【Basic Case】

In January 2011, the plaintiff delivered 1216 aluminum rattan chairs worth $44180 to the defendant Ningbo freight forwarding company at Ningbo Port for export to Belgium. The defendant Ningbo freight forwarding company, in the name of its parent company Shanghai freight forwarding company, issued a complete set of original on board bills of lading with bill of lading number MSNANT11F00XXX to the plaintiff on the same day. The bill of lading states that the shipper is IN-ASIA Company, the consignee is C.SDESING, the port of shipment is Ningbo, the mode of delivery of goods is CY-CY, the port of unloading and the place of delivery is Port of Antwerp Port, Belgium, the name of the ship, the voyage number KOTA LAMBAIU V.0XX, the container number PCIU8370XXX, etc. (it is verified that the ship and container are owned by the actual carrier Taiping Shipping Co., Ltd.). After the shipment of the goods, the plaintiff still holds the full set of original bills of lading mentioned above, but after investigation, the goods have been extracted. The plaintiff has repeatedly inquired about the whereabouts of the goods, but the defendant has not informed the relevant information of the goods, resulting in huge economic losses for the plaintiff. The plaintiff filed a lawsuit with the Ningbo Maritime Court, and the case has now been won. 

【Proxies】

Dear Chief Justice

Zhejiang Liqun Law Firm has accepted the commission of Yueqing Company to appoint me as the first instance agent in the case of the plaintiff Yueqing Company v. the defendant Shanghai Freight Forwarder Company in the dispute over maritime cargo transportation contracts. After investigation and evidence collection, combined with court investigation, the agent hereby issues the following opinion based on relevant facts and the focus of the case, and in accordance with relevant laws and regulations. We hope that the court will fully consider and adopt it:

1. Regarding the legal status of the plaintiff

The two defendants believe that the plaintiff is not the shipper recorded in the bill of lading and has no right to claim the goods from the carrier. However, the plaintiff believed that although the shipper of the bill of lading was not the plaintiff, the plaintiff was the export unit recorded in the Customs declaration, and the bill of lading number, container number, and goods name in the Customs declaration were consistent with the bill of lading, so the plaintiff was the actual shipper of the goods involved in the case, and enjoyed the right of action according to law. Although the plaintiff is not the shipper specified in the bill of lading, the maritime law stipulates that the shipper refers to "the person who enters into a contract of carriage of goods by sea with the carrier in their own name or on their behalf; the person who delivers the goods to the carrier related to the contract of carriage of goods by sea in their own name or on their behalf". Moreover, the mode of trade involved in the case is FOB, and the consignee, as the shipper of the bill of lading, entrusts the transportation of goods, which is the basic operating feature of FOB. The Customs declaration and sales invoice can confirm the fact that the plaintiff, as the seller of the trade contract, actually delivers the goods to the carrier for shipment, which conforms to the definition of shipper in the Maritime Law, and can claim the shipper's rights from the carrier according to law.

2. On the Legal Relationship between the Plaintiff and the Two Defendants

The plaintiff believes that the defendant Ningbo freight forwarding company did not inform them that they were only agents when issuing the bill of lading, and contacted the plaintiff as carriers. During the trial, no evidence was provided to prove that the issuance of the bill of lading in the name of the defendant Shanghai freight forwarding company was authorized by the Shanghai freight forwarding company. However, the defendant Shanghai freight forwarding company, as the carrier named on the bill of lading in question, believed itself to be the carrier during the trial, Therefore, both defendants have established a contract of carriage of goods by sea, and the two defendants shall bear joint and several liability for compensation.

3. On the Status of the Containers Involved in the Case and the Existence of Delivery Without a Bill of Lading

According to Article 71 of the Maritime Code of China, a bill of lading is a document of title used by the carrier to deliver the goods to the consignee, and the carrier is obligated to deliver the goods at the destination port against the original bill of lading. The plaintiff, as the holder of the original bill of lading for the goods involved, has the right to claim compensation from the carrier in the event of damage or loss to their goods. After the shipment of the goods involved, the container loaded with the goods has been emptied and put back into operation. According to international shipping practices, when the delivery method of the full container goods is from the yard to the yard, the carrier should deliver the full container goods at the destination port yard. The fact that the container carrying the involved goods has been unpacked and put back into operation can serve as preliminary evidence to prove that the carrier has released the goods without a bill of lading. If the carrier denies that it has carried out the act of releasing the goods without a bill of lading, it shall provide counter evidence to refute it, to prove that the goods are still in the destination port yard, and the defendant fails to provide any valid evidence, and shall bear the legal consequences of inability to provide evidence in accordance with the law. The plaintiff has submitted a notarized certificate and Chinese translation of the results of the dynamic tracking and query of the involved container to the court, proving that the involved container has been unpacked and put into operation. Therefore, preliminary evidence has been completed to prove that the defendant did not release the goods without a bill of lading. However, the two defendants claimed in the trial that the goods in question are still under the control of the destination port, but no evidence has been provided during the trial and secondary evidence period, such as the warehouse name, contact person, and any other valid evidence, According to the law, one should bear the legal consequences of being unable to provide evidence.

4. Regarding the plaintiff's losses

(1)The plaintiff has proven that their losses do indeed exist. In order to prove its losses, the plaintiff provided the court with Commercial invoice, Customs declaration, verification sheet and sales invoice to prove that the value of the shipped goods was 44180 US dollars. Within the period of the second adduction of evidence, the plaintiff submitted an application report, the purchase and sales contract between the plaintiff and a company in Linhai, three VAT invoices, the original purchase and sales contract with a company in Hong Kong, and the Chinese translation to prove the fact of "batch verification", Therefore, it has been proven that the collection of the involved goods verification form did not come from the goods under the bill of lading involved.

(2) The defendant failed to provide evidence to refute. In the above circumstances, the defendant should at least provide a bank receipt to prove that the buyer or consignee has indeed paid the plaintiff the involved goods, or provide evidence to prove that even though the foreign exchange used by the plaintiff to verify the involved goods was not paid by the buyer or consignee, the buyer or consignee of the involved goods did indeed pay the plaintiff, but the defendant failed to provide evidence in this regard in the second trial. And the so-called evidence submitted by the defendant within the second proof period exactly proves several facts to the contrary: firstly, the consignee did not pay; second ,the goods have been unpacked and collected by the consignee. Specific reasons: ① "Our company has not requested the consignee C.SDESING to make payment for the above-mentioned goods"; ② The defendant has always believed in the trial that "the goods have not been received or the boxes have not been opened", and the evidence also states that "there are quality issues and three of the boxes have insufficient quality", which is clearly contradictory.

(3) As for the two defendants, they believe that the plaintiff's claim for payment loss may have been caused by a refund of the letter of credit or by the plaintiff's failure to deliver the bill of lading to the intermediary, resulting in no one coming to pick up the goods upon arrival at the port. However, the plaintiff believes that both of the above defenses have no causal relationship with the defense of non delivery of goods without a bill of lading, which does not affect the carrier's obligation to deliver the goods at the destination port against the original bill of lading, and cannot exempt the plaintiff from compensation liability for the loss of unpaid payment caused by non delivery of goods without a bill of lading.

In summary, the defendant released the goods without the original bill of lading, which resulted in the plaintiff not receiving the payment under the bill of lading, seriously damaging the plaintiff's legitimate interests. We request support for the original claim.

Agent: Zhejiang Liqun Law Firm

Lawyer Jiang Xi

August, 2012