damages compensation of maritime freight transport contract

Updated：2002-11-01 Views：2802 
Plaintiff: Grain & Oil (Group) General Co. , Hebei Province

Address: No.37, Ziqiang Road, Shijiazhuang City, Hebei Province.

Legal representative: Pang Yingbiao, chairman of the board.

Authorized attorney: Wang Peng, attorney-at-law of MAGNA Law firm.

Authorized attorney: Wang Hongyu, attorney-at-law of MAGNA Law firm.



Defendant: ASIL GIDA KIMYA SANAYI VE TICARET A.S. 

Address: Prof. Dr. B¨?lent Tarcan Sokak No.5 Gayrettepe-Istanbul, Turkey.

Legal representative: H. Canan Pak Tumay, general manager.

Authorized attorney: Yang Wengui, attorney-at-law of Haitong Law Firm.

Authorized attorney: Liu Zuoming, attorney-at-law of Haitong Law Firm.



The plaintiff, Hebei Province Grain & Oil (Group) General Co., took legal action against defendant, ASIL GIDA KIMYA SANAYI VE TICARET A.S. before Tianjin Maritime Court for damages compensation of maritime freight transport contract on August 11, 2000. The court constituted the collegiate panel in accordance with the law after accepting the cases and finishing the jurisdictional dispute procedure. The court held two public hearings on July 6, 2001 and July 18, 2001 respectively. Authorized attorneys of plaintiff, Wang Peng and Wang Hongyu (absent at second hearing), and authorized attorneys of defendant, Yang Wengui (absent at second hearing) and Liu Zuoming, appeared in court and participated in the lawsuit. Now the case is finished.



Before the acceptance of this lawsuit, on July 13, 2000, the court made Civil Judgment (2000) Hai Gao Li Bao Zi No. 31 to accept the preservation of evidences asked by Plaintiff, and ordered ?°MUSTAFA NEVZAT?± steamship owned by defendant to submit pertinent freight documents to the case. On the same day, the court made Civil Judgment (2000) Hai Gao Li Bao Zi No. 32 to accept preservation of property and arrested the ship. After afforded RMB 13,000,000 Yuan for guarantee, the defendant can get the ship back.



The plaintiff alleged: the plaintiff, acted as agent of Lipin Company Hebei Province, made a contract with Singapore WILMAR TRADING PTE. LTD (hereinafter referred to as WILMAR) to import soybeans produced in Brazil on April 27, 2000. The contract says, WILMAR provides plaintiff 24,000 tons (??10% decided by the seller) soybeans produced in Brazil with USD 224.50 per ton on CNF (Tianjin, China). The cargo was loaded on the ship ?°MUSTAFA NEVZAT?± which owned by defendant at ITACOATIARA port of Brazil on May 9, 2000. The loading port representative on behalf of the captain of defendant signed uniformity of three clean bills of lading as No.2. It shows that the amount of loading cargo is 24,800.424 m tons. WILMAR provided plaintiff various inspection certificates and commercial invoices to prove that cargo were in perfect condition during the loading. Plaintiff paid full price of cargo through Communication Bank Shijiazhuang Branch and insured full coverage with USD 15,360.55 insurance fee. The ship arrived at Tianjin port on July 1, 2000. During unloading it was found that parts of the cargo were seriously mildewed. Through the inspection of Tanggu Depart & Entry Inspection and Quarantine Bureau (hereinafter referred to as IQB), the losses of cargo reached RMB 12,190,698.05 Yuan. The plaintiff holds original Clean Bill on Board B??L, and has the right to get perfect cargo at unloading port. The defendant as carrier should take the responsibility of compensation of the damaged cargo.



During the hearing, the plaintiff changed the claim and alleged that the loss was verified as RBM 8,274,151.80 Yuan. It includes the following items: ??Cost Insurance and Freight (CIF) market price of concerned cargo in good condition is RMB 2,300 Yuan per ton. The received damaged cargo were in three degrees, 80%, 60% and 30% respectively and the cargo loss was RMB 7,455,790.40 Yuan; ??The extra cost for damaged cargo treatment like fractional load and short shifting was RMB 698,956.40 Yuan; ??Damage commercial inspection cost was RMB 34,942 Yuan; ??Legal cost and preserving costs were RMB 84,463 Yuan.



The defendant argued that because of the high moisture, too many broken kernels, together with the influence of weather, temperature and long time in the navigation, and all these led to the cargo mildewed. It is not the fault of carrier. The carrier provided the seaworthy ship; did their best to ventilate the cargo during the navigation and took their duty to keep the cargo in good condition. The plaintiff does not have enough evidences to support his damage, and he does not have the right to sue. The defendant petitioned the court to reject claims of the plaintiff.



During the hearing both plaintiff and defendant agree with following facts:



The Plaintiff import soybeans produced in Brazil on May 9, 2000, and the cargo was loaded on the Turk ship ?°MUSTAFA NEVZAT?± owned by defendant. The defendant signed the Clean Bill on Board B??LNo.02. The B/L shows that the consignor was WILMAR; the consignee followed instruction; informer was defendant; loading port was ITACOATIARA/AM/Brazil; unloading port was Tianjin, China; loading cargo was 24,800.424 m tons soybeans produced-in-Brazil in bulk, which was loaded in holds 2, 4, 6 and 7 respectively; carriage charge was paid in advance.



On July 1, the cargo arrived at Tianjin port and cargo damage was found out during the unloading. IQB inspected the damaged cargo and made damage certificate: through the inspection to holds 2, 4, 6 and 7, it was found that all cargo in the surface layers was hardened and mildewed seriously; and there was obvious rancid smell in the holds. The mildewed cargo of surface layers showed gray-white and there was clear waterlog marks on it. The waterlog marks was obvious under the hatch coaming and the cargo mildewed seriously. The cargo cross sections of hardened and mildewed layers in holds 2, 4 and 7 showed a depth of 30 cm; there were obvious waterlog marks at the joint parts between cargo and hold walls and shells; cargo hardened and mildewed; the depth of cargo cross sections of hardened and mildewed layers in hold 6 reached 50 cm; the cargo under mildewed layers appeared brown because of heat redding and parts of cargo appeared black because of charring accompanied, and together with obvious rancid smell. Through the further inspection, weight and damage analysis after fractional unload, the damaged amount and degree of losses are the following: ??1,827.800 m.t. of cargo mildewed seriously and could not be used for original purpose; cargo damage reached 80%; ??844.630 m.t. of cargo reddened, charred and were mixed with mildewed substances together with rancid smell; sales and use of which would be affected; estimated damage was 60%; ??4,242.100 m.t. of cargo partly reddened and charred; sales and use of which would be affected; estimated damage was 30%.



After unloading, the plaintiff picked up the cargo referred to the case with original B/L and defendant delivered the cargo.



During the pre-suit preservation of property evidences period, our judges made two investigation notes while investigating the captain of the ship, and many kinds of evidences in connection with freight were collected, including ship structural drawing, ship specifications, ownership certificate of the ship, ship's classification certificate, ship safety equipment certificate, international load waterline certificate, notice of readiness, chief mate's receipt, cargo stowage plan, cargo plan, crew list and certificate of competency of main senior seamen respectively.



After the cross-examination, both parties agreed with the truthfulness of the evidences mentioned above.



The collegiate panel accepts the facts and evidences mentioned above, to which both parties had no dissent. 



In the case, the main disputes of both parties focused on following aspects: the plaintiff??s right to sue; reasons of cargo damage; amount of losses and applicable laws etc. The main statements and evidences from plaintiff and defendant to concerned disputes and adoption of the collegiate panel are the following:



I.	Whether the plaintiff has the right to sue



Plaintiff claimed: The plaintiff purchased the concerned cargo by making trade contract and paid full sum of money under the trade contract. The way of payment was changed from credit to document against payment in oral form. Plaintiff got B/L by legal way so that plaintiff was legal consignee. With this B/L, plaintiff picked up cargo and defendant delivered cargo. It showed that defendant recognized plaintiff as legal consignee during the consignation of cargo. Based on juridical relation of freight contract arising from B/L, plaintiff as consignee had right to request that defendant as carrier should deliver cargo according to status recorded in B/L and had right to claim for damages compensation during liability term of defendant. Plaintiff provided B/L, insurance certificate, payment document of insurance, purchase contract of cargo, commercial invoice, payment certificate of Bank of Communication Shijiazhuang Branch, and trade bill of WILMAR as evidence.



After the cross-examination, defendant agreed with the truthfulness of the evidences mentioned above.



Defendant claimed: The concerned B/L was an order bill of lading. Endorsement of B/L showed that consignor, WILMAR, carried through blank endorsement first; and thereafter BANK BOSTON N.A. SINGARPORE BRANCH transferred the named B/L of full endorsement to BANK OF COMMUNICATION. After that, BANK OF COMMUNICATION holds the B/L without any transferring. Hence, the owner of this B/L is BANK OF COMMUNICATION but not the plaintiff. It is the BANK OF COMMUNICATON has the right to claim damages against defendant. The sales contract that submitted by plaintiff is copy but not the original. The contract gives clear indication that the settlement will be done by Letter of Credit, but in the commercial invoice saying the payment will be done once submit the B/L, so the evidences are mutually contradictory, and it is not believable. The payment notice made by bank has no contract number on it, so it cannot prove this payment is for the concerned cargo. Also, whether the plaintiff has the right to sue should depend on the B/L, other evidences only can be considered as reference. Hence, the plaintiff is not the final assignee (the owner) of this B/L, also no evidences to prove the plaintiff is the consignee, so the plaintiff does not have right to claim damages against defendant. 



The collegiate panel accepts the evidences which both parties had no dissent.



The collegiate panel deemed: whether the plaintiff has the right to sue, the key point is depended on whether consignee has the legal position. According to the ?°Maritime Law of the People??s Republic of China?± article 42 section 4, ?°the consignee?±, is the person who has the right to pick up the cargo. The B/L that mentioned in this case is an order B/L, WILMAR company as the carrier, made a blank endorsement on it, and the B/L is on circulating according to the sales contract. Only the party that has paid against it, will be the legal owner of this B/L, and has the ownership for the cargo under this B/L. The bank is only the finance organization that is in the link of cargo payment, and does not pay for the cargo. Being in the position of payment link, the bank holds the B/L. The bank is not the legal assignee or owner of the B/L, and the endorsement on the B/L made by the bank has no determinative meaning. To confirm the consignee in this case, should be depended on the legal fact. The plaintiff made a purchase contract with WILLMAR company for the cargo concerned in the case; paid the relevant consideration; obtained the original B/L; picked up the cargo from defendant relying on the B/L. Defendant delivered the cargo to plaintiff. Plaintiff submitted one original B/L to court as the evidence. The cargo delivery action of defendant to plaintiff, and proved that defendant had accepted plaintiff??s legal position as consignee of the cargo at the time of his delivery. About the issues raised by the defendant: the different ways of payment between sales contract and invoice; there is no contract number in payment notice of the bank etc. As the payment amount is exact same as the invoice and money order, the fact of payment can be confirmed. At the situation of the payment has been done and the cargo has been picked up already, the different expressions of the payment in concerned documents are not so important any more, and plaintiff??s further evidence on it should be avoided. Plaintiff is the legal consignee of the concerned cargo. For the damage of the cargo during the period of carrier in charge, plaintiff has the right to claim for compensation.



II. The reasons of cargo damage



Plaintiff claimed: According to Chinese laws, if the cargo has any loss or damage during the period of carrier in charge, the carrier should take the responsibility of compensation, unless he can submit the evidences that the reasons of cargo damage belong to the legal exemption reasons. In this case, the inspection report of cargo in loading port and the clean bill signed and issued by defendant, confirm that the quality of cargo is perfect when it was loading. But the inspection certificate from IQB confirms that the cargo was damaged when unloading from the ship. It was the defendant duty to submit evidences for the reasons of cargo damage and fulfilled his duty properly in taking charge of the cargo during the period under his control. Otherwise, the defendant should take the responsibility of compensation if he cannot submit the evidences for the cargo damage.



Plaintiff submitted the certificate of weight of cargo, certificate of quality of cargo, certificate of safety of cargo, certificate of chemical leftover of cargo, certificate of plant hygiene of cargo, B/L, inspection report from IQB etc.



After the cross-examination, defendant agreed with the truthfulness of the evidence mentioned above.



Defendant claimed: The steamship ?°MUSTAFA NEVZAT?± was made by Japanese NKK which was well-known by common with rigorous. Based on the certificate renewed on April 17, 2000, it is bulk steamship and was made in Feb 1995. With the inspection, it is qualified for all of the requirements asked by NKK, there is no doubt for its navigability. The captain of this steamship, Mr. O. ORAHAL has rich experiences of navigation and transportation. He has transported soybean many times. The Inspection Engineer of Agriculture Ministry of Brazil and the Inspection Person that designated by carrier, LINKMILAR SERVICES LIDA inspected holds separately before loading. They confirmed that the holds were clean, dry, perfect, and they were suitable for transport Brazil soybean crops in 2000. The fact mentioned above confirmed that the defendant had careful managed the steamship for its navigation before it set sail and started for the sail. Defendant submitted ?°The work journal of deck department?± and logbook of ?°holds ventilation time record?± indicated that during the entire voyage, seamen made proper ventilation for holds according to the temperature and moisture, weather and situation of the sea. Defendant did his best to perform his duty of looking after the cargo properly. The reasons that caused this damage concerned in this case are the following: the moisture content of the cargo has beyond its standard, the broken rate is higher, and the bad quality of the cargo. The inspections by Tandgu IQB and by the steamship self, confirm that moisture content of the cargo reaches 16%, which is beyond the Safety Moisture Content standard 11.5%-12.5%. The inspection certificate of cargo quality in loading port records: general broken kernel is 6.0%, heat-broken kernel is 3.4%, broken kernel 11.5%, in another word, the total broken kernel is 20.9% in loading port. According to the sampling analysis made by the Maritime Science Research Institute of Communication Ministry (hereinafter called research institute) in unloading port, the broken kernel reaches 33%. Too much broken kernel lead to absorb more moisture, and it causes the mildew. Rely on the international standard about soybean of our country, the quality of the cargo concerned in this case is very bad, belongs to the substandard products. ?°The surface of the cargo is good?± which recorded in B/L by captain, doesn??t equal to ?°ensure the quality of cargo is good?±. The damage of the mentioned cargo is created by the intrinsic defect of it. Based on Chinese laws, carrier should not take any responsibility of compensation.



Defendant submitted the following evidences: the analysis report of the damage reasons by research institute, deck work journal, ventilation time record, registration certificate of the ship, inspection certificate of the ship, loading fact record, stowage plan, chief mate??s receipt, the abstract of regulations and rules of ocean going ship etc.   



After the cross-examination, Plaintiff disagreed to the analysis report supported by research institute. According to plaintiff, the research institute is not qualified for inspection and analysis the damage of cargo, the persons who involved in the report, have no professional experiences of transportation cargo in bulk. This steamship did ventilation in overcast and rainy days, but the report does not point out this kind of fault action. It shows that the report writers do not have enough common knowledge. Therefore, this report should not be used as evidence. Plaintiff doubts the truthfulness of the deck work journal, ventilation abstract, either. The reason is that there are no any signatures and stamps on the work record, and it conflicts with the abstract recordation of ventilation time. For instance, the work record claims that the ventilation time is 8:00 to 18:00 on June 19, but the abstract recordation claims no any ventilation during this time. Plaintiff agreed with the truthfulness of other evidences. 



The collegiate panel accepts the evidences which both parties had no dissent. 



The analysis report of the research institute cannot be used as evidence in the case, and it only can be considered as academic materials since the research institute cannot prove its professional inspection status on analyzing cargo damage and cannot submit its inspection certificate either. In the deck work record provided by defendant, there were neither any stamps of ship and signature of captain, nor signatures of daily duty person. It did not meet the basic condition of valid evidence, and should not be accepted as evidence in the case. The abstract of ventilation time provided by defendant, it is said extracting from the navigation journal, cannot show any origin and source by itself. Defendant does not provide the logbook to check, and the evidence does not meet the basic condition of valid evidences, should not be accepted as evidence in the case. 



The collegiate panel deemed: based on the ?°Maritime Law of the People??s Republic of China?± article 48, carrier should properly, prudently loading, move, stowage, transportation, keeping, looking after and unloading the cargo who carried. Defendant, as the carrier, has the duty to submit the evidences that he had properly, prudently stored and looked after the cargo, especially made proper ventilation for the cargo during transportation. The collegiate panel noticed, the inspection report from IQB indicates that the surface of the cargo had obvious waterlog mark, on the place contact with hold walls and under the hatch board were more seriously. It shows that in the place of the cargo??s surface and hold walls, hatch board, the dew was formed. This is the reason of why the surface cargo was mildewed while the deep was still good. The collegiate panel studies many documents and teaching materials, and finding out the basic principles of the holds ventilation are the following, lower the dew point of the holds and makes it lower than the body of the ship or lower than the temperature of cargo surface; otherwise, the dew will be formed in the body of the ship and cargo surface. Besides the good preparation should be made before loading and ensure the holds dry with no water, it is very important to make proper ventilation according to the dew point both inside and outside the holds during the navigation. In case of no automatic dew point recorder, the psychrometer together with the dew point checked chart will be used to ascertain the dew point. In this case, the cargo was transported from the southern hemisphere, cross the equator, reaching the northern hemisphere. The temperature changes a lot; the navigation period is very long, and the proper ventilation is more important. According to the investigation to the captain by our judge, this steamship did not have automatic dew point recorder, and defendant cannot provide valid original record to prove the seamen had measured the humidity based on the situation of climate and weather, and cannot prove he made proper ventilation according to the dew point both inside and outside the steamship as well. Defendant cannot perform his duty to provide the evidences that he had properly, prudently stored and looked after the cargo. Defendant insisted that the containing moisture reached 16%, and the quality was lower than the state standard, but he could not submit any related evidences to it. In the inspection certificate of loading port indicates the soybean containing moisture is 12.7%, meets the standard of 12.5%-13% in related materials. The contradictory fact is that the surface cargo mildewed but the cargo in deep about 80% is still in good condition. Therefore, the idea of cargo damage was caused by intrinsic defect of cargo cannot be accepted. Defendant who did not made proper ventilation caused the cargo damage, and it led the dew formed on the body of ship and cargo. 



III. The concrete amount of the Plaintiff??s losses and law application



Plaintiff claimed: the amount of the Plaintiff??s losses should include, the loss of damaged cargo, inspection charge of IQB, extra charge for deal with the damaged cargo, legal cost of court, related bank interest. According to the confirmation of Pricing agency in Tianjin, the market price of wholesale from June 21 to July 20, 2000 is RMB 2,300 Yuan per ton. According to the terms in the back of B/L: ?°Hague principle?± and ?°Hague-WISIBI principle?±, the market price of destination port is applicable. According to the estimated loss percentage by IQB, the amount of cargo losses is RMB 7,455,790.40 Yuan. The other losses of plaintiff include separating unloading charge for damaged cargo RMB 698,956.40 Yuan; short shifting charge RMB 698,956.40 Yuan; inspection charge RMB 34,942 Yuan; legal cost, property preserving fee, evidence preserving fee RMB 84,463 Yuan, total RMB 8,274,151.80 Yuan. Plaintiff claimed: as agent of Hebei Lipin Company to export the concerned cargo, and the damaged cargo has been sold out according to the inspection certificate. In two sales contracts, the amounts are RMB 5,531,698.40 and RMB 1,309,190.95 Yuan separately, total RMB 6,840,889.35 Yuan.



Plaintiff provided not only the evidences mentioned above, two trade invoices, insurance receipt, inspection certificate etc. but also the letter from the Pricing Agency of Tianjin, invoice and related charges list of RMB 698,956.40 Yuan from Tianjin Lian Long International Trade Limited Company to Lipin Company Hebei Province for ?°handling charges (storage, pileup, short shifting) and other related bills; plaintiff works as agent to deal with import and settlement agreement for Hebei Lipin Company; Lipin Company Hebei Province makes two sales contracts with Hebei Tianyi Lipin Limited and Agricultural Byproducts Produce and Sale General Company of Baodi county separately for selling damaged cargo.



After the cross-examination, defendant agreed with the truthfulness of the evidences mentioned above.



Defendant claimed: According to the terms in the back of B/L, the precondition to apply ?°Hague principle?± and ?°Hague-WISIBI principle?± is that the destination port country already be approved or join these principles, otherwise the principles cannot be forced to apply. For non-contract country, the destination port country??s law should be applied to the B/L. Therefore, Chinese laws should be applied in this case. The price of the cargo should be calculated by the pre-lading price +freight + insurance fee. The letter from Pricing agency is not suitable to this case. The price for sales the damaged cargo exacts the same as the estimated price in inspection certificate, and the truthfulness of the sales contract is doubtful. Moreover, the seller for the damaged cargo is Lipin Company Hebei Province, but not the Plaintiff. So, both the inspection certificate and sales contracts cannot be used as evidences of the damaged cargo. The loading and unloading company which authorized by consignee, did not do their best to reduce the damage during unloading the cargo, and this action led to the huge amount of cargo losses. After unloading in Tianjin Port, other cargo 28,351.144 m. ton was unloaded in Zhangjiagang Port, the damaged cargo is only 2,488.658 ton according to the inspection. For the enlarging losses, carrier should not take the responsibility of compensation. The invoice and detail list of charges for handling the damaged cargo provided by Plaintiff cannot be proved that they have any relationship with the damaged cargo, and cannot be used as evidences.



Defendant submitted the damaging inspection certificate from IQB of Zhangjiagang Port.



After the cross-examination, Plaintiff agreed with the truthfulness of the inspection certificate, but don??t think it has anything to do with this case.



The collegiate panel accepted the evidences which both parties had no dissent.



The collegiate panel deemed: The claim of Defendant about the law applicable in this case comes into existence. China has not joined ?°Hague Principle?± and ?°Hague-WISIBI Principle?±. According to the terms in the back of B/L, the law applicable in this case is unloading port country, that is Chinese laws. Based on the related regulations of the ?°Maritime Law of the People??s Republic of China?±, the compensation amount for the damaged cargo should calculated by the actual price difference of before and after the damage, and the actual price should be the loading price + insurance fee + freight, that is US $ 225.12 per m. ton. According to the damaging rate claimed in inspection certificate, the cargo loss is US $ 729,760.24, and converts into RMB 6,035,117.20 Yuan. The losses of Plaintiff that caused by the damaged cargo also include inspection fee, the cost of preservation of action both in evidences and property. Plaintiff claimed for his extra payment of the damaged cargo, but only submitted the invoice and detail list of Lian Long Company who is not involved in the case, and plaintiff neither can prove the legal position of Lian Long Company, nor supply his payment voucher and the original evidence for the works related. Because of the insufficient evidences submitted by Plaintiff, court does not support this item claimed by Plaintiff. The Lipin Company Hebei Province, is the real import party for this cargo, the sales price of the damaged cargo was same as the price estimated in inspection certificate, it shows that the Plaintiff did not do any false examination and made profit from it. IQB is state??s inspection organization, and performs its inspection duty independently. The result of the inspection for special cargo has authoritative. The inspection made by IQB of Lianyungang Port for other cargo, cannot represent the damaging situation of the cargo related in this case, and the inspection certificate has no relationship with this case.



In conclusion, the collegiate panel deemed: this case is a maritime cargo transportation contract of compensation for damage. To regard with both carrier and consignee, the B/L has the function of transportation contract, the right or duty of both parties should following the B/L. Any losses or damages of the cargo during the period of carrier in charge, unless because of the reason of exempt, the carrier should take the compensation duty. In this case, defendant, as the carrier, did not submit related evidences to prove he had properly, prudently stored and looked after the cargo. The other way round, be confirmed by related evidences, during the period of carrier in charge, the dew formed on hold walls and cargo, and it caused the cargo mildewed. Defendant should take the compensation duty for the damaged cargo; related inspection charge; preserving charge as well as related bank interest. The legal cost should be paid by the losing party according to the regulation of law, rather than be claimed as losses. The court does not support the other claims of the Plaintiff because of his insufficient evidences. Hereby, based on the ?°Maritime Law of the People??s Republic of China?± article 46 section 1, article 48, article 55 section 1, section 2; the ?°Civil Procedure Law of the People??s Republic of China?± article 64 section 1, the court gives the following judgments:

 

I.	Defendant should pay Plaintiff RMB 6,035,117.20 Yuan for the damaged cargo; RMB 34,942 Yuan for inspection charge; RMB 5,000 Yuan for evidences preservation of action; RMB 5,000 Yuan for property preservation of action, total RMB 6,080,059.20 Yuan; according to the bank interest rate, pay the bank interest from the date of July 14, 2000 till the payment date in this judgment. The payment mentioned above should be paid within 15 days from the effective date of this judgment. If fails to meet the time limit of the payment, the judgment should be enforced based on article 232 of the ?°Civil Procedure Law of the People??s Republic of China.?±



II.	Reject other claims of Plaintiff.

The legal cost of this case is RMB 51,381 Yuan, and the Plaintiff shall pay RMB 13,616 Yuan, and the Defendant shall pay RMB 37,765 Yuan. Defendant shall pay Plaintiff the legal cost he bears (RMB 37,765) in executing this judgment, and the court will not handle money return.



If refuse to accept this judgment, Plaintiff may submit appeal petition and with 4 copies of it to Tianjin Maritime Court within 15 days after the date of service this judgment; Defendant may submit appeal petition and with 4 copies of it to Tianjin Maritime Court within 30 days after the date of service this judgment. The appeal shall be accepted by the Higher People??s Court of Tianjin. Appellant should pay cost of appeal RMB 51,381 Yuan to the Higher People??s Court of Tianjin (Bank account: Agriculture Bank of China new technical park branch, A/C no. 394-9887000390) within 7 days after the appeal petition. If payment delays for the time limit, the appeal will be treated as withdraw automatically.





								              Chief Judge: 	Dong Li Juan

								                   Judge:			Shi Wen Xi

								            Assistant Judge:		Shi Fu Xin

				



                                  July 18, 2001



								             Court Clerk:		Bai Xin  




Plaintiff: Grain & Oil (Group) General Co. , Hebei Province
Address: No.37, Ziqiang Road, Shijiazhuang City, Hebei Province.
Legal representative: Pang Yingbiao, chairman of the board.
Authorized attorney: Wang Peng, attorney-at-law of MAGNA Law firm.
Authorized attorney: Wang Hongyu, attorney-at-law of MAGNA Law firm.
Defendant: ASIL GIDA KIMYA SANAYI VE TICARET A.S. 
Address: Prof. Dr. B¨?lent Tarcan Sokak No.5 Gayrettepe-Istanbul, Turkey.
Legal representative: H. Canan Pak Tumay, general manager.
Authorized attorney: Yang Wengui, attorney-at-law of Haitong Law Firm.
Authorized attorney: Liu Zuoming, attorney-at-law of Haitong Law Firm.
The plaintiff, Hebei Province Grain & Oil (Group) General Co., took legal action against defendant, ASIL GIDA KIMYA SANAYI VE TICARET A.S. before Tianjin Maritime Court for damages compensation of maritime freight transport contract on August 11, 2000. The court constituted the collegiate panel in accordance with the law after accepting the cases and finishing the jurisdictional dispute procedure. The court held two public hearings on July 6, 2001 and July 18, 2001 respectively. Authorized attorneys of plaintiff, Wang Peng and Wang Hongyu (absent at second hearing), and authorized attorneys of defendant, Yang Wengui (absent at second hearing) and Liu Zuoming, appeared in court and participated in the lawsuit. Now the case is finished.
Before the acceptance of this lawsuit, on July 13, 2000, the court made Civil Judgment (2000) Hai Gao Li Bao Zi No. 31 to accept the preservation of evidences asked by Plaintiff, and ordered ?°MUSTAFA NEVZAT?± steamship owned by defendant to submit pertinent freight documents to the case. On the same day, the court made Civil Judgment (2000) Hai Gao Li Bao Zi No. 32 to accept preservation of property and arrested the ship. After afforded RMB 13,000,000 Yuan for guarantee, the defendant can get the ship back.
The plaintiff alleged: the plaintiff, acted as agent of Lipin Company Hebei Province, made a contract with Singapore WILMAR TRADING PTE. LTD (hereinafter referred to as WILMAR) to import soybeans produced in Brazil on April 27, 2000. The contract says, WILMAR provides plaintiff 24,000 tons (??10% decided by the seller) soybeans produced in Brazil with USD 224.50 per ton on CNF (Tianjin, China). The cargo was loaded on the ship ?°MUSTAFA NEVZAT?± which owned by defendant at ITACOATIARA port of Brazil on May 9, 2000. The loading port representative on behalf of the captain of defendant signed uniformity of three clean bills of lading as No.2. It shows that the amount of loading cargo is 24,800.424 m tons. WILMAR provided plaintiff various inspection certificates and commercial invoices to prove that cargo were in perfect condition during the loading. Plaintiff paid full price of cargo through Communication Bank Shijiazhuang Branch and insured full coverage with USD 15,360.55 insurance fee. The ship arrived at Tianjin port on July 1, 2000. During unloading it was found that parts of the cargo were seriously mildewed. Through the inspection of Tanggu Depart & Entry Inspection and Quarantine Bureau (hereinafter referred to as IQB), the losses of cargo reached RMB 12,190,698.05 Yuan. The plaintiff holds original Clean Bill on Board B??L, and has the right to get perfect cargo at unloading port. The defendant as carrier should take the responsibility of compensation of the damaged cargo.
During the hearing, the plaintiff changed the claim and alleged that the loss was verified as RBM 8,274,151.80 Yuan. It includes the following items: ??Cost Insurance and Freight (CIF) market price of concerned cargo in good condition is RMB 2,300 Yuan per ton. The received damaged cargo were in three degrees, 80%, 60% and 30% respectively and the cargo loss was RMB 7,455,790.40 Yuan; ??The extra cost for damaged cargo treatment like fractional load and short shifting was RMB 698,956.40 Yuan; ??Damage commercial inspection cost was RMB 34,942 Yuan; ??Legal cost and preserving costs were RMB 84,463 Yuan.
The defendant argued that because of the high moisture, too many broken kernels, together with the influence of weather, temperature and long time in the navigation, and all these led to the cargo mildewed. It is not the fault of carrier. The carrier provided the seaworthy ship; did their best to ventilate the cargo during the navigation and took their duty to keep the cargo in good condition. The plaintiff does not have enough evidences to support his damage, and he does not have the right to sue. The defendant petitioned the court to reject claims of the plaintiff.
During the hearing both plaintiff and defendant agree with following facts:
The Plaintiff import soybeans produced in Brazil on May 9, 2000, and the cargo was loaded on the Turk ship ?°MUSTAFA NEVZAT?± owned by defendant. The defendant signed the Clean Bill on Board B??LNo.02. The B/L shows that the consignor was WILMAR; the consignee followed instruction; informer was defendant; loading port was ITACOATIARA/AM/Brazil; unloading port was Tianjin, China; loading cargo was 24,800.424 m tons soybeans produced-in-Brazil in bulk, which was loaded in holds 2, 4, 6 and 7 respectively; carriage charge was paid in advance.
On July 1, the cargo arrived at Tianjin port and cargo damage was found out during the unloading. IQB inspected the damaged cargo and made damage certificate: through the inspection to holds 2, 4, 6 and 7, it was found that all cargo in the surface layers was hardened and mildewed seriously; and there was obvious rancid smell in the holds. The mildewed cargo of surface layers showed gray-white and there was clear waterlog marks on it. The waterlog marks was obvious under the hatch coaming and the cargo mildewed seriously. The cargo cross sections of hardened and mildewed layers in holds 2, 4 and 7 showed a depth of 30 cm; there were obvious waterlog marks at the joint parts between cargo and hold walls and shells; cargo hardened and mildewed; the depth of cargo cross sections of hardened and mildewed layers in hold 6 reached 50 cm; the cargo under mildewed layers appeared brown because of heat redding and parts of cargo appeared black because of charring accompanied, and together with obvious rancid smell. Through the further inspection, weight and damage analysis after fractional unload, the damaged amount and degree of losses are the following: ??1,827.800 m.t. of cargo mildewed seriously and could not be used for original purpose; cargo damage reached 80%; ??844.630 m.t. of cargo reddened, charred and were mixed with mildewed substances together with rancid smell; sales and use of which would be affected; estimated damage was 60%; ??4,242.100 m.t. of cargo partly reddened and charred; sales and use of which would be affected; estimated damage was 30%.
After unloading, the plaintiff picked up the cargo referred to the case with original B/L and defendant delivered the cargo.
During the pre-suit preservation of property evidences period, our judges made two investigation notes while investigating the captain of the ship, and many kinds of evidences in connection with freight were collected, including ship structural drawing, ship specifications, ownership certificate of the ship, ship's classification certificate, ship safety equipment certificate, international load waterline certificate, notice of readiness, chief mate's receipt, cargo stowage plan, cargo plan, crew list and certificate of competency of main senior seamen respectively.
After the cross-examination, both parties agreed with the truthfulness of the evidences mentioned above.
The collegiate panel accepts the facts and evidences mentioned above, to which both parties had no dissent. 
In the case, the main disputes of both parties focused on following aspects: the plaintiff??s right to sue; reasons of cargo damage; amount of losses and applicable laws etc. The main statements and evidences from plaintiff and defendant to concerned disputes and adoption of the collegiate panel are the following:
I.	Whether the plaintiff has the right to sue
Plaintiff claimed: The plaintiff purchased the concerned cargo by making trade contract and paid full sum of money under the trade contract. The way of payment was changed from credit to document against payment in oral form. Plaintiff got B/L by legal way so that plaintiff was legal consignee. With this B/L, plaintiff picked up cargo and defendant delivered cargo. It showed that defendant recognized plaintiff as legal consignee during the consignation of cargo. Based on juridical relation of freight contract arising from B/L, plaintiff as consignee had right to request that defendant as carrier should deliver cargo according to status recorded in B/L and had right to claim for damages compensation during liability term of defendant. Plaintiff provided B/L, insurance certificate, payment document of insurance, purchase contract of cargo, commercial invoice, payment certificate of Bank of Communication Shijiazhuang Branch, and trade bill of WILMAR as evidence.
After the cross-examination, defendant agreed with the truthfulness of the evidences mentioned above.
Defendant claimed: The concerned B/L was an order bill of lading. Endorsement of B/L showed that consignor, WILMAR, carried through blank endorsement first; and thereafter BANK BOSTON N.A. SINGARPORE BRANCH transferred the named B/L of full endorsement to BANK OF COMMUNICATION. After that, BANK OF COMMUNICATION holds the B/L without any transferring. Hence, the owner of this B/L is BANK OF COMMUNICATION but not the plaintiff. It is the BANK OF COMMUNICATON has the right to claim damages against defendant. The sales contract that submitted by plaintiff is copy but not the original. The contract gives clear indication that the settlement will be done by Letter of Credit, but in the commercial invoice saying the payment will be done once submit the B/L, so the evidences are mutually contradictory, and it is not believable. The payment notice made by bank has no contract number on it, so it cannot prove this payment is for the concerned cargo. Also, whether the plaintiff has the right to sue should depend on the B/L, other evidences only can be considered as reference. Hence, the plaintiff is not the final assignee (the owner) of this B/L, also no evidences to prove the plaintiff is the consignee, so the plaintiff does not have right to claim damages against defendant. 
The collegiate panel accepts the evidences which both parties had no dissent.
The collegiate panel deemed: whether the plaintiff has the right to sue, the key point is depended on whether consignee has the legal position. According to the ?°Maritime Law of the People??s Republic of China?± article 42 section 4, ?°the consignee?±, is the person who has the right to pick up the cargo. The B/L that mentioned in this case is an order B/L, WILMAR company as the carrier, made a blank endorsement on it, and the B/L is on circulating according to the sales contract. Only the party that has paid against it, will be the legal owner of this B/L, and has the ownership for the cargo under this B/L. The bank is only the finance organization that is in the link of cargo payment, and does not pay for the cargo. Being in the position of payment link, the bank holds the B/L. The bank is not the legal assignee or owner of the B/L, and the endorsement on the B/L made by the bank has no determinative meaning. To confirm the consignee in this case, should be depended on the legal fact. The plaintiff made a purchase contract with WILLMAR company for the cargo concerned in the case; paid the relevant consideration; obtained the original B/L; picked up the cargo from defendant relying on the B/L. Defendant delivered the cargo to plaintiff. Plaintiff submitted one original B/L to court as the evidence. The cargo delivery action of defendant to plaintiff, and proved that defendant had accepted plaintiff??s legal position as consignee of the cargo at the time of his delivery. About the issues raised by the defendant: the different ways of payment between sales contract and invoice; there is no contract number in payment notice of the bank etc. As the payment amount is exact same as the invoice and money order, the fact of payment can be confirmed. At the situation of the payment has been done and the cargo has been picked up already, the different expressions of the payment in concerned documents are not so important any more, and plaintiff??s further evidence on it should be avoided. Plaintiff is the legal consignee of the concerned cargo. For the damage of the cargo during the period of carrier in charge, plaintiff has the right to claim for compensation.
II. The reasons of cargo damage
Plaintiff claimed: According to Chinese laws, if the cargo has any loss or damage during the period of carrier in charge, the carrier should take the responsibility of compensation, unless he can submit the evidences that the reasons of cargo damage belong to the legal exemption reasons. In this case, the inspection report of cargo in loading port and the clean bill signed and issued by defendant, confirm that the quality of cargo is perfect when it was loading. But the inspection certificate from IQB confirms that the cargo was damaged when unloading from the ship. It was the defendant duty to submit evidences for the reasons of cargo damage and fulfilled his duty properly in taking charge of the cargo during the period under his control. Otherwise, the defendant should take the responsibility of compensation if he cannot submit the evidences for the cargo damage.
Plaintiff submitted the certificate of weight of cargo, certificate of quality of cargo, certificate of safety of cargo, certificate of chemical leftover of cargo, certificate of plant hygiene of cargo, B/L, inspection report from IQB etc.
After the cross-examination, defendant agreed with the truthfulness of the evidence mentioned above.
Defendant claimed: The steamship ?°MUSTAFA NEVZAT?± was made by Japanese NKK which was well-known by common with rigorous. Based on the certificate renewed on April 17, 2000, it is bulk steamship and was made in Feb 1995. With the inspection, it is qualified for all of the requirements asked by NKK, there is no doubt for its navigability. The captain of this steamship, Mr. O. ORAHAL has rich experiences of navigation and transportation. He has transported soybean many times. The Inspection Engineer of Agriculture Ministry of Brazil and the Inspection Person that designated by carrier, LINKMILAR SERVICES LIDA inspected holds separately before loading. They confirmed that the holds were clean, dry, perfect, and they were suitable for transport Brazil soybean crops in 2000. The fact mentioned above confirmed that the defendant had careful managed the steamship for its navigation before it set sail and started for the sail. Defendant submitted ?°The work journal of deck department?± and logbook of ?°holds ventilation time record?± indicated that during the entire voyage, seamen made proper ventilation for holds according to the temperature and moisture, weather and situation of the sea. Defendant did his best to perform his duty of looking after the cargo properly. The reasons that caused this damage concerned in this case are the following: the moisture content of the cargo has beyond its standard, the broken rate is higher, and the bad quality of the cargo. The inspections by Tandgu IQB and by the steamship self, confirm that moisture content of the cargo reaches 16%, which is beyond the Safety Moisture Content standard 11.5%-12.5%. The inspection certificate of cargo quality in loading port records: general broken kernel is 6.0%, heat-broken kernel is 3.4%, broken kernel 11.5%, in another word, the total broken kernel is 20.9% in loading port. According to the sampling analysis made by the Maritime Science Research Institute of Communication Ministry (hereinafter called research institute) in unloading port, the broken kernel reaches 33%. Too much broken kernel lead to absorb more moisture, and it causes the mildew. Rely on the international standard about soybean of our country, the quality of the cargo concerned in this case is very bad, belongs to the substandard products. ?°The surface of the cargo is good?± which recorded in B/L by captain, doesn??t equal to ?°ensure the quality of cargo is good?±. The damage of the mentioned cargo is created by the intrinsic defect of it. Based on Chinese laws, carrier should not take any responsibility of compensation.
Defendant submitted the following evidences: the analysis report of the damage reasons by research institute, deck work journal, ventilation time record, registration certificate of the ship, inspection certificate of the ship, loading fact record, stowage plan, chief mate??s receipt, the abstract of regulations and rules of ocean going ship etc.   
After the cross-examination, Plaintiff disagreed to the analysis report supported by research institute. According to plaintiff, the research institute is not qualified for inspection and analysis the damage of cargo, the persons who involved in the report, have no professional experiences of transportation cargo in bulk. This steamship did ventilation in overcast and rainy days, but the report does not point out this kind of fault action. It shows that the report writers do not have enough common knowledge. Therefore, this report should not be used as evidence. Plaintiff doubts the truthfulness of the deck work journal, ventilation abstract, either. The reason is that there are no any signatures and stamps on the work record, and it conflicts with the abstract recordation of ventilation time. For instance, the work record claims that the ventilation time is 8:00 to 18:00 on June 19, but the abstract recordation claims no any ventilation during this time. Plaintiff agreed with the truthfulness of other evidences. 
The collegiate panel accepts the evidences which both parties had no dissent. 
The analysis report of the research institute cannot be used as evidence in the case, and it only can be considered as academic materials since the research institute cannot prove its professional inspection status on analyzing cargo damage and cannot submit its inspection certificate either. In the deck work record provided by defendant, there were neither any stamps of ship and signature of captain, nor signatures of daily duty person. It did not meet the basic condition of valid evidence, and should not be accepted as evidence in the case. The abstract of ventilation time provided by defendant, it is said extracting from the navigation journal, cannot show any origin and source by itself. Defendant does not provide the logbook to check, and the evidence does not meet the basic condition of valid evidences, should not be accepted as evidence in the case. 
The collegiate panel deemed: based on the ?°Maritime Law of the People??s Republic of China?± article 48, carrier should properly, prudently loading, move, stowage, transportation, keeping, looking after and unloading the cargo who carried. Defendant, as the carrier, has the duty to submit the evidences that he had properly, prudently stored and looked after the cargo, especially made proper ventilation for the cargo during transportation. The collegiate panel noticed, the inspection report from IQB indicates that the surface of the cargo had obvious waterlog mark, on the place contact with hold walls and under the hatch board were more seriously. It shows that in the place of the cargo??s surface and hold walls, hatch board, the dew was formed. This is the reason of why the surface cargo was mildewed while the deep was still good. The collegiate panel studies many documents and teaching materials, and finding out the basic principles of the holds ventilation are the following, lower the dew point of the holds and makes it lower than the body of the ship or lower than the temperature of cargo surface; otherwise, the dew will be formed in the body of the ship and cargo surface. Besides the good preparation should be made before loading and ensure the holds dry with no water, it is very important to make proper ventilation according to the dew point both inside and outside the holds during the navigation. In case of no automatic dew point recorder, the psychrometer together with the dew point checked chart will be used to ascertain the dew point. In this case, the cargo was transported from the southern hemisphere, cross the equator, reaching the northern hemisphere. The temperature changes a lot; the navigation period is very long, and the proper ventilation is more important. According to the investigation to the captain by our judge, this steamship did not have automatic dew point recorder, and defendant cannot provide valid original record to prove the seamen had measured the humidity based on the situation of climate and weather, and cannot prove he made proper ventilation according to the dew point both inside and outside the steamship as well. Defendant cannot perform his duty to provide the evidences that he had properly, prudently stored and looked after the cargo. Defendant insisted that the containing moisture reached 16%, and the quality was lower than the state standard, but he could not submit any related evidences to it. In the inspection certificate of loading port indicates the soybean containing moisture is 12.7%, meets the standard of 12.5%-13% in related materials. The contradictory fact is that the surface cargo mildewed but the cargo in deep about 80% is still in good condition. Therefore, the idea of cargo damage was caused by intrinsic defect of cargo cannot be accepted. Defendant who did not made proper ventilation caused the cargo damage, and it led the dew formed on the body of ship and cargo. 
III. The concrete amount of the Plaintiff??s losses and law application
Plaintiff claimed: the amount of the Plaintiff??s losses should include, the loss of damaged cargo, inspection charge of IQB, extra charge for deal with the damaged cargo, legal cost of court, related bank interest. According to the confirmation of Pricing agency in Tianjin, the market price of wholesale from June 21 to July 20, 2000 is RMB 2,300 Yuan per ton. According to the terms in the back of B/L: ?°Hague principle?± and ?°Hague-WISIBI principle?±, the market price of destination port is applicable. According to the estimated loss percentage by IQB, the amount of cargo losses is RMB 7,455,790.40 Yuan. The other losses of plaintiff include separating unloading charge for damaged cargo RMB 698,956.40 Yuan; short shifting charge RMB 698,956.40 Yuan; inspection charge RMB 34,942 Yuan; legal cost, property preserving fee, evidence preserving fee RMB 84,463 Yuan, total RMB 8,274,151.80 Yuan. Plaintiff claimed: as agent of Hebei Lipin Company to export the concerned cargo, and the damaged cargo has been sold out according to the inspection certificate. In two sales contracts, the amounts are RMB 5,531,698.40 and RMB 1,309,190.95 Yuan separately, total RMB 6,840,889.35 Yuan.
Plaintiff provided not only the evidences mentioned above, two trade invoices, insurance receipt, inspection certificate etc. but also the letter from the Pricing Agency of Tianjin, invoice and related charges list of RMB 698,956.40 Yuan from Tianjin Lian Long International Trade Limited Company to Lipin Company Hebei Province for ?°handling charges (storage, pileup, short shifting) and other related bills; plaintiff works as agent to deal with import and settlement agreement for Hebei Lipin Company; Lipin Company Hebei Province makes two sales contracts with Hebei Tianyi Lipin Limited and Agricultural Byproducts Produce and Sale General Company of Baodi county separately for selling damaged cargo.
After the cross-examination, defendant agreed with the truthfulness of the evidences mentioned above.
Defendant claimed: According to the terms in the back of B/L, the precondition to apply ?°Hague principle?± and ?°Hague-WISIBI principle?± is that the destination port country already be approved or join these principles, otherwise the principles cannot be forced to apply. For non-contract country, the destination port country??s law should be applied to the B/L. Therefore, Chinese laws should be applied in this case. The price of the cargo should be calculated by the pre-lading price +freight + insurance fee. The letter from Pricing agency is not suitable to this case. The price for sales the damaged cargo exacts the same as the estimated price in inspection certificate, and the truthfulness of the sales contract is doubtful. Moreover, the seller for the damaged cargo is Lipin Company Hebei Province, but not the Plaintiff. So, both the inspection certificate and sales contracts cannot be used as evidences of the damaged cargo. The loading and unloading company which authorized by consignee, did not do their best to reduce the damage during unloading the cargo, and this action led to the huge amount of cargo losses. After unloading in Tianjin Port, other cargo 28,351.144 m. ton was unloaded in Zhangjiagang Port, the damaged cargo is only 2,488.658 ton according to the inspection. For the enlarging losses, carrier should not take the responsibility of compensation. The invoice and detail list of charges for handling the damaged cargo provided by Plaintiff cannot be proved that they have any relationship with the damaged cargo, and cannot be used as evidences.
Defendant submitted the damaging inspection certificate from IQB of Zhangjiagang Port.
After the cross-examination, Plaintiff agreed with the truthfulness of the inspection certificate, but don??t think it has anything to do with this case.
The collegiate panel accepted the evidences which both parties had no dissent.
The collegiate panel deemed: The claim of Defendant about the law applicable in this case comes into existence. China has not joined ?°Hague Principle?± and ?°Hague-WISIBI Principle?±. According to the terms in the back of B/L, the law applicable in this case is unloading port country, that is Chinese laws. Based on the related regulations of the ?°Maritime Law of the People??s Republic of China?±, the compensation amount for the damaged cargo should calculated by the actual price difference of before and after the damage, and the actual price should be the loading price + insurance fee + freight, that is US $ 225.12 per m. ton. According to the damaging rate claimed in inspection certificate, the cargo loss is US $ 729,760.24, and converts into RMB 6,035,117.20 Yuan. The losses of Plaintiff that caused by the damaged cargo also include inspection fee, the cost of preservation of action both in evidences and property. Plaintiff claimed for his extra payment of the damaged cargo, but only submitted the invoice and detail list of Lian Long Company who is not involved in the case, and plaintiff neither can prove the legal position of Lian Long Company, nor supply his payment voucher and the original evidence for the works related. Because of the insufficient evidences submitted by Plaintiff, court does not support this item claimed by Plaintiff. The Lipin Company Hebei Province, is the real import party for this cargo, the sales price of the damaged cargo was same as the price estimated in inspection certificate, it shows that the Plaintiff did not do any false examination and made profit from it. IQB is state??s inspection organization, and performs its inspection duty independently. The result of the inspection for special cargo has authoritative. The inspection made by IQB of Lianyungang Port for other cargo, cannot represent the damaging situation of the cargo related in this case, and the inspection certificate has no relationship with this case.
In conclusion, the collegiate panel deemed: this case is a maritime cargo transportation contract of compensation for damage. To regard with both carrier and consignee, the B/L has the function of transportation contract, the right or duty of both parties should following the B/L. Any losses or damages of the cargo during the period of carrier in charge, unless because of the reason of exempt, the carrier should take the compensation duty. In this case, defendant, as the carrier, did not submit related evidences to prove he had properly, prudently stored and looked after the cargo. The other way round, be confirmed by related evidences, during the period of carrier in charge, the dew formed on hold walls and cargo, and it caused the cargo mildewed. Defendant should take the compensation duty for the damaged cargo; related inspection charge; preserving charge as well as related bank interest. The legal cost should be paid by the losing party according to the regulation of law, rather than be claimed as losses. The court does not support the other claims of the Plaintiff because of his insufficient evidences. Hereby, based on the ?°Maritime Law of the People??s Republic of China?± article 46 section 1, article 48, article 55 section 1, section 2; the ?°Civil Procedure Law of the People??s Republic of China?± article 64 section 1, the court gives the following judgments:
 
I.	Defendant should pay Plaintiff RMB 6,035,117.20 Yuan for the damaged cargo; RMB 34,942 Yuan for inspection charge; RMB 5,000 Yuan for evidences preservation of action; RMB 5,000 Yuan for property preservation of action, total RMB 6,080,059.20 Yuan; according to the bank interest rate, pay the bank interest from the date of July 14, 2000 till the payment date in this judgment. The payment mentioned above should be paid within 15 days from the effective date of this judgment. If fails to meet the time limit of the payment, the judgment should be enforced based on article 232 of the ?°Civil Procedure Law of the People??s Republic of China.?±
II.	Reject other claims of Plaintiff.
The legal cost of this case is RMB 51,381 Yuan, and the Plaintiff shall pay RMB 13,616 Yuan, and the Defendant shall pay RMB 37,765 Yuan. Defendant shall pay Plaintiff the legal cost he bears (RMB 37,765) in executing this judgment, and the court will not handle money return.
If refuse to accept this judgment, Plaintiff may submit appeal petition and with 4 copies of it to Tianjin Maritime Court within 15 days after the date of service this judgment; Defendant may submit appeal petition and with 4 copies of it to Tianjin Maritime Court within 30 days after the date of service this judgment. The appeal shall be accepted by the Higher People??s Court of Tianjin. Appellant should pay cost of appeal RMB 51,381 Yuan to the Higher People??s Court of Tianjin (Bank account: Agriculture Bank of China new technical park branch, A/C no. 394-9887000390) within 7 days after the appeal petition. If payment delays for the time limit, the appeal will be treated as withdraw automatically.
								              Chief Judge: 	Dong Li Juan
								                   Judge:			Shi Wen Xi
								            Assistant Judge:		Shi Fu Xin
				
                                  July 18, 2001
								             Court Clerk:		Bai Xin