Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Cases over Marine Freight Forwarding Disputes

Updated : 2016-10-26

Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Cases over Marine Freight Forwarding Disputes has been adopted at the 1538th meeting of the Judicial Committee of the Supreme People’s Court on 9 January 2012. It is hereby announced and it shall take effect as of 1 May 2012.

27 February 2012

Fa Shi [2012] No.3

Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Cases over Marine Freight Forwarding Disputes

(Adopted at the 1538th meeting of the Judicial Committee of the Supreme People’s Court on 9 January 2012)

 

For the purpose of correct trial of cases over marine freight forwarding disputes and legally protection of the lawful rights and interests of the parties concerned, in accordance with General Principle of Civil Law of PRC, Contract Law of PRC, Maritime Code of PRC, Civil Procedure Law of PRC, Special Maritime Procedure Law of PRC and other laws and regulations, and in combination with trial practices, this Provisions is enacted.

Article 1 This Provisions shall apply to the following disputes which take place when freight forwarders accept clients’ entrustment to handle marine freight forwarding transactions:

(1) Dispute arising from providing cargo space booking, customs clearance, inspection reporting, test reporting and insurance services;

(2) Disputes arising from providing cargo packaging, packaging supervision, unloading supervision, container devanning, distribution and transshipment services;

(3) Disputes arising from preparation or delivery of relevant documents or settlement of fees;

(4) Disputes arising from providing warehousing and land transport services; and

(5) Disputes arising from handling other marine freight forwarding transactions.

Article 2 During trial of cases over marine freight forwarding disputes, if people’s courts determine that freight forwarder have different legal relations with clients such as agency, transport and warehousing due to handling marine freight forwarding transactions, relevant laws and regulations shall apply respectively.

Article 3 People’s courts shall, in accordance with the nature of rights and obligations agreed in written contracts, give comprehensive consideration to the name and manner for freight forwarders to get remunerations, types of invoices issued and charging items, transaction practice between the parties concerned and other conditions of actual performance of contracts, to determine whether marine freight

Article 4 Where a freight forwarder issues the bill of lading, sea waybills or other transport documents in its own name during handling marine freight forwarding transactions, and in case the client claims that such freight forwarder shall bear the carrier’s responsibilities, the people’s court shall uphold the said claim.

Where a freight forwarder issues the bill of lading, sea waybills or other transport documents in the name of the carrier’s agent but cannot prove that it had obtained the carrier’s authorization in this regard, and in case the client claims that such freight forwarder shall bear the carrier’s responsibilities, the people’s court shall uphold the said claim.

Article 5 In the event that a client has agreed with the freight forwarder regarding sub-entrustment authority, and if any party concerned claims that the client has approved the sub-entrustment with regard to marine freight forwarding transactions within the scope of authority, the people’s court shall uphold such claim.

Where there is no agreement on the sub-entrustment authority, and if a freight forwarder or a third party claims that the client has approved the sub-entrustment for reason that the client has known the freight forwarder sub-entrusted the third party to handle marine freight forwarding transactions in whole or in part but the client does not raise any objection against it, the people’s court shall not uphold such claim, except that client’s behavior expressly shows that it accepted the sub-entrustment.

Article 6 In case that one party concerned has good reason to believe the agent has the right to conclude marine freight forwarding contract on behalf of the other party in accordance with transaction practice between the two parties, and if the said party concerned claims that the contract establishes in accordance with Article 49 of the Contract Law of PRC, the people’s court shall uphold such claim.

Article 7 Where a marine freight forwarding contract provides that the freight forwarder may deliver documents obtained from handling marine freight forwarding transactions on the condition that the client pays relevant charges, and if the freight forwarder refuses to deliver documents for the reason that client has not paid the same, the people’s court shall uphold such claim.

In case the contract has no provisions or has no clear provisions regarding the abovementioned matter, and if the freight forwarder refuses to deliver documents on the ground that client has not paid relevant charges, the people’s court shall uphold such claim, except for bills of lading, sea waybills or other transport documents.

Article 8 Where a freight forwarder accepts entrustment from a contractual shipper to handle cargo space booking and in the meantime accepts entrustment from an actual shipper to deliver the cargo to the carrier, if the actual shipper requests the freight forwarder to deliver the bills of lading, sea waybills or other transport documents obtained by it, the people’s court shall uphold such request.

Contractual shipper means the person who concludes the contract of carriage of goods by sea with carriers in its own name, or entrusts others to conclude such contract in its own name, or entrusts others to conclude such contract for it.

Actual shipper means the person who delivers goods to the carriage of goods by sea carriers in its own name, or entrusts others to do so in its own name, or entrusts others to do so for it.

Article 9 Where a freight forwarder completes marine freight forwarding transactions within the generalized authority of entrustment and requests the client to pay relevant reasonable expenses, the people’s court shall uphold such request.

Article 10 Where a client claims against a freight forwarder for compensation on the ground that the freight forwarder causes losses to the client during handling marine freight forwarding transactions, the people’s court shall uphold such claim, unless the freight forwarder can prove that it has no fault.

Article 11 In case a freight forwarder fails to perform the duty of care in concluding the contract of carriage of goods by sea with non-vessel operating common carrier (NVOCC) that has not registered the bills of lading with competent transport administration authority of China and causes losses to the client thereby, the said freight forwarder shall bear corresponding liability for compensation.

Article 12 Where a freight forwarder issues the bill of lading under the entrustment of NVOCC that has not registered the bills of lading with competent transport administration authority of China, and if the party concerned claims against the said freight forwarder and NVOCC to assume joint and several liabilities for the losses under the bills of lading, the people’s court shall uphold such claim.

The abovementioned freight forwarder shall be entitled to the right to claim against the said NVOCC after assuming compensation liabilities.

Article 13 Regarding lawsuits arising from the disputes as specified in Article 1 of this Provisions, the said lawsuits shall be under the jurisdiction of maritime courts.

Article 14 During trial of cases, if people’s court finds out that the freight forwarder, in violation of the Regulations of PRC on International Maritime Transportation, issues bill of lading, sea waybills or other transport documents in its own name without business qualification for NVOCC, the people’s court shall issue judicial suggestion to relevant competent transport administration authority to suggest the administration authority to impose corresponding penalty on such freight forwarder.

Article 15 This Provisions shall not be applicable to cases regarding disputes over freight forwarding involving coastal and inland carriage of goods.

Article 16 In case of any conflict between relevant judicial interpretations made by the Supreme People’s Court prior to the implementation of this Provisions and this Provisions, this Provisions shall prevail.

This Provisions shall be applicable to cases which are still in the first instance or second instance after implementation of this Provisions. This Provisions shall not be applicable to cases which have been concluded prior to the implementation of this Provisions, and cases in which retrial is decided after application by the parties concerned or according to trial supervision procedures.