Appellant (defendant of the original trial): China Oversea Shipping Guangdong Co.
Domicile: 233, Guanyuan Zhong Road, Guangzhou?
Legal Representative: Zeng De, General Manager?
Agent ad Litem: Li Hui & Jiang Tao, Guangdong Jun Xin Law Firm ?Appellee (plaintiff of the original trial): Maoming Food Import & Export Co., Guangdong
Domicile: Foreign Trade Building, Sixth of Youcheng Road, Maoming
Legal Representative: Qiu Bing, General Manager?
Agent ad Literm: Lin Yi Hua & Chen Jian Qiu, Guangdong Yong Hang Law Firm?
Defendant of the Original Trial: China Oversea Shipping Guangdong Huangpu Co.
Domicile: 97, Hai Yuan Road, Huangpu District, Guangzhou ?
Legal Representative: Qi Long Fei, General Manager?
Agent ad Litem: Li Hui & Jiang Tao, Guangdong Jun Xin Law Firm?
Defendant of the Original Trial: China Oversea Shipping Guangdong Huangpu Co., Xia Gang Branch.
Domicile: 97, Hai Yuan Road, Huangpu District, Guangzhou ?
Responsible Person: Qi Long Fei, General Manager.?
Agent ad Litem: Li Hui & Jiang Tao, Guangdong Jun Xin Law Firm?
????Appellant, China Oversea Shipping Guangdong Co. (hereinafter referred to as ?°GDOS?±), taking exception to the Civil Judgment (Ref. 2000 GMLE No.201) rendered by the Guangzhou Maritime Court on a dispute of torts on landing the cargo without the original B/L, versusing appellee, Maoming Food Import & Export Co., Guangdong (hereinafter referrd to as ?°MMC?±), defendant of the original trial, China Oversea Shipping Guangdong Huangpu Co. (hereinafter referred to as ?°HPOS?±), China Oversea Shipping Guangdong Huangpu Co., Xia Gang Branch (hereinafter referred to as?°XGOS?±), lodged an appeal with this court. This court set up a collegiate bench to take up the cases and has now finalized the case. ?
????In the original trial, MMC stated that in December 1999, Jun Ya Fabric Ltd. (hereinafter referred to as ?°JYL?±) authorized MMC to serve as the agent of exporting a batch of Acrylic blanket. On February 2000, MMC consigned XGOS for shipping the cargoes, from Huangpu, Guangzhou to Peiraiefs, Greece, by passing Chi Bay, Shenzhen. On 25th February, GDOS issued MMC the original triplicate B/L (File No. HXG9912229). MMC had paid GDOS the freight allowance. Under the situation that MMC still hold the whole set of original B/L, GDOS informed MMC that the cargoes had been released at the destination harbor. XGOS sent a correspondence to MMC on 26th October, promising to indemnity the loss of MMC before 25th December, but to now XGOS hasn??t implement the promise. Based on Artical 41 and Artical 60 of the MARITIME AND ECONOMY LAW OF THE PEOPLE??S REPUBLIC OF CHINA, GDOS, as the carrier, shall undertake the liability for indemnity; XGOS, as promising to indemnity, should take the joint and several liability; and by virtue of being a branch of HPOS, XGOS has no legal personality, so HPOS should also take the joint and several liability. Please order the defendant, GDOS, indemnity the loss of 106,400USD of MMC and the interest 5, 325USD, according to the annual rate 5% from the day of releasing the cargo which is a year until now; order the defendants, HPOS, XGOS and GDOS take the joint and several liability. ?
????GDOS, HPOS and XGOS defended: MMC adapted the person to pick up the cargo by using the fake B/L, at the reason that MMC has fault on wrongly releasing the cargoes, MMC has no right to claim an indemnity. The B/L in this case has been written clearly that GDOS signed by representing the master captain; and it was signed and issued by Ethernal Way Limited (hereinafter referred to as ?°EWL?±), the limited authorized by the Mediterranean Shipping Co, therefore, GDOS is not the shipping carrier in this case, but the agent of the carrier and shall not take the liability for indemnity. Aggregate of MMC??s claims is not true. The correspondence sent by XGOS has not written clearly the main debtor and the sum of the debt, therefore, it cannot be the guarantee contract; even if it can be construct as the guarantee, it is still ineffective, due to the issue was not authorized by upper legal person. In addition, the correspondence was sent to JYL, MMC has no legal basis to ask XGOS and HPOS take the joint and several liabilities for indemnity. Please reject the claim of MMC. ?
??The court of the original trial finds and holds that on 15th December 1999, GDOS and EWL signed an agency agreement on traffic freight, promising that the GDOS is the sub mandated agent of the Mediterranean Shipping Co., whose agent is EWL, on carrying cargoes; according to the designation of EWL, GDOS signed and issued the vicegerent B/L for EWL or the Mediterranean Shipping Co. and EWL provides the detail information on the ship of carrying the cargoes; GDOS charges 2.5% of the whole course freight from EWL as commission of issuing B/Ls and helping to collect freights. On 25th December, MMC and JYL signed an agency agreement on exporting, promising that MMC serves as an agent on exporting 8,560 pieces acrylic blanket to Greece. On 25th February 2000, GDOS signed and issued the triplicate clean B/L at Guangzhou. This B/L is the style B/L of GDOS, stated clearly in writing: consignor is MMC, on the column of consignee is FREDERIKI BATZALI IVOTA 41K??ACHAIA GREECE, the ship of carrying is MSC ROSSELIA 0007R, the port of shipment is Chi Harbor, and the port of loading is Peiraiefs, Greece. The cargoes delivered are five containers with forty foot each, containing 1.090 boxes blanket, gross weight 32,700kg and 305m3. In the column of cargo label puts down ZAKOY??CFTC??GREECE??C??NO??1-. After the cargoes described above arrived the destination port on 25th July 2000, they were been released under the situation that the person picking up the cargoes did not have the original B/L. MMC asked GDOS for the indemnity, but with ineffective result; and MMC still hold the whole set of the original B/L.
????XGOS has no legal personality, which is a branch of HPOS. On 26th October 2000, XGOS sent a correspondent to JYL, saying: attending to the fact that the cargoes, five containers with forty foot each of HXG99122299 B/L, were taken by the impersonator, this company will indemnify to JYL the loss of these five containers, forty foot each of HXG99122299 B/L, before 25th December, based on the direction of the upper company (GDOS). ?
??In order to proof its just the agent of the carrier, GDOS provides the fax copy of the sub-agency agreement signed by the Mediterranean Shipping Limited and EWL on 1st September 1998, besides the agency agreement of cargoes signed with EWL. The sub agency agreement puts down clearly that: Mediterranean Shipping Hong Kong Limited, as the agent of Mediterranean Shipping Limited, is designated EWL to serve as the sub-agent of Mediterranean Shipping Limited in Guangdong Province and handle the business in this area; this agreement takes effect from 1st September 1998. The duty of EWL includes representing the Mediterranean Shipping Hong Kong Limited and/or the master captain to sign the B/L and other marine documents required by shippers and/or local governments, but not if the law of this country requires the port agent of the country or other agent ad litem. MMC holds that this evidence shall not be admitted, at the reason that GDOS did not provide the original copy of this evidence. ?
????To proof it has paid the freight to GDOS, MMC provides the invoice issued by GDOS on 22nd February 2000. The title of the invoice is written: XGOS, the port of shipment, Guangzhou; the port of loading, Peiraiefs, Greece; cargoes, five containers with forty foot each; freight, 13,215USD. The court of original trail holds that MMC has the original copy of this invoice and GDOS, HPOS and XGOS do not provide the counter evidence to proof that MMC got this invoice by an illegal way, therefore, the payment written in this invoice shall be presumed to be paid by MMC; the port of shipment, the port of loading and the quantity of cargoes written in this invoice are the same with those written in the B/L which is referred in this case and GDOS, HPOS and XGOS do not provide the counter evidence to proof that this invoice is issued for other business, therefore, the truth of this evidence shall be admitted and the fact that the cargoes freight 13,215USD, written in the B/L in this case, was paid by MMC to GDOS shall be admitted. About the worth of the cargoes, the title of the invoice (No. MS??20008A) provided by MMC is the cargo receiver of the B/L in this case, the content in the column of cargo label is the same in the B/L and the price terms is CIF Peiraiefs. The quantity of the 3kg box of blanket is 1,010 boxes, 8,080 pieces, 12.20USD/p, total 98,576USD; the quantity of the 4kg box is 80 boxes, 480 pieces, 16.30USD/p, and total 7,824USD. The lump sum of the two kinds of box is 106,400USD. MMC provides two exporting customs declarations issued by Lao Gang Customs, Huangpu, in writing Forwarding Unit-MMC, Date of Declaring-16th February, Destination Port-Peiraiefs, Trade Terms-CIF and Cargo-acrylic blankets. One of the declarations puts in: 6,136 pieces of blanket, 4.2229USD/p, total 75,302.80USD; the other puts in: 2,424 pieces of blanket, 4.1833USD/p, total 30,421.20USD. The above price amounts to 105,724USD.Both exporting customs declarations have the examination seal of LaoGang Customs, Huangpu. GDOS, HPOS and XGOS hold that the sum of money in the invoice is different from the exporting customs declarations, both provided by MMC, so the indemnity MMC claimed according to the invoice is unreasonable. They bring up the photocopy of the invoice issued by MMC on 10th February 2000 and state this invoice is provided to the port in Greece and the agent of the carrier by the person picking up the cargoes in this case and the price of the cargoes shall be calculated based on this invoice. The title of this invoice is the cargo receiver in the B/L in this case; the cargoes are 6,540 pieces acrylic blanket, 1,090 boxes with 8.3USD/p, which is total 54,282USD. MMC denied this invoice was issued by it. The court of the original trail holds that: the photocopy of the invoice provided by GDOS, HPOS and XGOS cannot be the criterion of the cargoes price, at the reasons that it is the photocopy without other documents to verify its authenticity and it is denied by MMC of the issue; the sum of money on the invoice cannot be admitted, at the reason that the sum of money on the invoice provided by MMC is higher than the exporting customs declarations; the cargo price shall be the one in putting on the exporting customs declarations, which have been examined by the customs. The court of the original trail finds that the cargo price is CIF Peiraiefs, 105,724USD. ?
????XGOS Consignment Bill, provided by MMC, puts down in writing that: Consignor-MMC, Destination- Peiraiefs, Cargo Receiver- GEORGE BATZALIS IMPORT??EXPORT OF TRADE IVOTA 43K ACHAIA GREECE, Label and Number- ZAKOY CFTC GREECE C??NO?? 1??, Cargo Name-acrylic blanket, Quantity-1,090 boxes, Gross Weight-32,654kg, five containers with forty foot each. XGOS brings up the opposition on this Consignment Bill by stating that it cannot proof to receive this invoice and holding that there is traces of altering in the column of Consignor. The court of the original trail holds that this evidence has the traces of altering and MMC cannot provide the evidence to proof that XGOS has received this Consignment Bill; besides, the B/L held by MMC is issued by GDOS, not XGOS. On these grounds, the court does not admit this evidence. The photocopy of XGOS??s Bill of Storing the Bulk Cargo provided by MMC puts down in writing that: Purchase Unite-Exporting Department of XGOS, No. of B/L-HXG9912229, Name of Cargo-acrylic blanket, Number of Piece-1,090, Weight-32,654kg. ???
????This court confirms the above factual proofs, which have no opposition, brought up, found by the court of the original trail except the fact of relevant agency rejected by GDOS. This court further finds that: MMC did not confirm that its action was tort action or contract action in the bill of complain, but it confirmed in its supplemental complaint that its action was ?°Dispute over Delivering the Contract of Marine Transport?±. The court of the original trail confirms the action as tort action and in this trail; MMC still confirms its action brought to the original trail as tort action. ?
????After the first trail, the court of the original trail holds that: this case is the dispute over trots on releasing the cargoes carried by sea without the original B/L. Although the cause of action confirmed by MMC is tort action, the dispute in this case focuses on the fact that whether GDOS is the carrier in the contract of carriage of cargoes by sea in this case or not; and all the legal regulations quoted by MMC are the regulations of Chapter 4, Contract of Carriage of Cargoes by Sea, of the MARITIME LAW OF THE PEOPLE??S REPUBLIC OF CHINA. On these grounds, the nature of this case is contract action. ?
????MMC is the shipper of carriage of cargoes in this case without the independent carriage contract signed with the carrier, and the B/L issued by GDOS does not put down clearly the carrier, therefore the carrier shall be determined based on comprehensive facts of relevant records and situations at the time the B/L issued. The said B/L is the style B/L of GDOS, saying: it is issued by GDOS as the agent of the master captain. GDOS holds that its just the agent of the carrier and shall has the burden of producing evidence. However, the evidences provided by GDOS can only proof that EWL authorizes it the right of issuing B/L for EWL and Mediterranean Shipping Co., but not that EWL has the right to issued B/Ls as the agent of the master of captain and the right to sub authorize others to issued B/Ls as the agent of the master of captain, that is, GDOS cannot proof it has the legal authorization to issued B/Ls as the master of captain, besides, there is no evidence to proof that GDOS has told MMC its identity of agent when issuing the B/ L. On these grounds, GDOS??s claim on the agent of the carrier cannot be set up. GDOS shall take the rights and obligations of a carrier under the items of the said carriage contract in this case. By charging the freight, GDOS shall safely carry and deliver the cargoes according to legal regulations and the contract. The B/L is the legal document the carrier shall base on at the time delivering cargoes, however, GDOS let others pick up the cargoes of the said B/L under the situation that MMC still holds the whole set of the original B/L; thus the act already breached the contract and GDOS shall take the liability to indemnify the loss of MMC. The sum of indemnity is 105,724USD, calculated on the actual price of the cargoes. GDOS, HPOS and XGOS defense that MMC has fault on wrongly releasing the cargoes of the said B/L in this case, which does not proofed by enough evidence; this court will not support the said defense of GDOS, HPOS and XGOS. MMC??s claim on the indemnity from GDOS, plus the interest from the day of releasing the cargoes which is a year to now, is in line with the law and should be supported. MMC claims to calculate the interest on the annual rate of 5% without providing the relevant evidence to proof the legality of the said rate; thus the interest rate shall be the annual rate of loans in USD. ?
??XGOS sent a correspondence to JYL, promising to indemnify the loss of the said B/L in this case. This promise is not sent to MMC, thus MMC??s claim that XGOS and HPOS take the joint and several liabilities on indemnity lacks legal basic; the court will not support the said claim. Based on Article 55, Paragraph 1, Article 71 of the MARITIME LAW OF THE PEOPLE??S REPUBLIC OF CHINA, the court of the original trail adjudges as follows: 1. Order GDOS indemnify MMC 105,742USD and the interest from 25th July 2000 to 24th July 2001, calculating on the annual rate of loans in USD; 2. Reject MMC??s claim to HPOS and XGOS. The court fees are 31,014.76RMB, which MMC pays 309.76BMB and GDOS pays 30,705RMB.
GDOS appeals and asks to reject the claims of MMC and to order MMC to pay the court fees of the first and the second trail. Its facts and reasons: GDOS holds that the judgment of the court of the original trail has following problems: 1. The court of the original trail has negligence on finding evidence. The court of the original trail does not admit the truth of the agency agreement on the ground that GDOS did not provide the original copy of the said agreement signed by EWL and Mediterranean Shipping Co.. However, the fact is that GDOS couriered the original copy of the said agreement to the court on 6th July 2001 and the court signed after receiving the courier in the same day. Now the said agreement is in the volume of the court of the original trail. As the content of the said agreement can confirm that the right of GDOS to issue B/Ls as an agent is authorized by Mediterranean Shipping Co., the negligence of the court of the original trail affects the Judgment directly and leads to the result that GDOS fail in the suit; 2. The court of the original trail changes the cause of action of MMC, which reduces the burden of producing evidence of MMC and effects GDOS??s right of defense and right to win a lawsuit. In the original trail, MMC confirms that its action brought up to GDOS is tort action not contract action. It is the disposal of GDOS to its right of litigation. The choice of the said cause of action decides the legal relation in the original trail in this case shall be the existence of torts between GDOS and MMC. Under this precondition, the conditions of torts decide that MMC must proof the fault of GDOS and the said fault has the relationship of fact-and-result with the loss of MMC; thus, GDOS shall take the responsibility. Obviously, MMC cannot fulfill the burden of producing evidence. However, the court of the original trail made an unapproved judgment that ?°the nature of this case is a contract action?± and ordered GDOS to take the responsibility based on the contract action. GDOS holds that, the law does not give judges the right to change the cause of action, especially when the cause of action has a close connection with the burden of producing evidence, the right of defense and the right to win a lawsuit of parties in a litigation. The act the court of the original trail took to change the cause of action of in this case, changing the burden of producing evidence of MMC and effecting the right of defense and the right to win a lawsuit of GDOS, has no legal basic and is unfair to MMC; 3. There is no law to say GDOS has the obligation to tell its status of an agent, which is held by the court of the original trail. In the Judgment, the court of the original trail holds that GDOS has the obligation to tell its status of an agent when issuing the B/L to MMC. From the angle of law, the requirement from the court of the original trail to the agent of issuing B/Ls does no base on law. From the practice of shipping, to put down in writing, ?° agent as represent the master of captain?± on the B/L, when issuing the B/L, is enough to MMC, on the ground that the master of captain is always regarded as the agent of shipowner. Therefore, from the B/L in this case, MMC can clearly acknowledge that GDOS issued the B/L as the agent of ?°MSC??ROSSELLA?±, which is already enough. It is thus clear that the denying of the agent status of GDOS, based on GDOS??s not telling the status, cannot be set up. By reason of the forgoing, the court of the original trail has negligence on finding the key evidence, which directly affects the Judgment; the court of the original trail changes the cause of action, violating litigants?? wills and benefits in the litigation, changing the burden of producing evidence of MMC and effecting the right of defense and the right to win a lawsuit of GDOS; the requirement of the court of the original trail that the agent issuing B/Ls has the obligation to reveal the status has no legal basic and not conform to the practice of shipping, therefore, the original Judgment is inappropriate. On these grounds, GDOS claims the court to retrial the case based on the tort action, under the precondition of the finding of the agency agreement signed by EWL and Mediterranean Shipping Limited; and reject all the claims of MMC by the reason that GDOS is just the agent of the carrier.
??MMC defenses: 1. In the Judgment of the first trail, in this case, MMC is the shipper; GDOS is the carrier; and the facts of the relationship in the contract of carriage of cargoes by sea between MMC and GDOS is accurate; thus, GDOS shall take the indemnity liability of releasing the cargoes without the original B/L, which is under the item of the carriage contract in this case. Based on Article 41 of the MARITIME LAW OF THE PEOPLE??S REPUBLIC OF CHINA, ?° Contract of Carriage of Cargoes by Sea, is the contract that carrier charges the freight and has the duty to transport the cargoes of the shipment from one port to the other port by sea.?± Article 42, Paragraph 1 ordains: ?° Carrier, is the person who will sign the contract of carriage of cargoes by sea with the shipper or authorizes others to sign the contract in the name of the principal. In this case, GDOS charged the through freight, issued the whole set original B/L at the same time and delivered the cargoes of MMC to the actual carrier shipping the cargoes to the destination port. The said facts proof that the contract relationship of carriage cargoes by sea does exist between MMC and GDOS and GDOS is the carrier of the contract of carriage of cargoes by sea in this case. Although GDOS authorized the cargoes shipping to the actual carrier, it still has the duty to the through shipping of the cargoes, as the through carrier and according to the law. The facts further proof that the cargoes in this case released without the B/L is absolutely the fault of GDOS by noting ?°agent by the destination port?± on the front of the B/L, which seriously damaged the legal interest of MMC. Based on Article 60 of the MARITIME LAW OF THE PEOPLE??S REPUBLIC OF CHINA: ?° To the shipping of the actual carrier, the carrier shall take liability to the act of the actual carrier or the act of employees and agents of the actual carrier, performing in the field of employment or authorization.?± Therefore, GDOS shall take responsibility to indemnify all the loss of MMC based on the releasing the cargoes without the B/L. ?
????2. The evidence provided by GDOS cannot proof that it signed the B/L as the agent of the master of captain. First, the signature and the meaning of the Chinese in the Agreement of Sub-agency signed by Mediterranean Shipping Co. and EWL, provided by GDOS, has not been confirmed by the effective legal procedure and the form condition of the said evidence does not accord with the demands of the law, therefore, it is correct that the court of the first trail doe not confirm the said evidence. Even if the above mentioned evidence is effective and legal, it still could not proof that GDOS has the right to issue the B/L by representing the master of captain, according to the Agency Agreement of Carriage of Cargoes signed by GDOS and EWL. The reason is that Item 2 in the Agency Agreement of Carriage of Cargoes puts down in writing clearly: ?° the B/L issued: Side A (GDSO) issues the agent B/L for Side B (EWL) or MSC, according to the instruction of Side B and Side B provides detail information of the carrying ship and cargoes. In fact, no evidence in this case can proof that GDOS issued the said B/L based on the instruction of EWL or the details of the carrying ship and cargoes provided by EWL. In fact, GDOS issued the B/L on the information of the cargoes provided by MMC. And Article 3 of the Agency Agreement of carriage of cargoes states: ?°Side A charges 2.5% of the through freight as the procedure fees of issuing the B/L and collecting the freight, and Side A keeps 1.5% if Side A only need to collect the freight. In fact, after issuing the B/L to MMC, GDOS collected the through freight from MMC in the name of GDOS without other evidence to proof that GDOS collected the money as any others?? agent. According to the above-mentioned facts, there is no fact warrant on GDOS??s claim of issuing the said B/L in this case as the agent of the master captain, which is actually issued in the name of GDOS. ?
????3 . The first Judgment on the fact of the actual price (sum of indemnity) is correct. ?
????GDOS, HPOS and XGOS denied MMC??s claim on the sum of indemnity by using the photocopy of the alleged invoice issued by MMC on 10th February 2000 as the excuse. However, the said invoice has following problems: ?¨1??The number of this invoice is not the regularity one of MMC; ?¨2??On the certificate of the origin of the said cargoes, puts down in writing clearly that the number of the invoice is MSC-20008 and the date is 27th January 2000, which are totally different with the invoice provided by GDOS; ?¨3??The quantity in the said invoice is 6,450 pieces, which differ from the quantity 8,560 pieces in the exporting customs declarations and the certificate of the origin; ?¨4??The style of the characters in the said invoice differ from the original invoice provided by MMC; and ?¨5??There is no original copy of this invoice. On these grounds, only the relevant documents, including the invoice and two exporting customs declarations from Huangpu Lao Gang Customs, provided by MMC can be the basis of the price of the cargoes( sum of the indemnity), however the invoice provided by GDOS has no direct relative with this case and cannot oppose the evidence provided by MMC. Thus, it is reasonable and within the law that the court of the first trail does not adopt. By reason of the foregoing, the facts in the first Judgment are clear and the application of the law is correct, thus please reject the appeal of GDOS. ?
????HPOS and XGOS did not reply.?
????This court holds that: although MMC did not conform this case is tort of action or contract of action in the complaint, it conformed this case is tort of action during the period of the first and the second trail, which is the true declaration of will the party disposing his right in civil affairs and civil action; thus, shall be established by this court. Therefore, this case is the dispute over trots on releasing the cargoes carried by sea without the original B/L. GDOS appeals to claim that the court of the original trail has no legal foundation to change the cause of action of MMC. The claim is established and is supported by this court.
GDOS appeals that it is wrong that the court of the original trail did not admit the sub-agency agreement provided by GDOS, signed by Mediterranean Shipping Hong Kong Co. and EWL, and held that GDOS has no agent right. This court holds that on the grounds that MMC brought up the opposition of the authenticity of the sub-mandated agency agreement provided by GDOS, signed by Mediterranean Shipping Hong Kong Co. and EWL; in this sub-agency agreement, the domicile of the parties, the place of close and sign and the place of performance are all in Hong Kong and have not been notarized and attested by authorization organization of Hong Kong and have no other evidence to proof; therefore, it is appropriate to the court of the original trail to deny the sub-mandated agency agreement. Moreover, the said sub-agency agreement only shows that Mediterranean Shipping Hong Kong Co. is the agent and EWL is the sub-agent, which still cannot proof directly the legal status of GDOS as the agent of the carrier in this case. Therefore, in this case, the evidences provided by GDOS can only proof that EWL authorized it the right to issue B/Ls as the agent of EWL and Mediterranean Shipping Hong Kong Co., but not the right to issue B/Ls as the agent of the master of captain and the right of Mediterranean Shipping Hong Kong Co. and EWL to sub mandated others to issue B/Ls as the agent of the master of captain. That is to say, GDOS cannot proof its legal authorization to issue B/Ls as the agent of the master captain, the agent status of the carrier and the identity of the carrier. With this understanding, the B/L issued by GDOS is the style B/L with no certain carrier on it and GDOS collected the freight from MMC. Article 71 of the MARITIME OF THE PEOPLE??S REPUBLIC OF CHINA ordains: ?°B/L, is the document to proof the contract of carriage of cargoes by sea and the cargoes already been received or loaded by the carrier and the carrier promises to deliver the cargoes based on it. The items in a B/L make the guarantee of delivering the cargoes by the carrier, which puts down in writing that delivering cargoes to the named person, or delivering according to the direction of the instructing person, or delivering to the person holding the B/L.?± Therefore, GDOS shall take the legal responsibility to the B/L issued by it.-
????The facts of this case already state that MMC still holds the original B/L issued by GDOS, whereas other person picked up the cargoes of this B/L. As GDOS has collected the freight and issued the original B/L related to the said cargoes, it shall deliver the cargoes on the B/L in this case, according with Article 71 of the MARITIME OF THE PEOPLE??S REPUBLIC OF CHINA, this fact itself, releasing the cargoes at the destination port without the original B/L, indicates that GDOS infringes the right of property of MMC under the B/L, which already constructs the act of tort. Article 106 of the GENERAL PRINCIPLES OF THE PEOPLE??S REPUBLIC OF CHINA ordains: ?°Citizen and legal person shall take civil responsibility on breach of contract or fail to fulfill other obligations. Citizen and legal person shall take civil responsibility on damage the estate belonging to the state and the collective by fault. Without fault, but if the law ordains that shall take civil responsibility, shall take civil responsibility.?± Therefore, the first Judgment is correct to order GDOS take the indemnity responsibility of the loss of MMC and this court supports the Judgment. This court further admit the sum of the indemnity, based on Article 55, Paragraph 1 of the MARITIME LAW OF THE PEOPLE??S REPUBLIC OF CHINA and sufficient evidence and law basis, besides, GDOS does not bring up the opposition of the said sum. Thus, although there is fault on the original Judgment on finding the cause of the action, the treatment of the substantive problem of this case is correct and can be affirmed; GDOS??s claim on about, the court of the original trail changed the cause of action of in this case, which lead to change the burden of producing evidence of MMC and affect the right of defense and the right to win a lawsuit of GDOS cannot be established and be supported. ?
By the reason foregoing, although there is fault on the original Judgment on finding the cause of the action, the facts in the original Judgment is clear and the treatment of the substantive problem of this case is correct and can be affirmed; the appeal of GDOS is unreasonable, thus, shall be reject. Based on Article 153, Paragraph 1(1), this court now adjudges as follows:?
Reject the appeal and affirm the first Judgment. ?
GDOS pays the court fees of the second trail 31,014.76RMB.?
?? This judge is finial.
????????????????????????????????????????????
Chief Judge Deng Yan Hui
????????????????????????????????????????????Deputy Judge Yang Hui Yi
????????????????????????????????????????????Deputy Judge He Wen Long
????????????????????????????????????????????13th May 2002
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