[This article is the original work of Zhai Dongwei's logistics lawyer team, the team's *** Pearl River Delta logistics lawyer, the team's official website: www.]wuliulvshi.16 years of professional handling of maritime, aviation and land transportation and other logistics legal disputes
In recent years, we have often seen that some lessors and charterers do not have a written charterparty between them, and in the event of a dispute, the maritime court will determine whether the contract is established in accordance with the law.
In the case of a charter contract between a logistics group in Tianjin and a steel pipe in Qinhuangdao, Qinhuangdao Company conducted a tender for the marine transportation and port operation of steel pipes and binding and reinforcement of the Egyptian pile pipe project, and the bidder clearly stated in the bid that the bidder should pay a deposit of RMB 6 million and sign a contract with the steel pipe company within 3 working days after winning the bid. Tianjin Logistics Company went to the steel pipe company to bid, but did not pay the deposit. Qinhuangdao Company issued a notice of winning the bid to Tianjin Logistics Company, and the winning bid ** was consistent with the last time of the logistics company, and notified the logistics company to sign a contract with the steel pipe company on January 25, 2016, but the two parties have not signed a written contract so far.
In this case, the key question is whether the failure to perform the "signing a contract with the steel pipe company within 3 working days after winning the bid" mentioned by Qinhuangdao means that the contract cannot be established. At present, among the existing documents, more are the bidding documents and correspondence documents between Qinhuangdao Company and Tianjin Logistics Company, and whether these materials can be regarded as having formed a charter contract?
In this regard, the Tianjin Maritime Court held that: "Although the two parties did not sign a written contract, the two parties had no objection to the establishment of a contractual relationship on the loading and unloading, transportation and other matters of the goods involved in the case, so the content of the contract should be determined through the bidding, bidding, bid-winning documents, cost confirmation letters and emails of both parties." Based on the above-mentioned documents, the court determined that the main content of the contract was: "xxxxxx". At the same time, based on the fact that the parties have not signed a written contract, the court will determine whether a contract has been formed based on the bidding documents and correspondence documents, and will further determine the specific content of the contract.
In response to this judgment of the Tianjin Maritime Court, maritime lawyers believe that practitioners should fully understand the provisions of Article 43 of China's Maritime Law: "The carrier or shipper may request written confirmation of the conclusion of the contract of carriage of goods by sea. However, the voyage charterparty shall be concluded in writing. Telegraphs, telex and facsimile shall be in writing. Although it is required that the voyage charterparty should be concluded in writing, telegrams, telexes, faxes and other documents with similar written carriers, from which the expression of intent of both parties can be confirmed, should be determined to have "written effect", which is also an important basis for the Tianjin Maritime Court to make this judgment. This article of China's "Maritime Law" does not limit the written effect to "telegrams, telex and faxes", and other similar written documents with such effect can also be included. What the court attaches more importance to and pays attention to is often whether the parties have truly formed an agreement through some written documents, and will not overly pursue whether the title is a formal "xxx contract". Therefore, for disputes such as whether a contract is established, it is recommended that practitioners can refer to this case, but it is naturally more worthy of advocating for a more standardized contract.