Shunlong Special Pipe Fittings Company of Wuxi v. Chuyun Economy & Trade Company of Port of Yingkou

Updated：2004-03-16 Views：1827 
HIGHER PEOPLE'S COURT OF HUBEI PROVINCE

 PEOPLE??S REPUBLIC OF China

CIVIL   JUDGMENT



NO. E-Jing-Zhong-179,2001



Appellant (Plaintiff in the first instance trial): Shunlong Special Pipe Fittings Company of Wuxi(hereinafter referred to as Wuxi Shunlong company).

Domicile: Xiaoxing, Qianqiao Town, Xishan City, Jiangsu Province

Legal Representative: Li Zhongxue, Board Chairman of Shunlong Company of Wuxi

Agent ad litem: Zhou Jianming, lawyer of Jinkui Law Office of Wuxi, Jiangsu Province

Agent ad litem: Qian Weiqing, lawyer of Deheng Law Office of Beijing

Appellee (Defendant in the first instance trial): Chuyun Economy & Trade Company of Port of Yingkou(hereinafter referred to as Yingkou Chuyun Company).

Domicile: Huochangli, Zhanqian District, Yingkou City, Liaoning Province

Legal Representative: Li Fuyi, manager of Yingkou Chuyun Company

Agent ad litem: Wang Peisheng, legal adviser of Harbor Authority of Yingkou

Refusing to accept the Civil Case Judgment of Wuhan Maritime Court filed NO. WU-HAI-FA-TONG-SHANG-26,2000 over the dispute about the contract for waterway cargo transportation as final, the appellant Wuxi Shunlong Company instituted an appeal to this court. This court duly formed a collegial panel and held an open hearing of this case. The agent ad litem Zhou Jianming of the appellant Wuxi Shunlong Company, the legal representative Li Fuyi and the agent ad litem Wang Peisheng of the appellee Yingkou Chuyun Company appeared in court for action. This cases has been concluded now.

  The first instance trial found out that Wuxi Shunlong Company and Yingkou Chuyun Company signed a Maritime Transport Agreement on April 9,2000, which stipulated as follows: 1.Wuxi Shunlong Company entrusted Yingkou Chuyun Company to transport by sea and then transship 1,700 tons of roll bendings, a kind of new product of hot-rolling of Benxi Steel Company (hereinafter referred to as Ben Steel)where    the port of shipment was Bayuquan of Yingkou and the port of arrival was Wuxi and the receiver was Wuxi Shunlong Company. 2.The fees shall be collected according to the weight stated in the railroad bill and the quality assurance certificate of the steel factory. From Yingkou to Wuxi Port via Shanghai(as transshipment port) the cost including shipping charges, port charges and service charges was RMB113 per ton, from Yingkou to Jiangyin Port was RMB83 per ton. 3. After Yingkou Chuyun Company delivered the goods to the port of arrival appointed by Wuxi Shunlong Company,if no disagreement, the account shall be settled with Wuxi Shunlong Company at a lumpsum amount without installment. Wuxi Shunlong Company shall remit the money to the account of Yingkou Chuyun Company promptly. 4.After the goods were delivered to the port, Yingkou Chuyun Company shall checked and accept the goods according to the quantity declared in railroad bill. It should check with the steel factory promptly if there was any inconsistency. According to the regulations issued by the Communications Ministry and Railway Ministry, the liability for shortage of and damage to the goods judged from commercial record should be undertaken by the person responsible therefor. On January 15,2000, Yingkou Chuyun Company (charterer under the C/P) and Haizhou Maritime Company of Linhai City, Zhejiang Province (shipowner under the C/P) signed a Voyage Charter Party, which stipulated that the charterer should transport 7000 tons of roll bendings and tin plates by the ship Jinpeng where the port of shipment was Bayuquan of Yingkou and the ports of arrival were NanJing and Jiangyin. The freight was RMB52-53 per ton to Nanjing and RMB47-48 per ton to Jiangyin. From January 24 to 27 of 2000, sixty-one pieces/ 690.88 tons of T4A hot-rolling roll bendings consigned by Wuxi Shunlong Company were loaded on board and were delivered to Jiangyin Port on February 1,2000. On the same day, Wuxi Shunlong Company signed a contract of port operation with the Port Management Office of Jiangyin,under which the Port Management Office of Jiangyin was entrusted to load and unload and transport the goods. The Port Management Office as the port operator of Jiangyin didn't make any remark on the delivery receipt of this batch of goods. The goods were arranged by the Port Management Office of Jiangyin to be transshipped to Wuxi Port by lighter and handed over to the receiver  Wuxi Shunlong Company. After receiving and warehousing the goods, Wuxi Shunlong Company sent a mail on February 20,2000 to ask Yingkou Chuyun Company to dispatch someone to deal with the problem of damage to the roll bending (being soaked and getting rusted). On February 29,2000, Wuxi Shunlong Company entrusted the Product Quality Supervision and Examination Station of Xishan City, Jiangsu Province to inspect the hot-rolling roll bending. The result showed that the surface was badly eroded by rust and the product was unqualified. On March 22,2000,  the Commercial Department of the Port Management Office of Jiangyin issued a confirmation statement that the ship Jinpeng arrived at Jiangyin Port towards the end of January , 2000, on which there were sixty-one pieces/ 690.88 tons of roll bendings of Shunlong Special Pipe Fittings Company, Wuxi. During the course of unloading, the surface was found to have been immersed in water and soaked. Besides, it was found out that on April 7,2000, Yingkou Chuyun Company sent a mail to Yingkou Branch of the Economic and Technological Development Zone  of Chinese People's Insurance Company stating that when the roll bendings and tin plates that were transported by the ship Jinpeng from Bayuquan towards the end of January, 2000 were unloaded at Jiangyin and Nanjing Port, they were found to have been immersed in water and eroded by rust, which led to an enormous loss. Yingkou Chuyun Company requested the insurance company to compensate for the loss, and at the same time, it provided relevant material and receiver's letter of claim. On April 1, 2000, the insurance company made a response to Yingkou Chuyun Company as follows: after analysis, the insurance company held that the risks involved in this case happened over two months ago, the cause and development of the accident could not be effectively inspected and ascertained any more; the material provided by Yingkou Chuyun Company could not prove that the cargo damage was within the scope of insurance coverage for risks accured when the goods were shipped from the Port Yingkou to the Port Jiangyin and the Port Nanjing. In addition, it was found out that Wuxi Shunlong Company sent a mail to ask Yingkou Chuyun Company to send someone to deal with this matter, and Yingkou Chuyun Company sent someone to Wuxi to inspect the goods in March ,2000. But the two parties failed to achieve any positive result. Then Wuxi Shunlong Company sent lots of mails to ask Yingkou Chuyun Company to deal with it, but none of them worked.On June 30,2000, 663.88 tons of hot-rolling roll bendings of Wuxi Shunlong Company were sold at a low price to the Metal Recyling Company of Xishan City. In prescribed time for adducing evidence, Wuxi Shunlong Company failed to provide evidence for the damage, the extent of the damage and shortage of hot-rolling roll bendings that were shipped by the ship Jinpeng.

  Yingkou Chuyun Company provided the civil judgment of Dalian Maritime Court NO. DA-HAI-FA-SHANG-CHU-372, 2000 in which it was adjudicated and found out that there wasn't undesirable remarks about the goods when the ship Jinpeng received and delivered the goods of Wuxi Shunlong Company at the port of shipment and port of arrival. Dalian Maritime Court held that Yingkou Chuyun Company claimed an indemnity from the ship Jinpeng without evidence to prove that the damage happened during the course of transportation by the ship Jinpeng , Hence the court dismissed the claim of Yingkou Chuyun Company. In court trial, Yingkou Chuyun Company stated that the Company didn't have waterway cargo transportation license.

  Wuxi Shunlong Company changed its litigious request in the first instance trial by renouncing the claim for a loss of profit of RMB94,650.56 and requesting Yingkou Chuyun Company to compensate for RMB1,101,869.44 and the corresponding bank interest from February 2,2000 to the day of Judgment.

  The first instance trial held that the Maritime Transport Agreement  signed by Wuxi Shunlong Company and Yingkou Chuyun Company was a true declaration of the intentions of both parties, hence it had binding force upon the two parties to the Agreement. However, as Yingkou Chuyun Company had no waterway transportation license, it violated  State Council's Regulations on the Administration of Water Transport and wasn't qualified for waterway cargo transportation, Hence the Agreement was invalid. After being entrusted by Wuxi Shunlong Company, Yingkou Chuyun Company chartered the ship Jinpeng to transport this batch of goods. It was equally his duty to transport the goods to the destination in safety and entirety. The delivery receipt of waterway cargo transportation was the basic evidential document for delivery/ taking delivery of the goods between the carrier and the receiver (consignor). In this case, there wasn't record about damage to the goods when the ship Jinpeng received and delivered the hot-rolling roll bendings of Wuxi Shunlong Company at the port of shipment and the port of arrival. Besides, this batch of goods was transshipped by lighter to the berth of Wuxi Shunlong Company, and not until Wuxi Shunlong Company received and warehoused the goods did it claim for indemnity for damage to the goods and send the samples for inspection, so it couldn't be proved whether there was damage to the goods as well as the extent of damage. Furthermore, none of the letters, invoices, inspection reports and photos presented by Wuxi Shunlong Company could prove that the damage happened during the period of carrier's responsibility, nor could they prove the extent and the result of the damage. The two parties never confirmed the damaged goods, the extent of damage or the cause of damage. Hence the claim of Wuxi Shunlong Company in requesting Yingkou Chuyun Company to compensate for the damage to the goods and loss of interest was not supported due to insufficient evidence. In accordance with Article 310 of the Contract Law of the People's Republic of China, Article 128 of the Civil Procedure Law of the People's Republic of China, as well as Articles 9, 11 and 13 of the Regulations of the Administration of Water Transport, the court of first instance rendered it`s judgment as follows: Dismiss the appellate petition of Wuxi Shunlong Company in requesting Yingkou Chuyun Company to compensate RMB1,101,869.44 for the loss of the goods and the corresponding bank interest from February 2, 2000 to the day of Judgment. The court acceptance fee was RMB15,993??other legal fee was RMB4,798, and the total sum was RMB20,791, which shall be paid by Wuxi Shunlong Company.

   Refusing to accept the Judgment as final, Wuxi Shunlong Company instituted an appeal to this court, claiming as follows: 1.Although there wasn't record about the damage and extent of damage to the goods in the delivery receipt of waterway cargo transportation, yet the relevant  evidence submitted by this Company and the facts concerning this case were strong enough to prove that this Company suffered a loss. Article 310 of the Contracts Law reads: if there isn't stipulation or definite stipulation about the time limit for inspection of goods, the goods should be inspected within a reasonable time limit. The court of first instance trial deprived our Company of its legitimate rights and interest. 2.The Maritime Agreement signed between our Company and Yingkou Chuyun Company didn't stipulate or clearly stipulate the time limit for inspection of goods. Since our Company  raised an objection in this respect, the goods delivered by Yingkou Chuyun Company couldn't be taken as conforming with the relevant stipulations. 3.Our Company sent many faxes to urge Yingkou Chuyun Company to deal with the damage to the goods, while Yingkou Chuyun Company evaded as much!. It was lawful and well-founded that our Company dealt with the damaged goods in accordance with laws.

  Yingkou Chuyun Company made an oral argument that the evidence presented by Wuxi Shunlong Company wasn't sufficient to show that the damage suffered by Wuxi Shunlong Company happened in the period of waterway transportation:1.It was on February 15,2000 that Wuxi Shunlong Company paid the freight, which showed that Wuxi Shunlong Company didn't object to the performance of the transportation service of ours; the other party didn't provide evidence about the extent of damage of this batch of goods, and their way of handling the goods weren't impartial; Yingkou Chuyun Company didn't hold that the damage to the goods happened in the period of transportation by the ship Jinpeng.

  In the second instance trial, the appellant Wuxi Shunlong Company presented the following evidence to this court:

  Evidence 1:The fax sent by Wuxi Shunlong Company to Yingkou Chuyun Company on February 20, 2000, which reads: the 61 pieces of hot-rollings of Ben Steel destined for Jiangyin Port were found to have been soaked with seawater and eroded by rust when they were put to use . Please dispatch someone to deal with this matter soon after you receive the fax.

  Evidence 2:Documentary evidence of customers' responses:hot-rollings of Ben Steel were purchased from Wuxi Shunlong Company,and Shunte Steel Tube Group of Wuxi on January 31, February 14 and February 16 of 2000, and requests for compensation for loss or for return of goods were made by letters of February 29 and March 4 of 2000.

  Evidence 3: A group of photos of the damage to the goods.

  Evidence 4: The inspection report of the Product Quality Supervision and Examination Station of Xishan City which stated??Name of Product: hot-rolling roll bending; Client: Wuxi Shunlong Company; Date of Inspection: February 29,2000; Quantity of Sample(s): 1; Result of Inspection: 1. The surface was seriously eroded by rust; 2. The standard value of thickness after removing the oxidized surface was greater than or equal to 2.10mm, and the factual surveyed value was 2.09mm; Conclusion: This batch of goods was below the standard.

  Evidence 5:On March 2, 2000, Wuxi Shunlong Company sent a mail to Yingkou Chuyun Company stating that the direct pecuniary loss was RMB1,196,520, indirect pecuniary loss was RMB119,652, other losses RMB5,000, the total sum was RMB1,321,172.

  Evidence 6:The sales contract between Wuxi Shunlong Company and Jinhui Metal Recycling Company Ltd. of February 28,2000, which provided that the sale of 690.88 tons of seawater-immersed hot-rollings at RMB1,400 per ton, and  the total value was RMB967,232. This evidence showed the way in which the goods were disposed of after the damage.

  Evidence 7: Shipping order of Materials and Equipment Branch of Shunte Steel Tube Group, Wuxi of June 30, 2000, which proved the goods were ready to be shipped.

  Evidence 8:Industrial and commercial invoice of Shunte Steel Tube Group of Wuxi of December 25, 2000, showing the total payment for the goods were RMB929,432.It proved this batch of goods was sold as well as the amount paid.

  Evidence 9:Contract between Wuxi Shunte Steel Tube Group and Metal Recycling Co. Head Office of Xishan City for leasing warehouse,  showing the rent of warehouse will be compensated for by the payment for the hot-rollings.

  In court trial, both parties cross-examined the above evidence. Yingkou Chuyun Company claimed that evidence 1 to evidence 5 presented by Wuxi Shunlong Company were not sufficient to prove that the damage to the goods happened in the period of transportation by the ship Jinpeng. The corroborative evidence was as follows: (1) Yingkou Chuyun Company reported all the proofs provided by Wuxi Shunlong Company about the damage to the goods to the insurance company, and the insurance company informed by mail that the material evidence couldn't prove that a maritime accident within the scope of liability insured against did happen during the voyage from Yingkou to the port of Jiangyin. (2) Regarding the damage to the goods, Yingkou Chuyun Company brought an action to Dalian Maritime Court against the shipowner  Maritime Company of Haizhou, Linhai City, Zhejiang Province. Dalian Maritime Court held that there wasn't evidence to prove the damage to the goods happened in the course of transportation by the ship Jinpeng, hence the claim of Yingkou Chuyun Company for an indemnity was dismissed. As for evidence 6 to evidence 9 presented by Wuxi Shunlong Company, Yingkou Chuyun Company didn't agree to such evidence and held that Wuxi Shunlong Company didn't present the evidence within the time prescribed by the court of first instance, but submitted afterwards; the damage to the goods weren't ascertained; Wuxi Shunlong Company evaded legal procedures to deal with goods without authorization.

  The appellee Yingkou Chuyun Company presented the following new evidence in the second instance trial:

  Bank acknowledgement of payment by Wuxi Shunlong Company to Yingkou Chuyun Company for the freight of RMB57,343.04 on February 15, 2000, which showed Wuxi Shunlong Company had paid off the freight for this batch of goods, and they didn't hold disagreements about the delivery of this batch of goods at Jiangyin Port.

  Wuxi Shunlong Company didn't object to the above evidence presented by Yingkou Chuyun Company.

  The second instance trial also found out that the first instance trial erroneously determined the date of signing the Maritime Agreement as April 9,2000. In fact, the time when Wuxi Shunlong Company and Yingkou Chuyun Company signed the Maritime Agreement should be January 9, 2000.

  Based on the appellate petitions and opinions in the pleadings of both parties and in combination with proof and cross-examination, the dispute between the two parties in this case focused on whether the damage to the goods happened within the period of responsibility of carriage by the ship Jinpeng.

  This court held that in this case, the basic facts regarding unloading happened in the course of delivering the goods at the port of arrival, Jiangyin Port. The agent ad litem of Wuxi Shunlong Company,viz. the Port Management Office of Jiangyin didn't make any remarks in the statement of delivery of the goods showed the carrier's handing over the goods at the port of arrival complied with the stipulations of the contract. Articles 88 and 90 of the regulations on Waterway Cargo Transportation provided: if such accidents as pollution, damage etc. happened in the course of transportation and operation of goods, shipping record should be duly established for those involving the liability of the carrier or the port operator. When claiming an indemnity for shipping accidents, such shipping record should be attached. So shipping record was the original evidence to prove shipping accidents. Jiangyin Port didn't make record about the shipping accident of this batch of goods, and Wuxi Shunlong Company couldn't provide original evidence to prove the damage to the goods happened during the transportation from Yingkou to Jiangyin. Evidence 1 to evidence 5 presented by Wuxi Shunlong Company couldn't prove the damage happened within the responsibility period of the transportation from Yingkou to Jiangyin by the ship Jinpeng. Besides, evidence 1 and evidence 2 showed that the damage to the goods were found after they were sold and used, which obviously exceeded the reasonable time limit for inspection of goods. In evidence 2, the time when one of his customers purchased the hot-rollings of Ben Steel was January 31, 2000, but in this case, the time when the ship Jinpeng arrived at Jiangyin Port was February 1 of the same year, and it was much later when the goods arrived at the port of arrival, Wuxi, so it was obvious that the damage to the goods for which the receiver claimed for an indemnity didn't happen during the waterway transportation under this case. What's more, when Wuxi Shunlong Company paid off Yingkou Chuyun Company the freight for this batch of goods on February 15, 2000, the problem about the damage to the goods weren??t raised, which should be held as Yingkou Chuyun Company had shipped the goods to the port of arrival in accordance with the stipulations and the goods were safe and sound when unloaded.

  Afterwards Wuxi Shunlong Company gave a notice about the damage to the goods and claimed that there wasn't stipulations about the time limit to cargo inspection. The grounds for the appeal put forwarded by him the appellant that as long as the receiver raised objection, the goods delivered by Yingkou Chuyun Company couldn't be regarded as complied with the stipulations couldn't be accepted by this court, since there wasn't factual or legislative basis. Since the civil judgment of Dalian Maritime Court filed DA-HAI-FA-SHANG-CHU-372,2000 had taken effect, it could be used as a proof to determine the facts of this case in accordance with law. Hence it couldn't be determined that the damage to the goods claimed by Wuxi Shunlong Company happened during the period of responsibility of Yingkou Chuyun Company's chartered vessel Jinpeng in her voyage from Yingkou to Jiangyin. It was proper that the court of first instance trial dismissed the appellate petitions of Wuxi Shunlong Company.

  In conclusion, this court doesn't support the appellate petitions of Wuxi Shunlong Company as there wasn??t sufficient proof to support. Except the time when both parties signed the Maritime Agreement, other facts were determined expressly by the first instance trial. The proof was sufficient and the laws were applied correctly. In accordance with Article 153.1.1 of Civil Procedure Law of the People's Republic of China, it is decided by this court as follows:

  Dismiss the appeal and affirm the first instance judgment rendered by the court of first instance.

  The court acceptance fee for the second instance trial was RMB15,993, which shall be paid by the appellant Shunlong Special Pipe Fittings Company of Wuxi.

  This judgment is final.

                           Presiding Judge: Du Hansheng

                           Judge        : Qian Jinfen

                           Acting   Judge: Wang Hongping

                             

September 17, 2001

                           

Certified true copy



Clerk: Wang Ying