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.

 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.

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.

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. "