Legal analysis of the most popular period of liabi

Legal analysis of non containerized goods during the period

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plaintiff: Beijing branch directly under the people's Insurance Company of China Limited

defendant: China Shipping Development Co., Ltd

defendant: China Shipping Development Co., Ltd. tanker company

on May 21, 2003, China International Petrochemical Corporation imported a batch of crude oil from Thailand and delivered it to the "Daqing 88" vessel owned by China Shipping Development and operated by China Shipping tanker. China Shipping Development issued four original clean bills of lading for this purpose, and the total crude oil volume of the four bills of lading was 7707 905 tons. On May 28, the "Daqing 88" arrived at Ningbo port for unloading, and the China entry exit inspection and Quarantine Bureau sent personnel on board to inspect the full and empty holds of the ship. On May 30, the Bureau issued a certificate of quantity/weight and empty hold, confirming that the quantity of crude oil carried by the ship was 77236.234 tons. After unloading, there was a total of residual oil (including sludge) in each hold. 2 michaeltaylor, vice president of the American Plastics Industry Association, delivered a speech related to sustainable development and innovation of 78.069 tons. According to the calculation, the actual discharged quantity is 76958.165 tons, 120.74 tons less than the quantity recorded in the bill of lading. During the inspection, the ship once commented that the remaining oil in the cabin was not liquid, but all sludge, which could not be pumped out. At the same time, at the application of the shipping company of Ningbo Port Authority, Ningbo Branch of China Import and Export Commodity Inspection Corporation measured the crude oil unloaded into the No. 4 and No. 8 metering tanks in Daxie tank farm by the "Daqing 88" and issued an inspection certificate to prove that the weight of crude oil unloaded into the tank by the "Daqing 88" was 76611.647 tons, 467.258 tons less than the weight recorded in the bill of lading. According to the insurance contract between the petrochemical company and PICC, the PICC made a claim, and the PICC obtained the right of subrogation after paying us $16895.6. In addition, the petrochemical company, as the voyage charterer involved in the transportation, once confirmed by fax that the reasonable loss of crude oil from the shore tank of the loading port to the ship was within 0.3%

after hearing, the Shanghai maritime court held that the petrochemical company did not sign an oil tank delivery agreement with the two defendants, and the dispute in this case should apply to the provisions of the maritime law of the people's Republic of China on the delivery of goods and the carrier. When the crude oil involved in the case was delivered in Ningbo port, the petrochemical company had inspected it with China shipping development, and the entry exit inspection and Quarantine Bureau of the people's Republic of China issued the quantity/weight certificate and empty hold certificate. According to these two certificates, it can be confirmed that the crude oil actually unloaded by the "Daqing 88" at Ningbo port was 76958.165 tons, 120.74 tons less than the quantity recorded in the bill of lading. Although Ningbo Branch of China Import and Export Commodity Inspection Corporation found through measurement that the crude oil discharged into the oil tank at the unloading port was 346.518 tons short, because the oil tank was not under the control of the carrier, PICC required the carrier to bear this shortage, which lacked legal basis. In addition, according to the contents of the voyage instruction fax of the petrochemical company, it can be determined that the petrochemical company recognizes and accepts the reasonable loss of crude oil involved in the transportation within 0.3%, while in this case, it can be determined that the actual loss of crude oil during the period of the carrier is 0.1566%. Therefore, the two defendants can be exempted from compensation, so the first instance judgment rejected the claim of PICC. After the judgment was made, PICC appealed to the Shanghai Higher People's court, which rejected the appeal and upheld the original judgment on the grounds that the facts identified in the original judgment were basically clear and the handling result was correct

the judge said that the case

first, the jurisprudential analysis of the meaning of "the carrier's period for non containerized goods"

first of all, the word "" contains two meanings: first, it refers to the obligations arising from the contract or the provisions of the law, that is, the debt referred to in the law; The second refers to the civil compensation that the parties should bear for violating their contractual obligations. Comparatively speaking, the "" in the "carrier's period for non containerized goods" should belong to the second meaning

secondly, the term "period" refers to the continuous extension of time between the starting point and the ending point with a certain time as the starting point and another time as the ending point

third, since the carrier's is due to the carrier's breach of contract obligations, the carrier's necessity is inseparable from the obligations that the carrier should undertake in the contract of carriage by sea. The contractual obligations undertaken by the carrier begin to arise from the establishment of the contract of carriage of goods by sea. The "period of the carrier for non containerized goods" should have the same starting and ending time as the performance of the obligations under the contract of carriage of goods by sea

it can be seen that as a general legal concept, "the period of the carrier for non containerized goods" should refer to the time period during which the carrier should bear civil compensation for breach of contractual obligations when performing the contract of carriage of goods by sea for the carriage of non containerized goods, and the carrier should not bear compensation after the expiration of this period

II. The conflict between Article 46 of China's maritime code and "the period of the carrier for non containerized goods"

Article 46 of China's maritime law stipulates that the period during which the carrier ships non containerized goods refers to the whole period during which the goods are under the control of the carrier from the time when the goods are loaded on the ship to the time when they are unloaded. If the goods are lost or damaged during the period of the carrier, the general carrier shall be liable for compensation. Accordingly, in judicial practice, it is generally believed that "the period during which the carrier transports non containerized goods" is the legal period during which the carrier is liable for compensation for the loss and damage of the non containerized goods it carries before loading and unloading. However, it is not correct to judge whether a carrier should be liable for compensation for a breach of its contractual obligations only based on the provisions of Article 46 of the maritime code

first of all, the "period of the carrier for non container goods" in Article 46 of the maritime code is inconsistent with the start and end time of the contract of carriage of goods by sea. The period from the time when the goods are loaded on the ship to the time when they are unloaded is the period when the goods are in transit, and this period refers to the "hook to hook" provisions in the "Hague Rules". Article 41 of China's maritime law stipulates that "a contract of carriage of goods by sea refers to a contract whereby the carrier collects freight and is responsible for transporting the goods consigned by the shipper by sea from one port to another". Therefore, the starting and ending period of the contract of carriage of goods by sea in the maritime code refers to the provisions of "port to port" in the Hamburg Rules. If only the provisions of Article 46 of the maritime code are used to judge whether the carrier should be liable for compensation for a breach of contract obligations, non container goods may exist in the carrier's vacuum state during the period from the beginning of the transportation contract to the loading and from the unloading to the termination of the transportation contract

secondly, the "period of the carrier for non container goods" in Article 46 of the maritime code is inconsistent with the period of the carrier's obligation to take care of the goods

third, the "carrier's period for non containerized goods" stipulated in Article 46 of the Maritime Code ignores the reasons for the loss and damage of goods

III. correct understanding of Article 46 of the maritime code

the "carrier's period for non containerized goods" proposed in Article 46 of the maritime code is obviously different from the "carrier's period for non containerized goods" in the legal sense, and has its special meaning

1. The "period of the carrier for non containerized goods" in Article 46 of the maritime code is the "mandatory period" of the carrier's obligation to take care of the goods

in the process of performing the contract of carriage of goods by sea, the obligations undertaken by the carrier mainly come from legal obligations and agreed obligations. Among them, the obligation of cargo management is regarded as a legal obligation that should not be exempted at will, whether from the perspective of the main payment obligation of the transportation contract, the principle of good faith or the provisions of the contract law. However, due to the mobility and foreign-related characteristics of the carriage of goods by sea, the mandatory provisions of a country's domestic law on the carrier's obligation to take care of goods in the whole process of the carriage of goods by sea, especially the provisions on land operations, often conflict with the domestic laws or administrative systems of other countries

in the legal system, the carrier's obligation to take care of the goods outside the period shall be agreed by both parties through negotiation. Of course, during the period after loading and before unloading stipulated in Article 46 of the maritime code, the carrier's obligation to take possession of the goods should be a statutory compulsory obligation, and the carrier may not exempt or mitigate the compensation it must bear for violating its obligation to take possession of the goods on the grounds that it is otherwise agreed in the contract

2. The "carrier's period for non containerized goods" stipulated in Article 46 of the maritime code is the applicable period of the carrier's special system

in the maritime laws of various countries, due to the special risks of the carriage of goods by sea, the carrier generally enjoys a relatively special system, which can not only exempt from compensation for some negligent acts, but also enjoy a restricted system of immediately making up for the loss or damage of goods in transit. Article 51 of the Maritime Code of China lists twelve situations in which the carrier is not liable for the loss or damage of goods. However, according to the traditional civil law theory, this special system of the carrier may cause the imbalance of contract rights, so it must be appropriately restricted

3. The carrier shall still be liable for compensation for its breach of contract obligations outside the provisions of Article 46 of the maritime code

on the one hand, in the performance of the contract of carriage of goods by sea, the contract obligations undertaken by the carrier usually include: the obligation of carriage, the obligation to take care of goods, the obligation to issue a bill of lading, etc., although the obligation to take care of goods is an indispensable main payment obligation in the contract of carriage, However, the carrier bears more than the obligation to take care of the goods during the "period of the carrier for non container goods". Article 46 of the maritime code only stipulates the situation of cargo damage and cargo difference during the period of the carrier, but it cannot be unilaterally understood that the carrier is only liable for compensation for the negligence of cargo management during the period. On the other hand, the period during which the carrier undertakes the obligations under the contract of carriage of goods by sea should be determined in accordance with the contract. During this period, the carrier must strictly perform any of its contractual obligations and may not be exempted from compensation for its misconduct on the basis of the period specified in article 46 of the maritime code

in this case, no agreement has been reached between the petrochemical company and the carrier's China Shipping Development and China Shipping tanker on the cargo management of the crude oil involved before loading and after unloading. The shortage of crude oil in this case should be subject to the provisions of Article 64 of the maritime code on "the carrier's period for non containerized goods", but only according to this provision does not exempt the carrier from the obligation of cargo management of the crude oil involved before loading and after unloading. The key is that the delivery of the crude oil involved by the carrier in this case has been completed at the time of unloading. According to the quantity/weight certificate and empty cargo certificate issued by the entry exit inspection and Quarantine Bureau of the people's Republic of China, the shortage of the crude oil involved is within the scope permitted by the petrochemical company. Therefore, after the delivery of non containerized goods, the period of the carrier's obligation to take care of the goods has expired, and the carrier does not need to bear compensation for the shortage of goods not in its charge

Zhong Ming of Shanghai maritime court

reprinted from: International Business Daily