Shipper's freight claim right
on August 30, 2005, the plaintiff trade contracts with OSAKA company, car shipping contract plaintiff by OSAKA companies ordered a group of of Qingdao grey ramie linen, pricing terms for Kobe, CIF, payment for the 100% wire transfer before delivery. Plaintiff appointed Shandong province Yantai international marine shipping company Shanghai Branch (hereinafter referred to as Shanghai, Yantai) shipment of goods under said contract. Goods scheduled for loading "RYOGA" round voyage No. 0539 e transports, but due to missing, the actual "HELENE" was carrying out transport. According to the plaintiff's request, Yantai and Shanghai company to deliver the goods to the port of destination, and telex were issued on September 30, 2005. In the telex reads: carrier for Shandong province Yantai international marine shipping company (hereinafter referred to as Yantai), Yantai Yantai, Shanghai company for the agent of the company. On October 11, Yantai and Shanghai company informed plaintiff, including plaintiff 23 containers, consignment, in Japan in Osaka were found contaminated by leaking fuel on the ship, contaminated containers being shipped back to Zhoushan to be cleaned. On November 28, the Yantai Shanghai company informed plaintiff goods arrangements have been brought back to Shanghai, plaintiffs against guarantee for the delivery procedures, and Yantai City, in the yard, in conjunction with the company's protection and indemnity association-unboxing of the ship owners ' mutual insurance Association of China on joint inspection of the cargo. December, plaintiffs back has damaged goods, and and China owner mutual insurance Association delegate of Beijing in the British scale up maritime consultant limited respectively in Shanghai huafa yard and Jiangyin Datang textiles limited warehouse on involved goods for has test, common confirmed plaintiffs checked of 91 Bao Xuan linen in the of 60 package (600 code/each package) was fuel pollution, remaining 31 package in second layer not was pollution, 60 bags of damaged goods valued at us $ 28968.19, residual value of $ 412, damaged goods, the amount of $ 28556.19. [NewPage]
on January 20, 2006, the Chinese ship owners ' mutual insurance Association said in a letter to the plaintiffs in connection with the damage was due to "fuel line loose flange cause." But the two defendants have so far not submitted a report on the inspection of goods, reasons. During the hearing, plaintiffs confirms that it has received the consignee T.Singh companies involved in the contract for payment of the purchase price, but due to the damaged goods and was returned, the plaintiff in order to fulfil the contract by sending a consignment to T.Singh company, and presented in court T.Singh the company acknowledged receipt of confirmation of substitute goods of the plaintiff.
other identified company is Yantai Yantai Shanghai companies set up branches in Shanghai, does not have a separate legal personality. Company in court recognizes the right of Yantai, Shanghai, Yantai on behalf of Yantai company issued in connection with the Bill of lading and dealing with damaged goods. Yantai company in court said he is "HELENE" wheel of time Charter, and is not the registered owner of the wheels.
at issue in this case there are three main issue, namely whether the plaintiff has a right in the present case, the plaintiff loss and damage to the goods, the carrier is excused.
focus on the first, goods in transit were contaminated, return back to China by the plaintiff by the defendant back. Plaintiffs as involved in the contract of carriage of goods by sea the shipper and the consignee is fully entitled to initiate litigation of breach of the contract of carriage against the carrier. The 2000 Incoterms CIF term and no mandatory force, can buyers and sellers in the sale process of the actual performance of the contract, the risk to make changes. Furthermore CIF terms does not involve ownership of the goods, the plaintiff in this case, select the transport of breach of contract lawsuit, the plaintiff has the property in the goods does not affect the right of the plaintiff in this case.
on the second point, Plaintiffs is had received case outsiders T.Singh paid of involved sale contract of payment, but due to involved goods in transport way occurred damaged does not shipped to original of purpose Hong Kong, but by carrier back shipped back domestic returned to has plaintiffs, plaintiffs for again sent has a new of goods to has T.Singh company, so plaintiffs received of T.Singh company payment of on price should is T.Singh company received of new of goods, and this case damaged goods of on price plaintiffs does not made. So the loss in value of the goods involved were damaged are still actually borne by the plaintiff, the plaintiff is entitled to require the carrier to be compensation. [NewPage]
focus on the third, Yantai company claims in connection with the damage was due to "HELENE" fuel line loose flanges on the wheels resulting in oil spills caused by the goods being damaged oil immersion, the wheel was a new vessel, piping flanges should be loose for the carrier "after careful handling ships has not yet discovered the potential flaw". In this case, the Yantai company for reasons of damage of the goods involved, only the unilateral statements did not have any formal findings can be corroborated. Therefore, the Yantai company for the goods, reasons have not been able to adduce evidence to prove that, but could not prove damage causes are carrier exemption. Yantai company address the claims of the carrier exemption bear the burden of proof cannot be legal consequences.
in addition, the Yantai branch of the Shanghai company is Yantai company, does not have legal personality, Yantai, in the present case is the agent of the company, therefore, the plaintiff requested Yantai company and Yantai, Shanghai company's joint and several liability for damage to the goods, there is no legal basis, this Court will not support it.
in accordance with the People's Republic of China maritime law article 46th, 51st, 55th, the provisions of article, defendant, Shandong province Yantai international marine shipping companies should take effect in this judgment to the plaintiff within 10th of Hunan huasheng industrial compensation of us $ 28556.19 for loss of goods; Hunan huasheng industrial other proceedings the plaintiff requests not to support it.
after the verdict, the defendant appealed, filing an appeal. By the Shanghai higher people's Court of second instance trials believe that Qingdao cars checked upheld the facts are clearly ascertained and the law applicable to the right, then judgment dismissing the appeal, upheld.