HIGHER PEOPLE??S COURT OF HUBEI PROVINCE

PEOPLE??S REPUBLIC OF CHINA

CIVIL JUDGMENT


No.E-Jing-Zhong-41 , 2001


Appellant (Defendant in the f1rst instance trial): Raw Coal Department of Mining Company of  Dianjiang, Chongqing (hereinafter referred to as Mining DepaHment)

Domicile: NO.l0l of Renmin Road,west, Guixi Town, Dianjiang County, Chongqing

Legal Representative:Yuan Yonghuai, manager of Mining     Department

Appe1lee (Plaintiff in the first instance trial): Chang]iang Ship Company of Chongqing (hereinafter referred to as Ship Company).

Domicile : NO.2 of Shanxi Road, Yuzhong District, Chongqing

Lega1 Representative: He Shengping, genera1 manager of Ship   Company

Agent ad litem: Wu Lunxiang, legal adviser to Ship Company

Appellee (Plaintiff in the first instance trial): Changshou Gangbu    Company of Chongqing Port(hereinafter referred to as    Gangbu Company).

Domicile: NO.l3 of Linjiang Road, Fengcheng Town, Changshou

              County ,Chongqing

Legal Representative: Hong Qiyi, manager of Gangbu Company

Agent ad litem: Jiang  Zhiqin, Lawyer of NO.1 Law Off1ce of

              Chongqing

Agent ad litem: Zhou Liangping, lawyer of NO.l Law Off1ce of

              Chongqing

Defendant in the first instance tria1: Yuan Yonghuai, male, 51 years

              old, free trader.

Domicile: NO.3 of Commercial Street, Guixi Town, Dianjiang     County, Chongqing

Agent ad litem: Cao Dirong, cadre of Justice Bureau of Dianjiang,    Chongqing

Agent ad litem: Long Xianming, cadre of Mining Company of Dianjiang, Chongqing

  The appel1ant Mining Department, refusing to accept the civil judgment of Wuhan Maritime Court filed No. WU-HAI-FA-WAN-SHANG-33,2000 over the dispute about the payment under the contract of carriage of goods by water , made an appeal to this court. This court duly formed a collegial panel and held open hearings for this case. The legal representative Yuan Yonghuai of Mining DepaHment, the agent ad litem Wu Lunxiang, the appellee Ship Company, the agent ad litem of the appellee Gangbu Company, the defendant in the first instance trial Yuan Yonghuai and his agent ad litem appeared in court. The cases has now been concluded .

The first instance trial determined that Ship Company and Mining Department as well as Yuan Yonghuai signed a transportation contract on January l4, l995.The contract stipulated that Ship Company was to ship 30,000 tons of coal of Mining Department from Changshou to Nantong Port. On January 9,1996, the two parties signed a contract of carriage of goods by water, which stipulated that Ship Company was to ship 50,000 tons of coal of Mining Department at RMB87-89 per ton from Changshou Port to Jiangyin and Nantong Port. On December 18, l998, Ship Company signed another contract of carriage of goods by water with Mining Department, which stipulated that Ship Company was to ship 30,000 tons of coal of Mining Department at RMB68-70 per ton from Changshou port to Zhenjiang and Nantong Port and stated in special clause No.6 that the consignor shall pay off the freight owed by him gradually by the end of l999. Ship Company shipped the coal to the port of arrival as stipulated in the contracts and handed them over to the consignee. On September 29,1999, Ship Company urged Mining Department and Yuan Yonghuai to pay the freight, and Mining Department and  Yuan Yonghuai sent a letter of confirmation in his own handwriting about the transportation agreement to Ship Company.

The first instance trial also determined that after Chongqing City became a municipality directly under the central government, the former Raw Coal Department set up by Mining Company of Dianjiang, Sichuan Province was changed into Raw Coal Department of Mining Company of Dianjiang,Chongqing, which was under personal contractual management of Yonghuai.

The first instance trial held that the contracts for carriage of goods by water between Ship Company and Mining Department as well as Yuan Yonghuai were legitimate and valid. Ship Company fulfilled his duty of shipping the goods,hence he obtained the right to ask for freight. Mining Department and Yuan Yonghuai should undertake the obligation to pay the freight for consigning the coal for shipment. According to the provisions of the Rules On The Administration of Waterway cargo Transportation issued by the Communications Ministry, Gangbu Company was the agent of Ship Company, hence the consequence of his act should be borne by Ship Company. In accordance with Article l06.1 of the General Principles of Civil Law of the People's Republic of China, Article 130 of the Civil Procedure Law of the People's Republic of China, the court decided as follows: Raw Coal Department of Mining Company of Dianjiang, Chongqing and Yuan Yonghuai shall jointly pay Changjang Ship Company the freight Of RMB86l,462.88 and shall undertake to pay the interest from September 29, 1999 to the day of making payment, according to the annual interest rate of the People??s Bank of China, both of which should be paid off without installment within l0 days upon the coming into force of this judgment. The court acceptance fee in the amount of RMB 8,6l5,other costs of the action RMB 2,584,the total sum being RMB11,199, shall be paid by Mining Department and Yuan Yonghuai jointly.

Refusing to accept the judgment made by the first instance trial, Mining Department instituted an appeal to this court claiming that Yuan Yonghuai didn??t sign any contract for raw coal transportation with Ship Company and Gangbu Company, nor did he issue a due bill, so Yuan Yonghuai and Mining Department were not the legal defendants; Ship Company and Gangbu Company didn't present the proof of their owing RMB861,462.88, nor did the judgment state the facts of proof of their owing RMB861,462.88, so Yuan Yonghuai and Mining Department didn't owe Ship Company and Gangbu Company RMB86l,462.88. Mining Department requested to withdraw the first instance judgment in accordance with law.

Ship Company and Gangbu Company argued that the grounds for appeal by Mining Department and Yuan Yonghuai were not tenable. Their default freight had been accumulated over years. Based on the bill of arrears and shipping documents of carriage of goods by water, it was enough to determine that Mining Department and Yuan Yonghuai should undertake the liability for payment. They requested to dismiss the appellate petition for appeal submitted by Mining Department and Yuan Yonghuai.

In order to claim that Mining Department and Yuan Yonghuai owed freight, Ship Company presented the following evidence in the second instance trial:

Evidence l: Elven pieces of waterway cargo transport invoices issued by Chongqing Port stating that the port of discharge was Changshou, and the consignor was Mining Department, all of which were signed and sealed by Yu Zheming in the column ?°consignor?±. This was to prove that Mining Department and Yuan Yonghuai didn't pay the freight for consigning the goods for shipment at Changshou Port.

Evidevce 2: The agreement of repayment signed by Mining Department and Gangbu Company on January 14,1995. The agreement stated that Mining Department owed the freight of RMB843,187.30 before December 31, 1994. After negotiations, he would repay RMB300,000 by the end of l995 and pay off the remainder by the end of l996. This evidence proved that Mining Department and Yuan Yonghuai confrmed that they owed the freight.

Evidence 3: Two contracts for carriage of goods by water signed by Mining Department and Ship Company in 1996 and 1999. The special clause No.3 of the contract of 1996 stipulated that the freight shall be paid per lighter, and the former debts shall be paid by RMB20,000 per lighter together with the payment of the existing freight, which should be entirely paid off by the end of l996. The special clause No.6 of the transportation contract of 1999 stipulated that the freight owed by Mining DepaHment shall be paid off gradually by the end of 1999. This evidence proved the Mining Department and Yuan Yonghuai didn't pay their default freight.

Evidence 4:The receipt produced on April 28, 1995 by You Chuanzhong, the person in charge of business of Mining Department. The receipt stated that on April 28,1995, Yuan Yonghuai asked You Chuanzhong to take six freight receipts from Changshou Port station, which showed the total freight that hadn't been paid yet was RMB368,452.20. This evidence proved that Yuan Yonghuai and Mining Department took away 6 receipts for freight payment without paying the freight. Ship Company requested them to pay the freight on the basis of the delivery bill (cargo invoices) as evidence for effecting payment thereof .

Mining Department and Yuan Yonghuai didn't express disagreements over the above evidence, but they held that only due bill and receipt bill of shipping document could prove that they owed the freight.

In order to claim that it didn't owe Ship Company freight, Mining Company presented the following evidence in the second instance trial:

Evidence 1:The contract of carriage of goods by water for 1998 signed by Mining Department and Ship Company. The contract stated that the way of settlement of freight was to pay the freight once per lighter where the port of shipment was Wanxian and the port of arrival was Nantong. This evidence was used to prove that the way of settlement of freight was to pay per lighter, so the freight had been paid off.

Evidence 2: The supplementary agreement of coal transportation signed by Mining Department and Ship Company on July 2,1998. The third article of the agreement provided that if Mining Department didn??t pay off the freight to Ship Company , Ship Company had the right to sell the coal of Mining Department at the market price of the port of arrival to compensate for the freight owed. This evidence was used to prove that if there were any freight due, the coal would have been sold for compensation, so the freight had been paid off.

Evidence 3:Six pieces of drafts for freight paid by Mining Department to Ship Company: 1)a remittance of RMBl52,475.20 on February 5, 1996; 2)a remittance of RMB126,756.36 on February 7, 1996; 3)a remittance of RMB325,0l6.49 on September 6, 1996;4)a remittance of RMB8l,942 on February l7,1997;5)a remittance of RMB97,354 on May 13, 1997;6)a remittance of RMB77,740 on May l4, 1998. This evidence proved that an amount of RMB861,284.05 for freight had been paid. However, compared with the amount of RMB861,462.88 they owed which was claimed by Ship Company and Gangbu Company in the statement, there was still an amount of RMB178.83 owed by Mining Department.

Ship Company and Gangbu Company didn't raise objection over evidence l and evidence 2 listed above. However, they argued that Mining Department and Yuan Yonghuai didn't pay off the freight according to the contracts, and the coal wasn't sold for compensation either. Mining Department and Yuan Yonghuai affirmed that the coal wasn't sold for compensation. As for Evidence 3, Ship Company and Gangbu Company claimed that none of the six remittances adduced as evidence by Mining Department was for the payment of the freight owed. Firstly, the remittances listed in l), 4) and 6) were for the freight of Wanxian Port, but what this case requested was the freight owed to Changshou Port, so they had nothing to do with this case. Secondly, Hejie Subsidiary, under Changshou Branch of Industrial and Commercial Bank of China presented evidence which proved the receiver of the 5th remittance was not Ship Company. Thirdly, Ship Company's detailed statement of account receivable in 1995, Statistics About the Shipping and Settlement of Literage of February 29, 1996, accounting vouchers of September 9, 1996, teller account of bank deposit in 1996 and relevant waterway cargo shipping documents proved the second remittance was for the freight of the ships numbered J0528 of December 28, 1996, J0510 of December 30,1995 and J05 l4 of January 20, l996; the third remittance was for the freight of ships numbered J0l288 of September 10,1995, J0508 of June 28, 1996 and J01073 and J012l8 of August 22,1996. AIl the freight paid by Mining Department was for what occurred after the repayment agreement of January 14, 1995.

Based on the appellate petitions and arguments in the pleadings of both parties together with the evidence produced and the cross-examination made, it was held that the dispute between the two parties of this case focused on whether Mining Department and Yuan Yonghuai were the legal defendants in this case; whether Ship Company's claim that Mining Department and Yuan Yonghuai owed freight as well as the sum of default freight were tenable or not.

This court he1d that the yearly contracts for carriage of goods by water and waterway cargo shipping documents signed by Mining Department, Yuan Yonghuai and Ship Company were true reflections of their intention. The transportation contracts and shipping documents were legitimate and valid, and the re1ationship of carriage of goods by water between the two parties was tenable. The carrier Ship Company fulfilledd his obligation of shipping the goods, and the consignor Mining Department and Yuan Yonghuai should pay the freight to Ship Company. Since Yuan Yonghuai signed transportation contracts on behalf of Mining Department, and Yuan Yonghuai didn't raise objection over the decision of the first instance trial that Mining Department was under personal contractual management by Yuan Yonghuai, it was proper to regard Mining Department and Yuan Yonghuai as the defendants in this case. The appellate grounds of Mining Department that Yuan Yonghuai and Mining Department were not the legal defendants in this case was not tenab1e. By using the relevant transportation contracts, shipping documents and repayment agreement. As evidence, Ship Company claimed that Mining Department and Yuan Yonghuai owed them freight. After cross-examination, they turned out to be true, hence the fact that Mining Department and Yuan Yonghuai owed freight was tenable. Mining Department and Yuan Yonghuai argued that the way of settlement of freight provided for in the contracts was to pay per lighter or to compensate for the freight with coal, and there weren??t due bills in existence, all of these proved that no freight was owed. However, the repayment agreement was signed prior to the contracts that stipulated the way of freight payment, and Mining Department and Yuan Yonghuai couldn't provide the proof of paying the freight owed afer repayment agreement. While after cross-examination, none of the payments made by the six remittances was for the freight spectified by repayment agreement. Besides, both the transportation contracts of 1996 and 1999 stated that Mining Department owed freight, and Mining Department and Yuan Yonghuai confirmed that the coal wasn't used for compensation for the freight due. Hence the grounds for appea1 of Mining Department and Yuan Yonghuai that no freight was owed weren??t tenable, and it will not be supported by this court. Ship Company claimed that the amount of payment owed was based on his company's financial account but was not confirmed by the other party, so this court determines the repayment agreement confirmed by both parties as the evidence of the amount of freight due. In the first instance trial, some facts were not determined express1y, but the laws were applied correctly. In accordance with Article 153.1.3 of the Civil Procedure Law of the People's Republic of China, this court decideds as follows:

l.Withdraw the civil judgment of Wuhan Maritime Court filed WU-HAI-FA-WAN-SHANG-33, 2000;

2.Raw Coal Department of Mining Company of Dianjiang, Chongqing and Yuan Yonghuai pay Changjiang Ship Company of Chongqing the freight of RMB843,187.30 together with interest(to be calculated according to the corresponding loan interest rate of People's Bank of China from September 29, 1999 to the day of making payment), which should be paid off without installment Within l0 days upon the coming in force of this judgment.

For the first instance trial of this case, the court acceptance fee was RMB8,615, other costs of the action RMB2,584, and the total sum was RMB 11,199, of which Mining Department and Yuan Yonghuai shall pay RMB 10,079 and Ship Company RMB 1 ,120. For the second instance trial of this case, the court acceptance fee was RMB8,615, of which Mining Department and Yuan Yonghuai shall jointly pay RMB7,753 and Ship Company shall pay RMB862.

 This judgment is f1na1.



Presiding Judge: Du Hansheng

                        Judge        : Qian Jinfen

Acting   Judge: Wang Shuisheng


                        October 24, 2001


Certified true copy


Clerk        :Wang Ying