Case of dispute over contract of carriage of cargo by sea filed by Shenzhen Huapu Digital Co. Ltd against CMA CGM (China) Shipping Co., Ltd. Shenzhen Branch, CMA CGM (China) Shipping Co., Ltd etc.

2016-01-26 17:14:29 BJT
¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡Guangzhou Maritime Court of the People¡¯s Republic of China

¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡Civil Judgment
¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡ (2009)GHFCZ No.590

Plaintiff : Shenzhen Huapu Digital Co. Ltd.
Address : Building No.6 District No.1, Huai De Cui Hai Industrial Zone,
Fuyong Street, Baoan District, Shenzhen, Guangdong, China
Legal Rep. : Wu Kaiting, Chairman
Agent ad litem : Li Daofeng, attorney-at-law from Grandall Law Firm
Agent ad litem : Yan Yi, attorney-at-law from Grandall Law Firm

Defendant : CMA CGM (China) Shipping Co., Ltd. Shenzhen Branch
Address : 60/F, Shunhing Square, Di Wang Commercial Center, Shennan
Road East, Luohu District, Shenzhen
Legal Rep. : Aubrey Chang, General Manager of South China
Agent ad litem : Zhao Shuzhou, Attorney-at-law of Wang Jing & Co. Law Firm
Agent ad litem : Yang Bo, Attorney-at-law of Wang Jing & Co. Law Firm

Defendant : CMA CGM (China) Shipping Co., Ltd.
Address : No. 39, Golden Bund Finance Centre, No.222 Yan¡¯an Dong
Road, Shanghai.
Legal Rep. : Farid T.Salem
Agent ad litem : Zhao Shuzhou, Attorney-at-law of Wang Jing & Co. Law Firm
Agent ad litem : Yang Bo, Attorney-at-law of Wang Jing & Co. Law Firm

Defendant : CMA CGM S.A.
Address : 4, quai d¡¯Arenc-13235 MARSEILLE cedex 02-France
Legal Rep. : Philippe Blanchet, General Counsel
Agent ad litem : Zhao Shuzhou, Attorney-at-law of Wang Jing & Co. Law Firm
Agent ad litem : Yang Bo, Attorney-at-law of Wang Jing & Co. Law Firm

With respect to the case of dispute over contract of carriage of cargo by sea filed by the Plaintiff Shenzhen Huapu Digital Co. Ltd. on 23 Sep, 2009 against the Defendant CMA CGM (China) Shipping Co., Ltd. Shenzhen Branch (hereinafter referred to as ¡°CMA Shenzhen¡±), the Defendant CMA CGM (China) Shipping Co., Ltd. (hereinafter referred to as ¡°CMA China¡±), and the Defendant CMA CGM S.A. (hereinafter referred to as ¡°CMA France¡±), after accepting this case, this court formed a collegial panel in accordance with law. The Defendant CMA France raised an objection against the jurisdiction of this court within the time limit for filing the statement of defense. This court ruled to dismiss the objection on jurisdiction on 4 Dec., 2009. CMA France who was not satisfied with the ruling lodged an appeal. Guangdong Higher People¡¯s Court ruled to dismiss the appeal and maintain the original ruling on 12 June 2010. This court summoned the parties hereto to carry out pre-trial evidence exchange on 4 November 2010 and conducted an open trial on the present case respectively on 4 November 2010 and 12 April 2011. The following persons have appeared before this court to participate in the court hearings: Li Daofeng and Yan Yi, agents ad litem of the Plaintiff; Zhao Shuzhou and Yang Bo, agents ad litem jointly entrusted by the three Defendants. The trial of this case has closed.

The Plaintiff Shenzhen Huapu Digital Co. Ltd. alleged that: to perform the contract for export goods signed on 23 December 2008 between the Plaintiff and its Brazilian customer Proview Electronica Do Brasil Ltda (hereinafter referred to as ¡°Proview¡±), the Plaintiff entrusted the Defendant CMA Shenzhen to transport the electronic products worth US$940,000 to Manaus, Brazil. On 25 December 2008, CMA Shenzhen received the goods, which were stuffed separately in two containers numbered CMAU8077425 and TRLU7273391. Without the consent of the Plaintiff, CMA Shenzhen issued the full set of original bills of lading No.SZ1477171 in the name of the agent of CMA France. While the full set of original bills of lading are still in the Plaintiff¡¯s hand, the cargoes stuffed in the two containers were released respectively on 27 April 2009 and 10 June 2009, as a result of which the Plaintiff was unable to collect the cargo payment as stipulated in the sale contract. CMA Shenzhen, as the party to the contract of carriage, and CMA France, as the carrier under the bill of lading, shall be obliged to deliver the cargo against the production of the original bill of lading, and thus they should compensate the Plaintiff for the loss of the Plaintiff caused by the delivery of cargo without original bill of lading. CMA Shenzhen is the branch company of the CMA China, so CMA China shall be liable for assuming the liability of CMA Shenzhen. The Plaintiff requested this court to order the three Defendants to compensate for the losses to the Plaintiff caused by the delivery of cargo without the bill of lading in the amount of RMB6,426,404, plus interests accrued thereon (calculated at the loan interest rates published by the People¡¯s Bank of China prevailing at the corresponding periods, counting 1 March 2009 to the date of payment determined by court judgment), and lawyer¡¯s fee in amount of RMB200,000 incurred by the Plaintiff for this lawsuit and to bear the court fee.

The Plaintiff provided the following evidence within the period for adducing evidence: 1. purchase order, pro forma invoice and export commodity invoice of Shenzhen; 2. packing list; 3. original bill of lading in triplicate; 4 invoice for container demurrage; 5. website data print; 6. correspondences between the two parties; 7. central parity rates; 8. Export Goods Invoice, the Form and Detailed Sheets of Tax Exemption, Tax Deduction and Drawback of Export Goods, and the Verification and Writing-off Form for Foreign Exchange Collected in Export.

Defendants CMA Shenzhen, CMA China and CMA France jointly defended that: 1. CMA Shenzhen only acted as the agent for the carrier CMA France for accepting booking, arranging the carriage and issuing the bill of lading, and had no any relation of carriage contract with the Plaintiff, thus the Plaintiff has no right to sue CMA Shenzhen and CMA China; 2. The delivery of the cargo without presentation of the original bill of lading as alleged by the Plaintiff does not conform to the fact, because the cargo has not been delivered to any party, but has been stored at the inland depot ¡°AURORA EADI¡± under customs control, waiting to be collected; 3. The cargo involved in this case has been compulsively transferred to the inland depot of the discharge port by the customs, and been compulsively un-stuffed and stored at the inland depot. The transit and de-stuffing have nothing to do with the carrier. In the light of the regulations of the port of destination, the consignee specified in the bill of lading has the right to apply to the customs for the transfer of the cargo to the inland depot under the supervision of the customs by presentation of a copy of the bill of lading; the carrier has no way to interfere with or prevent such transfer; the bill of lading holder will not thereby lose the ownership in the cargo, because the cargo remains under the customs supervision and only the holder of the original bill of lading has the right to take delivery of the cargo; 4. The Defendants have already notified the Plaintiff of the current storage status of the cargo and taken initiative to assist them in dealing with issues such as taking delivery of and returning the cargo. However, the Plaintiff has consistently delayed to take delivery of the cargo. Thus any loss or risk arising therefrom should be borne by the Plaintiff and has no relevance with the Defendants. To sum up, the Defendants requested to dismiss all the litigation requests of the Plaintiff according to law.

The three Defendants provided the following evidence within the period for adducing evidence: 1. agency agreement signed by CMA France and CMA China; 2. approval documents issued by the Brazilian Finance Ministry and the Ministry of Agriculture; 3.legal opinion issued by Brazilian lawyers on the delivery of cargo at the port of the destination and local laws and regulations on cargo inland transfer; 4. written certifying documents and correspondences of the customs inland warehouse.

Upon cross-examination and hearing, the following evidential documents and facts were confirmed by the Plaintiff and the three Defendants, which are accordingly by the Collegial Panel:

The Plaintiff entrusted CMA Shenzhen to transport its cargo from Shenzhen, China to Manaus, Brazil in December 2008. CMA Shenzhen accepted the entrustment of the Plaintiff and arranged the cargo transportation. On 25 December 2008, CMA Shenzhen issued a set of original bill of lading numbered SZ477171 in triplicate to the Plaintiff. The shipper specified on the bill of lading is the Plaintiff, the consignee and notify party is PROVIEW, the carrier is CMA France, shipper¡¯s load, stow and count, cargo is said to be 20,200 sets of XPS-300 black set-top box, stowed separately into two containers of 40 feet, numbered as CMAU8077425 and TRLU7273391 in full container load; the carrying vessel is M/V ¡°Northern Faith¡±, voyage number PP501E; loading port is Chiwan, Shenzhen, China, and unloading port is Manaus, Brazil, date of loading on board is 25 December 2008, and the bill of lading was signed by CMA Shenzhen, the agent of the carrier CMA France on that day in Shenzhen. The cargo specified on the bill of lading hereinabove arrived at the port of destination, Manaus. The customs clearance certification issued by the Brazilian Finance Ministry specified that the two containers numbered as CMAU807742 and TRLU72339 and stacked at the wharf Chibatao were thereafter transferred to the customs inland depot ¡°AURORA EADI¡± by road. The containers departed at 17hr13min30sec 20 February 2009 and arrived at 05hr13min30sec 21 February 2009.

After the arrival at the inland depot ¡°AURORA EADI¡±, the subject containers were de-stuffed. Based on the letter dated 17 July 2009 issued by Kleber, the staff member of the inland depot ¡°AURORA EADI¡±, the three Defendants asserted that the de-stuffing date should be 23 April 2009. While in the light of the commencing date and ending dates of container demurrage, the Plaintiff asserted that the de-stuffing date for the container No.CMAU8077425 should be 27 April 2009 and 10 June 2009 for the container TRLU723391.

On 8 July 2009, the Plaintiff sent an e-mail to CMA Shenzhen to check out whether the cargo specified on the bill of lading No.SZ147717 were released without B/L at the discharging port. CMA Shenzhen immediately informed the branch company of CMA France in Manaus, Brazil (hereinafter referred to as CMA Brazil) of the situation and made investigation, and informed the legal department of CMA France of the claim of the Plaintiff. On 14 July 2009, CMA Brazil responded that the cargo was transferred from Chibatao to AURORA EADI without B/L, but there was the authorization from the customs authorities to release the cargo without presentation of original bill of lading.

On 18 August 2009, CMA France sent an e-mail to the Plaintiff to inform it the container demurrage fee of the cargo specified on the B/L in Brazil amounted to US$8,480, of which, the beginning and ending dates for the demurrage of the container No.CMAU8077425 are respectively 16 February 2009 and 27 April 2009, during which the period from 16 February 2009 to 8 March 2009 is for free, and the period from 9 March 2009 to 16 April 2009 is calculated as the rate of US$40 per day, i.e. US$1,560 in total, and the period from 17 April 2009 to 27 April 2009 is calculated as US$80 per day, i.e. $880 in total. The beginning and ending dates for the demurrage of the container No.TRLU7273391 are respectively 16 February 2009 and 10 June 2009, during which the period from 16 February 2009 to 7 March 2009 is for free, and the period from 8 March 2009 to 15 April 2009 is calculated at US$40 per day, i.e. $1,560 in total, and the period from 16 April 2009 to 10 June 2009 is calculated at US$80 per day, i.e. $4,480 in total. CMA France also informed the Plaintiff in its e-mail that the re-stuffing cargo would cost an additional amount of US$270, and remind the plaintiff to take immediate action to avoid the forfeiture of the cargo by the customs.

On 22 September 2009, the Plaintiff signed an retainer contract with Grandall Legal Group Shenzhen Law Firm (hereinafter referred to as ¡°Grandall Law Firm¡±), in accordance with which, the Plaintiff entrusted Grandall Law Firm to act as its agent ad litem in this case and the retainer fee is RMB200,000. On the same day, Grandall Law Firm provided an invoice in amount of RMB200,000 as lawyer¡¯s fee. On 23 September 2009, the Plaintiff lodged the suit to this court and effected the payment of RMB200,000 via e-bank of Shenzhen Development Bank to Grandall Law Firm.

From June to August in 2010, CMA Brazil inquired of the cargo status stuffed in the two containers numbered CMAU8077425 and TRLU7273391 by sending emails to Alcimo and Kleber, staff members of inland depot ¡°AURORA EADI¡±, who responded by e-mail successively that the laden containers were still in the inland depot, but they should be delivered in time, and the huge storage fee should be paid to the depot as soon as possible. The three Defendants provided the written reply letter issued by Kleber on 10 March 2011 concerning the cargo status, in which it is stated: the cargo under the B/L No.SZ1477171 was stowed in the containers Nos.CMAU 8077425 and TRLU7273391 at first, and then de-stuffed and re-stowed in the containers Nos.XINU8226675 and TRLU7273175; it is stored at the inland depot of the customs, seal number respectively CMA CGM 2940845 and CMA CGM 2940847. The three Defendants have fulfilled the procedure of notarization and authentication for this written document.

It is also found from court investigation that on 27 June 2001, CMA France and CMA China signed an agency agreement, according to which, CMA France authorized CMA China as its shipping agent in areas including Shanghai, Ningbo, Zhejiang, Xiamen, Shenzhen, Qingdao, Dalian etc; CMA China accepted the entrustment and agreed to perform its agent obligations in the area of agency in accordance with the all the clauses of the agency agreement and the addendum signed between the two parties; this agreement came into effect on 1 July 2001 and remains effective; either party can inform the other party of the termination of the agreement by telegraph, telex, fax or registered mail 90 days in advance without disclosing the reason.

In order to prove the value of the cargo involved in this case, the Plaintiff provided copies of the purchase order and pro forma invoices as well as the invoice of export goods in Shenzhen. The purchase order is under the heading of Proview, order number 16915REV1, the cargo supplier is Plaintiff, the type of payment is by TT, and the transportation form is by sea, on the trade term of FOB Shenzhen, the place of delivery is Manaus; the issuing date is 23 December 2008; the specifications of the product is XPS-300(black), in total number of 20,200; the delivery date is 51 weeks, at the unit price of US$46.53, i.e. US$939,906 in total. In the column of approval persons there are the signatures of three persons, which the plaintiff asserted to be the procurement staff, procurement manager and the company senior management of Proview. The pro forma invoice No.PI-PROVIEW1222-08 issued by the Plaintiff specifies that: product type XPS-300, bulk order quantity 20,000, plus 200 spare units for free for after-sale service; unit price US$47, i.e. US$940,000 in total; on sale term of FOB Shenzhen, payment by TT, which means to be paid one week before the cargo arrived at the port of destination; after payment, the original B/L should be released via mail. The date when the invoices were issued is 22 December 2008 and the date of delivery is 24 December 2008. The invoice of export goods in Shenzhen numbered as 00575474 issued by the Plaintiff on 18 December 2008 specifies that: the purchasing party is Brazilian company Proview, and the type of trade is processing with imported materials, and the payment is settlement after export; product is XPS-300 in quantity of 20,200sets, at unit price of US$46.53, and both the sales amount and FOB price are US$939,906. The three Defendants alleged that the forgoing evidential documents do not cross-prove one another, thus denied the authenticity and relevance of these evidences. The collegial panel holds that the name and the number of the commodity specified on the invoices of the export goods in Shenzhen are consistent with the bill of lading, and the cargo name, quantity, unit price and total price are consistent with the purchase order; thus in the absence of any contrary evidence from the Defendants, the value of the subject cargo should be confirmed to be US$939,906, as specified on the invoices of export goods in Shenzhen. The number and the type of the products specified on the pro forma provided by the plaintiff are consistent with the related information in the invoices of the export goods in Shenzhen, the purchase order and the B/L, but the unit price, gross price are not the same with the export invoices and the B/L, thus, the collegial panel doesn¡¯t accept it as the evidence of the value of the cargo.

The three Defendants also relied on the documents issued by the Brazilian Finance Ministry and the Ministry of Agriculture and the Brazilian lawyers¡¯ legal opinion on the procedures and legal requirements concerning cargo delivery and inland bonded transfer of cargo to support their argument that the containers were de-stuffed under the compulsory order of the customs authority. The Plaintiff opined that the above-mentioned evidences cannot prove the facts alleged by the three Defendants. The collegial panel holds that the forgoing documents intended to be used as evidence are formed outside the territory of China, but the three Defendants failed to have them notarized and legalized in accordance with the stipulation of paragraph 1, Article 11 of Certain Provisions on Evidence involve din Civil Actions promulgated by the Supreme Court. Besides, the documents issued by the Brazilian Finance Ministry and the Ministry of Agriculture can only prove that the cargo was transferred to inland depot ¡°AURORA EADI¡± and was inspected by the Ministry of Agriculture on 21 February 2009, but cannot prove that the containers were de-stuffed compulsorily under the administrative power of the customs authority. The legal opinion on the laws and procedures concerning cargo delivery and cargo transfer at the port of destination issued by Brazilian lawyers are of personal view, and the three Defendants failed to provide any specific regulations of law to support, so the legal opinion cannot prove that there exist relevant regulations authorizing the customs at the port of destination the power to de-stuff the containers compulsorily. Considering the facts hereinabove, this court does not accept the forgoing allegation of the three Defendants.

During the trial, the Plaintiff and the three Defendants agree unanimously to apply the law of China for resolving the disputes in this case.

The collegial panel members all hold that: this case is one involving disputes over contract of carriage of goods by sea. According to Article 11 of Certain Provisions of the Supreme People¡¯s Court on Scope of Cases Accepted by Maritime Courts, the case falls into the exclusive jurisdiction maritime courts. The place of departure of the cargo involved in this case is Shenzhen, Guangdong, which is under the jurisdiction of this court. In accordance with Article 28 of the Civil Procedure Law of China that a lawsuit brought on claims for damages caused by a contract over railway, road, water, air or combined transport should be under the jurisdiction of the people¡¯s court of the place of the departure or the place of destination or the domicile of the defendant, this court shall have the jurisdiction over this case.

The cargo transport in this case is from Shenzhen, China to Manaus, Brazil, involving international elements. The Plaintiff and the Defendants choose to apply Chinese law to this case according to the provisions of Article 269 of the Maritime Code of China, so this case should be governed by Chinese law.

According to Article 71of the Maritime Code of China, the bill of lading is evidence of the contract of carriage of goods by sea, and against which the carrier undertakes to deliver the cargo. The Plaintiff is the shipper specified on the B/L and the holder thereof. The Defendant CMA France is the carrier specified on the B/L. Therefore between the Plaintiff and CMA France there is the contract of carriage of goods by sea as evidenced by the bill of lading. As the carrier under the contract of carriage of goods by seas, CMA France is obliged to deliver the cargo against production of the original B/L at the port of destination.

The disputes of this case focus on whether or not the cargo has been delivered without production of the original bill of lading. The burden of proving this issue is on the Plaintiff, who shall provide evidence to prove that the carrier has committed the acts of delivering the cargo without collecting the original bill of lading at the discharging port, and as a result of such acts, the Plaintiff, who holds the original bill of lading, is made unable to take delivery of the cargo at the discharge port against the production of the original bill of lading. According to the facts investigated and ascertained by this court, the Plaintiff who is the seller under the sale contract, the shipper under the B/L and the holder of the original B/L, did not check with the carrier about the status of the cargo until it has been more than four months after the cargo¡¯s arrival at the discharging port, and the Plaintiff failed to proceed to the destination port for checking the cargo status or demanding the delivery of the cargo against the original bill of lading after the carrier notified them that the cargo remains idle at the inland customs warehouse AURORA EADI. It follows that the Plaintiff has provided no evidence to prove that they are unable to take delivery of the cargo against the production of the original bill of lading at the discharging port, and inferred that the carrier has delivered the cargo without the original bill of lading on the mere fact that the two containers in which the cargo was originally stuffed were de-vanned after arrival at the discharging port. In accordance with the written certification and the related emails from the staff members of Aurora Eadi as provided by the Defendants, the cargo was put in the customs inland bonded warehouse pending delivery after being de-stuffed from the containers, and has not been delivered to the consignee or any other party. Therefore, in the absence of sufficient contrary evidence from the Plaintiff, one cannot arrive at the conclusion that the cargo has been delivered without the original bill of lading. According to the B/L terms and conditions and the shipping customs for containerized cargo, the cargo in this case should be delivered in full container load, but the holder of the B/L hasn¡¯t required to take delivery against presentation of the original B/L after the cargo in this case arrived at the port of the destination on16 February 2009. Therefore, CMA France has the right to de-stuff the containers and store the cargo on shore 60 days after the cargo arrived at the port of destination and when no one came up to demand the delivery of the cargo, in accordance with the stipulations of Article 86 of the Maritime Code of China, which reads ¡°if the goods were not taken delivery of at the port of discharge or if the consignee has delayed or refused taking the delivery of the goods, the master may discharge the goods into warehouse or other appropriate places, and any expenses or risks arising therefrom shall be borne by the consignee¡±. The fact that the cargo was de-vanned from the containers cannot prove that CMA France has committed the delivery without the B/L. In summary, the Plaintiff¡¯s allegation that CMA France has delivered the cargo without the original B/L is groundless in fact, thus its request to hold CMA France liable for bearing the related civil liability is not supported by law.

According to the fact investigated and ascertained by this court, CMA China has signed an agency agreement with CMA France. Thus CMA China is the shipping agent of CMA France in the areas including Shenzhen. As CMA Shenzhen is a branch company of CMA China, it has the right to accept entrustment from CMA France for agency business on behalf of CMA China. CMA Shenzhen made it clear on the B/L in this case that it only served as an agent of the carrier CMA France in issuing the B/L, and CMA France also confirmed that CMA Shenzhen is its agent. Under the situation that the Plaintiff has not provided adequate proof to the contrary, this court holds that CMA Shenzhen is only the agent of the carrier for transporting the cargo specified on the B/L, it is not the carrier of the cargo specified on the B/L, thus has no obligation for delivering the cargo against production of the original B/L. There exists no evidence in this case proving that CMA Shenzhen has committed the delivery of the cargo without the original B/L. Therefore the Plaintiff¡¯s request to hold CMA Shenzhen liable for the delivery without the B/L and to hold CMA China liable for the debt payment obligation of CMA Shenzhen lacks basis in fact and in law, thus is not supported by the court.

The lawyer¡¯s fee that the Plaintiff incurred was paid out of its own initiative for handling the lawsuit, so it is of no legal ground for the Plaintiff to take it as its loss and require the opposite party to reimburse for it. This court hereby dismisses the claim of the Plaintiff against the Defendant for reimbursements of lawyer¡¯s fee in amount of RMB200,000.

To sum up, according to Article 64 (1) of¡¡the Civil Procedural Law of the People¡¯s Republic of China, the judgment is hereby rendered as follows:

All the claims of the Plaintiff Shenzhen Huapu Digital Co. Ltd against the Defendants CMA Shenzhen, CMA China and CMA France are dismissed.

The case acceptance fee of this case in amount of RMB58,185 shall be born by the Plaintiff.

If not satisfied with this judgment, the Plaintiff and the Defendants CMA Shenzhen and CMA China, may, within 15 days as of the service of this judgment, the Defendant CMA France, may, within 30 days as of the service of this judgment, file an appeal to the Higher People¡¯s Court of Guangdong Province, by submitting to this court the Statement of Appeal, and the duplicates thereof in the number of the counterpart parties.

Presiding Judge : Xu Yuanping
Acting Judge : Li Lifei
Acting Judge : Zhai Xin
Guangzhou Maritime Court (Official chop affixed)
¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡
27 June 2011
Verified as identical with the original

Clerk : Zeng Huifen


The translation is provided by Wang Jing & CO.







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