船舶代理人無(wú)單放貨侵權(quán)責(zé)任的認(rèn)定（The shipping agent without identification of tort liability of delivery of goods）

1、船舶代理人無(wú)單放貨侵權(quán)責(zé)任的認(rèn)定（The shipping agent without identification of tort liability of delivery of goods）Shanghai maritime courtThe building Chinese Import & Export CorporationThe China Lianyungang ocean shipping agencyabstractBetween the 1. outsiders purchase agreementIn September 25, 2001, Lianyungang Ho

2、ng Kong Ming Trading Company (hereinafter referred to as the Hong Kong Ming Industrial) and Guangzhou city Whampoa East Guangdong factory (hereinafter referred to as the East Guangdong factory) signed a purchase agreement, the former for the buyer, the seller.The contents of the contract:1. contract

3、 goods: the former to the latter to buy 10 thousand tons of Australia from smelter grade alumina;2. contract payment: net 10 thousand tons of goods port fee, inspection fee, customs tax and other expenses after the payment of about 13 million 500 thousand yuan;3. customs inspection: the former agent

4、 for the inspection and clearance of goods.The foreign trade agency agreement between the plaintiff and the outsiders 2. case (1) a foreign trade agency agreementOn September 14, 2001, the plaintiff and the East Guangdong factory signed a number of agency agreement XY-BSQ-2995.The contents of the ag

5、reement: the plaintiff agent of East Guangdong aluminum imports 10 thousand tons of alumina, the amount of $1715350.(2) the principal obligationEast Guangdong factory as the foreign trade agency agreement of the client, its obligations as follows:1. responsible for on behalf of the plaintiff to hand

6、le import customs clearance;2. to provide the plaintiff of the plaintiff, and the amount of credit payable to the actual payment amount qualified import declaration original;3. before issuing the total amount of foreign trade contract 10% security deposit into the designated account of the plaintiff

7、, the balance shall be paid within 2 days after receiving the notice of payment, and to ensure that the letter of credit in the actual payment 2 days prior to the payment account.(3) the rights and obligations of the plaintiffThe plaintiff as a foreign trade agent in foreign trade agency agreement,

8、the following rights and obligations:1. received to the bank under the credit documents within three days after the declaration of the required documents to the east to go through the customs formalities of Guangdong aluminum plant;2. Rudong Guangdong factory can not pay the money, the plaintiff has

9、 the right to dispose of the mortgaged assets, issuing 10% non refundable deposit.3. a foreign trade contractOn September 14, 2001, the plaintiff and the light company signed a number of contracts for the sale of goods: BSQ-2995 name for the sand like smelting aluminum; the number of 10 thousand ton

10、s; a total of $1715350; native country of Australia, Australia port of loading port; port of destination for Chinese Lianyungang; the terms of payment for the buyer according to the contract price in favor of the Sellers an irrevocable bill of lading date 90 days after the payment of the long-term l

11、etters of credit.4. plaintiffs for letters of creditOn September 19, 2001, ABC Sales Department opened the letter of credit No. 860 stated the applicant for the plaintiff, the beneficiary is light, draft at sight payable 90 days after the date of bill of lading, the latest shipment date is October 1

12、9, 2001, goods for sandy aluminum smelting, a total amount of $1715350, one of the required documents for the full set of clean shipped on board the bill of lading to rise, blank endorsed notify applicant. The plaintiff to pay the issuing fee of RMB 21328.36 yuan, postage 100 yuan.The 5. plaintiffs

13、request to amend the letter of creditOn September 28, 2001, ABC Sales Department to modify the letter of credit:1. the latest date of shipment to October 21, 2001;TwoGoods for aluminum smelting modification;3. in the documents required under the notify the applicant to notify the China Nonferrous Me

14、tals Industry Trade Group Corporation (hereinafter referred to as Daye Non-Ferrous Metals Co).The plaintiff has paid post fee of RMB 50 yuan, 100 yuan fee.6. delivery of imported goodsIn October 20, 2001, the outsider sea private limited agent vessel Matthew round the captain issued three copies of

15、the original bill of lading No. BU/CH-004, specify the shipper Australia world bauxite company instructed by the consignee, notify the Daye Non-Ferrous Metals Co, cargo of 10 thousand tons of alumina smelting.A 7. port operation contractIn October 31, 2001, Hong Kong Ming Industrial and port office

16、of Lianyungang business department signed a contract of port cargo operations, record of operation project as unloading ship, named Matthew, the name is alumina, the weight of 10 thousand tons.8. imported goods arrive at the port of destinationIn November 4, 2001, the Matthew wheel arrived in Lianyu

17、ngang, docked in Lianyungang harbor bureau subordinate company East 11 berth terminal.In November 13th of the same year, east of the company issued a certificate of transfer of goods to Hong Kong Ming industrial goods, records for alumina, number 9969, weight is 9969 tons, otherwise no metering anch

18、or 2 bags.The 9. defendants as the carriers agent at the port of destinationIn this case the defendant Chinese PENAVICO Lianyungang is a foreign carrier in the shipping agent in Lianyungang.Therefore, east of the company for shippers delivery of goods should be answerable to the defendant.10. of the

19、 issuing bank to effect paymentIn November 7, 2001, Agricultural Bank of China branch issued a letter of credit No. 860 to the plaintiff to single / payment / acceptance notice stated, payable on January 17, 2002.In November 20th of the same year, the plaintiff to the Agricultural Bank of China bran

20、ch to pay the acceptance fee of RMB 14218.71 yuan, postage 50 yuan.On January 17, 2002, the plaintiff to ABC Sales Department to pay 860, under the credit payment of $1715350 and a fee of 500 yuan.11. an outsider to the defendant by the bill of ladingPort the cargo freight agent as the East Guangdon

21、g Hong Kong Ming industrial plant commissioned, on 19 November 2001, the defendant sent a letter, said its clients need East Guangdong aluminum bill of lading declaration, to the defendant by the bill of lading, the original bill of lading to immediately change orders.On the same day, Hong Kong Ming

22、 Industrial Company from east put away 4620 tons of alumina.The 12. defendants to the outsider issued bills of ladingIn November 19, 2001 (by second days of filing the application), delivery of the goods out of the single total triple (respectively, the division of authority, the customs authority s

23、hippers delivery Association), are set forth the ship named Matthew, bill of lading number BU/CH-004, the name is SMELTER GRADE ALUMINA, gross weight 10 thousand tons, and stamped with the defendant the delivery of dedicated seal.Triple bill of lading the consignee column showed print words Daye Non

24、-Ferrous Metals Co, but the plaintiff to provide customs authority and the consignee column other shippers delivery note East Guangdong factory handwritten words.13. case contract dispute lawsuitIn November 22, 2001, Jiangsu Province, the Lianyungang intermediate peoples court accepted Hong Kong Min

25、g industrial aluminum plant, East Guangdong v. in this case the plaintiff (in the case of third) of the contract dispute case.The court ruled that: and on the same day of the plaintiff in this case stored in Lianyungang port 10 thousand tons of alumina to be seized.14. case outside the contract for

26、the sale of the facts of the disputeIn November 23, 2001, the Lianyungang intermediate peoples court to the defendant notice for assistance in execution.The 1. trial, the defendant in November 26th of the same year by fax to inform the east of the company shall not release goods to the consignee.2.

27、however, east of the company in the hospital survey staff said it did not receive the fax.The defendant did not perform a 15. court ruling attachment of goodsThe bill of lading to the outsider, and the attachment received the Lianyungang intermediate peoples court after the verdict is not immediatel

28、y from the bill of lading or to take measures to prevent the goods involved.16. case with bill of lading have provided goodsIn December 3, 2001, Hong Kong Ming Industrial Company from east put away 40 tons of alumina;In December 4th, it provided 40 tons;In December 5th, the Lianyungang customs bill

29、of lading stamped on the release chapter.In December 6th, Hong Kong Ming industry give the bill of lading to the east of the company, and put away 5269 tons of alumina.17. to the court to lift the seizure ruling of goodsIn December 24, 2001, the Lianyungang intermediate peoples court ruled that the

30、seizure of the November 22nd release of 10 thousand tons of alumina.18. bills of lading from the defendant the plaintiff fails to take delivery of the goodsOn January 8, 2002, the plaintiff to the defendant to hold the original bill of lading in exchange for delivery of the goods when the trade that

31、 outsider Hong Kong Ming in November 19, 2001 borrowed the bill of lading.The 19. plaintiffs to the maritime court in Shanghai suedOn February 27, 2002, the plaintiff to the maritime court of Shanghai filed a lawsuit requesting an order:The 1. defendants to the plaintiff compensation for the loss of

32、 the goods for $1715350;The 2. defendants to the plaintiff compensation for the money loss of interest (by issuing bank lending rates since January 18, 2002 to the date of payment calculation);3. the defendant to the plaintiff compensation fees, and other fees, acceptance fees Total 36347.07 yuan.20

33、. the nature of the caseThis case belongs to tort litigation, basic obligation of the plaintiff that the defendant violated Chinas maritime law provisions should be based on the bill of lading for delivery of goods, resulting in the plaintiff lost control over the goods to recover the payment, again

34、st the plaintiff involved the ownership of 10 thousand tons of alumina.21. of the defendant (1)1. the plaintiff only as the principal scheme of outsiders East Guangdong aluminum foreign trade agent involved in the bill of lading shall deliver its share, the bill of lading to East Guangdong aluminum

35、plant, the right to sue the defendant;2. of the bill of lading issued to the Department of the bill of lading notify party a Daye Non-Ferrous Metals Co, the bill of lading not as other people from the port operation unit of the goods on the basis of extraction;21. of the defendant (2)3. people befor

36、e the delivery of the bill of lading issued with the port operations unit handled the transfer of goods, so as to control the goods;There is no causal relationship between the behavior and the 4. defendants are goods, should not bear tort liability;5. people involved in the early delivery of the bil

37、l of lading issued from the port operation unit had extracted 4620 tons of goods, the goods from more and not the defendant;21. of the defendant (3)6. the remaining goods have been issued by the judicial seizure, the fault behavior objectively has involved the bill of lading is prevented by the judi

38、cial behavior,And the preservation of the court to provide assistance, so the extraction of surplus goods also has nothing to do with the defendant;In October 18, 2001 7, the plaintiff has received from the East Guangdong plant No. 860 under the credit loan of RMB 13 million 50 thousand yuan, does n

39、ot suffer from the loss of goods payment.According to the above reasons, the defendant requested the court to dismiss the plaintiffs claim.22. court hearingIn February 28, 2002, the court accepted, formed a collegial panel.In August 19th of the same year, November 20th, the court held a public heari

40、ng of the case.The 23. focus of dispute in this caseAccording to the defendants plea that the main focus of the dispute is:First, whether the plaintiff has the right to claim the goods according to the provided one-way defendants rights;Two, whether the defendant shall bear tort liability for damage

41、s to the plaintiff;Specific composition and the amount of three, the loss of the plaintiff.First, whether the plaintiff has the right to claim the goods according to the defendant provided one-way rights (a) the plaintiff is the lawful holder of the bill of lading involvedThe 1. plaintiffs in its ow

42、n name and the light companies signed BSQ-2995 foreign trade contract is valid, the plaintiff in order to perform the contract, for the bank business department issued No. 860 letter of credit and payment made by one involving three copies of original bills of lading to order.2. the instructions on

43、the back of a bill of lading shipper Australia ALCOA world bauxite company endorsed in blank, so the plaintiff as the legitimate holder of the bill of lading, have the right to claim the defendants on the basis of the proposed one-way cargo rights litigation.(two) the defendants defense is establish

44、edThe defendant believes:The plaintiff only as the principal scheme of outsiders East Guangdong aluminum foreign trade agent involved in the bill of lading shall deliver its share, the bill of lading to East Guangdong aluminum plant, the right to sue the defendant.The defence cannot be established:

45、one of the reasonsXY-BSQ-2995, the foreign trade agency contract disputes between the plaintiff and the East Guangdong aluminum plant, is another layer of different legal relations and involved in the case of infringement of legal relationship, both sides in the foreign trade agency does not affect

46、the rights and obligations of the contract in this case the plaintiff legally held the property involved in the bill of lading by basic fact card, does not affect the bill of lading the lawful holder of infringement facts alone to seek legal protection.The two sides agreed in the foreign trade agenc

47、y in the contract agreement jurisdiction in accordance with the law, the court shall be respected.The defence cannot be established: two reasonsIn addition, according to Chinas current foreign trade agency system, the plaintiff as a foreign trade agent, for the foreign trade sales contracts with the

48、 direct right of contract.The defense not support section.Two, whether the defendant to the plaintiff shall bear tort liability for damages (a) the defendant shall bear responsibility for the three reasons the first reason 1.As the agent of the carrier, the bill of lading issued by the single delive

49、ry according to the delivery of the certificate, the delivery document delivery means that the defendant has to agree to the bill of lading delivery delivery of cargo, to put goods behavior identity.The defendant did not recover in the case of the original bill of lading, rashly will be involved in

50、the bill of lading delivered to the non original bill of lading holder, which must bear legal responsibility.2. second reasonsAs the agent of the carrier, should foresee the bill of lading involved will be delivered to the non original bill of lading holder behavior will lead to the delivery of good

51、s without,The loss caused by the holder of the bill of lading, but still the implementation of the behavior, is a violation of the legitimate bill of lading holders bear the duty of care, not only has the mistake, and contrary to the carrier and its agent, the law of our country has significant resp

52、onsibilities, constitute infringement.The defendant has not provided evidence to prove that the above behavior has been authorized carrier, also did not provide evidence of its adopted will be involved in the bill of lading to stop or other damage happened in the effective measures to assist in the

53、implementation of the notice received the Lianyungang intermediate peoples court and the goods complete the customs according to law, should not bear the burden of the legal consequences.3. third reasonsThe laissez faire delivery certificate non normal circulation, directly lead to delivery of goods

54、 without the fact, against the plaintiff as the lawful holder of bill of lading according to the bill of lading involved enjoyed by the property, resulting in the actual economic loss of the plaintiff, there is a direct causal relationship between the defendant and the plaintiffs loss behavior.There

55、fore, the defendant and the plaintiff should bear tort liability for damages.(two) the first defense responsibility does not assume responsibility for the defense of the accused 1. defendantsThe defendant believes:The bill of lading bill of lading issued to the Department of the notice Daye Non-Ferr

56、ous Metals Co, the bill of lading not as other people from the port operation unit of the goods on the basis of extraction.The court held that there are two reasons for the defense can not be established:(1): one of the reasons can not be establishedAlthough the defendant holds a copy of the bill of

57、 lading copy the consignee column only recorded a Daye Non-Ferrous Metals Co, but the owner and the customs authority has the delivery contact the consignee on the column of East Guangdong factory, and Hong Kong Ming Trading in November 19, 2001 letter has made it clear that it is as the East Guangd

58、ong plant agents by the bill of lading. In this case the defendant will be involved in the bill of lading to lend, so the true meaning of the bill of lading East Guangdong factory records does not violate the defendant.(2) cannot be established two reasons:For the defendant, the bill of lading to trade will be involved in East Guangdong or Hong Kong Ming