Huiye Customs Lawyer Tips:
2022) Hu 72 Min Chu No. 353.
Brief facts of the case. Company J purchased a batch of ink from the plaintiff Company D, and the parties agreed that the plaintiff would arrange production after receiving the 20% deposit, and Company J would pay 80% of the balance after seeing the scanned copy of the bill of lading. On June 15, 2021, Company J remitted USD 39,832 to the plaintiff, Company D. On September 7, 2021, the defendant Company F, as the first person of the defendant Group F, issued a sea bill of lading numbered CNMD0264XX, which stated that the shipper was the plaintiff Company D, the carrier was the defendant Group F, and the consignee and notifier were Company J. The bill of lading was issued by the defendant F China Company as the carrier of the defendant F Group, and the defendant F Group also confirmed at the trial that the defendant F China Company had obtained its authorization to issue the bill of lading in question. On October 30, 2021, the goods involved in the case arrived at the port of Payson for unloading. On January 14, 2022, the goods in question were sent to the consignee while the plaintiff still held a full set of original sea bill of lading. The plaintiff is still in possession of the full set of original sea bills of lading. On December 12, 2022, a member of Group F sent an email to the email address named [email protected] inquired about the customs clearance channel of the goods involved in the case, and the reply was that "the goods under the corresponding parametric import application number: 21 2275XXX-X went through the green channel".
It was also ascertained that because Company J had not paid the remaining payment for the goods for a long time, the plaintiff Company D had separately approached Company G and tried to sell the goods involved in the case to Company G. The plaintiff, Company D, confirmed that it had actually received a total of US$108,780 from Company G, and confirmed that upon receipt of the payment, it sent the full set of original bills of lading to Company G on 12 January 2022. When inquiring about the whereabouts of the goods involved in the case through the defendant Group F**, the plaintiff Company D found that the goods had been picked up on January 14, 2022, so it verified the situation with Company G. After verification, Company G confirmed that the goods had been picked up, but the full set of original bills of lading was still held by Company G. After negotiation with Company G, the plaintiff Company D decided that Company D would take back the original bill of lading, sue the carrier, and file a claim, so Company G sent the full set of original bills of lading back to the plaintiff. Between February 2022 and May 2023, the plaintiff communicated with Company G via email, and the two parties reached an agreement on how to distribute the goods after assuming that the final defendant, Group F, compensated the plaintiff for all the loss of the purchase price.
Court decision. The defendant, Group F, compensated the plaintiff, Company D, for damages in the amount of USD 172,528 and the loss of interest.
Problem focus. the legal status of the 1. and 2 defendants in the case;
2. Whether the two defendants should be jointly and severally liable to the plaintiff for the act of releasing goods without a bill;
3. Whether the plaintiff has actual losses, and if so, how to determine the amount of losses.
Legal Commentary. The plaintiff argued:
The defendant F Group shall be liable for the losses of Company D if it delivers the goods without receiving the original bill of lading, and the defendant F China Company shall be jointly and severally liable with the defendant F Group without proving that it has obtained the authorization of the defendant F Group to sign the bill. Accordingly, the plaintiff requested the court to order the two defendants to jointly and severally compensate the two defendants for damages in the amount of USD 172,528 and the loss of interest.
The defendant argued:
The carrier's obligation to deliver the goods to the local terminal is a mandatory obligation under Brazilian law, and the carrier's responsibility expires when the goods are delivered to the terminal, and the defendant Group F has delivered the goods to the port of destination in accordance with Brazilian law, and should not be liable for the delivery of the goods without the original bill of lading; The goods involved in the case were cleared through the green channel of Brazilian Customs, and the cargo owner could pick up the goods without providing the original bill of lading to Brazilian Customs, and the carrier objectively had no control over the goods; The plaintiff did not provide sufficient evidence to prove its losses, and it did not actually suffer any losses; Defendant F China Company is the first person of the carrier, Defendant F Group, not the carrier, and should not be liable for compensation.
The Court held that:
1. Group F is the carrier in the contract of carriage of goods by sea, and Company F China is the authorized person of Group F and should not be jointly and severally liable for the plaintiff's losses.
2. Group F shall be liable for the plaintiff's loss of USD 172,528.
This article argues:
1. On the legal status of the two defendants in the present case.
This case is a dispute over a contract for the carriage of goods by sea. When the plaintiff sued, it named Group F and Company F China as co-defendants. The plaintiff, Company D, was the holder and the shipper specified in the bill of lading, and the defendant Group F was the carrier specified in the bill of lading, the shipper and the carrier respectively, and the two parties established a contract for the carriage of goods by sea. The Chinese company never issued a bill of lading to the plaintiff in its own name and was not the carrier of the goods in question. The plaintiff, Company D, also did not directly entrust China Company F to handle freight forwarding services such as booking, and Company F China did not play the role of freight forwarder in the maritime freight business. In fact, F China should be the first person of F Group. The plaintiff, Company D, asserted that Company F had no right to ** and demanded that it should bear joint and several liability. Although F China Company never presented the authorization materials to the plaintiff, in this case, the bill of lading involved in the case stated that F China Company issued the bill of lading as the first person of the defendant F Group, and F Group also confirmed this, and the business scope of the defendant F China Company included the issuance of bills of lading for the defendant F Group, so F China Company had the right to issue the bill of lading of F Group, and it was not without the right to **, and should not be jointly and severally liable for the plaintiff's losses. From the perspective of litigation strategy, it is also understandable that the plaintiff's lawyer included F China Company as a co-defendant.
2. On the issue of whether the defendant Group F should be liable to the plaintiff for the act of releasing goods without a bill.
Bill of ladingIt is a document used to prove the contract of carriage of goods by sea and that the goods have been received or loaded on board the ship by the carrier, and that the carrier undertakes to deliver the goods. According to the container circulation records, the containerized goods involved in the case were sent to the consignee on January 14, 2022, so when the plaintiff still held a full set of original bills of lading, Group F's act of releasing the goods without a bill of lading was established. The defendant F Group delivered the goods without recovering the original bill of lading, resulting in the plaintiff being unable to control the goods without receiving the payment, and should bear the liability for breach of contract for the release of the goods without a bill of lading in accordance with the law.
Defendant Group F argued that Article 7 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving the Delivery of Goods without Original Bills of Lading stipulates that if the carrier must deliver the goods to the local customs or port authorities in accordance with the laws of the place where the port of discharge is located as specified in the bill of lading, it shall not bear the civil liability for the delivery of goods without the original bill of lading. According to the provisions of Brazilian law at the port of destination, the goods involved in the case were forcibly delivered to the local port after arriving at the port of destination, and the carrier lost control of the goods after delivery, and the goods involved in the case were cleared through the green channel, and the carrier could not control the release of the goods, so it should not be liable for compensation for the release of goods without a bill.
Although this article provides that the carrier may be exempted from liability under certain circumstances for releasing the goods without a document, it also assigns a heavier burden of proof to the carrier. First, the carrier has to prove that it has indeed made compulsory delivery of the goods to the terminal or port authorities in accordance with the Brazilian law asserted. It did not provide valid evidence that the Brazilian terminal or port authorities had indeed received the goods in question, which was not sufficient to prove the fact that the goods in question had been forcibly delivered. Secondly, according to the Brazilian Decree 680 2006, if the goods are cleared through the green channel, they are registered in the release system for automatic customs clearance, and there is no need to carry out any document verification or physical inspection. The defendant Group F also had to prove that the goods involved in the case had indeed been cleared through the green channel. However, in this case, Group F was unable to provide valid evidence that the goods had been delivered to the Brazilian terminal or port authorities and that the goods in question had indeed been cleared through the green channel. Accordingly, the Court rejected Group F's defences. Group F belongs to the world's top five shipping companies, and its ability to connect with port authorities should be much higher than that of other ordinary shipping companies. Moreover, after nearly a year and a half from the filing of this case in February 2022 to the conclusion of the case in July 2023, Group F was still unable to submit valid evidence to prove its views, which shows the difficulty of proof.
3. On the issue of whether the plaintiff Company D has actual losses, and if so, how to determine the amount of losses.
The plaintiff Company D provided the customs declaration form and commercial invoice for the export goods involved in the case, proving that the value of the goods involved in the case was USD 212,360, and the plaintiff Company D only received the payment of USD 39,832 from the consignee, so it can be determined that the plaintiff Company D has an actual loss and the loss is USD 172,528. However, this case is different from other cases of release without a bill of law in that after the goods arrived at Hong Kong, the plaintiff found a new buyer, G, because Company J had not paid the price as agreed, and received the remaining payment of USD 108,780 from G. The defendant, Group F, argued that the plaintiff Company D had received the payment from the new buyer of the goods, Company G, and that the loss of the plaintiff Company D was not as large as it claimed. The difficulty in this case was how to determine whether the plaintiff's actual loss was USD 172,528 for the value of the goods not received or USD 63,748 after deducting the amount received from G.
In our opinion, since the establishment of a contract for the carriage of goods by sea between the plaintiff Company D and Group F, and the establishment of a sales contract relationship with Company G, according to the relativity of the contract, the transaction of the goods and the settlement of the payment between the plaintiff Company D and Company G were not directly related to the dispute between the plaintiff and the defendant Group F arising from the release of goods without a bill, nor did it have a direct impact on the amount of losses that the court determined that the defendant Group F should compensate the plaintiff. The plaintiff, Company D, failed to deliver the goods as agreed after receiving the payment, which constituted a breach of contract and should bear adverse legal consequences to G. However, the breach of contract of the defendant Group F in releasing the goods without a bill of approval did cause the plaintiff Company D to lose control of its goods, resulting in a loss of USD 172,528 equal to the value of the goods to the plaintiff Company D, and Group F should bear the plaintiff's losses. In addition, the plaintiff Company D also provided valid evidence to prove that it had reached an agreement with G that if the case was successful, the plaintiff Company D would pay the claim costs to Company G after deducting the attorney's fees. Therefore, the court ordered the defendant to compensate the plaintiff Company D for the damages reasonably and justifiably.