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Case of Retrial of Disputes between Yuehai Company and Cangma Company, Special Development Company, etc., Concerning Releasing, Taking Delivery of, and Releasing in Agency Cargo without Documents in Cargo Transportation by Sea (Case of Retrial of Disputes over Releasing, Taking Delivery of, and Releasing in Agency Cargo without Documents in Cargo Transportation by Sea)
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粤海公司与仓码公司、特发公司等海上货物运输无单放货、提货、代理放货纠纷再审案
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【法宝引证码】
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- Type of Dispute：
Civil--＞Maritime --＞Maritime
- Legal document：
Judgment
- Judgment date：
08-27-1996
- Procedural status：
Retrial
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Case of Retrial of Disputes between Yuehai Company and Cangma Company, Special Development Company, etc., Concerning Releasing, Taking Delivery of, and Releasing in Agency Cargo without Documents in Cargo Transportation by Sea (Case of Retrial of Disputes over Releasing, Taking Delivery of, and Releasing in Agency Cargo without Documents in Cargo Transportation by Sea)
(Case of Retrial of Disputes over Releasing, Taking Delivery of, and Releasing in Agency Cargo without Documents in Cargo Transportation by Sea)
粤海公司与仓码公司、特发公司等海上货物运输无单放货、提货、代理放货纠纷再审案
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CASE OF RETRIAL OF DISPUTES BETWEEN YUEHAI COMPANY AND CANGMA COMPANY, SPECIAL DEVELOPMENT COMPANY, ETC., CONCERNING RELEASING, TAKING DELIVERY OF, AND RELEASING IN AGENCY CARGO WITHOUT DOCUMENTS IN CARGO TRANSPORTATION BY SEA | | 粤海公司与仓码公司、特发公司等海上货物运输无单放货、提货、代理放货纠纷再审案 |
BASIC FACTS | |
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Retrial applicant (appellee in the original trial): Merchants Bureau Cangma Transportation Company Limited. Residence: Xining Road No.18, Jian Ni Xi Cheng Di, Hong Kong. | |
再审申请人（原审被上诉人）：招商局仓码运输有限公司。住所地：香港坚尼地城西宁街１８号。 |
Legal Representative: Shi Jianxiang, general manager. | |
法定代表人：施建祥，总经理。 |
Agent p.p.: Zhu Xie and Shi Tongwen, Lawyers with Beijing Zhengyi Law Office. | |
诉讼代理人：朱解、石同文，北京正义律师事务所律师。 |
Retrial applicant (appellee in the original trial): China Shenzhen Foreign Ships Agency Company ( formerly Shenzhen Branch Company under China Foreign Ships Agency Company). Residence: Industrial Building, Shekou, Shenzhen. | |
再审申请人（原审被上诉人）：中国深圳外轮代理公司（原中国外轮代理公司蛇口分公司）。住所地：深圳市蛇口工业大厦。 |
Legal Representative: Fan Jianxiong, general manager. | |
法定代表人：范建雄，总经理。 |
Retrial applicant (appellee in the original trial): Shenzhen Special Economic Zone Development Company. Residence: Development Center 30 floor, Jianshe Road, Shenzhen. | |
再审申请人（原审被上诉人）：深圳经济特区发展公司。住所地：深圳市建设路发展中心３０层。 |
Legal Representative: Li Jinquan, manager. | |
法定代表人：李锦全，经理。 |
Agent p.p.: Zeng Yijun and He Zhengda, lawyers with Guangdong Junxin Law Office. | |
诉讼代理人：曾亦军、何正大，广东君信律师事务所律师。 |
Retrial party against whom the application is filed (appellant in the original trial): Yuehai Electronics Company Limited (Hong Kong). Residence: Yuehai Complex Building 4, Gan Nuo Road Middle No.s 74-77, Hong Kong. | |
被申请人（原审上诉人）：（香港）粤海电子有限公司。住所地：香港干诺道中７４－７７号粤海大厦４字楼。 |
Legal representative: Kong Wenbo, chairman of the board and vice general manager. | |
法定代表人：孔鸿博，董事兼副总经理。 |
Agent p.p.: Li Ming, lawyer with Guangdong Li Ming Law Office. | |
诉讼代理人：李铭，广东李铭律师事务所律师。 |
Retrial party against whom the application is filed (appellee in the original trial): Zhuhai Haidao Development and Trade Company. Residence: No. 29-1, Hua Zi Shi Xi Village, Xiang Zhou Nan Hua Road, Zhuhai, Guangdong Province. | |
被申请人（原审被上诉人）：珠海市海岛开发贸易公司。住所地：广东省珠海市香港南华路华子石西村２９号之一。 |
Legal representative: Jiang Youfen, general manager. | |
法定代表人：江友芬，总经理。 |
Agent p.p.: Sun Yanan, vice general manager. | |
诉讼代理人：孙亚南，副总经理。 |
Retrial party against whom the application is filed (appellee in the original trial): Huagang Development Company (Hong Kong). Residence: Weihua Center First Room Building 9 Room E, Sha Tian, New Area, Hong Kong. | |
被申请人（原审被上诉人）：（香港）华港发展公司。住所地：香港新界沙田伟华中心第１室９字楼Ｅ室。 |
Agent p.p.: Liang Jianhua | |
诉讼代表人：梁键华。 |
After the announcement of the judgement through consolidated hearing by Guangzhou Maritime Court for Case of Disputes between Yuehai Electronics Company Limited ( hereinafter Yuehai Company) and Merchants Bureau Cangma Transportation Company (hereinafter Cangma Company) Concerning Releasing Cargo without Documents in Cargo Transportation by Sea and Case of Disputes Between Cangma Company and China Shengzhen Foreign Ships Agency Company (hereinafter Foreign Agency Company), Shenzhen Special Economic Zone Development Company (hereinafter Special Development Company), Zhuhai Haidao Development and Trade Company (hereinafter Haidao Company) and Huagang Development Company (hereinafter Huagang Company) concerning Releasing and Taking Delivery of Cargo without Original B/L, Yuehai Company wasn't satisfied and appealed. Guangdong Higher People's Court delivered the civil judgement on July 29, 1993. Cangma Company, Foreign Agency Company and Special Development Company wasn't satisfied with the final judgement and respectively took petitions to the Supreme People's Court for retrial. The Supreme People's Court decided to review the case. | |
粤海电子有限公司（下称粤海公司）诉招商局仓码运输有限公司（下称仓码公司）海上货物运输无单放货纠纷案和仓码公司诉中国深圳外轮代理公司（下称外代公司）、深圳经济特区发展公司（下称特发公司）、珠海市海岛开发贸易公司（下称海岛公司）、华港发展公司（下称华港公司）无正本提单代理放货、提货纠纷案，由广州海事法院合并审理并作出一审判决后，粤海公司不服，提出上诉，广东省高级人民法院于１９９３年７月２９日作出终审民事判决。仓码公司、外代公司、特发公司不服终审判决，分别向最高人民法院提出申诉，请求再审。最高人民法院决定提审本案。 |
The Supreme People's Court ascertained the following through trial: Fuhui Company, a subsidiary of Yuehai Company, signed two trading contracts with Huagang Company respectively on January 3 and February 21, 1989, agreeing that Fuhui Company sell to Huagang Company 10,000 sets of parts for refrigerators in two batches; the price of each set shall be USD250, delivered at seller's store in Hong Kong, total price being USD 2,500,000. The buyer shall be responsible for storing the cargo when it's shipped to the destiny. After the contracts were signed, in accordance with the commission by Huagang Company, Fuhui Company consigned Yuehai Company to complete in the place of Huagang company the formalities of transporting 10,000 sets of frames of refrigerator from Hong Kong to Chiwan Port, Shekou, Shenzhen. After accepting the consignment, Yuehai Company gave to Cangma Company on January 26 and February 21, 1989, 5,000 frames of refrigerator and the relevant documents for it to ship. Cangma Company issued four original copies of B/L to Yuehai Company. The B/L stated: the consigner is Yuehai Company in the place of Huagang Company; the receptor is Yuehai Company. When the two batches of goods under the B/L are shipped to Chiwan Port, Shekou, Shenzhen, they shall be received and unloaded by container companies. The cargo list of the container company shows: consigner is Merchants Bureau Barge Transportation 'Shekou' Company Limited in the place of Huagang Company. Because Huagang Company didn't pay the full price of the cargo in accordance with the agreement, Yuehai Company didn't give the original copies of the B/L to Huagang Company. | |
最高人民法院经审理查明：粤海公司的子公司富辉公司于１９８９年１月３日和２月２１日与华港公司分别订立了两份购销合同，约定富辉公司将两批共１万套电冰箱散件卖给华港公司，每套在香港卖方仓库的交货价为２５０美元，总值２５０万美元，由买方负责到达目的港后的仓贮。合同签订后，富辉公司根据华港公司的委托，于１９８９年１月１０日书面委托粤海公司代华港公司办理１万套电冰箱箱体由香港运至深圳蛇口赤湾港的运输手续。粤海公司接受委托后，于１９８９年１月１６日和２月２１日分别将各５０００套电冰箱箱体及其附件在香港交给仓码公司承运。仓码公司向粤海公司出具了四份正本提单。提单载明：托运人是粤海公司代华港公司；收货人是粤海公司。上述提单项下的两批货物运至深圳蛇口赤湾港后，均由集装箱公司接卸。集装箱公司的货物记录单表明：委托单位为招商局驳船运输公司“蛇口”有限公司代华港公司。由于华港公司没有按约定支付全部货款，粤海公司未将正本提单交给华港公司。 |
On January 26, 1989, Huagang Company consigned through Ye Yongming Special Development Company to declare the first batch of 5,000 sets of frames of refrigerators at the customs. Ye Yongming issued L/G in the name of Special Development Company to Foreign Agency Company, applying to go through the formalities of taking delivery of goods. Foreign Agency Company give a counterpart of B/L sealed with the seal for taking delivery of goods. Special Development Company declared at the customs with this counterpart. The operating unit, receiving unit and the unit declaring at customs on the declaration form were both Special Development Company. On May 3, Wanke Company, a subsidiary of Special Development Company, paid the customs duties for the 5,000 sets of frames of refrigerators in place of Special Development Company, and the customs released the cargo. On October 23, an agreement was reached between Huagang Company and Wanke Company, providing that Huagang Company shall pay RMB 500,000 yuan and take delivery of 3,000 sets of frames of refrigerators, and the remaining 2,000 sets shall be mortgaged to Shekou Branch of China People's Bank of Construction, who shall pay in Huagang Company's place USD 500,000 of customs duties which had been paid by Wanke Company. | |
１９８９年１月２６日，华港公司通过叶永明委托特发公司将第一批到达的５０００套电冰箱箱体报关。叶永明以特发公司的名义向外代公司出具保函，要求办理提货手续。外代公司给叶永明一份盖有进口货物提货章的副本提单。特发公司持此副本提单向海关报关。报关单上的经营单位、收货单位及报关单位均为特发公司。５月３日，特发公司的下属企业万科公司代特发公司缴纳了５０００套电冰箱箱体的关税，海关放行。１０月２３日，华港公司与万科公司达成协议，由华港公司支付５０万元人民币，提取了３０００套电冰箱箱体，其余２０００套抵押给中国人民建设银行蛇口支行，由蛇口支行代华港公司支付万科公司代垫的关税５０万美元。 |
After the second batch of 5,000 sets of frames of refrigerators was shipped by Cangma Company to Chiwan Port on February 21, 1989, Foreign Agency Company give on February 22 a counterpart of the B/L sealed with the seal for taking delivery of imported cargo to Chen Gang, employee with the container company, for declaration at the customs. On September 30, Haidao Company declared this batch of frames of refrigerators and the parts thereof at the customs with certificate for importing cargo, declaration form and other documents. Because the customs duties were not paid, the customs house didn't release the cargo. Afterwards, a dispute concerning the storage of cargo occurred because this batch of cargo was stored in the warehouse for a long time, and the cargo was jointly auctioned by the court and the customs house. | |
１９８９年２月２１日，仓码公司承运的第二批５０００套电冰箱箱体运到赤湾港后。外代公司于２２日向集装箱公司的职员陈刚提供了加盖进口货物提货章的副本提单作报关之用。９月３０日，海岛公司持进口货物许可证、报关单等报关文件，将该批电冰箱箱体及附件报关进口，因没有缴纳关税，海关未予放行。后由于该批货物长期存放在仓库中，引发仓储纠纷，被法院和海关联合拍卖。 |
On July 9, 1990, Yuehai Company lodged a suit on the ground that Cangma Company delivered the cargo to a person without the original copy of B/L; it was petitioned that Cangma Company shall compensate its damages, which included the price of the goods USD 2,150,000 and the loss of interests USD 550,000. On December 31, Cangma Company also brought a suit on the ground that Foreign Agency Company, Special Development Company and Haidao Company took delivery of cargo and/or delivered cargo without the original B/L. Guangzhou Maritime Court held the two cases to be cases of joint tortious acts based on the same facts and object of action, and the defendants in the latter case are interested in the former case, so they are parties to an joint action. Therefore they are added as defendants in the original case, and the two cases shall be tried jointly. | |
１９９０年７月９日，粤海公司以仓码公司向无正本提单的人交货为由提起诉讼，要求仓码公司赔偿其２１５万美元的货款及利息损失５５万美元。仓码公司也于１２月３１日，以外代公司、华港公司、特发公司、海岛公司无正本提单提货、交货为由提起诉讼。广州海事法院认为两案实际上是基于同一事实、同一诉讼标的的共同侵权纠纷案，后案的被告与前案有利害关系，是共同诉讼当事人，故追加其为前案的被告，将两案合并审理。 |
It was also made clear: The cargo under the original B/L, which was held by Yuehai Company, was bought by Yuehai Company from Jinxing Company of South Korea. The cost of each set was USD 190, and the total carriage was USD 85,393. On December 1, 1992, Fuhui Company stated to the original final instance court: The jus in re in the 10,000 sets of the frames of refrigerators sold through the sales contract between Huagang Company and itself belonged to Yuehai Company. It gave all-out support to the suit brought by Yuehai Company against Cangma Company, and it wouldn't institute another suit concerning the jus in re in these frames.
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另查明：粤海公司所持正本提单项下的货物，是粤海公司从韩国金星株式会社购买的，成本价是每台１９０美元，共支付运杂费８５３８９美元。富辉公司已经于１９９２年１２月１日向原终审法院声明：其与华港公司订立购销合同出售的１万台电冰箱箱体，物权属粤海公司。其全力支持粤海公司对仓码公司提起的诉讼，不再对该批箱体的物权另行提起诉讼。
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