Voest Alpine Trading USA Corporation v. Jiangsu Jiangyin Foreign Trade Company
(Appellate Case of Dispute over Sales Contract)@#
BASIC FACTS@#
Appellant (defendant of the original instance): Jiangsu Jiangyin Foreign Trade Company.@#
Legal Representative: Zheng Yuan, general manager.@#
Authorized Agent: Xia Xipu, lawyer from Beijing Dingming Law Firm.@#
Appellee (plaintiff of the original instance): Voest Alpine Trading USA Corporation.@#
Legal Representative: Michael Hawker, president of the company.@#
Authorized Agent: Ma Qun, Sun Jinlong, lawyers from Jiangsu Taihe Law Firm located at Nanjing City.@#
PROCEDURAL POSTURE@#
With regard to the case of dispute over sales contract with the appellee Trading USA Corporation (hereinafter referred to as Voest Alpine), the appellant Jiangsu Jiangyin Foreign Trade Company (hereinafter referred to as Jiangyin Company) was dissatisfied with the civil judgment of the Higher People's Court of Jiangsu Province and appealed to the Supreme People's Court.@#
It was verified in the original instance that: on June 23rd, 1995, Jiangyin Company concluded an agreement on commissioned import with Gansu Guangxing Chemical Industry Co., Ltd. (hereinafter referred to as Guangxing Company), which is not a party to the present case, both parties agreed that: Jiangyin Company shall import 1000 tons of styrene on the commissioned basis; the port of destination is Zhangjiagang Port; the CFR price is USD 1200/ton; the delivery time is July of the same year; after the goods arrive at the port, Jiangyin Company shall inform Guangxing Company immediately, which shall be responsible for picking up the goods at the port area by itself upon the strength of the customs clearance formalities handled by Jiangyin Company; and the commission is 0.8% of the total export-import volume. On the same day, Jingyin Company concluded a contract with Voest Alpine, both parties agreed that: Jiangyin Company shall purchase 1000 tons of styrene (5% more or less) from Voest Alpine; the CFR price is USD 1200/ton; the port of destination is Zhangjiagang; the time of shipment is July 1995; the payment shall be made by letter of credit, an irrevocable letter of credit, whose beneficiary is Voest Alpine, shall be issued by Wuxi Branch of the Bank of China (the present Jiangyin Branch) one month before the goods are shipped; and Voest Alpine shall inform Jiangyin Company, by wire, of the contract number, commodity name, quantity, gross weight, vessel name and the sailing date immediately after the goods are shipped. After this contract was concluded, upon the application made by Jiangyin Company, Jiangyin Branch of the Bank of China issued a letter of credit with a total sum of USD 1.2 million on July 6th of the same year. On July 11th of the same year, Voest Alpine informed Jiangyin Company of such shipping information as the vessel name, goods, unloading port and unloading time through telex. At the same time, Jiangyin Company replied through telex that: the shipping information has been received, we hereby affirm the vessel, but we hope that the unloading time may be prolonged to 24 hours and please have the goods shipped as soon as possible. On the next day, Jiangyin Company sent a fax to Jiang Wenyuan, who was in charge of Shanghai Office of Voest Alpine, claiming that: “As the price of styrene fell sharply recently in both the domestic and international markets, we will suffer great losses, please ask the head office of your company to seriously consider our following suggestions: (1) due to the change of the price of styrene, our company is unable to operate this business right now, so we hope your company can defer the shipment, and the specific date of shipment will be determined after negotiation; (2) our company encountered some difficulties in handling the quota for duty-free importation because of the change of customs policies, which caused greater losses to us; (3) we hope your company can take the long-term cooperation relationship between both parties into consideration and agree with our requirement to reduce the price and amend the price under the letter of credit.” On July 21st of the same year, Jianyin Company sent another fax to Jiang Wenyuan: “Please contact with the Hong Kong party and send us the photocopies of the certificates on quantity and quality by fax either today or tomorrow. On the next day, the vessel “Duv-carmen” that shipped the styrene arrived at Zhangjiagang Port and the unloading began the same day, all the relevant personnel of Jiangyin Company and Guangxing Company were present at the unloading site. On July 25th of the same year, Guangxing Company handed the photocopy of the bill of lading, invoice, contract, processing manual and other relevant materials submitted by Jiangyin Company over to Zhangjiagang Ocean Shipping Agency Company and entrusted the latter to go through the customs declaration formalities at Zhangjiagang Customs. Zhangjiagang Customs, in accordance with the relevant provisions of the customs law, believed that Jiangyin Company, the consignee of the import goods, misrepresented the general trade as processing imported materials and was suspected of smuggling and detained the goods for supervision. On August 9th of the same year, Jiangyin Branch of the Bank of China received the documents sent by the Texas Commercial Bank of US. Upon examination, Jingyin Branch believed that the documents had some discrepancies and informed Jianying Company and Texas Commercial Bank of the fact on August 11th of the same year. On August 16th of the same year, Texas Commercial Bank retorted over the discrepancies indicated by Jiangyin Branch of the Bank of China. On August 17th, Jiangyin Company sent a fax to Jiang Wenyuan and told him that: as there are many discrepancies in the documents under the letter of credit, it is impossible for our company to redeem the documents, our company will not take any step against the goods if we can't redeem the documents, customs declaration has nothing to do with our company. On the same day, Zhangjiagang Customs sent the Letter on Agreeing to Handle the Styrene in Advance (No.87 [1995] of Zhangjiagang Customs) to Jiangyin Company and informed the latter that: as the 997.731 tons of styrene, which are produced in South Korea, imported according to the contract signed by your company and under the letter of credit issued by your company and shipped into China by the vessel “Duv-carmen” on July 22nd, are suspected of smuggling, this Customs has notified Changshan Branch of Jiangsu Petroleum Head Office in written form and decided to detain the goods, which may be picked up by no entity or individual without the approval of the customs. Considering that the quality-guaranteed period of styrene is relatively short and it is easy to deteriorate and can't be stored for a long time, and in order to avoid losses, this Customs hereby agrees with your company's selling off the goods as soon as possible (the price shall be verified by the customs) and remitting the revenue from selling off the goods to the account designated by the customs in accordance with the provision of Article 22 of the Detailed Rules for the Administrative Penalties of the Customs Law of the People's Republic of China, otherwise, your company will have to bear all the relevant responsibilities. Jiangyin Company did not dispose of the goods in the way required by the customs and asked Jiangyin Branch of the Bank of China to refuse to pay all the money for the goods under the letter of credit on August 23rd of the same year. On the next day, Jianyin Branch of the Bank of China informed Texas Commercial Bank and returned the whole set of documents. On October 16th of the same year, Voest Alpine brought a lawsuit against Jiangyin Company to the Higher People's Court of Jiangsu Province under the ground that Jiangyin Company refused to perform the payment obligation, and demanded Jiangyin Company to make full payment for the goods and bear all the legal costs.@#
．．．．．． | | 沃斯特－－阿尔卑斯（美国）贸易公司诉江苏省江阴市对外贸易公司购销合同纠纷上诉案@#
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上诉人（原审被告）：江苏省江阴市对外贸易公司。@#
法定代表人：郑远，总经理。@#
委托代理人：夏希普，北京鼎铭律师事务所律师。@#
被上诉人（原审原告）：沃斯特－－阿尔卑斯（美国）贸易公司（ＶＯＥＳＴ－ＡＬＰＩＮＥ ＴＲＡＤＩＮＧ ＵＳＡ ＣＯＲＰＯＲＡＴＩＯＮ）。@#
法定代表人：迈克尔·霍克（Ｍｉｃｈａｅｌ Ｈａｗｋｅｒ），该公司董事长。@#
委托代理人：马群、孙金龙，南京市江苏泰和律师事务所律师。@#
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上诉人江苏省江阴市对外贸易公司（以下简称江阴外贸）因与被上诉人沃斯特－－阿尔卑斯（美国）贸易公司（以下简称美国贸易公司）购销合同货款纠纷一案，不服江苏省高级人民法院民事判决，向最高人民法院提起上诉。@#
原审查明：１９９５年６月２３日，江阴外贸与案外人甘肃广星化工实业有限公司（以下简称广星公司）签订一份代理进口协议，约定由江阴外贸代理进口１０００吨苯乙烯；目的港张家港；ＣＦＲ价格１２００美元／吨；交货时间在同年７月；货物到港后，由江阴外贸及时通知广星公司，并由广星公司凭江阴外贸办理的海关放行手续自行负责到港区提货；代理费为进出口总额的０．８％。同日，江阴外贸与美国贸易公司签订一份合同，约定：江阴外贸向美国贸易公司购买１０００吨苯乙烯（溢短装５％）；ＣＦＲ价格１２００美元／吨，目的港为中国张家港；装运期为１９９５年７月；以信用证方式付款，在货物装运前一个月通过中国银行无锡支行（后改为江阴支行）开立以美国贸易公司为受益人的不可撤销信用证；货物装运后，美国贸易公司应立即将合同号、商品名称、数量、毛重、船名和开船日期电告江阴外贸。该合同订立后，经江阴外贸申请，中国银行江阴支行于同年７月６日开出总金额１２０万美元的信用证。同年７月１１日，美国贸易公司将船情资料电传给江阴外贸，告知其船名、货物、卸货港、卸货时间等资料。同时，江阴外贸回电称：船情资料收悉，我们确认上述船，但希望将卸货时间延长至２４小时，另请尽快装船。次日，江阴外贸传真给美国贸易公司驻上海办事处负责人江文元称：“由于近来苯乙烯国际国内行情暴跌，我们将遭受重大的损失，请向贵公司本部反映慎重考虑我们的建议。１）由于行情的变化，目前我们已无法经营此项业务，垦请贵方暂缓装运，具体装运日期另请商定。２）我方由于海关政策的变化，办理免税进口指标遇到困难，据此我们遭受的损失更加巨大。３）望贵公司考虑今后双方长期合作关系，同意我们提出的降价要求，修改信用证价格。”同年７月２１日，江阴外贸又给江文元发传真称：请你与香港联系，在今明两天将数量与质量证明复印件传真给我们。次日，装运该批苯乙烯的都夫卡门号船到达张家港，并于当天开始卸货，当时江阴外贸和广星公司的有关人员均在卸货现场。同年７月２５日，广星公司将江阴外贸交其的提单副本、发票、合同及加工手册等有关资料委托张家港外轮代理公司向张家港海关报关。张家港海关根据海关法的有关规定，认为进口货物的收货人江阴外贸以一般贸易伪报成进料加工涉嫌走私，故扣留监管该批货物。同年８月９日，中国银行江阴支行收到美国得克萨斯商业银行寄来的单据。中国银行江阴支行经审单后认为单证存在不符点，即于同年８月１１日通知江阴外贸和美国得克萨斯商业银行。同年８月１６日，美国得克萨斯商业银行针对中国银行江阴支行提出的单证不符点进行反驳。同年８月１７日，江阴外贸传真给江文元称：由于Ｌ／Ｃ项下单证有诸多不符点，使我司无法赎单，我司在没有赎单的情况下不会对货物采取任何行动，报关与我司无关。同日，张家港海关以张关调（１９９５）８７号“关于同意提前处理苯乙烯的函”致函江阴外贸：由你司签约，开证进口并由“都夫卡门”轮于７月２２日运进的南韩产苯乙烯９９７．７３１吨，因涉嫌走私，我关于１９９５年７月３１日书面通知江苏省石油总公司长山分公司，决定将该批货物予以扣留，未经海关许可，任何单位和个人不得提取此货物。鉴于苯乙烯保质期较短，存放时间过长容易变质，为避免损失，我关同意你司速将该批货物变卖处理（价格由海关核定），并依照《中华人民共和国海关法行政处罚实施细则》第二十二条
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