Guangzhou Maritime Court of the PRC


                                                       Civil Judgement


                                                                                                    (2000)GHFSZ No.013


Plaintiff:				Giant Zinc Enterprise Corporation 

Address:			Suite 02 of 13/F, No.148, Si Wei Er Road, Ling Ya District, 

Kaoxiong, Taiwan

Person in Charge:	Su Jiaqing

Agent ad Litem:		Yang Yufu, lawyer of Guangdong Maritime Law Firm

Agent ad Litem:		Zhao Xiangsheng, manager of Hunan International Economy 

and Technology Cooperation Corp.


Defendant:			the People's Insurance (Property) Company of China, 

Changsha Branch

Address:			No.99, Chezhan Road, Changsha, Hunan Province

Person in Charge:	Jin Hong, manager

Agent ad Litem:		Zhou Zhiru, lawyer of Hunan Xiangjun Law Firm

Agent ad Litem:		Xu Faming, lawyer of Goldsun Law Firm


With respect to the dispute over insurance contract for carriage of cargo by sea between the Plaintiff Giant Zinc Enterprise Corporation and the Defendant the People??s Insurance (Property) Company of China, Changsha Branch, the case was transferred to this court by the People??s Court of Furong District, Changsha, Hunan Province on January 3, 2000. After accepting the case, this court constituted the collegiate bench according to law and arranged the pre-trial exchange of evidences on February 28. An open court hearing was held on February 28 to try the case. Yang Yunfu, Zhao Xiangsheng, the agents ad litem of the Plaintiff, Xu Faming and Zhou Zhiru, the agents ad litem of the Defendant, attended the court hearing. Now the case has been finalized. 


The Plaintiff Giant Zinc Enterprise Corporation stated that: in February, 1997, the Plaintiff entrusted China Hunan International Economy and Technology Cooperation Corp. (hereinafter referred to as ?°HIETCC?±) to export 20 tons of zinc powder at USD1,310/ton CIF Kaoxiong in the total price of USD26,200. HIETCC effected the insurance with the Defendant against ?°All Risks and War Risk?± for insured amount at 110% of the total price. The number of the insurance policy was CS49(01)/970110013. The consignment of cargo arrived at Kaoxiong on February 21, 1997. The Plaintiff is the consignee for that consignment. When it took delivery of the cargo, 40 bags of zinc powder were found seriously wet and caked. The Plaintiff then asked Taiwan Marine Survey, Ltd. to conduct a survey. The survey had the conclusion that the extent of cargo damage was 80%. The cause of the damage was that the rainwater seeped through the cracks on the containers. The cargoes in the containers were wet and caked in transportation, resulting in a total loss of USD21,012.4. For this reason, HIETCC lodged claims against the Defendant for many times, but the Defendant had no intention to effect any compensation. The Plaintiff held that: 1. The damaged cargo alleged by the Plaintiff was the subject matter clearly stated in the insurance policy. The Defendant had confirmed that the cargoes stated in two bills of lading were corresponding to the cargoes stated in the insurance policy. As there was no direct voyage from Mainland China to Taiwan, the cargoes had to be transshiped at Hong Kong. Therefore, the shipowner of on-carriage held a copy of the memo bill of lading, so that the number of such bill of lading was different from that of the through bill of lading. 2. The cargo damages alleged by the Plaintiff was covered by the Defendant??s insurance. The cause for the cargo damage, which had been ascertained in the Civil Judgement (1998)GHFSZ No.9, was due to the cause that the containers were damaged in transportation. The damage of the containers occurred during the period of the carrier??s responsibility, therefore it was under the coverage of All Risks undertaken by the Defendant. 3. The loss claimed by the Plaintiff was reasonable. According to Article 23 of the Insurance Law of the PRC, the indirect loss sustained by the insured due to the fault of the insurer shall also be indemnified by the insurer. 4. The Defendant shall immediately compensate the Plaintiff for the cargo damage. On basis of the above, pursuant to PICC??s Marine Cargo Clauses, Article 237 and Article 252 of the Maritime Code of the PRC, Article 7 of the Provisions on Property Insurance Contracts and the Insurance Law of the PRC, in order to protect the legitimate rights and interests of the Plaintiff, the Plaintiff hereby files the claim to this court, requesting to order that: I. The Defendant shall compensate the Plaintiff for the cargo damages in amount of USD21,012.4, notarial fee of USD381.82, the interest on the cargo and the notarial fee of USD1,283.64 (interest is counted from March 15, 1997 until March 15, 1998, on basis of 6%, i.e. the annual loan interest rate in US dollars published by the People??s Bank of China. However, the interest actually paid shall be counted until the date when all the payment in arrears is cleared). II. The Defendant shall undertake the court fees for the Case (1998)GHFSZ No.9 in RMB7,178, and the court fees for this case in RMB5,274, and the relevant expenses that the Plaintiff paid for handling the accident and the litigation in RMB56,000. III. After the Defendant compensates the above expenses as ordered, the Plaintiff will transfer to the Defendant the right of recovery (claim) against the carrier Hong Guang Shipping Co. Ltd..


The Defendant the People??s Insurance (Property) Company of China Changsha Branch contended that: I. The Defendant will not undertake the liability of compensation as the cargo which have been damaged is not covered under the Insurance Policy CS49(01)/970110013. The Plaintiff purchased 20 tons of zinc powder at issue from HIETCC at the price terms of CIF Kaoxiong. When the seller effected the insurance, it declared the cargo quantity as 80 bags and the package as plastic knitted bags in the weight of 1,000kg each bag. However, the survey report shows that there are 40 bags of the cargoes sustaining damage in the specification of 500kg each bag. Obviously, they are not the cargoes covered under the insurance policy. The cargoes sustaining damage are in the specification inconsistent with that of the cargoes under the insurance policy. The documents provided by the Plaintiff are self-contradictory. Generally speaking, in such circumstances, the insurer has the ground to consider that they are not the cargoes under insurance coverage and so they refuse to pay the compensation. Let alone that the cargoes carried in this voyage are the dangerous cargo listed in the IMDG Code, for which there is special requirement for its packing containers. The export commodities inspection authority of China also lists the packing of Zinc powder into the scope of statutory inspection. Any package not inspected shall be deemed as unqualified packing and will not be allowed to be exported. In this case, the Plaintiff and the insurer did not invite the commodities inspection department to conduct a survey on the packing of the cargoes in 500kg each bag. Up to now the certificate for allowing the use of 500kg packing issued by the commodities inspection department has not yet obtained. Obviously, the packing for the cargo in this case is not qualified and the export process is illegal. The claim filed by the Plaintiff in respect of the export cargo through illegal process is against the principle of legality in China??s insurance. Therefore, the Defendant would certainly refuse to pay the compensation. II. The cargo upon which the Plaintiff entrusted Taiwan Marine Survey Co. Ltd. to conduct a survey is not the cargo under the insurance coverage by our company. Therefore, our company shall not be liable for indemnifying the Plaintiff against the damages of cargo alleged in the Survey Report. The bill of lading related to the cargo surveyed by Taiwan Marine Survey Co. Ltd. is numbered HKG/KAO-9707031A and the container is numbered TEXU3869342/1/2200. While the combined bill of lading issued by Hong Guang Shipping Co. Ltd. (hereinafter referred to as ?°Hong Guang Co.?±), which was provided by the Plaintiff and the applicant for insurance to the Defendant, is numbered WSGE970198 and the container is numbered TEXU3869342/20. Obviously, the cargo surveyed by Taiwan Marine Survey Co. Ltd. is not consistent with the one for which the Plaintiff claimed against the Defendant. The former is not that under the insurance of the Defendant, therefore the Plaintiff shall have no right to claim against the Defendant in this respect. In view that the Plaintiff??s claim does not comply with the terms in paragraph 4 of Clause 4 of PICC Marine Cargo Insurance Clauses, that is, the claim documents provided by the Plaintiff, such as the original insurance policy, bill of lading, packing list, survey report etc., contain serious points of inconsistence, the Defendant is entitled not to pay any compensation. III. The insured shall tell the truth of the insurance. The insurance in this case was effected by the seller and the price terms was CIF Hong Kong. There was no insurable interest from Hong Kong to Kaoxiong, therefore the insurance effected by the Plaintiff is invalid. The voyage under the insurance of the Defendant is from Huangpu to Hong Kong. If any problem occurs from Hongpu to Hong Kong, the Defendant shall be liable for compensation. On basis of above arguments, the Defendant requested the court to reject the Plaintiff??s claim and protect the legitimate rights and interests of the Defendant. 


Upon examination, it has been ascertained that: on January 5, 1997, HIETCC and the Plaintiff concluded the Purchase Contract No.Y97-002, which stipulates that: the Plaintiff will purchase 20 tons of zinc powder from HIETCC at the price of USD1,310/Ton CIF Hong Kong. The packing is knitted bag with the capacity of 500kg. Hong Kong Zhongda Development Co. Ltd. was entrusted to act as the agent to ship the cargo, with the port of shipment as Huangpu and the port of destination as Kaoxiong. The insurance covering All Risks and War Risk was bought by the seller according to the PICC Insurance Clauses on basis of 110% of the total invoice value.


In January 1997, HIETCC entrusted Hong Guang Co. to ship the said cargo from Huangpu to Kaoxiong via Hong Kong. The cargo after arriving at Huangpu port was loaded into containers by Guangzhou Huangpu Harbor Company. 


On January 24, 1997, the contract number stated in the Packing List/Weight List issued by HIETCC is Y97-002, which is consistent with that of the said Purchase Contract. The invoice number is C380207001(A), in which the cargo description, quantity, packing etc. are all same as that stated in the B/L No.WSGZ-970198 issued by the carrier Hong Guang  Co.. The Commercial Invoice No.C380207001 issued by HIETCC on the same day states that: Number of the Sale Contract: Y97-002, Quantity and Product: 20 tons of Zinc powder (325MESH), Unit Price: USD1,310/ton CIF Hong Kong. Total price: USD26,200.


On January 31, 1997, HIETCC arranged the insurance with the Defendant in respect of the shipment of the said cargo from Huangpu to Kaoxiong via Hong Kong. For this insurance, the Defendant issued the Insurance Policy No.CS49(01)970110013 at Changsha. The Insurance Policy states that: as per the requirement of the insured HIETCC, for the purpose of accepting the insurance for the shipment of the following cargo of the risks covered in this insurance policy and in accordance with the terms stated overleaf and the following special terms, we hereby establish this insurance policy, and the insurance premium as agreed upon shall be paid by the insured to the insurer. The Invoice No.: C380207001, Mark: N/A. Packing and Quantity: 80 plastic knitted bags, Insured Item: Zinc Powder (325MESH), Insured Amount: USD86,020. The two columns for carrier and the date of sailing are both in blank, but they are affixed with the round chop of the Defendant with its name in English. From: Huangpu, To: Kaoxiong via Hong Kong. Risks to be insured: All Risks under the PICC Marine Cargo Insurance Clauses as amended on Jan. 1, 1981, including the W/W Clause. If the insured cargo suffered loss/damage from the risks stated in the policy, the insurer shall pay the compensation according to the first original and the other relevant certificates. If the insured cargo suffers the loss or accident for which compensation should be paid according to the insurance policy, notice shall be given to the insurer??s agent immediately for a survey. Once a cargo damage occurs, the insured shall file an application to the local inspection organ for an inspection and obtain the survey report and relevant certificates therefor, and lodges the claim. The back of the insurance policy carries the PICC Marine Cargo Insurance Clauses as amended on Jan. 1, 1981 and the PICC War Risk Insurance Clauses for Marine Cargo. Among them, Item (3) ?°All Risks?± of Article 1 ?°Scope of Cover?± of PICC marine Cargo Insurance Clauses provides that: Aside from the risks covered under the F.P.A. and W.A. conditions as above, this insurance also cover all risks of loss of or damage to the insured cargo whether partial or total, arising from external causes in the course of transit. Article 4 ?°Duty of the Insured?± provides that: It is the duty of the insured to attend to all matters as specified hereunder, failing which the company reserves the right to reject his claim for any loss if and when such failure prejudice the rights of the Company: (1) The insured shall take delivery of the insured cargo in good time upon their arrival at the port of destination named in the Policy. In the event of any damage to the cargo, the insured shall immediately apply for survey to the Survey and/or settling agent stipulated in the Policy, ???? Should the carrier, assignee or  other relevant parties be responsible for such shortage and/or damage, the insured shall lodge a claim in writing against them and, if necessary, obtain their confirmation of an extension of the time limit of such claim. ???? (4) The following documents should accompany any claim hereunder made against this Company: Original Policy, Bill of Lading, Invoice, Packing List, Tally Sheet, Weight Memo, Certificate of Loss or Damage and/or Shorthand Memo, Survey Report, statement of claim. If any third party is involved, documents, invoices and/or letter, cables necessitated and relative to pursuing of recovery from such party should also be provided????


HIETCC paid the insurance premium therefor in the amount of RMB2,499. As the consignee for the cargo involved in this case, the Plaintiff in this case has provided this court with the first original of the insurance policy No.CS49(01)/970110013, on the back of which there is the blank endorsement of HIETCC. 


On February 13, 1997, Hong Guang Co. issued two clean on board through bill of lading numbered WSGZ-970197 and WSGZ-970198 respectively at Guangzhou for the said 80 bags of zinc powder in 3 20?? containers covered under the Insurance Policy No.CS49(01)/970110013. Among them, the Bill of Lading No.WSGZ-970198 states that: Shipper: Hunan International Economy and Technology Cooperation Corp., Consignee: the Plaintiff, Port of Loading: Guangzhou, Port of Discharge: Kaoxiong, Carrying Vessel: Pretty Lake, Voyage: 9707N, Cargo Description: Zinc Powder (325MESH), Pieces and Type of Packaging: 40 plastic knitted bags (500kg each bag), Gross Tonnage: 20,050kg, Container No.: TEXU3869342/20??, Way of Handover: CY/CY, one 20?? container in total, loaded, counted and sealed by the shipper. The overleaf clauses of the bill of lading states that: the period of the carrier??s responsibility shall commence from the time when the cargo are loaded on board the ship and shall cease when they are discharged from the ship. 


On February 21, 1997, M/V ?°Pretty Lake?± discharged the cargo at Kaoxiong, Taiwan. There were two corresponding copies of Inward Declaration , one of which for the Container TEXU3869342/1/2200 states that: port of shipment: Hong Kong, Inward Vessel and Voyage: Pretty Lake V-9707, Cargo Description: Zinc Powder, Taxpayer: the Plaintiff, Pieces: 40 bags (one container), Gross Weight: 20,050kg. Except that the bill of lading is numbered HKG/KAO-9707031A and the port of shipment is Hong Kong, other contents are completely the same as that in the Through Bill of Lading No.WSGZ-970198 issued by Hong Guang Co.. In the other Inward Declaration, except that the bill of lading is numbered HKG/KAO-9707031B and the port of shipment is Hong Kong, other contents are completely the same as that in the Through Bill of Lading No.WSGZ-970197 issued by Hong Guang Co.. 


Taiwan YiHo Transportation Co. Ltd., the agent of Hong Guang Co. at the port of discharge, transferred the Container No.TEXU3869342 with zinc powder to Asia Pacific Container Terminal, Inc.. The relevant Container Handover/Acceptance Certificate states that: the container has a hole at the bottom of its forward end, the lower edge of door is deformed, the floor beam and the door bar bent. On February 25, 1997, the Plaintiff took delivery of the cargo from Asia Pacific Containers Terminal, Inc. against presentation of the original Bill of Lading No.WSGZ-970198. Both parties made the Acceptance Certificate for Takeover of Outward Containers, in which the contents are the same as that in the previous acceptance certificate. The container numbers stated in the said acceptance certificates are both TEXU3869342, the vessel??s name and voyage are both PRLA (this should be the abbreviation of ?°Pretty Lake?±), 9707. The Plaintiff sent the cargo to its own warehouse. It opened the container and found the zinc powder wetted. On February 27, 1997, the Plaintiff issued a notice of damage to Taiwan YiHo Transportation Co. Ltd., stating that once the scope and cause of the loss have been ascertained, the Plaintiff will exercise his right of claim. On March 4, 1997, the Plaintiff sent a fax to Taiwan YiHo Transportation Co. Ltd., stating that the Plaintiff had invited Taiwan Marine Suvey Co. Ltd. to sort out the loss of the cargo on March 5. If Taiwan YiHo Transportation Co. Ltd. failed to send someone to attend the survey, it shall be deemed that it waives the right and agrees with the result of the sorting out. 


The Notarial Report of Taiwan Marine Survey Co. Ltd. (hereinafter referred to as ?°the Notarial Report?±) that the Plaintiff provided to the court states that: as per the request of the Plaintiff, Taiwan Marine Survey Co. Ltd. conducted a survey on the 40 bags of zinc powder under the B/L No.HKG/KAO-9707031A in the Container No.TEXU3869342, which was carried by M/V ?°Pretty Lake?± and arrived at Kaoxiong port on February 21, 1997. The 40 bags of zinc powder were found wetted and caked. The loss was incurred due to the damage of the container, so that the cargo was caked after continuously immersed in the water. This happened within the period of management under the carrier. The rate of cargo loss is 80%. The cost for the inspection is TWD10,500, equivalent to USD381.82.


On March 14, 1997, the Plaintiff notified Hong Guang Co. of the Notarial Report and lodged a claim against Hong Guang Co.. 


On May 19, 1997, HIETCC sent a claim letter to the Defendant in respect of the cargo damage to claim for compensation for the loss formally, together with 9 documents such as the contract, invoice, packing list, bill of lading, insurance policy, relevant survey report, statement of claim, the claim letter against the carrier and the carrier??s letter rejecting the claim. On June 17, 1997, the Defendant rejected the claim on the ground that: the Defendant has the ground to consider that the container was damaged before the shipment, but the insured did not find out or pay attention to the damage. Furthermore, the package of that consignment did not meet the international standard. The accident was caused by the fault of the insured. According to the insurance clauses, this is a loss resulting from the fault/negligence of the insured, which does not fall within the scope of the insurance cover. 


On August 15, 1997, the carrier Hong Guang Co. issued a Certification, with the contents as follows: ?°China Hunan International Economy and Technology Cooperation Corp. entrusted our company to carry a cargo of 20T zinc powder (40 bags, 500kg each bag) with the invoice number being C380207001(A). After the cargo arrived at Guangzhou port, Guangzhou Huangpu Harbor Company was in charge of loading the cargo at Huangpu port into a container with number TEXU3869342. Our company issued the B/L No.WSGZ-970198 at Guangzhou on February 13. The certification is hereby given.?±


On January 30, 1997, Guangzhou Huangpu Harbor Company issued a container tally sheet, which states that: 1x20?? Container No.TEXU3869342, loaded with 40 bags of zinc powder with 750kg in total in each bag; the container is in good condition. As to the statement ?°750kg each bag?± filled in the tally sheet, according to the said documents, especially the carrier??s certification, this should be a clerical error. The actual weight in each bag should be ascertained as 500kg.


In respect of the cargo loss, the Plaintiff has filed with this court a claim against the carrier Hong Guang Co.. This court handed down the Civil Judgement (1998)GHFSZ No.9 on June 17, 1998, holding that: although the B/L number as referred to in the Notarial Report, i.e. HKG/KAO-9707031A, is inconsistent with that of the through bill of lading issued by the carrier Hong Guang Co., the other contents in the report, including the container number, the carrying vessel, the name of the consignee, the cargo description and the kind of packages, are all same as those in the through bill of lading. Furthermore, the date of the vessel??s arriving at Kaoxiong port as stated in the report is same as the date when the cargo under the through bill of lading arrived at Kaoxiong port. The judgement ascertained that the cargo damage occurred during the period of responsibility of the carrier (Hong Guang Co.), and rules that Hong Guang Co. shall compensate the Plaintiff for the cargo loss in amount of USD20,960, the survey fee in amount of USD381.82 as well as the accrued interest (the interest shall be counted from March 15, 1997 on basis of the loan interest rate published by the People??s Bank of China for the same period until the date when the judgement takes effect ). The judgement has taken legal effect already. The Plaintiff applied to this court for the execution on December 30, 1998. The Plaintiff applied for postponing the enforcement as it could not provide the court with the information of the enforceable properties of the party against whom the judgement will be enforced. This court rendered the Civil Ruling (1999)GHFZZ No.021 on June 17, 1999, according to which the enforcement of the Civil Judgement (1998)GHFSZ No.9 be suspended. 


In addition, the Plaintiff also claimed for the relevant expenses arising from the handling of the accident and the litigation, which amounts to RMB56,000 in total. However, it failed to provide the relevant evidences within the time limit prescribed by this court for adducing evidences. 


There are the evidences in file supporting all the above facts. 


Upon discussions, the collegiate bench unanimously holds that: this is a case related to dispute over insurance contract for marine cargo transportation. The Plaintiff and the Defendant shall both be bound by the contractual terms as stipulated in the Insurance Policy CS49(01)/970110013. 


According to the findings of facts that have been ascertained, the insurance policy at issue has not clearly stated the weight of the cargo in each bag. The Defendant has not provided evidence to prove that the Plaintiff declared the weight of each bag as 1,000kg when the Plaintiff effected the insurance. To the contrary, the Sale Contract, the Bill of Lading No.WSGZ-970198, the corresponding Packing List/Weight Memo, the Commercial Invoice and the Certification issued by the carrier all prove that the 20T zinc powder are with a weight of 500kg in each bag. It was appropriate for the Plaintiff to apply for a survey merely on the damaged cargo at the port of destination. Therefore, there does not exist the inconsistency of the specification of the packages and quantity of the damaged cargo with the insured cargo as alleged by the Defendant. The Bill of Lading No.WSGZ-970198 issued at the port of loading and the container number stated in the Notarial Report issued by Taiwan Marine Survey Co. Ltd. both adopt the international uniform identification, with the container owner codes written in 4-digit Latin letters both as TEXU and the six-digit sequential number both as 386934. The numbers in the two documents for the verification of the container owner and the sequential number comply with each other, which are both 2. It is sufficient to hold that they are identical. As to the digit at the rear end of the container number is merely the number and code additionally indicating the number, size and type of the container. In practice, whether they should be marked or not on documents is various. The fact that such digit is not unified cannot prove whether they are not indicating the same container. The Certification issued by the carrier Hong Guang Co. certifies that: the invoice number for the 20T zinc powder under the B/L No.WSGZ-970198 issued by the carrier is C380207001(A), which can be collaborated with the Invoice number C380207001 for the insured cargo stated in the insurance policy. In the Commercial Invoice No.C380207001(A) related to the cargo damage provided by the Plaintiff, the contract number is Y97-002, which is identical to that of the said Purchase Contract. During the course of court??s investigation, the Defendant has confirmed that the cargo stated in the two through bills of lading issued by Hong Guang Co. are the insured cargo under the insurance policy at issue. The Civil Judgement (1998)GHFSZ No.9 of this court has ascertained that the loss of the cargo in Container TEXU3869342 occurred during the period of the responsibility of the carrier Hong Guang Co.. For this reason, the 20T zinc powder under the B/L No.WSGZ-970198, which the Plaintiff delivered to Hong Guang Co. for shipment, is the insured cargo under the insurance policy at issue, and risks covered by the insurance has taken place.


The Civil Judgement (1998)GHFSZ No.9 provided by the Plaintiff has taken legal effect. The facts ascertained in the said judgement are of relativity to this case, which can be taken as the basis for ascertaining the facts in this case. The judgement ascertained that the damage to the cargo insured in this case was caused by the damage of the container TEXU3869342, so that the cargo were immersed in water and caked. The cargo damage occurred during the period of the responsibility of the carrier Hong Guang Co., and was caused by the fault of the carrier during the period of its responsibility. The cargo damage has no direct causal relationship with the packages and the nature of the cargo. What the Defendant insured was the voyage for the shipment of cargo from Hong Kong to Huangpu. The scope of cover undertaken by the Defendant is not necessarily affected by the price terms in the sale contract of the insured. As long as any risks covered by insurance occurs in the agreed voyage, the Defendant shall be liable to compensate. As the period of the carrier??s responsibility is within the scope of W/W liability undertaken by the Defendant, therefore the accident related to the cargo damage falls within the scope of cover undertaken by the Defendant. 


To sum up, the grounds of the Defendant??s defence are without factual basis and lack of legal basis. They are not tenable. The Plaintiff has fulfilled the obligations under the insurance contract. As the insurer, the Defendant shall reasonably settle the claim for the insurance accident under the insurance contract and timely pay the insurance compensation to the Plaintiff. The Plaintiff has factual and legal basis to claim for the cargo damage against the Defendant, therefore it shall be supported by this court. However, the amount of cargo damage shall be calculated on basis of the net weight of the cargo and the CIF price stated in the commercial invoice according to Article 55 of the Maritime Code of the PRC, but shall not counted on basis of the gross weight. Therefore, the cargo damage in this case shall take USD20,960 which has been ascertained in the Civil Judgement (1998)GHFSZ No.9 as the criterion. According to Article 240 of the Maritime Code of the PRC, the Plaintiff had the legal basis to claim for the notarial survey fee in amount of USD381.82, therefore it is supported by this court. As the Defendant has not settled the claim in time for the insurance compensation and the relevant expenses payable, this court supports the Plaintiff??s claim for the interest arising from the cargo damage and notarial survey fee. The Plaintiff requested the court to order that the Defendant undertake the case acceptance fee of RMB7,178 prepaid by the Plaintiff for the Case (1998)GHFSZ No.9, but such sum is the expense arising from the insured??s execution of the special notice to the Defendant as the insurer, pursuant to Article 240 of the Maritime Code of the PRC, such a sum shall be undertaken by the Defendant, therefore it is supported by this court. The Plaintiff requested the court to order that the Defendant pay for the relevant expenses arising from handling of the accident and initiating the litigation in total amount of RMB56,000. As it has not provided the relevant evidences within the time limit for adducing evidence, it shall be deemed that the Plaintiff has waived the right to claim for such sum, therefore it is not supported by this court. The Plaintiff claimed that after the Defendant had compensated the Plaintiff for the said expenses, the Plaintiff would transfer the right to the Defendant in respect of the claim against Hong Guang Co.. The claim is in line with the spirit in Article 252 of the Maritime Code of the PRC, therefore it is supported by this court. The case acceptance fee in this case in amount of RMB5,274 shall be fully undertaken by the Defendant. 


As to the time of commencement for calculating the interest of the cargo damage and the notarial survey fee, both the judges Wu Zili and Deng Yufeng hold that: the Defendant??s compensation for the cargo damage and the payment for the survey fee is on the basis of the obligation of timely payment of the insurance compensation under the insurance policy as well as the relevant legal provisions, but it is not the compensation liability under a contract for carriage of cargo by sea. Therefore, according to Article 23 of the Insurance Law of the PRC, the next day of the 10-day period of reasonable handling time after the day when HIETCC lodged a formal claim against the Defendant in respect of the cargo damage involved in this case, i.e. May 30, 1997, shall be taken as the criterion of the date commencing calculation of the said interest. 


The Judge Cheng Shengxiang holds that: the interest shall be counted from the day of the occurrence of the accident according to the relevant provisions of the Maritime Code of the PRC. 


According to the majority opinions of the collegiate bench, pursuant to Article 55, Article 237, Article 240 and Article 252 of the Maritime Code of the PRC and Article 23 of the Insurance Law of the PRC, the judgement is rendered as follows: 


I.	The Defendant the People??s Insurance (Property) Company of China, Changsha Branch shall pay the insurance compensation of USD20,960, the notarial survey fee of USD381.82 and the interest of the two sums mentioned above (the interest shall be counted from May 30, 1997 until the day when the judgement takes effect, on basis of the loan interest rate of current fund in US dollars published by the People??s Bank of China) to the Plaintiff Giant Zinc Enterprise Corporation. 


II.	The Defendant the People??s Insurance (Property) Company of China, Changsha Branch shall pay the case acceptance fee of RMB7,178 under the Case (1998)GHFSZ No.9 to the Plaintiff Giant Zinc Enterprise Corporation. 


III.	After the Defendant the People??s Insurance (Property) Company of China, Changsha Branch has paid the sums mentioned in the above Items I and II of this judgement to the Plaintiff Giant Zinc Enterprise Corporation, the Plaintiff shall transfer the recovery right to the Plaintiff in respect of claim against the carrier Hong Guang Shipping Co. Ltd..


The case acceptance fee in this case of RMB5,274 shall be undertaken by the Defendant. The case acceptance fee prepaid by the Plaintiff will not be refunded by this court. The Defendant shall pay the part payable by him directly to the Plaintiff. 


The above-mentioned obligation of payment shall be accomplished within 10 days after this judgement takes effect. 


If any of the parties objects to this judgement, the party concerned may submit the statement of appeal to this court within 15 days from the day when this judgement is served, together with 8 copies. The appellate court shall be Guangdong Provincial Higher People??s Court.



                                                                     Presiding Judge: Wu Zili

                                                                     Judge: Deng Yufeng

                                                                     Judge: Cheng Shengxiang

                                                                     March 30, 2000

                                                                     Court Clerk: Huang Qiusheng