Верховный народный суд КНР принял 20.03.2012 руководство, которым ввел новые правила рассмотрения споров из отношений транспортного экспедирования. Всем экспедиторам рекомендуется внимательно ознакомиться с этим руководством для правильного понимания своих прав и обязанностей, которые будут положены в основание рассмотрения и разрешения споров Морским судом Шанхая и судом, в котором будут рассматриваться апелляции на его решения.
Litigation of sea freight forwarding disputes has been always a controversial area, many landmark cases have been determined in the last two decades. Almost all participants in the value chain – including shippers, freight forwarders, B/L holders, sea carriers and their agents, bankers, port operators and even warehouse owners – have been involved in a wide variety of maritime cases.
In the past a few years, the Supreme People’s Court has been striving to gather and organize views from stakeholders including the maritime courts, freight forwarding practitioners, importer & exporters, scholars and lawyers.
In the interim, the Shanghai High Court (with its particular regional experience) released ‘The answers on the trial of the freight forwarding contract disputes (Q & A Series 1-5)’, which serves as a guideline within Shanghai Maritime court and its appellate court Shanghai High court. Some opinions of this Q & A Series have invoked by judges (see for example this previously published case note, however, the Series is a guide only and just reflects the dominant opinions and trial practice in the Shanghai courts, without mandatory power.
On March 20, 2012, The Supreme People’s Court of China promulgated ‘Provisions of the Supreme People’s Court on the trial of the sea freight forwarding disputes’(‘the Provisions’) ,which will come into force on May 1, 2012. The main points points addressed are:
1. The Provisions are made under the ‘General Principles of Civil Law of the People’s Republic of China’, the ‘Contract Law’, the ‘Maritime Code’, the ‘Civil Procedure Law’ and the ‘Special Maritime Procedure Law’, as well as other relevant laws, regulations, and also combined with trial experiences.
2. The Provision apply to disputes arising from business under which a freight forwarding company accepts a mandate from principals concerning the following services:
(A) to provide booking, customs declaration, inspection, insurance services;
(B) to pack goods, monitoring loading and unloading, container stuffing and unstuffing, bulk breaking, transit services;
(C) to prepare and deliver of relevant documents, the freight settlement;
(D) warehousing, land transport services;
(E) dealing with other sea freight forwarding agency affairs.
3. The court shall identify the nature of the case and apply different laws according to the different legal relationship reflected in the case, such as agency, transportation and warehousing relationships.
4. A freight forwarder is normally characterized as agent whose liability and obligations are much less than those of a carrier under Chinese law. Distinguishing between the forwarder as an agent or a (contractual) carrier is a vital issue. The Provision lists the criteria for identifying an agency contract:
-the nature of the rights and obligations agreed in the written contract;
-the name and method of remuneration charged by the freight forwarding company;
-the types of invoices (freighter forwarding business invoice and sea transportation invoice are assorted in China);
-items charged(e.g. agency service fee or sea freight);
-former transaction practices; and
-the specific circumstances of performance of the contract between the parties.
5. In the circumstances below, the freight forwarding company shall be identified as (contractual) carrier, with the greater responsibilities and liabilities of a carrier:
(A) When dealing with sea freight forwarding affairs, the freight forwarding company issues bills of lading, sea waybill or other transport document in its own name;
(B) The freight forwarding company issues the bills of lading, sea waybill or other transport document in the name of the carrier, but it fails to prove that it has obtained power of authority from the carrier.
6. If the parties agreed the freight forwarding company to delegate its authority to a third party, and the freight forwarding company claims such an agreement of subagency, it shall be supported by the court. In the event that there is no such an agreement of subagency, the forwarding company or the third party alleging that the principal is aware of the delegation of authority without expressive opposition, therefore it advocates the consent of the principal to delegate, this claim shall not be supported, unless the doings of the principal obviously shows its agreement of subagency.
7. The Provision adopts the principle of apparent agency regulated by Article 49 of the Contract Law. It reads: “according to the customs of trade between both sides, one party has reasonable grounds to believe that the actor has the power of authority to represent the other party to enter into the sea freight forwarding contract, if this party claims the establishment of the agency contract, this claim shall be supported.”
8. The Provisions supports the freight forwarding company to exercise a lien on the relevant trading documents against the remuneration but, as a prerequisite, the lien clause must be expressly agreed in the contract. In the event that the contract fails to contain such a lien clause or the clause is ambiguous, the court shall made decision in favor of the freight forwarding company, except on the bills of lading, sea waybill and other transport documents.
9. The Maritime Code sorted the shippers as two categories: the party that concluded the contract of carriage of goods by sea and the party that actually delivers the goods to the carrier. Provisions created new names,‘contractual shipper’ refers to the first category, while ‘actual shipper’ means the second category. Where that the freight forwarding company accepts the contractual shipper’s trust to book space and meanwhile accepts the actual shipper’s trust to ship goods to the carrier, the freight forwarder company shall handover the bills of lading, sea waybill or other transportation documents to the actual shipper upon request. Otherwise the court shall decide in favor of the actual shipper.
10. The doctrine of limited strict liability is adopted by the Provisions. If the principal claims for damage to or loss of goods caused by the freight forwarding company during its performance of agency, the claim shall be held out, unless the freight forwarding company can prove it’s not at fault.
11. Under the International Maritime Regulations of The People’s Republic of China, the specimen bills of lading of domestic and foreign NVOCC must be filed mandatorily in the transport administrative authorities with an amount of security for compensation. The Provision holds the freight forwarding company liable for losses to the principal if the freight forwarding company fails to exercise its due diligence to check the bills of lading filing records and conclude a contract with the disqualified NVOCC.
12. The freight forwarding company shall be liable jointly and severally with the disqualified NVOCC for losses suffered by the cargo interests if the freight forwarding company acts as agent to issue such non-filed bills of lading. However, the freight forwarding company is entitled to recover its damages from the disqualified NOVCC.
13. The Provisions do not apply to the disputes concerning the coast transportation (Shot-sea shipping) or to inland water transportation.
14. The Provisions apply to the cases undergoing in the proceedings of the first instance and appellate instance, but not to the retrial proceedings on an enforceable judgment.
In summary, the freight forwarding industry has been re-regulated by the Provisions, and all forwarders should check with transportation counsel to ensure they understand their new obligations and liabilities, and that they comply with the Provisions new formal and practical requirements in their dealings with shippers, carriers, and NVOCCs.
Автор: George Wang
Источник: http://www.forwarderlaw.com/library/view.php?article_id=821