carrier in my own name or to entrust others", and the other is "I or entrust others The person who delivers the goods to the carrier related to the contract for the carriage of goods by sea in his own name or entrusts others ", both have the right to require the carrier to issue bills of lading to them. In the “Provisions of the Supreme People ’s Court on Several Issues Concerning the Trial of Disputes in Maritime Freight Agents”, the Supreme People ’s Court refers to the first category of shippers mentioned above as contract shippers and the second category as actual shippers, and stipulates, “Freight forwarding enterprises The people's court shall accept the contract shipper's entrustment to handle bookings and at the same time accept the actual shipper's entrustment to deliver the goods to the carrier. Support. "In judicial practice, the above judicial interpretation is usually understood as that the actual shipper has priority over the contract shipper to obtain the bill of lading. However, there are still major differences and controversies in theory and practice regarding the issues related to freight forwarding companies identifying actual shippers and transferring bills of lading. This article attempts to study the legal issues related to the forwarding of bills of lading by a freight forwarding company to an actual shipper by analyzing a dispute over a freight forwarding contract by the Supreme People's Court in 2015.
One

Case Brief

      In October 2012, Company A exported and sold freezer to foreign buyer B. The trade term FOB Ningbo. Company B entrusted Company C to book cabins on December 11, 2012. According to the requirements of Company B, Company A delivered the goods to Company C, and entrusted Ningbo D International Freight Forwarding Co., Ltd. (hereinafter referred to as Company D) to handle inland transportation and export declaration of goods. The export operation unit and the delivery unit are both Company A. Baidu Company picked up the container from the carrier on December 20, 2012, and then loaded the cargo from Company A and handed it to the sea carrier, China Shipping Container Lines. After obtaining the bill of lading issued by CSCL, Company C did not deliver it to Company A, but delivered it to Company B. After the goods arrived at the destination port, they were picked up and Company A failed to collect the full payment.

      The main controversy in this case is whether Company C delivered the bill of lading by mistake, and therefore should be liable for compensation for Company A ’s loss of goods. The court of first instance, the court of second instance, and the Supreme People's Court have different judgments about the focus of this dispute.

      The court of first instance held that Company A, as the seller of goods exported under the FOB trade, entrusted Company D to handle inland transportation and export declaration. The delivery of the goods to the carrier by Company D was in line with the practice of freight forwarding operations. Company A was the actual shipper. As a freight forwarder, Company C is responsible for carefully confirming the actual shipper of the goods through multiple ways such as the delivery person (inland transport carrier) to clarify the object of delivery of the bill of lading. In addition, Company A did not inform Company C of its actual shipper in time, and there was also a fault. Therefore, Company C and Company A should each bear half of the responsibility.

      The court of second instance held that Company A, as a domestic seller, delivered the goods to the carrier, China Shipping Container Lines, through Company D. The container equipment handover, packing list, and station receipts were all provided by Company C to Company D. Therefore, Company A was in this case As the actual shipper, Company A, as the actual shipper, established a contract relationship of sea freight forwarding with Company C. Company A, as the actual shipper, neglected to request the freight forwarding company to deliver the documents, and should bear some responsibility; the freight forwarding company failed to fulfill its reporting obligations, promptly asked the actual shipper how to handle the document, and obtained the actual shipper's written confirmation, also Should bear some responsibility. Therefore, the court of second instance recognized the opinion of the court of first instance that Company C and Company A should each bear half of the responsibility.

      After review, the Supreme People's Court held that the price conditions stipulated in the goods trade contract involved were FOB Ningbo, Company A was the seller in the trade contract and the actual shipper was in the maritime cargo transportation contract; Company B was the trade contract buyer and the maritime cargo transportation contract was Contract shipper. Company C and Company B entered into a freight forwarding contract and handled the booking as the freight forwarder of Company B. However, it cannot be assumed that Company C has also established a freight forwarding contract with Company A, the actual shipper, just because Company C handled the booking business of the involved transportation. Company A advocates that it establishes a freight forwarding contract relationship with Company C. Company C is its freight forwarding agent, and it should provide evidence to prove that it signed a freight forwarding contract or entrusted Company C to actually carry out freight forwarding business. After analysis, the Supreme People's Court held that there was no freight agency contract relationship between Company A and Company C, and the provisions of Article 8 of the "Supreme People's Court Provisions on Several Issues Concerning the Trial of Maritime Freight Agency Disputes" should not be applied.

two

Judgment result analysis

     The “Provisions of the Supreme People ’s Court on Several Issues Concerning the Trial of Disputes over Maritime Freight Agents” were published in 2012 and entered into force on May 1, of that year. Its first article stipulates that the scope of its application is that freight forwarding enterprises accept the entrustment of the principal to deal with marine goods Disputes in transportation-related freight forwarding matters. Therefore, the premise of applying the judicial interpretation is that the parties to the dispute have a freight agency contractual relationship. In the case of (2015) Mintizi No. 19, the court of first instance and the court of second instance based on the FOB trade terms between the buyer and the seller, and the fact that company A and company D delivered the goods, found that company A and company C also established freight The agency contract relationship is slightly sloppy. The Supreme People's Court believes that the nature of the rights and obligations stipulated in the written contract should be considered in accordance with Article 3 of the "Supreme People's Court Provisions Concerning Several Issues Concerning the Trial of Maritime Freight Agent Dispute Cases", and comprehensively consider the name and method of the remuneration of freight forwarding enterprises and issue The types of invoices and charging items, the trading habits between the parties, and other conditions of actual performance of the contract, it is indeed more reasonable to determine whether the contract relationship of sea freight forwarding is established. For Company C, if there has never been any communication or contact with Company A, or despite the communication, the two parties did not have the intention of establishing a freight agency contract relationship, and only by the fact of Company A's "delivery", the two parties are established The freight agency contract relationship is bound to cause great unfairness to Company C.

      3. The Supreme People's Court identified Company A as the actual shipper through the sales contract relationship between Company A and the foreign buyer and the trade terms agreed by both parties, which the author considers inappropriate.

      In practice, in order to protect the actual shipper's right to request a bill of lading, the carrier usually provides various forms of cargo receipts when the actual shipper delivers the goods, and issues the bill of lading on the basis of the cargo receipts provided by the shipper. If, as determined by the Supreme People ’s Court, Company A entrusts Company D to deliver the goods to the carrier, and Company C obtains the bill of lading from the carrier, but there is no freight forwarder contract relationship with Company A, the following questions cannot be resolved, namely C Does the company obtain the bill of lading based on the goods receipt?

      The above question, if the answer is yes, it will inevitably lead to a series of subsequent questions: Where does Company C obtain the goods receipt? If it is obtained from Company D, has Company D obtained this instruction from Client A? If obtained from the carrier, did Company C participate in the delivery of the goods? If Company C participated in the delivery of the goods, did Company D deliver the goods to the carrier or Company C? If company C did not participate in the delivery of the goods, did the carrier deliver the goods receipt by mistake ...

      In the facts identified in this case, Company D had issued a "Situation Statement", saying that it obtained materials such as packing slips, container handover orders, and station receipts from Company C. It can be seen that the delivery work of picking up boxes and delivery to the carrier is actually done by Company C or its entrusted third party, and the object of picking up and delivery by Company D is not the carrier but Company C. If the Supreme People's Court considers that Company A is an "actual shipper", then Company C, as the last link in delivery to the carrier, is bound to be the agent of Company A; and if Company C is not accepted by Company A to deliver to the carrier , Then Company A only delivered the goods to Company C through Company D, not the carrier. And because Company C is the agent of Company B, Company A actually delivered the goods directly to Company B at the port of shipment. In this case, Company B, through Company C, booked both the carrier and the delivery, and obtained the dual status of "contract shipper" and "actual shipper". The Supreme People's Court did not consider the actual performance of the maritime transportation contract, and rashly identified Company A as the actual carrier, and also found that there was no freight agency contract relationship between Company A and Company C, which was in fact contradictory.

      In addition, in practice, serial sales contracts are everywhere. In the sales of the same batch of goods, there are many sellers and a certain buyer, and in international sales contracts, there may still be Trade agent; in addition, the goods may go through multiple transfers before being delivered to the sea carrier, involving multiple "shippers". If the actual shipper's identity is judged only by the contract of sale and purchase, it will inevitably cause more than one person to meet the conditions of the "actual shipper" and cause difficulty in identification.

      Finally, according to the principle of relativity of the contract, the agreement between the two parties in the sales contract should not affect the rights and obligations in the contract of carriage of goods by sea. The actual shipper as a party to a contract for carriage of goods by sea shall be judged by the actual performance of the contract of carriage. According to the relevant provisions of the Maritime Law and the Provisions of the Supreme People ’s Court on Several Issues Concerning the Trial of Maritime Freight Agency Disputes, the actual shipper refers to the person or the person entrusting others to deliver the goods to the sea goods The person of the carrier involved in the contract of carriage. Therefore, to determine the identity of the actual shipper, it should be considered whether it is the party of delivery and whether it is the last link to deliver the goods to the carrier.

      In summary, judging the actual carrier ’s identity by the actual performance of the transportation contract rather than the contractual relationship is more in line with shipping practice and legal requirements.

      4. The failure to identify the actual shipper in this case led to the final defeat of Company A. It is worth learning experience and drawing lessons.

In the process, they may all suffer losses due to natural disasters or accidents. Therefore, buyers and sellers in international trade often pass on risks by insuring cargo transportation insurance. When the goods are subject to losses within the scope of coverage, the insured can get timely economic compensation from the relevant insurance company. However, in view of the particularity of the operation of international cargo transportation business and legal regulations, if the cargo owner is a little careless when insuring, he may not be able to obtain reasonable compensation from the insurance company, resulting in an embarrassing situation in which the insurance is not "insured", and suffers painful economic losses .

【Introduction】

In November 2007, a domestic trading company exported several batches of cables and accessories to Zambia. The goods were custom-made materials for large-scale urban infrastructure in Chililabangbwe. The amount was as high as nearly ten million US dollars. The whole process of transportation (from the sea port of Shanghai, China, to the port of unloading, Durban, South Africa, and then to the destination of Chililabombo, Zambia). All insurance was purchased, and the insurance company issued a policy accordingly. The terms are in Chinese and English. The period is "door-to-door" and the 81-year PICC clause applies.

In December of the same year, a batch of cables were severely damaged by forklifts in Zambia and could not be safely transported to the destination. The insurance company assessed: "1. The cause of cargo damage was irregular operation during land transportation, and the damage has reached unusable To the extent of the original intended purpose; 2. The amount of the loss was USD 316,783.06. "Therefore, the trading company claimed to the insurance company according to the insurance policy. Unexpectedly, the insurance company refused to compensate, thinking that the insurance policy clearly informed that the land transportation segment was an exclusion period. Is not covered by the insurance. At this time, the trading company noticed a line of English under the insurance policy, "The cover terminates at the port of discharge", which means "special agreement: insurance liability to the port of discharge". Reluctantly, the trading company sued the insurance company to the maritime court, demanding that the insurance company pay the insurance compensation USD 316,783.06 and bear the relevant litigation costs.

【Focus Analysis】

The controversial focus of this case is more concentrated: whether the specially agreed terms on the policy take effect, that is, whether the insurance liability of the insurance company ends at the port of discharge or at the destination.

On the one hand, from the perspective of the insurance company, the policy is signed and confirmed by both parties, and all the agreements have come into effect. According to Article 8 of China's "Contract Law", contracts established in accordance with the law are legally binding on the parties. Therefore, both parties should recognize all the clauses, including the exclusion agreement for the liability period. As for whether the trading company noticed the clause when signing the seal, it does not constitute a ground for exclusion, that is to say, the trading company failed to carefully review the insurance policy based on its own mistakes and misunderstood the agreement between the parties regarding the period of liability.

On the other hand, from the perspective of a trading company, the insurance policy in this case was issued by the insurance company unilaterally, which is a standard clause. According to the provisions of Article 17 of China ’s Insurance Law, an insurance contract is concluded and the standard clause provided by the insurer is adopted. The insurance policy provided by the insurer to the policyholder shall be accompanied by standard clauses, and the insurer shall explain the content of the contract to the policyholder. With regard to the clauses exempting the insurer from liability in the insurance contract, the insurer should make a prompt on the insurance policy, insurance policy or other insurance certificate that is sufficient to attract the attention of the insurer when signing the contract, and write to the content of the clause in writing or orally The policyholder makes a clear explanation; if there is no prompt or clear explanation, this clause has no effect. In the policy in this case, several Chinese and English clauses show that the insurance liability of the insurance company ends at the destination. For example, the liability period clause states that from Shanghai Port to Durban Port to Chililabombobwe, and the 81-year PICC clause also applies The "door-to-door" responsibility has been clarified. However, the specially agreed terms are only marked in English, without any special explanation, which is not enough to attract the attention of the insured, and is invalid.

After several hearings, the case finally reached the settlement agreement between the trading company and the insurance company under the coordination of the trial judge's efforts to settle the case.

[Attorney Tips]

An insurance policy is an abbreviation of an insurance policy, and it is a type of maximum integrity insurance contract signed between the insurer and the insured. The insurance policy must clearly and completely record the rights and obligations of both parties concerned. The insurance policy mainly contains the names of the insurer and the insured, the subject-matter insured, the insurance amount, the insurance premium, the insurance period, the scope of liability for compensation or payment, and other regulations. matter. The insurance policy is signed by the insurer and handed over to the insured for receipt based on the policyholder ’s application. The insurance policy is the main certificate for the insured to claim compensation from the insurer when the insurance subject suffers an accident and is also charged by the insurer. Basis for insurance premiums. It can be seen that the policy is a very important contract related to the vital interests of the insured. Like other contracts, the insured and the insurer can negotiate, review and modify the terms of the contract many times before signing, and finally sign the seal to confirm The content directly determines whether the insured can achieve the original intention of transferring risk. Therefore, parties to international trade should draw lessons from this case, carefully review insurance policies during the insurance process, and avoid clause traps.

First, review the insurance liability scope, especially the exclusion liability and additional liability. Since the format of the insurance policy is provided by the insurance company unilaterally, the policyholder should carefully review whether the information and terms in it are consistent with the content of the application at the time. Insurance liability generally includes basic liability, exclusion liability and additional liability. Most of the basic responsibilities are enumerated. The policyholder checks the insurance coverage of the insurance company according to the type of insurance purchased (such as Ping An insurance, water damage insurance, and all insurance insurance coverages are different), selects the most suitable for the actual transportation of the goods, and can cover The scope of responsibility of buyers and sellers. The most notable is the exclusion liability. For the listed insurer who does not bear the economic compensation liability, the insurer must know clearly one by one. If there are unclear terms, the insurer should be asked. Of course, according to the relevant provisions of the Insurance Law, the insurer is also obliged to make a notice on the policy that is sufficient to attract the attention of the policyholder (the font is generally displayed in italics, bold, red, etc.), and the content of the clause should be written or Make a clear explanation to the policyholder in oral form. In addition, the policyholder and the insurance company can also negotiate and agree on the scope of additional underwriting, which belongs to the expanded insurance liability, so it is also called "additional insurance", such as strike insurance, robbery and so on.

Second, the audit responsibility period and special agreement. The liability period of an insurance company is generally clearly stipulated according to the requirements of the insured. For example, the names of the port of shipment, port of discharge, and destination are directly recorded in this case, and there are also agreements "door to door", "port to port", and "warehouse to warehouse" , "Yard to Yard" and other terms, as long as combined with the bill of lading or waybill can determine the insurance company's liability period. However, the lesson in this case was that the insurance company set a trap for the special agreement on the liability period, shortening the maritime and land transportation multimodal transport section requested by the insured to the maritime section, which actually reduced the liability of the insurance company, thus creating controversy. Therefore, the policyholder should not take the review of the policy lightly, and repeatedly check the key terms and special agreed terms. Any objections must be raised in time, and they should be revised in consultation with the insurer.

Third, review the insurance company's deductible and liability limits. Most of the cargo transportation insurance policies will stipulate the deductible amount, that is, the insurance company will pay the indemnity to the insured after subtracting the agreed deductible amount according to the policy. Generally, the deductible amount is 10% of the fixed loss amount, so the insurance is incurred Afterwards, the insured often fails to receive 100% financial compensation, and the insured must know this in advance. In addition, some policies also set liability limits, that is, insurance companies have an upper limit for compensation for cargo damage under the policy, so for high-value goods, the insurer can negotiate with the insurer to increase the limit of liability limit to prevent international cargo transportation to the greatest extent. Risks on the way.

(Lawyer Sun Pinghui / text)

Question: Our company is a freight forwarding company, and its main business is to handle customs import and export related matters such as customs declaration and booking for clients. However, there is now an insurance company that claims that the goods of a client of our company have been damaged during the export transportation. The insurance company will enjoy the right of subrogation after payment. The company requested compensation. I would like to ask the lawyer: The freight forwarder only operates the documents and does not actually transport the goods. In the subrogation case of the insurance company, is it necessary to bear the liability for compensation for the cargo damage during the transportation?

Answer: The right of insurance subrogation, also known as the right of insurance subrogation, refers to when the insurance subject suffers losses caused by an insurance accident and should be liable for compensation by a third party according to law, the insurance company shall pay the amount of compensation from the date of payment Within the limit, the right to request compensation from a third party is obtained accordingly. In this case, the client of your company has insured the cargo transportation insurance to the insurance company, and the cargo damage incurred during the transportation should be compensated by the insurance company, then the insurance company claims that the object of compensation after the subrogation is the person responsible for the cargo damage, that is, the goods involved Carrier. Therefore, whether the freight forwarding enterprise needs to bear the liability for compensation depends mainly on its legal status. If it is identified as the agent of the principal, it is only responsible for the documents. If it is identified as the carrier, it must be responsible for the damage to the goods.

Article 3 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Disputes in Maritime Freight Agents": "The people's court shall take into account the nature of the rights and obligations stipulated in the written contract, and comprehensively consider the name and method of remuneration and the invoicing The types and charging items, the trading habits between the parties and the actual performance of the contract determine whether the sea freight forwarding contract relationship is established. "Article 4:" Freight forwarding enterprises issue in their own names during the handling of sea freight forwarding affairs Bills of lading, sea waybills or other transport documents, where the principal claims that the freight forwarding enterprise bears the responsibility of the carrier, the people ’s court shall support it. The freight forwarding enterprise issues bills of lading, sea waybills or other transport documents in the name of the carrier ’s agent, However, it cannot be proved that the authorization of the carrier has been obtained, and if the client claims that the freight forwarding enterprise bears the responsibility of the carrier, the people ’s court should support it. ”In conjunction with the above judicial interpretation, the determination of the legal status of the freight forwarding enterprise should be comprehensively analyzed from the following four elements :

First, whether to issue or issue bills of lading and other transport documents. If a shipping document such as a non-vessel carrier bill of lading, air waybill, inland transport waybill and multimodal bill of lading is issued, a transport contract relationship is formed with the principal and it will generally be recognized as the carrier. In addition, the freight forwarder who issues the documents on behalf of the carrier must obtain the express authorization of the carrier, otherwise it will also bear the responsibility of the carrier.

Second, the content stipulated in the written contract. The name of the contract is not qualitative. The "Freight Forwarder Contract" often stipulates the rights and obligations of the freight forwarder as the carrier, for example: "The freight forwarding company promises to ship the goods to the destination in a safe and timely manner, otherwise compensation for all losses." The carrier ’s obligations and responsibilities must be assumed.

Third, the types of invoices and charging items. Carriers generally charge freight and contract fees, while freight forwarders generally charge agency fees and collect freight charges.

Fourth, the trading habits between the parties. In the case where the above factors are difficult to judge, the judge usually also judges the legal status of the principal and the freight forwarding company based on their previous trading habits.

In summary, if your company wants to avoid liability for compensation in the subrogation case of insurance companies in the future, it should clarify its agent status from all aspects, for example: try not to issue transportation documents, contracts stipulate the rights and obligations of agents and Responsibilities, issuing invoices for agency fees, collecting shipping fees, etc.

(Lawyer Sun Pinghui / text)