Document Case: The Contractual Relationship Does Not Depend Entirely On The Bill Of Lading.

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Document case: the contractual relationship does not depend entirely on the bill of lading.

Key words: document case: contractual relationship does not depend entirely on bill of lading record.

Summary

In the case of goods without bills of lading, whether there is a contractual relationship between the plaintiff and the defendant is not entirely determined by the record of the bill of lading.

Although the case is not the shipper recorded in the bill of lading, it has formed a contract of carriage of goods by sea with the defendant, whether in law or in fact.

The defendant, as the carrier, has the contractual obligation to deliver the goods on the original bill of lading. He is liable for breach of contract if he fails to deliver the goods in accordance with the original bill of lading.

At the same time, the plaintiff holds the original bill of lading legally, and the defendant does not release the goods on the basis of instructions made by the instructions of the bill of lading.

Case

Plaintiff: Zhejiang textile import and Export Corporation

Defendant: Li Rong shipping Limited by Share Ltd

In July 31, 2000 and August 7th, the plaintiff and the outsider K signed 200 thousand sales confirmations for male and female school uniforms respectively by fax.

Subsequently, after the plaintiff completed the purchase of the goods involved in the case to the domestic manufacturers, the agent of the international freight forwarder, Shanghai International Freight Forwarding Co., Ltd., Shanghai Samsung International Freight Co., Ltd., was shipped to the defendant at the start Port Port International Freight Forwarding Co., Ltd. - the Hon Hai International Freight Co., Ltd. - the Shanghai International Freight Forwarding Co., Ltd., which was ordered by the international freight forwarder of Hong Kong (21) to obtain the 21 sets of original bills of lading, which were issued by the United Nations International Shipping Agency Co., Ltd., which were issued by the United Nations International Shipping Agency Co., Ltd., respectively, which were instructed by the higher education and scientific research department of Iraq according to three foreign companies.

For this reason, the plaintiff paid the corresponding sea freight to the first export freight agent Huahai International Freight Co., Ltd.

In the trial, the defendant confirmed that the relevant shipping charges had been shipped from the Shanghai Samsung International Freight Co., Ltd., and the plaintiff collected the full set of trade documents through the Bank of communications Hangzhou branch to HBZFINANCELIMITED. Because of the no redemption order, the full set of trade documents were eventually refunded by the bank. The return of the documents had not been endorsed by the higher education and scientific research department of Iraq.

In the trial, the defendant confirmed that the goods involved were pported to Iraq after he arrived in Iraq and sent to the Iraqi national water pport company designated by the government. The latter delivered all the goods to the higher education and scientific research department of Iraq, and the original cargo bill of lading was not recovered.

Referee

The first instance of the Shanghai maritime court held that the plaintiff had the principal qualification of the shipper involved in the case, and that it was legitimate and legitimate when the dispute was brought to the hospital, and it had the right to claim the corresponding rights under the bill of lading to the defendant accordingly.

The defendant, as a carrier who violates the shipping practice, does not take back the original bill of lading when delivering the goods involved. He should bear the corresponding breach of contract caused by the delivery of the goods without any original bill of lading and compensate the plaintiff for the actual losses he suffered.

Accordingly, the defendant was judged to compensate the plaintiff for the loss of the goods and the tax refund, as well as the interest of the above amount.

The defendant refused to accept the first instance and filed an appeal.

After hearing the case, the higher people's Court of Shanghai held that the original judgment was clear and the law was correct.

Comment and analysis

This case is a case of compensation for damages arising from the carriage of goods by sea without contract.

The forty-first provision of China's maritime law stipulates: "contract of carriage of goods by sea" means a contract whereby the carrier charges freight and is responsible for pporting the consignor's goods by sea to another port.

There are many interests and parties involved in the contract of carriage of goods by sea, including the carrier, the actual carrier, the shipper, the actual shipper and the holder of the bill of lading.

How to identify the legal status of the parties, how the legal relationship between them, and what rights and obligations they undertake each other is confusing and controversial.

The case involves two important issues, namely, the identification of the shipper and the identification of the carrier's liability.

First, the basis of the shipper's identification: the plaintiff and the defendant carrier, whether in the legal or in fact, have formed the contractual relationship of carriage of goods by sea.

I or entrust another person in his own name or entrust another person to enter into a contract for the carriage of goods by sea on his behalf with the carrier; 2., I may entrust another person with his own name or entrust another person to hand over the goods to the carrier who is related to the contract of carriage of goods by sea for himself. "

This rule is derived from the Hamburg Rules, and the four Nordic countries have similar provisions.

To identify whether the plaintiff is a shipper, it should be judged as a standard.

This case is to identify and identify the shipper's identity from the following aspects.

1. The person who actually delivers the goods may become a consignor in the contract of carriage according to law.

The forty-second item (three), second item of the maritime code can be understood as a provision for the actual shipper.

The actual shipper is created by the maritime law, which is based on the fact or behavior of its actual shipment of goods. It is the subject of the legal relationship of maritime pport because of the compulsory provisions of the law, and has been given certain rights and obligations of the shipper.

The actual shipper's delivery of goods can be carried out by himself or entrust another person to execute in his own name, or entrust another person to implement it for himself, rather than requiring it to be implemented or implemented in its own name.

It is not difficult to see from the facts of the case that the plaintiff had handed over the goods involved to the defendant through various freight forwarding agencies after completing the purchase from the domestic manufacturers.

In addition to the plaintiff, there is no evidence that another person has delivered the goods involved to the defendant.

Therefore, the plaintiff obtained the actual shipper's identity in accordance with the provisions of the maritime law, thus establishing a contract of carriage of goods by sea with the defendant in law.

2. The actual shipper holding the bill of lading has a more substantive interest than the shipper specified in the bill of lading.

There is no written contract of carriage of goods by sea. In the absence of a written contract, the determination of the parties to the contract of carriage of goods by sea can be determined in the light of the facts actually executed by both parties, and not entirely on the record of the bill of lading.

This is because the contract of carriage of goods by sea is not exactly the same as the bill of lading. The bill of lading is only a proof of the contract of carriage of goods by sea, but it is not the only proof.

Because before the bill of lading was issued, the shipper asked for the booking requirement for the carrier, and some pport relations existed.

If the parties concerned have written documents, needless to say, if there is no written document, reference can be made to the consistency of the parties' intention by referring to the shipping date, advertisement (invitation to offer), consignment list, loading list and freight list and the custom or convention of the place of shipment.

If agreed, the pport relationship can also be established.

Therefore, the main body recorded in bill of lading may be only a party in the form of pport contract.

In practice, the situation of the difference between the main body of the bill of lading and the subject of the contract of carriage is possible.

In this case, the plaintiff delivered the goods to the defendant and paid the freight through the freight forwarder, and put forward the specific requirements for the repair of the bill of lading. The defendant issued the bill of lading in accordance with the requirements of the plaintiff, recorded three foreign companies as the name shipper, delivered the order to the freight forwarder entrusted by the plaintiff, and charged the freight involved from the freight agency, which proved that the plaintiff and the defendant actually established the contract of carriage of goods by sea.

Compared with the contractual relationship between carriage of goods by sea and the carrier formed by the bill of lading, this relationship is more substantive and preferable in terms of civil rights and litigation interests.

Two. The basis of carrier's liability confirmation is that the defendant's carrier's breach of contract does not cause damage to the plaintiff's shipper.

1, the carrier shall not be liable for breach of contract without delivery of the goods.

It is decided by the diversity of the form of goods without the presentation of LC and the special functions and attributes of the bill of lading. In general, the goods without a LC constitute a breach of contract, but in some cases it constitutes a concurrence of infringement or breach of contract and tort.

In 2001, the president of the national maritime court held a symposium on "three, the identification and responsibility of the carrier in the carriage of goods by sea" also said, "under normal circumstances, a person who legally holds the original bill of lading shall claim compensation from the carrier for the delivery of goods without bills of lading. It should be characterized as a breach of contract, and the carrier shall bear the liability for damages directly related to the goods without the act of delivering the goods separately."

In this case, there is a contractual relationship between the plaintiff and the defendant in the carriage of goods by sea. The carrier has the contractual obligation to deliver the goods on the original bill of lading. The carrier is not in breach of the original bill of lading. It is a breach of contract and should be liable for breach of contract.

According to the 107th provision of the contract law of China, "if one party fails to fulfill its contractual obligations or fulfills its contractual obligations, it shall be liable for breach of contract, such as continuing performance, remedial measures or compensation for losses."

2, the plaintiff legally holds the original bill of lading, the defendant does not release the goods on the basis of instructions made by the instructions of the bill of lading, and can not obstruct the liability for breach of contract.

The instrucer instructing the bill of lading to instruct the carrier to deliver the goods must be the lawful instrucer specified in the bill of lading or the right successor authorized by its legal endorsement, which is usually the lawful holder of the bill of lading, that is, if the shipper is the instrucer, the bill of lading has not yet been pferred; if the third party is the instrucer, the third party usually holds the bill of lading or is authorized to do so when making the instructions.

Otherwise, the instrucer will not have the right to make instructions for the delivery of goods.

But in any case, when the bill of lading is instructed, the carrier shall deliver the goods to the lawful holder of the bill of lading or his designated agent and recover the corresponding bill of lading at the same time. If the carrier merely releases the bill of lading on the basis of the instructions of the instrucer and does not withdraw the bill of lading at the same time, it will constitute a cargo without a LC, so it can not oppose the third party holding the original bill of lading in good faith, including the shipper who legally holds the original bill of lading.

In this case, the plaintiff has taken the form of the bill of lading to the court in the case of disputes involved, which is different from the general circulation form of the bill of lading in the trade sense. However, the plaintiff has shown that the bill of lading held by the plaintiff is derived from the bank's withdrawal form. Therefore, the withdrawal of the bank held by the plaintiff due to trade setback should be regarded as equivalent to the original document that has been legally held by the plaintiff after the issuance of the defendant's agent in the port of shipment and has been issued by the plaintiff after the issuance of the first holder of the port bill of lading with the owner of the port of shipment.

At the same time, more than two years after the shipment of the goods involved, no one except the plaintiff has claimed the corresponding rights under the bill of lading in the original maritime claim. If the defendant did not issue another duplicate set of bills of lading on the same ticket, there would be no third party in the contract of carriage to claim the rights under the bill of lading on the basis of the one-way defendant. The defendant, as the carrier, will not be liable for double liability, and the plaintiff as a consignor may also protect his lawful rights and interests when he fails to settle the foreign exchange.

In short, in the case of the issue of a bill of lading, it is a golden rule for the carrier to identify the bill of lading, in addition to proving that the holder of the bill of lading is unlawfully possessing the bill of lading. In violation of this rule, the carrier is bound to undertake the liability of compensation arising from the delivery of goods without delivery.

Accordingly, the court held that the plaintiff was in a single form lawfully and legitimately and had the right to claim the relative rights of the bill of lading against the relative party.