Q: The customer entrusts our company to export a batch of goods to the United States, CIF terms. Our company also entrusted A freight forwarding company to book the cabin, the freight has been paid. Unexpectedly, after booking a booking with Company B from Company A, due to other business disputes with Company B, our bill of lading was detained and could not be transferred to the customer. Now this shipment is about to arrive at the US port. If the bill of lading cannot be obtained as soon as possible, the customer will face huge losses. I would like to ask a lawyer to give some professional advice to solve the urgent needs of clients.

A: According to your company ’s actual situation, the quickest way is to apply to the court for a payment order. A payment order refers to a supervision procedure in which the court urges the debtor to perform its obligations within a time limit in the form of a payment order based on the creditor ’s application for payment of money and securities. Article 99 of China's Special Maritime Procedure Law provides: "Creditors requesting the debtor to pay money or securities based on maritime causes, if they meet the relevant provisions of the Civil Procedure Law of the People's Republic of China, they may apply to the competent maritime court for payment. "China Civil Procedure Law" stipulates: "After the people's court accepts the application, after reviewing the facts and evidence provided by the creditor, if the relationship between creditor's rights and debts is clear and legal, a payment order shall be issued to the debtor within 15 days from the date of acceptance. ; The debtor shall settle the debt within 15 days from the date of receiving the payment order, or file a written objection to the people's court. If the debtor does not file an objection and does not perform the payment order within the prescribed period, the creditor may apply to the people's court for execution. " The payment order is not only simple, fast, and low-cost, but also protects the legitimate rights and interests of the cargo owner in a timely manner, and it is also enforceable.

In this case, first, the bill of lading is a document of property rights and belongs to marketable securities; second, the bill of lading detained by your company has nothing to do with other disputes, and the relationship between claims and debts is clear; third, your company has paid the freight for the bill, There is no equivalent payment obligation, therefore, your company can apply for a payment order to the competent maritime court as soon as possible, and retrieve the bill of lading promptly and legally.

First, the concept of unsigned bills of lading is defined. The delivery of a bill of lading without a single bill mentioned in this article refers to: under the name of a bill of lading, the carrier fails to deliver the goods to the consignee referred to in Article 42 (4) of the Maritime Law under the original bill of lading. The right to withdraw the goods. It does not include the situation that the carrier mistakenly handed over the goods to the person who is not authorized to pick up the goods, that is, the carrier ’s wrong delivery, even if such wrong delivery is after the shipper exercises the control of the goods to change the named bill of lading consignee, the carrier The goods were delivered to the consignee recorded in the original bill of lading by mistake.

Under the registered bill of lading, must the goods be delivered on the original bill of lading? China's judicial practice and theoretical circles have different views on this issue. Judicial practice believes that the registered bill of lading and the bill of lading or blank bill of lading must be delivered on the basis of the original bill of lading. The theoretical community generally believes that registered bills of lading do not need to be delivered on the original bill of lading. Representatives include Professor Si Yuzhuo and Professor Chu Beiping.

First look at the point of view adopted by judicial practice: the registered bill of lading must also be delivered against the original bill of lading. 1. Judicial precedent. Professor He Lixin from Xiamen University has conducted statistics on 153 cases of goods delivery without bills while presiding over the "Research on Legal Issues of Delivery of Goods Without Bills of Order" by the Ministry of Justice. Only one case was accepted by the court in the case of delivery without voucher. Combining personal knowledge of past judicial practice, the only case that is likely to apply is not China's Maritime Law. 2. Judicial interpretation. Article 1 of the "Supreme People's Court Provisions on Several Issues Concerning the Application of Law in the Trial of Cases of Delivery of Goods Without Original Bills of Lading" (hereinafter referred to as the "Judicial Interpretation of Delivery of Goods Without Documents") adopted by the Supreme People's Court in 2009 is clear The original bill of lading referred to in the judicial interpretation includes a registered bill of lading, an instruction bill of lading and an anonymous bill of lading. Subsequently, in the article on the "Understanding and Application of the Judicial Interpretation of Delivery Without Bills of Lading" issued by the Supreme Court, the relevant person in charge further stated that "In international trade and maritime transport, the bill of lading as a document of property rights is the carrier ’s guarantee to deliver "Important documents of goods", so even if it is a registered bill of lading, the carrier must deliver the goods on the original bill of lading.

Look at the point of view of the theoretical circles represented by Professor Si Yuzhuo and Professor Chu Beiping: the registered bill of lading does not have to be delivered on the original bill of lading. The judicial practice believes that the registered bill of lading must be delivered against the voucher. The basis is nothing more than that the bill of lading has the functions of "delivery certificate" and "property certificate". However, the theoretical circles have different views on this: First, the understanding of Article 71 of the "Maritime Law" of "voucher delivery" (ie "voucher for delivery"). Professor Si Yuzhuo and Professor Chu Beiping believe that under the name of the bill of lading, the carrier ’s delivery of the goods to the named person stated in the bill of lading has fulfilled the guarantee on which the goods were delivered to the consignee, and there is no need for the named person to produce the bill . Furthermore, the "based on" in the second sentence of Article 71 of the Maritime Law does not mean delivery on the basis of the bill of lading itself, but delivery based on the contents of the bill of lading. Second, the distinction between the real right and the creditor's right of the bill of lading. Beginning in the mid-1990s, the theoretical community had intensive discussions on the "property rights of bills of lading". However, with the deepening of theoretical research, at least in the field of transportation, the view that "the bill of lading does not have property rights" has become a generally accepted view. Judging from the relevant legal provisions in China, Article 78 of the Maritime Law reflects the attributes of statutory debts on bills of lading, but there is no law that clearly specifies the attributes of bills of lading. Although Professor Si Yuzhuo holds the view of "indirect possession", possession itself is a fact, not a right, and even less a property right. The bill of lading is still the same, not to mention the registered bill of lading.

The judicial interpretation of billless delivery unifies judicial practice, but how to reconcile the contradiction between judicial practice and theoretical circles? Combining the above analysis, I personally believe that on the question of whether the registered bill of lading must be delivered on the original bill of lading, it is recommended that judicial practice amend its viewpoint and adopt the view of "registered bill of lading does not have to be delivered on the original bill of lading" to make judicial practice and theory Match to achieve true unity. In addition to the above discussion on "delivery certificate" and "property certificate", individuals also believe that even if the registered bill of lading is not delivered on the original bill of lading, it will not infringe on the legitimate rights and interests of the goods owner under the bill of lading. Specifically: First, both parties have the right to choose the type of bill of lading when signing a sales contract, that is, the buyer and seller can choose to require the carrier to issue a bearer bill of lading or a registered bill of lading. Then both parties have the expectation that the carrier will not release the goods on the original bill of lading in the future. If the seller suffers losses as a result, it is actually a risk in the trade of the sales contract, not the carrier ’s infringement of its rights and interests. Second, before the goods arrive at the port of destination, the shipper has the right to control the goods, which can require the carrier to return the goods or even ask the carrier to refuse to deliver the goods to the consignee of the registered bill of lading to protect their legal rights Rather than relying on the carrier to deliver their vouchers to protect their rights and interests. Third, in other areas of transportation, such as air cargo transportation, the carrier ’s non-receipt delivery practice does not necessarily infringe the shipper ’s legitimate rights and interests.

(Niu Yuan / text)

1. The classification of water cargo transportation referred to in this article

The transportation of water cargo referred to in this article includes:

1. International maritime cargo transportation between China's ports and foreign ports;

2. Coastal cargo transportation between China's ports (including coastal and Haijiang);

3. Inland river freight transportation between China's ports. The water cargo transportation mentioned in this article does not include the water cargo transportation by voyage charter.


2. Application of the Maritime Law in the case of water cargo transportation

According to Article 2 of the Maritime Law, all provisions of the Maritime Law apply to international maritime cargo transportation; all provisions except coastal cargo transportation contracts of Chapter 4 of the Maritime Law apply to coastal cargo transportation; Commercial Law. Therefore, the provisions on the limitation of time in Chapter 13 of the Maritime Law only apply to international maritime cargo transportation and coastal cargo transportation disputes, not to inland river cargo transportation disputes.


3. The stipulations of the starting point and period of the limitation of action in the Maritime Law

Article 257 of Chapter 13 of the Maritime Law stipulates that the time limit for claiming compensation from the carrier for the carriage of goods by sea shall be one year, which shall be calculated from the date when the carrier delivers or should deliver the goods. Therefore, if the water cargo transportation is international maritime cargo transportation or coastal cargo transportation, the one-year statute of limitation period shall apply in accordance with the provisions of Article 257 of the Maritime Law, and the goods shall be delivered from the carrier or shall be delivered From the date.


4. Litigation limitation of inland water transportation

According to the “Response on How to Determine the Limitation Period of Claims for Compensation for the Transportation of Coastal and Inland Water Cargoes” issued by the Supreme People ’s Court in 2001 (hereinafter referred to as “Response on the Limitation of Time Limitation”), the one-year limitation period shall apply to the transportation of coastal and inland river freight , Calculated from the date the carrier delivers or should deliver the goods. Therefore, the starting point and period of the statute of limitations for inland river freight transportation are consistent with international maritime freight transportation and coastal freight transportation.

It is worth mentioning that although the Supreme Court re-confirmed the starting point and period of the limitation of litigation for coastal cargo transportation in the "Response on Limitation", it can be applied to coastal cargo transportation because of Article 257 of the Maritime Law The reply only serves as a guide to judges ’trials. When determining the limitation of litigation on coastal cargo transportation, the relevant provisions of Chapter 13 of the Maritime Law should still apply.


V. Legal application of subrogation claims for water cargo transportation insurance

According to Article 176 of the Answers to Questions and Answers on Foreign-related Commercial Maritime Trial Practices (1) of the Supreme People ’s Court, after the insurer of a contract for carriage of goods by sea obtains the right of subrogation, the legal relationship between the insurer and the person responsible shall be the legal relationship of carriage by sea The statute of limitations should also be determined in accordance with applicable laws concerning the legal relationship of carriage of goods by sea.

Therefore, 1. In the case of international maritime cargo transportation, all provisions of the Maritime Law should be applied between the insurer and the responsible person; 2. In the case of coastal cargo transportation, the maritime insurance should be applied between the insurer and the responsible person All provisions of the Commercial Law except Chapter 4 shall apply the provisions of the "Contract Law", "General Rules of Civil Law" and other relevant laws and regulations to adjust the contract or other legal relationship between them; 3. In the case of inland river freight transportation The provisions of the "Contract Law", "General Rules of Civil Law" and other relevant laws and regulations shall apply between the insurer and the responsible person, and the "Reply on Limitation" of the Supreme Court shall apply.


6. Promulgation of the "Judicial Interpretation of Insurance Law 2" by the Supreme Court

Before the promulgation of the "Judicial Interpretation of Insurance Law 2" by the Supreme Court, the starting point and period of the statute of limitations for disputes between the insurer and the responsible person are determined in full accordance with the basic legal relationship. Therefore, regardless of the method of transportation of goods by water, according to the above discussion, All shall apply to the limitation period of one year, and shall be calculated from the date when the carrier delivers or should deliver the goods.

However, in 2013, the Supreme Court's "Judicial Interpretation of Insurance Law 2" was promulgated. Article 16 stipulates that the limitation period for the insurer's right of subrogation shall be calculated from the date when he obtains the right of subrogation. Since then, the starting point of the limitation of action in insurance subrogation claims has become the focus of disputes between the prosecution and the defense. The responsible person often claims that the insurer has exceeded the limit based on Chapter 13 of the Maritime Law or the "Reply on Limitation" of the Supreme Court. Limitation of action. The insurer believes that Article 16 of the Judicial Interpretation of Insurance Law 2 should be applied. The limitation of action starts from the date when the insurer obtains the right of subrogation, which does not exceed the limitation of action.


7. The Supreme People's Court's reply in 2014 regarding the above limitation issue

In order to solve the above problems, the Supreme People's Court issued a "Response to the Counting Period of the Limitation Period for the Insurer of the Marine Insurance Contract to Exercise the Right of Subrogation for Compensation" (hereinafter referred to as "Response on the Limitation of Subrogation Claims") at the end of 2014. The starting date of the statute of limitation period for the insurer of the marine insurance contract to exercise the right of subrogation to claim compensation shall be determined in accordance with the statute of limitation period for the relevant claim right prescribed in Chapter 13 of the Maritime Law.

According to Article 6 of the "Provisions of the Supreme People's Court on Judicial Interpretation", the Supreme Court's reply belongs to one of the Supreme Court's judicial interpretations. Because the Supreme Court issued the "Response on Subrogation Limitation Time" later than the Supreme Court promulgated the "Judicial Interpretation of Insurance Law 2", the new law is superior to the old law, and the "Reply on Subrogation Limitation Time Limitation" is more effective than "Judicial Interpretation of Insurance Law 2", therefore, if the insurance contract signed between the insurer and the insured belongs to the marine insurance contract stipulated in Chapter 12 of the Maritime Law, and Chapter 13 of the Maritime Law does not apply, The insurer's exercise of the right of subrogation shall be adjusted by the Supreme People's Court's "Reply on the Limitation of Subrogation Claims", and the limitation of action shall be determined from the date of delivery or delivery of the goods.


8. Combating the starting point and period of the statute of limitations for the case of subrogation for water cargo transportation insurance

1. International maritime cargo transportation

International maritime cargo transportation shall apply the provisions of Chapter 13 of the Maritime Law, and the insurance contract between the insurer and the insured is a marine insurance contract, and the provisions of the "Response on the Limitation of Subrogation Claims", "Insurance Law" The Judicial Interpretation No. 2 has no room for application, and the limitation period for litigation is one year, starting from the date when the carrier delivers or should deliver the goods.

2. Inland river freight transportation

In the case of inland water transportation, the Maritime Law does not apply. In addition, because it is not related to maritime shipping, the insurance contract signed between the insurer and the insured is not a maritime insurance contract, so the Supreme People's Court's "Reply on Subrogation Limitation" is not applicable. In this case, applicable laws include "Reply on Limitation" and "Judicial Interpretation of Insurance Law 2". Since the "Judicial Interpretation of Insurance Law 2" was issued later than the "Response on Limitation", the provisions of Article 16 of the "Judicial Interpretation of Insurance Law 2" should be applied. The limitation of action starts from the date of obtaining the subrogation right.

In addition, because the "Judicial Interpretation of Insurance Law 2" does not make any provisions on the limitation period, according to the "Response of the Limitation" of the Supreme Court, the limitation period of one year shall apply.

3. Coastal cargo transportation

The Shanghai Maritime Court tried to analyze the statute of limitations for the litigation of the insurer's subrogation of coastal cargo transportation in the case of a dispute over the maritime cargo transportation contract between China Land Property Insurance Co., Ltd. and China Shipping Huadong Logistics Co., Ltd. In this case, Dadi Property & Casualty was the insurer of Ji'an Group, and the cargo involved was entrusted by Ji'an Group to be transported by China Shipping Company, and was transported from Shanghai Port to Jinzhou Port via waterway. On October 26, 2012, the carrier found that the goods were damaged, and Dadi Property Insurance paid the insurance money to Ji'an Group on August 12, 2013, and obtained the right to seek subrogation. On March 31, 2014, Dadi P & C brought a lawsuit to the court.

The defendant in this case argued that this case should apply the provisions of the Maritime Law on the limitation of litigation, that is, the limitation period for litigation is one year, starting from the date when the carrier delivers or should deliver the goods. The goods in question were delivered to the consignee on October 26, 2012. The plaintiff filed a lawsuit with the court on March 31, 2014, which has exceeded the limitation of action. The plaintiff believes that the time effect of the lawsuit in this case should be calculated from the date of payment of the insurance premium, that is, from August 12, 2013, in accordance with the provisions of the General Rules of the Civil Law and Article 2 of the Judicial Interpretation of the Insurance Law, and the two-year limitation period for litigation applies.

During the trial of this case, the court first considered that the one-year limitation period for litigation should be applied in accordance with the Supreme People's Court's "Reply on Limitation". Again, according to the Supreme People's Administration's "Reply on the Limitation of Subrogation Claims", if the legal relationship between the insurer and the responsible person falls within the scope of the adjustment of the "Maritime Law", then the limitation period for the insurer's exercise of the subrogation claim should apply Chapter 13 of the Commercial Law stipulates that it shall be calculated from the date when the carrier delivers or should deliver the goods; if the legal relationship between the insurer and the responsible person does not fall within the scope of adjustment of the Maritime Law, the limitation period for the insurer to exercise the right of subrogation The starting point shall be calculated from the day when the insurer obtains the right of subrogation in accordance with the provisions of Article 16 of "Interpretation 2 of the Insurance Law". Since this case is for the transportation of coastal goods, it is not subject to the adjustment of Chapter 4 of the Maritime Law. Therefore, the provisions of Interpretation 2 of the Insurance Law shall apply, and the limitation shall be calculated from the date when the insurer obtains the right of subrogation.

I think there are two errors in the judgment of the Shanghai Maritime Court. First, this case should not apply to the Supreme People's Court's "Reply on Limitation". This case is for the transportation of coastal goods, and the provisions of Chapter 13 of the Maritime Law are applied, and the Maritime Law is a higher-level law than the Supreme People's Court's "Response on Limitation" and should be applied in priority. Therefore, although the limitation period is one year, the legal basis of the period determined by the Shanghai Maritime Court is wrong. Second, the provisions of "Interpretation 2 of the Insurance Law" should not be applied in this case. As above, although the transportation of coastal goods is not subject to adjustment in Chapter 4 of the Maritime Law, the limitation of litigation stipulates that in Chapter 13 of the Maritime Law, the transportation of coastal goods is subject to adjustment in Chapter 13 of the Maritime Law. Therefore, the court held that the provisions of "Interpretation II of the Insurance Law" should be applied, which directly violated the principle of the rank of legal effect and there were serious errors. The time effect of litigation in this case shall be calculated from the date when the carrier delivers or should deliver the goods in accordance with the provisions of Article 257 of the Maritime Law.


9. Conclusion

If the water cargo transportation is international cargo transportation or coastal cargo transportation, the insurer ’s subrogation case shall apply to the limitation period of one year and shall be calculated from the date when the carrier delivers or should deliver the cargo. If the water cargo transportation is inland water transportation, the insurer's subrogation recovery case should still apply to the limitation period of one year, but it shall be calculated from the date when the insurer obtains the right of subrogation.

Q: Our company is a non-vessel carrier registered with the Ministry of Communications, but when the bill of lading was actually issued, we signed a non-registered bill of lading. What are the risks of our company in this situation? In addition, when we accept the bill of lading of a generation or designated freight forwarding, we will go to the website of the Ministry of Communications to verify whether it is a non-vessel carrier. We found that the heading in Chinese and English is the non-vessel carrier, but the actual bill of lading format does not match the sample of the online bill of lading. So I want to confirm, is there any problem?

Answer: According to Article 7 of China's "International Maritime Regulations": "For non-vessel shipping business, the bill of lading should be registered with the transportation department of the State Council and the deposit must be paid." Freight forwarders must issue or forward to the NVO for the record Whether a person's bill of lading is legal or not is based on whether or not a recorded bill of lading is used. It cannot be understood that as long as it is filed and the deposit is paid, an undocumented bill of lading can be issued at will. Therefore, strictly speaking, the two situations mentioned by your company do not meet the legal requirements, and the specific risks are as follows:

1. If a non-vessel carrier issues an undocumented non-vessel carrier bill of lading, it may face administrative penalties. Article 48 of the International Shipping Regulations stipulates: "If the filing procedures prescribed in these Regulations are not fulfilled, the transportation department of the State Council or the local people's government authorized by the transportation department of the State Council shall order the filing procedures to be completed within a time limit; A fine of not less than 10,000 yuan but not more than 50,000 yuan, and its corresponding qualification may be revoked. "

2. Freight forwarders who transfer undocumented bills of lading may face liability for compensation. Article 11 of the Provisions of the Supreme People ’s Court on Several Issues Concerning the Trial of Maritime Freight Agent Disputes: "Freight agent companies have not fulfilled their due diligence obligations and entered into maritime operations with non-vessel shipping business operators who have not registered their bills of lading with the transportation authority If the contract for the carriage of goods causes losses to the client, it shall bear the corresponding liability for compensation. "