Chongqing Pacific International Forwarding Co., Ltd v. Tongliang County Import & Export Co. Ltd., Chongqing Municipality.

Updated：2004-03-16 Views：1794 
WUHAN MARITIME COURT 

PEOPLE??S REPUBLIC OF CHINA

CIVIL JUDGMENT



NO. WU HAI FA YU SHANG ZHI 07(2001)



Plaintiff	??	Chongqing Pacific International Forwarding Co., Ltd. 

Domicile	??	15 floor, Jinguanyin Mansion, Te No. 1, No. 2, Jinxinxi Road, Jiangbei, Chongqing Municipality

Legal Representative	??	Yao Xiao-Li , General Manager

Agents ad litem	??	Zhang Chao-Hui, Attorney at Law of Chongqing Jianwu Law Office Tang Bin, Attorney at Law of Chongqing Jianwu Law Office



Defendant:	??	Tongliang County Import & Export Co. Ltd., Chongqing Municipality

Domicile	??	No. 226, Jiefangdong Road, Bachuan Town, Tongliang County, Chongqing Municipality

Legal Representative	??	Zhu Hua-liang , General Manager

Agent ad litem	??	Xu Dong, Clerk of Tongliang County Import & Export Co. LtdSun Nian, Clerk of Tongliang County Import & Export Co. Ltd





The suit brought by this court by the plaintiff Chongqing Pacific International Forwarding Co., Ltd. (hereinafter called the plaintiff) against the defendant Tongliang County Import & Export Co., Ltd. of Chongqing Municipality (hereinafter called the defendant) about the dispute in the payment of freight arising from the contract of carriage of goods by sea was heard in open session by a sole judge of this court. The agent ad litem of the plaintiff and the defendant joined the court hearing. Now the cases has been concluded.

The plaintiff alleged: From December 1999 to February 2000, the plaintiff was entrusted by the defendant to act as his agent to export 7 containers of barium chloride and 3 containers of preserved Szechuan pickle, so the defendant should pay the freight of RMB 117,324.00. After the plaintiff performed the contract completely and timely, although the plaintiff pressed the defendant to pay the above-mentioned freight many times, the defendant refused to pay it by seeking various excuses. Therefore, the plaintiff requested the court to adjudge that the defendant pay the default freight of RMB 117,324.00, plus the interest and the court fee.



The plaintiff submitted the following evidence for supporting the alleged facts:



1.	The B/L NO. CSHNG270083 issued by China Shipping Container Lines Co., Ltd. on 9 December 1999 and the Freight Invoice under this B/L, which proved that the plaintiff acted as the defendant??s agent to transport 2??20?? containers of preserved Szechuan pickle and the default freight.



2.	The B/L NO. CSHYK270094 issued by China Shipping Container Lines Co., Ltd. on 16 December 1999 and the Freight Invoice under this B/L, which proved that the plaintiff acted as the defendant??s agent to transport 1??20?? container of barium chloride and the default freight.



3.	The B/L NO. CCQAW310009 issued by PCS SHIPPING LTD. on 6 January, 2000 and the Freight Invoice under this B/L, which proved that the plaintiff acted as the actual shipper namely the defendant,s agent to transport 3??20?? containers and the default freight.



4.	The B/L NO. CSHYK270001 issued by China Shipping Container Lines Co., Ltd. on 26 January 2000 and the Freight Invoice under this B/L, which proved that the plaintiff acted as the defendant??s agent to transport 3??20?? containers of barium chloride and the default freight.



5.	The B/L NO. COSU432811624 issued by China Shipping Container Lines Co., Ltd. on 18 February 2000 and the Freight Invoice under this B/L, which proved that the plaintiff acted as the defendant??s agent to transport 1??20?? container of preserved Szechuan pickle and the default freight.



6.	The fair copy of the original B/L sent by the plaintiff to the defendant for the second time and confirmed by the defendant before issuing the original B/L of PCS SHIPPING LTD. NO. CCQAW310009 on 6 January 2000. It proved that the B/L was issued according to the defendant??s instruction.



7.	The Certificate of Authorization filled in by the plaintiff??s clerk Zhang Jian-Bin on 3 January, 2000, which proved that the defendant entrusted the plaintiff to forward the cargo under the B/L NO. CCQAW310009 dated 6 January, 2000.



8.	The Declaration Form for Export Cargo(for drawback purpose) submitted to Wusong Customs at the port of export of the goods by the plaintiff in the name of the defendant, which proved that the defendant was the managing company and shipper company of the cargo under Customs No. 070000042 transported by the plaintiff.



9.	The fax sent by the defendant??s clerk Xu Dong-Fa to the plaintiff??s clerk Yang Liu on 9 May, 2000 showing ?° the request to return the Declaration Form No. 0000042 for 3??20?? containers of barium chloride carried to Antwerp on 6 January, 2000?±, which proved that the actual shipper of the cargo under the B/L No. CCQAW310009 issued on 6 January, 2000 was the defendant.



10.	The fax sent by the defendant??s clerk Xu Dong-Fa to the plaintiff??s clerk Zhang Jian-Bin on 25 February, 2000 showing the shipment of 3??20?? containers of barium chloride to Antwerp on 6 January?±, ?°delay in delivery?± and ?°please explain the reasons and suggest the solution?±, which proved that the actual shipper of the cargo under the B/L No. CCQAW310009 issued on 6 January, 2000 was the defendant.



11.	The register list signed by the defendant??s clerk Yuan Xing-Hua upon the receipt of the original B/L sent by the plainst on 6 January, 2000, which proved that the plaintiff delivered the B/L No.CCQAW310009 to the actual shipper namely the defendant.



12.	The fair copy of the original B/L which the plaintiff sent to the defendant for the first time by fax and the defendant faxed back to the plaintiff after revised the title under the Notice Party to ?°CENTRE?± by the defendant??s clerk Ye Zhi-Ming and confirmed

with his signature, which proved that according to the actual shipper namely the defendant??s revision, confirmation and instruction, the plaintiff made out the fair copy of original B/L again and gave it to the defendant for final confirmation.





The defendant didn??t make his answer in writing. However, during the court hearing he defended: the plaintiff had violated the provisions of the ?°Agreement on Containerized Shipment?± concluded by both parties, damaged the defendant??s cargo during the carriage, and hadn??t resolved the problem until this day (the day of court hearing), so the defendant didn??t pay the freight for the time being. 



The defendant submitted the following evidence to support his defence:



1.	The ?°agreement on containerized shipment?± concluded by the plaintiff and the defendant on 1 July, 1999, which proved the relationship of contract of carriage of goods by sea between the plaintiff as the carrier and the defendant as the shipper.



2.	The letter sent by the defendant to the plaintiff on 6 December, 2000, regarding the suggested  solutions to  cargo damage?±, which proved that as to the cargo damage under the B/L No. CSHNG270083 carried on 9 December, 1999 and other cargo damage irrelevant to this case, the defendant had made the claim to the plaintiff.



3.	The response made by the plaintiff after the plaintiff received the defendant??s letter regarding ?° the suggested solutions to cargo damage?±, which proved that as to the cargo damage under the B/L No. CSHNG270083 carried on 9 December, 1999 and other cargo damage irrelevant to this case, the plaintiff had made suggestions for solution.



4.	The counterfoil of transferring cheque No. 00372339 of  the Commercial Bank (Yu) (copy) used for paying the freight in early January, 2000.



During the time of the trial, the plaintiff and the defendant  cross-examined the relevant evidence. With regard to the plaintiff??s evidence, the defendant put forward the cross-examination opinion as follows: The shipper was ?°KINGBRIDGE CO., LTD.?± rather than the defendant as stated in the plaintiff??s Evidence No. 3, and the consignee was ?°TO ORDER?±, instead of the defendant, so this evidence wasn??t related to the plaintiff. Although the plaintiff??s Evidence No.6 bore the defendant??s common seal, yet the shipper was ?°KINGBRIDGE LTD.?±, rather than the defendant. The plaintiff??s Evidence No.7 was only the memorandum of the plaintiff??s clerk, on which the defendant didn??t sign his name or affix the defendant??s commom seal for confirmation. The shipper for export cargo stated in the plaintiff??s Evidence No.8 was the defendant, but the shipper stated in the plaintiff??s Evidence No.3 wasn??t the defendant, so, the export cargo stated in the plaintiff??s Evidence No. 8 and Evidence No.3 weren??t the same batch of cargo. The defendant only entrusted the plaintiff to transport one batch of cargo on 6 January, 2000, which was recorded on the plaintiff??s Evidence No. 8 rather than No. 3. Furthermore, the plaintiff??s Evidence No.8 and No.3 couldn????t prove that the defendant didn??t pay the freight, because there were frequent business activities  between the defendant and the plaintiff; the defendant paid the relevant fees by way of installment. However, the defendant had no objection to other evidence.



As to the defendant??s evidence, the plaintiff put forward his cross-examination opinion as follows: Other cargo damages recorded in the defendant??s Evidence No.2 were not verified by both parties, and not related to this case either, except that the carried  under B/L No. CSHNG270083 on 9 December, 1999 was relevant to this case, so, the defendant should not refuse to pay the freight requested by the plaintiff by reason of the cargo damage being not verified by both parties and irrelevant to this case. The reason why ?°KINGBRIDGE LTD.?± was stated in the plaintiff??s Evidence No.3 was that the shipper stated in the B/L being verified by the plaintiff??s Evidence No. 6 and No.12 was so stated according to the defendant??s instruction and confirmed by the  defendant for two times, so the actual shipper of that cargo was the defendant. The defendant admitted that he entrusted the plaintiff to forward a batch of cargo only one time on 6 January, 2000, in fact, the plaintiff did forward cargo for the defendant only one time on 6 January 2000. Therefore, it wasn??t consistent with the fact that the defendant said the cargo stated in the plaintiff??s Evidence No. 8 and No.3 were not the same batch of cargo. Meanwhile, the defendant didn??t provide any evidences to support his opinion, on the contrary, all of the plaintiff??s Evidence No.6 through 12 proved that  they were the same batch of cargo. Moreover, both parties confirmed that the defendant entrusted the plaintiff to ship the cargo once on 6 January, 2000, which also proved that they were the same batch of cargo and the actual shipper was the defendant. The defendant alleged that the freight had been paid, but he didn??t provide any evidences to support this allegation up to this day. Although the defendant had submitted  Evidence No.4, it couldn??t prove that the defendant had actually paid the freight to the plaintiff. 





On the basis of the evidences provided by the plaintiff and the defendant, with the cross-examination opinions of the plaintiff and the defendant, this court determined the following facts:



1.	The plaintiff concluded the ?°Agreement on Containerized Carriage?± with the defendant on 1 July, 1999. This Agreement provided:  Party A (namely the defendant) shall fill up the Letter of Entrustment and provide the complete set of documents and papers before consignment, and deliver the cargo according to Party B??s request. After accepting the entrustment of  Party A, Party B should declare the cargo to the customs as soon as possible, and shall book space for the cargo, and ship the cargo in time after loading the cargo into the containers in good order and condition. The freight for the whole voyage shall be collected as per Party B??s confirmation. Before shipment, the freight shall be confirmed by both parties through fax, where Party B shall fax the B/L to Party A for confirmation, and Party A shall pay up the freight within 40 days after receiving the freight bills from Party B. The evidence supporting this fact was Evidence No.1 provided by the defendant, over  which the plaintiff had no objection during the court hearing.



2.	After the agreement was concluded, the plaintiff accepted the defendant??s entrustment. The plaintiff acted as the defendant??s agent to carry 2??20?? containers of preserved Szechuan pickles from Chongqing to Japan against the freight of RMB 14, 414.00 on 9 December, 1999; the plaintiff acted as the defendant??s agent to carry 1??20?? container of barium chloride from Chongqing to  Nagoya, Japan against the freight of RMB 9,260.00 on 6 December, 1999; to carry 3??20?? containers of barium chloride from Chongqing to Yokohana, Japan against the freight of RMB 27,520.00 on 26 January, 2000; to carry 1??20?? container of preserved Szechuan pickles from Chongqing to Japan with the freight of  RMB 7,485.00 on 18 February, 2000. The above four sets of Bs/L showed that: the shipper was Tongliang County Import & Export Co., Ltd., freight prepaid. The freight for the  four batches of cargo amounted to RMB 58,679.00. Nevertheless, the defendant didn??t pay it to the plaintiff according to the agreement as yet. The evidence supporting this fact was the plaintiff??s Evidence Nos. 1, 2, 4 and  5, against which the defendant had no exception during the court hearing.



3.	The plaintiff acted as the defendant??s agent to carry 3??20?? containers of barium chloride from Chongqing to Antwerp against the freight of  RMB 58,645.00. This batch of cargo was actually carried by MV ?°TAIPING YANG03 V. 009?± managed by PCS SHIPPING LTD. After the cargo was load on the board, the PCS SHIPPING LTD. issued his own B/L NO. CCQAW310009. The B/L showed: The shipper was KING BRIDGE LTD., the consignee was ?°to order?±; the cargo was barium chloride with the weight of 60,200 kg and measurement of 60 CBM, CY TO CY 3??20?? FCL, freight prepaid. But the freight wasn??t paid yet. The evidence supporting this fact was the plaintiff??s Evidences Nos.3 and 6 through 12 and the defendant??s Evidence No.1.



The defendant raised no objection against the above fact, and provided Evidence Nos.2, 3 and 4 to support his opinion which proved that the shipper under  B/L NO. CCQAW310009 wasn??t the defendant, so, the freight shouldn??t be paid by the defendant. Moreover, the freight had been paid to the plaintiff, but the defendant didn??t provide any evidence or laws or regulations to support his defense and cross-examination opinion. The defendant??s Evidence Nos.2, 3 and 4 couldn??t prove that the shipper wasn??t the defendant, that the defendant had no obligation to pay the freight, nor the defendant had paid the freight to the plaintiff. Therefore, the defendant??s defense couldn??t be established. 





This court held that the ?°Agreement on Containerized Shipment?± carriage?± between the plaintiff and the defendant was duly concluded and was lawful and valid, which proved that the relationship of contract of carriage of goods by sea between the plaintiff and the defendant was established. As per the Agreement, the plaintiff carried the cargo under Bs/L NO. CSHNG270083, CSHYK270094, CCQAW310009, CSHAYK270001, COSU432811624 to the destination, which proved that the plaintiff had performed the obligation of shipment of goods as per the Agreement completely, the defendant should pay the full freight to the plaintiff  in time as scheduled by the Agreement. However, the defendant had not paid the above freight as yet, so, he should bear the relevant civil liability. The plaintiff made the claim to the defendant for freight payment, to which the court should give its support. It was without any legal basis that the defendant refused to pay the freight to the plaintiff because of cargo damage caused by transport of goods. The defendant argued that he refused to pay the freight under the B/L No. CCQAW310009 because he wasn??t the actual shipper on the grounds that the shipper in the B/L No. CCQAW310009 wasn??t the defendant, but he didn??t provide any evidence and legal basis to support his argument. In fact, on 6 January, 2000, the defendant entrusted the plaintiff to carry 3??20?? containers of barium chloride to Antwerp only once , on that day the defendant didn??t entrust the plaintiff to carry the same quantity, same kind of goods to the same destination for the second time, which was mutually proved by the plaintiff??s Evidence Nos.3, 7, 8 and 9 and the cross-examination opinions of the plaintiff and the defendant. The ownership of the goods belonged to the defendant when the defendant delivered the goods to the plaintiff, which was proved by the plaintiff??s Evidence Nos.7 to 11. After the goods were loaded on board, before issuing the original B/L, according to the agreement between the two parties confirmed by the B/L faxed and Article 72.1 of the Maritime Code of the PRC that the carrier should issue the B/L at the shipper??s request, the plaintiff sent to the defendant for confirmation the fair copy of the B/L drafted in accordance with the defendant??s instruction two times successively. Then, the defendant revised the first fair copy of the B/L and confirmed by signature; the defendant confirmed the last fair copy of the B/L by affixing its seal. In view of this, the plaintiff requested the actual carrier to issue the original B/L No. CCQAW310009, and the defendant also signed the original B/L sent by the plaintiff on the same day, which was proved by the plaintiff??s Evidence Nos.6, 11 and 12. So, the defence that the defendant wasn??t the shipper of this batch of goods could not be established, and this court doesn??t give its support to such defence.



The defendant alleged that the freight under B/L No. CCQAW310009 had been paid, but the defendant didn??t provide sufficient evidence to support this allegation. Although the defendant submitted Evidence No.4, but there were some problems in that evidence : 1. The date of filling in was uncertain; 2. The freight paid didn??t match; 3. There was record of payment in cash in the transferring cheque ; 4. This evidence couldn??t prove that the freight had been paid because two freight disputes happened respectively on 6 and 26 ,January 2000; 5. The defendant didn??t submit the evidence supporting the payment of freight by installment. Hence, this court doesn??t support the opinion that the defendant alleged that he had paid the freight. The cargo damage alleged by the defendant was another case besides the cargo damage under the B/L concerning this case, which should be handled separately. Even if the damage of one batch of cargo concerning this case had happened, but the defendant didn??t lodge a counterclaim, so it couldn??t be heard by this court. Pursuant to Article 106.1, Article 111 and Article 112.1 of the ?°General Principles of the Civil Law of the PRC?±, Articles 107, 109 of the ?°Contract Law of the PRC?±, Article 72.1 of the ?°Maritime Code of the PRC?±, Articles 64, 128 of the ?°Civil Procedure Law of the PRC?±, the court decided as follows:



The defendant shall pay to the plaintiff the freight of RMB 117,324.00 plus interest (counting from 1 April, 2000 to the day on which this judgment comes into force as per the interest rate of floating capital loan for the same currency over the same period issued by the People??s Bank of China), which should be paid up within 10 days after the day on which this judgment comes into force.



The defendant shall pay the court fee of RMB 3,857.00 and other court costs of RMB 1,157.00, amounting to RMB 5,014.00 totally. The defendant shall also pay the court fee prepaid by the plaintiff when effecting payment of the above sum for compensation.



If refuses to accept this judgment, one original appellate petition together with two copies thereof shall be sent to this court for appealing to the Higher Court of Hubei Province within 15 days upon service of this judgment, as well as the acceptance fee for the appeal and other court costs amounting to RMB 5,014.00.

Judge: Liu You-Yuan

                                     20 September,  2001                    

  Certified true copy

                                    Clerk: Liu  Dong