Carriers Shall Not Be Liable for Cargo Loss in the Event Judicial Detention at the Destination Port

2015-08-12 16:00:01 BJT

Foshan Industrial Co., Ltd (hereinafter ※Foshan Industrial§) entrusted Global Logistics (Xiamen) Co., Ltd (hereinafter ※Global§) for the shipment of the cargo concerned. On 18th August 2012, Global, in the name of the company itself, issued three copies of the original bill of lading titled ※Global§ to Foshan Industrial, on which indicated: SHIPPER Foshan Industrial; CONSIGNEE/NORTIFY PARTY Model One International S.A; PLACE OF RECEIPT Foshan, China; PORT OF LOADING Hong Kong; CARRIER ocean carrier ※CAROLINE MAERS*§ shipped and sailed on 18th August 2012; PORT OF DISCHARGE Balboa, Panama; PLACE OF DELIVERY Col車n Free Trade Zone; cargo loaded, tallied and sealed by the shipper; cargo packed and loaded in two containers UETU5042783 and PONU7333056; FIRST VESSEL ※Fo Hang § received cargo at Foshan, China; FREIGHT PAYABLE AT DESTINATION.

Global entrusted the cargo concerned to the actual carrier A.P. Moller 每 Maers* Group, a party not involved in the subject case. On 12th September 2012 in Guangzhou, Maers* Line, on behalf of Maers* Group, issued a sea waybill or a combined transport bill of lading titled ※Maers* Line§, on which indicated: SHIPPER World Asia Shipping Ltd; CONSIGNEE/NORTIFY PARTY General Cargo S.A.; CARRIER ※CAROLINE MAERS*§ loaded on 18th August; PORT OF LOADING Hong Kong; PORT OF DISCHARGE Balboa; PLACE OF DELIVERY Col車n Free Trade Zone; CONTAINER No.UETU5042783/No.PONU7333056; FREIGHT PAYABLE AT DESTINATION; FIRST VESSEL ※Fo Hang 1003§ sailed off Foshan on 13th August.

After the Cargo concerned arrived at Col車n Free Trade Zone, the First Civil Court of Col車n Circuit of the Republic of Panama sent an Official Note No.1022 to the manager of Maers* Group on 17th September 2012. The Note notified that according to Order No.852 dated 14th September concerning the application of Mauricio Vargas to detain the property of Model One International S.A, the court would formally detain the 647 cases of goods in container UETU5042783 and the 199 cases of goods in container PONU7333056. The goods, covering a variety of goods such as floor board, ceramic tile, corner, corner plate, bathtub and toilet, were in the ownership of Model One International S.A. The goods were carried by Maers* Group and at the moment were detained at Manzanillo international terminal of the Port of Manzanillo.

The Claimant lodged claims with Guangzhou Maritime Court against Global and Global Shantou Branch, alleging that: the Claimant entrusted the Defendant to carry the cargo to Panama, against which the Defendant issued the original B/L on 18th August. On 10th October, the Defendant sent email to the Claimant, notifying that the cargo under the B/L was controlled by Panama authorities. But the Defendant did not provide any effective evidence for such fact. The Claimant considered that the Defendant was releasing cargo without the presentation of the original bill of lading and shall pay compensation to the Claimant for default. The Claimant therefore requested the court to rule: the two Defendants to jointly pay 109,011.15 USD plus interest to the Claimant and to bear the litigation fees of the subject case.

The two Defendants rose to their own defense: the cargoes were detained by the Panama court at Manzanillo international terminal of Col車n Free Trade Zone immediately when they had arrived at the destination port, rather than to be released by the Defendant without the presentation of original bill of lading. Maers* Group, the actual carrier of the cargo concerned, had no fault in the case since the cargo was detained by the local court owing to the consignee*s involvement in a local lawsuit. For the moment, the Carrier could do nothing about the cargo being detained and the carrier shall not be liable for such circumstance. Therefore, the Defendants requested the court to overrule the Claimant*s claims.

On hearing the case, Guangzhou Maritime Court judged: the contract of carriage of goods by sea entered and concluded by the Claimant and Global was valid and effective. The two parties shall observe the clauses of the contract by exercising their rights and fulfilling their obligations. Global Shantou Branch, as a branch of Global, had directly contacted the Claimant to address relevant issues when handling the carriage involved. That means, Global Shantou Branch had actually participated in the performance of the carriage contract and therefore shall undertake joint liability of carrier with Global. Since the two Defendants consigned the cargo concerned to the actual carrier Maers* Group, a party not involved in the subject case, the Defendants shall be liable for the actual effect of the carriage performed by Maers* Group. Given that Claimant, who was the shipper indicated on the B/L, still held the full set of the original Bs/L in accordance with the B/L and other evidences, and that the Defendants did not deny the loss of control over the cargo concerned for the moment which was testified by the notified official note of the First Civil Court of Col車n Circuit, this court therefore admitted the fact that the cargo concerned had been detained at the destination port.

The dispute of the subject case centered on whether or not the two Defendants had released the cargo without the presentation of the original B/L and whether or not the Defendants shall be, if any, held responsible for such act. The Claimant as the shipper alleged that the cargo concerned had been released by the Defendants without the presentation of original B/L and hence requested the Defendants to jointly undertake compensation liability for default. The Defendants as the carrier defended that they did not release the cargo without the presentation of original B/L and therefore shall not be liable for the cargo detained at the destination port. The Defendant also argued that the cargoes were detained by the local court immediately when they had arrived at Col車n Free Trade Zone owing to the designated consignee*s involvement in a local lawsuit, which could be testified by the official note of the First Civil Court of Col車n Circuit. Therefore, the Defendants had no fault and shall not be held liable for the cargo detention. According to Article 51 Paragraph 5 of the PRC Maritime Law, the carrier shall not be liable for the loss of or damage to the goods occurred during the period of carrier's responsibility arising or resulting from detention under legal process. Although the detention occurred during the period of the Defendants* responsibility, the Defendants shall not be held liable for the loss arising from such act. Therefore, based on the facts and legal grounds, the court supported the Defendants* defense and judged that the Defendants shall not be liable for the cargo loss arising from cargo detention at the destination port. In summary, without being furnished with factual or legal evidence, the court lawfully rejected the Claimant*s allegation that the Defendants released the cargo without the presentation of original B/L and the Claimant*s claim for compensation from the Defendants. The court overruled the claims made by Foshan Industrial.







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