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China Drawnwork Co., Ltd., Shanghai Imp. & Exp. Branch v. China Pacific Insurance Co., Ltd., Shanghai Branch concerning the Dispute over Maritime Freight Transportation Insurance Contract (Dispute over Maritime Freight Transportation Insurance Contract)
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中国抽纱公司上海进出口公司诉中国太平洋保险公司上海分公司海上货物运输保险合同纠纷案
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【法宝引证码】
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- Type of Dispute：
Civil--＞Maritime --＞Maritime
- Legal document：
Judgment
- Judgment date：
03-20-2001
- Procedural status：
Trial at Second Instance
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China Drawnwork Co., Ltd., Shanghai Imp. & Exp. Branch v. China Pacific Insurance Co., Ltd., Shanghai Branch concerning the Dispute over Maritime Freight Transportation Insurance Contract (Dispute over Maritime Freight Transportation Insurance Contract)
(Dispute over Maritime Freight Transportation Insurance Contract)
中国抽纱公司上海进出口公司诉中国太平洋保险公司上海分公司海上货物运输保险合同纠纷案
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China Drawnwork Co., Ltd., Shanghai Imp. & Exp. Branch v. China Pacific Insurance Co., Ltd., Shanghai Branch concerning the Dispute over Maritime Freight Transportation Insurance Contract | | 中国抽纱公司上海进出口公司诉中国太平洋保险公司上海分公司海上货物运输保险合同纠纷案 |
BASIC FACTS | |
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Plaintiff: China Drawnwork Co., Ltd., Shanghai Imp. & Exp. Branch, located at No. 18, North Tibetan Road, Shanghai City. | |
原告：中国抽纱公司上海进出口公司，住所地：上海市西藏北路１８号。 |
Legal representative: Zou Zhihui, general manager. | |
法定代表人：邹智慧，该公司总经理。 |
Authorized Attorney: Xu Juanfang, attorney at law of Shanghai Siwei Law Firm. | |
委托代理人：徐娟芳，上海市四维律师事务所律师。 |
Authorized Attorney: Wang Xiaojun, cadre of Drawnwork Co., Ltd., Shanghai Imp. & Exp. Branch. | |
委托代理人：王晓钧，中国抽纱公司上海进出口公司干部。 |
Defendant: China Pacific Insurance Co., Ltd., Shanghai Branch, located at No. 567, Fuzhou Road, Shanghai City. | |
被告：中国太平洋保险公司上海分公司，住所地：上海市福州路５６７号。 |
Legal representative: Zhu Qing, general manager. | |
法定代表人：诸清，该公司总经理。 |
Authorized attorney: Wang Huaijiang, attorney at law of Shanghai Haixiang Law Firm. | |
委托代理人：汪淮江，上海市海翔律师事务所律师。 |
The plaintiff, or China Drawnwork Co., Ltd., Shanghai Imp. & Exp. Branch (hereinafter referred to as Drawnwork Co.), filed a suit with the Shanghai Maritime Court against China Pacific Insurance Co., Ltd., Shanghai Branch (hereinafter referred to as Insurance Co.) concerning dispute over maritime freight transportation insurance contract. | |
原告中国抽纱公司上海进出口公司（以下简称抽纱公司）因与被告中国太平洋保险公司上海分公司（以下简称保险公司）发生海上货物运输保险合同纠纷，向上海海事法院提起诉讼。 |
The plaintiff claimed that it purchased all risks and war risks for the 9,127 boxes of toys sent from Shanghai to St. Pertersburg, the term of liability was from warehouse to warehouse. As the clients failed to pay for the goods long after the freight arrived at the destination, the plaintiff carried the original bill of lading and went to St. Petersburg to pick up the goods but failed. As this was a risk stipulated in the contract, Drawnwork Co. demanded compensation against Insurance Co. and was turned down. Therefore, Drawnwork Co. pleaded the court to order Insurance Co. to compensate $ 550,508 for its losses of freight and interest for delayed settlement as agreed upon in the contract and the litigation fees to be borne by the defendant. | |
原告诉称：原告把从上海运往圣彼得堡的９１２７箱玩具向被告投保了一切险和战争险，责任期间是仓至仓。货物运抵目的地后，由于客户迟迟不付货款，原告遂持正本提单到圣彼得堡提货，却提货不着。这是保险合同约定的一种风险，为此向被告索赔，遭被告拒绝。请求判令被告按约定赔偿原告的货物损失５５０５０８美元和延迟理赔期间的利息损失，诉讼费由被告负担。 |
The defendant argued that: 1. term “failure to pick up the goods” should mean the failure to pick up all the goods of the consignment and it should be accompanied by accidental and contingent insured risks, otherwise the insurer is not liable for compensation, while the goods in this consignment had arrived at the destination and had already been taken away by the consignees, and therefore, it was quite clear where the goods had gone. This fact showed that the fact that “it failed to pick up the goods” did not exist. 2. The term of liability for compensation as stipulated in the maritime freight transportation insurance contract as entered into between the plaintiff and the defendant was from warehouse to warehouse. The plaintiff did not have a warehouse or place for storage in St. Petersburg, and so long as the consignment had arrived at the warehouse or place for storage in St. Petersburg, it should be deemed that it had arrived at the warehouse or place for storage designated by the plaintiff. The consignees picked up the goods as mentioned in this case at the place for storage in St. Petersburg and did not claim any damages when they picked up the goods. This fact showed that the consignment had safely arrived at its destination. Maritime freight transportation insurance is the insurance for loss of property, and the subject matter of the insurance is the freight to be transported. Only when the goods had been damaged in form or expenses had been incurred as a result of external reasons during the term of insurance should the insurer make compensations to the insured. However, in the present case, the consignees 4. The failure to pay for goods by the consignees is a risk covered by export credit insurance, not maritime freight transportation insurance. It is a confusion of subject matter of insurance for the plaintiff to claim damages against the defendant on the ground that the consignees failed to pay for goods which is a commercial credit risk and took it for the risk of maritime freight transportation risk, and therefore its pleadings are groundless in law. 5. No matter the carrier of a maritime freight transportation contract disposes of the goods without authorization or fails to deliver the goods, no matter the buyers of a sales contract fail to make payments after picking up the goods, neither case would come up to be an “external reason in the process of transportation” or maritime “insurance accident” as mentioned in the maritime freight transportation contract. Particularly, the buyers' failure to make payments after picking up the goods must happen after the consignment arrives at the warehouse of destination which is beyond the warehouse-to-warehouse period of liability. 6. According to the provisions of Article 72.(2) of the General Principles of the Civil Law of the People's Republic of China which states that “the ownership of property shifts at the time when the property is delivered” and according to the trading terms as agreed upon by both parties, the ownership and risks of the goods had already shifted to the buyers at the time when the goods are laded to the ship at Shanghai Port, and therefore the plaintiff should have insured interest. 7. There is no evidence so far that could prove the agent of maritime freight transportation, i.e. International Forwarders, had been lawfully registered in China and had the right to engage in freight transportation and issue bills of lading in its own name. Therefore, the bill of lading issued by such a unqualified carrier of maritime freight transportation should not be valid as a voucher of property right. 8. The plaintiff first investigated into the whereabouts of the consignment 60 days after the goods had been unloaded from the ship when the liability of the insurer had terminated and tried to pick up the goods over two months after the buyers took the goods, it failed, too, to timely apply for inspection after “failing to pick up the goods” and failed to present to the insurer any certificate or other document issued by the carrier. The plaintiff failed to duly perform its contractual duties as an insured, and so the insurer should be entitled to refuse to make compensations. | |
被告辩称：１、所谓“提货不着”，是指“整件提货不着”，而且必须伴有遇然的、意外的保险事故发生，否则保险人无赔偿责任。本案货物已经运抵目的地并被收货人清关提走，去向是明确的。这个事实说明，不存在“提货不着”的问题。２、原告与被告签订的是海上货物运输保险合同，责任期间是仓至仓。圣彼得堡没有原告的仓库或储存场所，只要货物运抵圣彼得堡的仓库或储存场所，就应当视为运抵原告指定的仓库或储存场所。收货人是在圣彼得堡的储存场所提走本案货物，提货时没有提出货物索赔。这个事实说明，本案货物安全运抵。海上货物运输保险属于财产损失保险，保险标的是运输中的货物。只有货物本身在保险期间由于外来原因，造成形体上的损坏或发生了费用，才可以向保险人索赔。３、在本案中，收货人是凭填写着自己名称的二程海运正本提单和铁路运单提货，提取的是其购入并已支付了部分价款的货物，并通过正常渠道报关完税，不是非法提货。按海上货物运输保险合同的仓至仓条款，只要是向合法的、贸易合同预定的任何一个收货人（包括买卖合同买方、提单或运单上指定的收货人、被保险人）安全、合法地交货，保险人的保险责任就终止了。４、作为收货人的买方提货后不付货款，是出口信用保险的承保范围，不属于海上货物运输保险。原告把买方提货后不付货款的商业信用风险当作海上货物运输风险向被告索赔，混淆了保险标的的类别，于法无据。５、无论是海上货物运输合同中的承运方擅自处分、违约交付货物，还是购销合同的买方提货后不付款，都不是海上货物运输保险合同所指的“运输途中的外来原因”或者海上“保险事故”。特别是买方提货后不付货款，必须发生在货物运抵目的地仓库之后，还不属于仓至仓责任期间。海上货物运输保险合同的保险人对这些原因造成的损失，没有赔偿义务。６、根据《中华人民共和国民法通则》第七十二条第二款关于“财产所有权从财产交付时起转移”的规定和买卖双方约定的贸易条件，原告的货物在上海港装船时，所有权和风险均已从原告方转移给了买方，所以原告没有保险利益。７、没有证据证实本案海上货物运输的代理人（Ｉｎｔｅｒｎａ－ｔｉｏｎａｌ Ｆｏｒｗａｒｄｅｒｓ）在中国合法注册，有权以自己的名义在中国承揽货运、签发提单。原告持有这样一个无资格从事海上货物运输的人开出的提单，不具有物权凭证作用。８、原告在货物卸离海轮满６０天，保险人的责任已终止后才第一次调查货物下落，又在货物被买方提走后２个多月才提货，“提货不着”后不能及时申请检验人检验，也未向保险人提交承运人出具的证明及其他文件。原告作为被保险人不能正确履行合同义务，保险人有权拒绝承担赔偿责任。 |
PROCEDURAL POSTURE | |
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The Shanghai Maritime Court found after trial that: | |
上海海事法院经审理查明： |
The Drawnwork Co. and the Insurance Co. entered into two maritime freight transportation agreements on July 4, 1997 which stipulated that the insured was Drawnwork Co., the subject matter was 9,127 boxes of toys, the insured value was $ 550,508 and the type of risk was all risks and war risks as provided by the Clauses of Maritime Freight Transportation and the Clauses of Maritime Freight Transportation War Risks of the China People's Insurance Co. (promulgated on Jan. 1, 1981). The insurance premium was $ 5,560.13 as calculated on the rate of 1.01%. The date for setting sail was stipulated in the B/L; the voyage was from Shanghai to St. Petersburg, and the term of liability was from warehouse to warehouse, namely, the insurance should take effect by the time the insured goods left the warehouse or place of storage specified and the transportation started, including the transportation at sea, on land, on freshwater and barge as people normally understood, and terminate when the goods arrive at the warehouse or place of storage of the consignee of the destination as specified in the insurance policy or other places of storage the insured used for distribution, apportionment or abnormal transportation. If the consignment failed to arrive at the warehouse or place of storage as afore-mentioned, such liability should terminate 60 days after the goods were unloaded from the vessel at the destination port.（Through Bill of Lading）。On these terms Insurance Co. issued the policies and Drawnwork Co. paid the premium. | |
原告抽纱公司与被告保险公司于１９９７年７月４日签订了海上货物运输保险合同２份，约定：被保险人抽纱公司，保险标的物９１２７箱玩具，保险金额计５５０５０８美元，险别为中国人民保险公司海上货物运输保险条款及海上货物运输战争险条款（１９８１年１月１日）规定的一切险和战争险，保险费率按１．０１％计共为５５６０．１３美元；开航日期根据提单，航程为上海至圣彼得堡，责任起讫期间为仓至仓，即自被保险货物运离保险单所载明的起运地仓库或储存处所开始运输时生效，包括正常运输过程中海上、陆上、内河和驳船运输在内，直至货物到达保险单所载明目的地收货人的最后仓库或储存处所或被保险人用作分配、分派或非正常运输的其他储存处所为止；如未抵达上述仓库或储存处所，则以货物在最后卸载港全部卸离海轮后满６０天为止。保险公司据此签发了保险单，抽纱公司按约定支付了保险费。 |
The goods concerned were laded on July 15, 1997, and Huaxia Shipping Co., Ltd. served as the agent of the carrier which was Silver Wind Corporation, and issued to Drawnwork Co. a through bill of lading from Shanghai to St. Petersburg. The bill of lading said that the consignor was Drawnwork Co., the consignee should pick up the goods upon instructions, and the adviser was Linstek (hereinafter called buyer) which had concluded an trading agreement with Drawnwork Co. The goods were first shipped to Pusan of Korea and then transferred through two-way ship to VostokPort of Russia where they were carried through railway to St. Petersburg and arrived at the destination at early September. On the 13th and 14th of September, the buyer demanded to pick up the goods by presenting the two-way shipping bill of lading (Pusan to Vladi Vostok) and waybill (Vostokto St. Petersburg). As the buyer was the consignee of on both bills, the carrier allowed it to pick them up before taking back the original through bill of lading and the buyer took away the goods after going through the customs procedures. | |
本案货物于１９９７年７月１５日装船，华夏船务有限公司作为承运人银风公司（Ｓｉｌｖｅｒ Ｗｉｎｄ Ｃｏｒｐｏｒａｔｉｏｎ）的代理，为原告抽纱公司签发了上海至圣彼得堡的全程提单（Ｔｈｒｏｕｇｈ Ｂｉｌｌ ｏｆ Ｌａ－ｄｉｎｇ）。提单载明：托运人抽纱公司，收货人凭指示，通知人为与抽纱公司签订贸易合同的ＬＩＮＳＴＥＫ公司（以下简称买方）。货物由上海运至韩国釜山，后转装二程船运至俄罗斯东方港，再由东方港改由铁路运输，９月初运抵目的地圣彼得堡。９月１３－１４日，买方持二程海运提单（釜山－－东方港）和铁路运单（东方港－－圣彼得堡）要求提货。因买方是这两个单证上的收货人，承运人便在未收回全程正本提单的情况下放货，买方办理完清关手续后将货物提走。 |
The terms of payment stipulated in the trading agreement between Drawnwork Co. and the buyer was T/T at sight. Seeing that the buyer delayed the payment for a long time, Drawnwork Co. sent people to St. Petersburg with the original bill of lading to pick up the goods. Failing to pick up the goods, Drawnwork Co. presented to Insurance Co. on August 10, 1998 the bills of claim and other relevant materials concerned in the customs declaration at St. Petersburg and claimed damages. Event though both parties negotiated for a number of times thereafter but failed, and so Drawnwork Co. brought a suit at the court. As Drawnwork Co. still held the whole set of vochers concerned in this case, including the original through bill of lading, the unit packing list and commercial invoices. | |
原告抽纱公司在贸易合同中与买方约定的付款方式是付款寄单（Ｔ／Ｔ ＡＴ |
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ＳＩＧＨＴ；ＰＡＩＤ ＢＥＦＯＲＥ ＳＥＮＤＩＮＧ ＴＨＥ ＳＨＩＰ－ＰＩＮＧ ＤＯＣＵＭＥＮＴＳ），因见买方迟迟没有支付货款，遂派人持正本提单至圣彼得堡提货。抽纱公司因提不着货物，于１９９８年８月１０日向被告保险公司提交了索赔单据和涉案货物在圣彼得堡报关的材料，要求赔偿，此后，双方经多次协商不成，抽纱公司提起诉讼。现抽纱公司尚持有本案货物的全套单证，包括正本全程提单、装箱单、商业发票。 |
According to introduction of the major insurance types in a compilation of insurance risk clauses, the all risks as mentioned in the maritime transportation insurance clauses of the China People's Insurance Company generally refers to the 11 types of common accessory risks including “stealing, failure to pick up goods”, and “failure to pick up goods” refers to pick any goods of the whole consignment. | |
根据保险公司的主要险种条款汇编介绍，中国人民保险公司的海上的运输保险条款中的一切险，在保险公司业务习惯上包括“偷窃、提货不着险”在内的１１种普通附加险，“提货不着”指“整件提货不着”。 |
The above facts can be proved by the insurance contracts, policies, premium invoices, premium checklists, compilation of major insurance types of the insurance company, letter of confirmation for the sale of goods, original through bill of lading, unit packing list, commercial invoices, the faxes and letters sent by the consulate general of China at St. Petersburg to Drawnwork Co., letters between Drawnwork Co. and Insurance Co., etc. about which neither party had different opinions.
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上述事实，有保险合同、保险单、保费收据、保费清单、保险公司的主要险种条款汇编、销货确认书、正本全程提单、装箱单、商业发票、我国驻圣彼得堡总领事馆给抽纱公司的传真和函件、圣彼得堡海关给我国总领事馆的函件、涉案货物在圣彼得堡报关的材料、抽纱公司申请赔偿书、抽纱公司和保险公司之间的信函等证据证明，双方均无异议。
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