Abbreviature of adjudication:
If the documents related to the carrier, such as B/L and booking note, indicated that the shipper of goods is other one rather than the plaintiff, and the plaintiff was incapable of proving himself or herself to be the ¡°shipper¡± under Article 42 of the Maritime Law after the court¡¯s interpretation, the case should be closed by the way of dismissing the litigation on the grounds of unqualified plaintiff, rather than by the way of turning down the claims under proof principles, so as to avoid impacts which may be brought by the different cognitions from the different trail grades.
The People¡¯s Republic of China Ningbo Maritime Court
(2013)Yong Hai Fa Shang Chu Zi No.480-1
Plaintiff: Dalian Xingyang Freight Forwading Co., Ltd. Shanghai Branch.
Address: Room 402, No.216 Tangshan Road, Shanghai, China
Principal: YANG Fuhua, the general manager
Authorized Agent: XIE Ming, attorney from Guangdong Geenen Law Firm
Defendant: A.P.Moller-Maersk A/S
Address: Esplanaden 50, 1098 Copenhagen K, Denmark
Legal Representative: Soren Skou, the executive director
Authorized Agent: CAO Fang, attorney from Allbright Law Office
The Plaintiff, Dalian Xingyang Freight Forwading Co., Ltd. Shanghai Branch, ( hereinafter referred to as ¡®Xingyang¡¯ ), prosecuted to our court on May 22nd, 2013 against the Defendant, A.P.Moller-Maersk A/S ( hereinafter referred to as ¡®Maersk¡¯ ) about the contract dispute of carriage of goods by sea. After having requested the Plaintiff to provide supplementary materials, we accepted the case on 15th of July. We organized the collegial panel and heard the case publicly according to relevant laws and regulations on February 27th and March 25th. The authorized agent of the Plaintiff, XIE Ming, and the authorized agent of the Defendant, CAO Fang attended the hearing. The witness applied by the Plaintiff stated on the first hearing. During the hearing of the case, the Defendant raised an objection about the jurisdiction of our court, which was dismissed on September 18th, 2013. The Defendant appealed the decision to Zhejiang Province Higher People¡¯s Court and finally, the decision was maintained. Now the case is concluded.
The Plaintiff, Xinyang, described that they entrusted COSCO Logistics (Ningbo) Co., Ltd. ( hereinafter referred to as ¡®COSCO¡¯ ) to book with the Defendant to export three containers of military supplies to Armenia. The cargo was generally described as textiles. The port of shipment was stated as Ningbo and the port of arrival was stated as Yerevan, Armenia. The Plaintiff delivered the accurate information to COSCO on 7th of March and it was confirmed by COSCO and the Defendant simultaneously. The contract of carriage of goods by sea was, thus, established. On 12th of March, the agent of the Defendant issued the original multi-model Bills of Lading. According to the B/L, the freight was prepaid, the shipper was China Xinxing Import and Export Co. Ltd.(hereinafter referred to as ¡®Xinxing¡¯) and the vessel was MAERSK LIRQUEN, the port of loading was Ningbo, the port of discharge was Poti, Georgia, the transportation was CY to Door and the cargo was described as bulletproof helmets, bulletproof vest and bulletproof Plate. The agent of the Defendant sent the scan copy of the mentioned B/L to the Plaintiff on 15th of March. On March 30th, the agent of the Defendant suddenly informed the Plaintiff to return the cargo due to fact that the cargo described was not true. Although the Plaintiff explained and communicated about the issue for several times, the Defendant ignored the contract and discharged the goods in Egypt arbitrarily. After having learned that the goods was urgently in need, the Defendant forced the Plaintiff to return the goods to Ningbo and threatened the Plaintiff, Xinxing and COSCO to issue a Telex Release Guarantee Letter and promised to undertake all liabilities including all freight and expenses occurred. The Plaintiff had to choose another carrier, CMA CGM to export said goods to the destination. The Defendant¡¯s breach of the contract raised a direct economic loss of the Plaintiff which was as much as RMB 189,871 YUAN including but not limited to the freight loss, returning loss, COD cost, documents cost and tour lost. The Plaintiff supposed that the Defendant, as the carrier, shall undertake the compensation liability for breach of the contract of carriage of goods by sea to the Plaintiff according to the Article 42.3, Article 43 and Article 71 of China Maritime Code and the Article 403 of Contract Law. Meanwhile, according to Article 54 of Contract Law, it was apparently unfair to the Plaintiff that the Defendant detained the goods unless there was a letter of guarantee which stated that the Plaintiff would undertake all the liabilities and expense, so that such Letter of Guarantee should be null and void and be revocable as well. Since the negotiation between both parties was failed, the Plaintiff claimed to our court for the losses which were as much as RMB 189,871 YUAN and corresponding interest loss. The Plaintiff also claimed for the revocation of said Letter of Guarantee. During the second hearing, the Plaintiff explained and confirmed the composition and details of its first claim. The mentioned loss included the return freight (USD 19,173), freight forwarding cost (RMB8330), extra freight (USD1,380), declaration fee (RMB 33,063), container detention and demurrage fee (RMB2,880), freight collected by CMA CGM (RMB5,740) and tour expenses (RMB5,034).
The Defendant, Maersk, did not deliver the written reply. They stated that the Plaintiff was the agent of the shipper instead of the shipper itself. Since there is no contact relationship between the Plaintiff and the Defendant, the Plaintiff shall not be entitled to raise a claim. The return of said goods was due to the Plaintiff¡¯s fault in declaration which was found out and corrected by the Defendant during the voyage. Whoever under the said contract of carriage made mistakes, both parties met into agreement that the goods should be returned to Ningbo and be delivered to Xinxing. Consequently, the contract was changed and there was no such situation which was apparently unfair or threatened during the case. The Plaintiff didn¡¯t verify its loss, and even if there was such losses, the Plaintiff should claim to Xinxing according to the freight forwarding contract instead of the Defendant. The Defendant charged only USD 19,173 and RMB 6,980 for the transportation expenses, miscellaneous expenses and other expenses claimed by the Plaintiff were irrelevant with the Defendant. The Letter of Guarantee was issued by Xinxing to the Defendant and the Plaintiff was just a warrantor under the Letter of Guarantee, so it was not entitled for the Plaintiff to apply for the revocation. Meanwhile, the Plaintiff didn¡¯t prove that the Letter of Guarantee was apparently unfair and they were threatened to issue it. Since the Plaintiff couldn¡¯t prove that the expenses was through loans or mortages from bank, the interest should be calculated by the deposit interest rate instead of the loan interest rate. Consequently, all the claims shall be dismissed and rejected.
In order to prove their claims, the Plaintiff provided below materials, 1.Booking Note, in order to prove that the Plaintiff entrusted the COSCO to book with the Defendant on February 29th, 2012 and it was accepted by the Defendant on the same day. The goods were stated as normal textiles. 2. The information of the goods and EDI record, in order to prove that the Plaintiff sent the exact goods information to COSCO and COSCO delivered such information to the Defendant by ENS on March 7th. 3. The modification of the B/L, in order to prove that the goods were stated properly and the shipping mark was requested to be modified. 4.D/R, in order to prove that the Defendant had received said goods. 5.B/L. 6.Returning B/L 7.B/L issued by CMA CGM on May 31st, 2012. 8.e-mails, in order to prove that the Defendant forced the Plaintiff to return the goods. 9. Letter of Guarantee, in order to prove that the Defendant threatened the Plaintiff, Xinxing and COSCO to issue a Telex Release Guarantee Letter and promised to undertake all liabilities including all freights and expenses occurred. 10. Port Record, in order to prove that said goods were delivered on May 29th. 11. Permission License for exporting military products and custom declararion of xinxing . 12.E-mails, in order to prove that the Defendant collected the freight as much as USD 19,173 and RMB 6,980. 13. Commercial Invoices and payment voucher under the B/L No.577917749 issued by COSCO on June 8th. 14. Commercial Invoices under the B/L No.NBCAO35247. 15.Commercial invoices about the transportation and accommodation cost of the employee, witness and attorney, in order to prove the tour expenses occurred. 16. Statement issued by Ningbo YIZI Customs Declaration Co., Ltd, in order to prove that it was entrusted by the Plaintiff to handle the customs declaration issues. 17.Details and statement about the expenses happened issued by COSCO.
The Defendant delivered below materials to our court in order to prove their opinion. 1.Booking Note, in order to prove that it is COSCO rather than the Plaintiff who booked with the Defendant and the goods were stated as textiles. 2.e-mails sent from the Defendant to COSCO on March 30th , in order to prove that Maersk asked COSCO to check whether the booking of military supplies were confirmed when they found that the goods carried were military supplies instead of textiles. 3. Letter of Guarantee, in order to prove that Xinxing confirmed that the Plaintiff was the freight forwarder and asked for the change of delivery port to Kelang and, meanwhile, issued the Letter of Guarantee. 4. E-mails, in order to prove that the Defendant asked the Plaintiff to offer the information and documents about the COD. 5. Letter of Guarantee. 6. The business licenses of Maersk Line (China) A/S, in order to prove that it was the agent of the Defendant in China.
The witness applied by the Plaintiff, YANG Guojie, stated about the returning of said goods and the negotiation proceedings between both parties during the hearing.
We surveyed relevant staff of COSCO on March 12th and made records at the request of the Plaintiff.
We hold that it was the basic and paramount issue that whether the Plaintiff is a proper Plaintiff or not. According to the evidence materials No.1, 3, 5, 6, 7, 9, 11 of Plaintiff , the export company and the shipper was Xinxing. Meanwhile, the Booking Note, Bill of Lading, Letter of Guarantee and other data all stated that the shipper was Xinxing and the Plaintiff was only the freight forwarder of Xinxing. Consequently, it is not reasonable for the Plaintiff to claim that he was the shipper according to Article 42.3 of China Maritime Code. The Plaintiff didn¡¯t deliver any evidence to prove that the Plaintiff used the entity of Xinxing to export and deliver the goods due to the lack of military import and export qualification. The fact of booking said goods, customs declaration and negotiation with the modification of B/L could not necessarily prove that the Plaintiff was the actual shipper according to China Maritime Code. Thus, the reason and the materials offered by the Plaintiff with relevance to the contract relationship between the Plaintiff and the Defendant was insufficient and could not necessarily prove that the Plaintiff was an interested party in the case. The Plaintiff, therefore, was not qualified. According to the Article 64.1, Article 119.1 and Article 259 of Civil Procedure Law, the court judged as below,
Reject the prosecution of Dalian Xingyang Freight Forwading Co., Ltd. Shanghai Branch.
The Plaintiff may deliver petitions for appeal in 10 days and the Defendant may deliver petitions in 30 days since the delivery of this Ruling to Ningbo Maritime Court. Copies of petitions according to the number of the other parties are required to offer and appeal to Zhejiang Province Higher People¡¯s Court.
Presiding Judge, ZHANG Jilin
Acting Judge, XU Jiajing
Acting Judge, ZHANG Jiansheng
Court Clerk, ZHENG Jing