>>>welcome 河南大学, You have logged in.
Logout History Contact us  
Font Size:  A A A Search “Fabao” Window English 中文 = 简体  繁体
  Favorite   DownLoad   Print
 
Hong Long Industry Ltd. v. HEJIAWAN Station, Shanghai Railway Sub-bureau (retrial) (retrial case of damages for overdue losses in the railway goods transport contract)
宏隆实业有限公司与上海铁路分局何家湾站等铁路货物运输合同逾期货损索赔纠纷再审案
【法宝引证码】

Hong Long Industry Ltd. v. HEJIAWAN Station, Shanghai Railway Sub-bureau (retrial) (retrial case of damages for overdue losses in the railway goods transport contract)
(retrial case of damages for overdue losses in the railway goods transport contract)
宏隆实业有限公司与上海铁路分局何家湾站等铁路货物运输合同逾期货损索赔纠纷再审案

Hong Long Industry Ltd. v. HEJIAWAN Station, Shanghai Railway Sub-bureau (retrial)

 

宏隆实业有限公司与上海铁路分局何家湾站等铁路货物运输合同逾期货损索赔纠纷再审案

BASIC FACTS 
Retrial applicant: ZHUZHOU North Station, Changsha Railway Parent Company. Domicile: the Railway Station Building, RENMIN North Road, Zhuzhou City, Hu'nan Province. 再审申请人:长沙铁路总公司株州北站。住所地:湖南省株州市人民北路车站大楼。
Principal: PUSHENG YI, the station master. 负责人:易甫生,该站站长。
Authorized agent: KEYUAN JIANG, the director of commodity inspection workshop of ZHUZHOU North Station, Changsha Railway Parent Company. 委托代理人:蒋克元,长沙铁路总公司株州北站商检车间主任。
Retrial applicant: YINGTAN Station, Nanchang Railway Bureau. Domicile: No. 1, YUEHUDONGYICUN Residential District, Yingtan city, Jiangxi province. 再审申请人:南昌铁路局鹰潭站。住所地:江西省鹰潭市月湖东一村1号。
Principal: YINGDONG ZHANG, the station master. 负责人:张英东,该站站长。
Authorized agent: XIAOTING LI, a worker of Cargo Transportation Office, YINGTAN Station, Nanchang Railway Bureau. 委托代理人:李孝亭,南昌铁路局鹰潭站货运室职工。
Authorized agent: DEMIN YUAN, a lawyer from Nanchang foreign economic law office. 委托代理人:苑德闽,南昌市涉外经济律师事务所律师。
Respondent in second hearing, defendant in first hearing: YANGPU Station, Shanghai Railway Sub-bureau. Domicile: No. 40141, ZHOUJIAZUI Road, Shanghai city. 原二审被上诉人、一审被告:上海铁路分局杨浦站。住所地:上海市周家嘴路4041号。
Principal: JIXIANG LI, the station master. 负责人:李祥吉,该站站长。
Authorized agents: SHIJUN HUANG and LAIBAO DENG, workers of YANGPU Station, Shanghai Railway Sub-bureau. 委托代理人:黄世俊、邓来宝,上海铁路分局杨浦站职工。
The opposite party: Shanghai Hong Long Industry Ltd.. Domicile: No. 25, Lane 141, WENSHUI East Road, Shanghai city. 对方当事人:上海宏隆实业有限公司。住所地:上海市汶水东路141弄25号。
Legal representative: RIHONG WANG, general manager of the company. 法定代表人:王日宏,该公司总经理。
Authorized agent: YIGANG WU, a lawyer from Shanghai Sunshine law office. 委托代理人:吴奕刚,上海市阳光律师事务所律师。
PROCEDURAL POSTURE哎哟不错哦 
The controversy over a contract for railway cargo transportation claiming an indemnity for cargo damages caused by overdue delivery, between the opposite party Shanghai Hong Long Industry Ltd. (hereinafter referred to as Hong Long Ltd.) and the respondent in second hearing, defendant in first hearing HEJIAWAN Station, Shanghai Railway Sub-bureau (this station has now been merged into YANGPU Station, Shanghai Railway Sub-bureau and is represented by YANGPU Station. Hereinafter referred to as HEJIAWAN Station), the retrial applicant ZHUZHOU North Station, Changsha Railway Parent Company (hereinafter referred to as ZHUZHOU North Station), the retrial applicant YINGTAN Station, Nanchang Railway Bureau (hereinafter referred to as YINGTAN Station), was tried and judged in the second instance by the Shanghai Higher People's Court. ZHUZHOU North Station and YINGTAN Station refused to accept the judgment of second instance and applied for retrial to the Supreme People's Court. The Supreme People's Court decided to review this case and ordered synchronously to suspend the execution of the original judgment in accordance with provisions stipulated in the second section of article 177 and in article 183 of Civil Procedure Law of the People's Republic of China. 对方当事人上海宏隆实业有限公司(以下简称宏隆公司)与原二审被上诉人、一审被告上海铁路分局何家湾站(现该站已并入上海铁路分局杨浦站,由杨浦站代行其权利、义务,以下简称何家湾站)、再审申请人长沙铁路总公司株州北站(以下简称株州北站)、南昌铁路局鹰潭站(以下简称鹰潭站)之间发生的铁路货物运输合同逾期货损索赔纠纷案,经上海市高级人民法院二审判决后,株州北站、鹰潭站不服,向最高人民法院申请再审。最高人民法院依照《中华人民共和国民事诉讼法》第一百七十七条第二款、第一百八十三条的规定决定提审本案,同时裁定中止原判决的执行。
The Supreme People's Court found out the facts as follows after trial: 最高人民法院经审理查明:
Guangdong Storage and Transportation Company for Goods and Materials, being entrusted by Hong Long Ltd., went through the consignment procedure with GUANGZHOU East Station for the carriage of 240 pieces of metal-pail-packed TD glycerin that the buyer had refused to accept, loaded the cargoes into No. P632697 60-ton box freight car and locked the car all by itself on Apr. 19, 1995. The seal-up number was 0276. The consignment note by the consignor read: 240 pieces of glycerin, the weight of which is 60 tons, with a price of RMB60,000 and an insured value of RMB60,000, destination station HEJIAWAN Station, consignee Shanghai Hong Long Industry Ltd.. The cargo note made by the carrier read: the time limit of carriage was 9 days. 1995年4月19日,广东省物资储运公司受宏隆公司的委托,将宏隆公司被买方拒收的240件铁桶包装的TD甘油在广州东站办理了托运手续,自装自锁装入P632697号60吨的棚车,施封号码0276。托运人填写的货物运单记载:甘油240件,重量60吨,货物价值6万元,保价6万元,到站上海何家湾站,收货人上海宏隆实业有限公司。承运人缮制的货票记载,运到期限为9天。
The No. P632697 freight car started off from GUANGZHOU East Station on Apr. 20, 1995 and reached ZHUZHOU North Station the next day. It was twice driven to BAIMALONG Station for retaining in the train organizing into groups operation, and did not go back to ZHUZHOU North Station until being released from retaining on May 18. It was then organized as a through cargo train and started off from ZHUZHOU North Station and reached YINGTAN Station at the same day. In the routine inspection, No. 632697 freight car was found to be incapable of operating any more because of structure breakdown. It was then sent to YINGTAN South Station for reloading and repairing. YINGTAN South Station reloaded the cargoes on No. 632697 freight car with two open freight cars covered with tarpaulin on Jun 8. The cargo record of reloading read: with smear on motherboard, 17 pieces of empty pails, 7 pieces of pails with 0.8×0.4 cm crevasse (new) on the middle surface and with about half-pail cargoes remained in it. After the cargoes were reloaded, the two open freight cars started off on June 9 and reached HEJIAWAN Station on June 14. P632697号货车于1995年4月20日从广州东站开出,次日到达株州北站,在列车编组作业中被两次开往白马垅站保留,直至5月18日解除保留开回株州北站编入直通货物列车开出,同日到达鹰潭站。列检员在例行检查中发现P632697号车的走行部位一侧位旁承游间及枕簧被压死,不能继续运行,遂将该车送鹰潭南站倒装扣修。鹰潭南站于6月8日以两辆敞车加篷布苫盖倒装了P632697号车上的货物。倒装时货运记录记载:车底板上有油迹,经清点有空桶17件,另有7件桶中部有0.8×0.4厘米的破口(新痕),内货剩余约半桶。倒装后,两辆敞车于6月9日挂运,6月14日抵达何家湾站。
The consignee Hong Long Ltd. unloaded the cargos by itself. The unloading record read: 44 pieces of empty pails, 36 pieces of half-empty pails. English labels on the exterior package, says "SORBITOL NEOSOEB", "NET 275KG", "Gross 296KG", there is no Chinese label on the pails. Hong Long Ltd. sample weighed 10 pieces of full pails and found the heaviest was 273KG and the lightest was 270KG. The case-concerned cargoes were later exteriorly inspected on spot by the Shanghai Product Quality Supervision and Inspection Office, and the result was: TD glycerin, 240 pails, among which there were 61 empty pails and 179 full ones. Among the 179 full pails, there were 167 fat ones. 4 fat pails were sample inspected and gas transgression was found and the inner things were all smelled barmy. The conclusion of the sample inspection was that the product was not qualified in this sample inspection. 收货人宏隆公司自行卸车。卸车时货运记录记载:空桶44件,半桶36件。货物外包装上贴有英文标签,标有“SORBITOL NEOSOEB”(即山梨糖醇、异构山梨醇),“NET 275KG”(即净重275公斤),“Gross 296Kg”(即毛重296公斤)字样,桶上没有中文标识。宏隆公司将10个满桶货物抽样过秤,最重的达273公斤,最轻的有270公斤。涉案货物后经上海市产品质量监督检验所现场外观检查,结果是:TD甘油共计240桶,其中空桶61只,满桶179只。在179桶中,有167桶为胖桶。随机抽查胖桶4只,内均有气体逸出,且内装物均有发酵味。抽样检验结论:该产品本次抽查检验不合格。
It was further found that this patch of case-concerned TD glycerin was produced by the glycerin plant in Taixing city, Jiangsu province from Nov. 5 to 13 in 1994. The ingredients of the TD glycerin were not indicated in the standards of the enterprise, and the quality guaranteed time limit of the product was prescribed as 6 months. The Institute of Chemistry under Chinese Academy of Sciences was entrusted by the court to sample inspect the TD glycerin made by Taixing glycerin plant. The inspection result was: the TD glycerin sample was a type of polylol polysaccharid compound aqueous solution. The maximum component of this mixture was hexan-hexol. 另查明,涉案的这批TD甘油是江苏省泰兴市甘油厂于1994年11月5日-13日生产的,该企业标准未标明TD甘油的成份,规定保质期为6个月。中国科学院化学研究所接受法院的委托,对从泰兴甘油厂抽取的TD甘油样品进行了检验,结果为:TD甘油样品是一个多元醇的多聚糖混合物的水溶液。该混合物中,含量最多的是己六醇(亦称六碳醇糖,如山梨糖醇、甘露醇之类),其次成分是六碳单糖。
Hong Long Ltd. bought this patch of case-concerned TD glycerin at a price of RMB 10,000 per ton on Nov. 13, 1994 for the purpose of performing the sales contract of glycerin with Guangzhou RUNZE Ltd.. On Nov. 16, 1994 when the cargoes were unloaded at Guangdong SHIWEITANG Station, the cargo record read: 5 pieces of the cargoes were leaky to varying degrees and the weight of the intact pieces was 275KG. ZHIQIANG DENG, the deputy manager of the buying party said: RIHONG WANG, the general manager of Hong Long Ltd., together with technicians, found the odor was abnormal when they went to Guangzhou to sample inspect the cargoes on Dec. 26, 1994. They tested the viscosity with hand and found the glycerin was not sticky any more. They also found some cargoes had already been barmy and some pails were bouffant. The buyer requested returns for the reason of poor quality, and Hong Long Ltd. decided to carry the cargoes back to Shanghai. By that time the cargoes had been detained in Guangzhou for 5 months. Hong Long Ltd. brought a suit against HEJIAWAN Station for the reason of the barbaric loading and unloading by the rail transport enterprise bringing about severe damages to the cargo package, of the 47 day overdue delivery resulting in deterioration of the cargoes, and of the carrier's gross negligence, claiming totally RMB 840,889 for the compensation for cargo losses and other losses.The Shanghai Intermediate Railroad Transport Court added ZHUZHOU North Station and YINGTAN Station as the third party to the action and held as follows after hearing: the evidence upon which Hong Long Ltd. charged that the carrier loaded and unloaded barbarously and had gross negligence was not sound. ZHUZHOU North Station retained the freight car, causing the overdue delivery and the deterioration of the cargoes, it had then light negligence for the damage of cargoes and should bear the compensation responsibility within the scope of the cargoes' insured value; The quality guaranteed time limit had already been exceeded at the time when the cargoes reached YINGTAN Station, and it was overload that led to the retention of the freight car and the reloading, thus YINGTAN Station should not bear compensation responsibility. The judgment of first instance was that ZHUZHOU North Station should pay RMB 60,000 to Hong Long Ltd. as compensation for the cargo losses according to the cargoes' insured value, and should pay RMB 1,434 as overdue breach of contract damages. 宏隆公司于1994年11月13日以1万元/吨的价格,购买了涉案的这批TD甘油并发往广东,以履行其与广州润泽有限公司签订的甘油(丙三醇)买卖合同。1994年11月16日广东石围塘站卸货时,货运记录记载:5件有不同程度渗漏,完好件重275公斤。买方副经理邓志强称:1994年12月26日,宏隆公司总经理王日宏带技术员到广州抽查货物时,发现气味不对,用手试粘度,已不拉丝,有些货已发酵,有些桶鼓胀。因质量不符,买方要求退货,宏隆公司决定将此批货物返运回上海,此时该货物已在广州滞留5个月。宏隆公司以铁路运输企业野蛮装卸致使货物包装严重破损,逾期运到47天致使货物变质,承运人对货损有重大过失为由提起诉讼,请求判令到站何家湾站赔偿货损和其他损失共计840889元。上海铁路运输中级法院追加株州北站、鹰潭站为第三人,经审理认为:宏隆公司指控承运人有野蛮装卸和重大过失证据不足。株州北站保留该车,致使货物逾期运到并超过保质期发生变质,对货损有一般过失,应在货物保价金额内承担赔偿责任;货物到达鹰潭站已过保质期,扣车和倒装系货物超载所致,故鹰潭站不承担赔偿责任。一审判决株州北站按货物保价金额赔偿宏隆公司货损6万元,并支付逾期违约金1434元。
Hong Long Ltd. and ZHUZHOU North Station refused to accept the judgment of first instance and appealed to the Shanghai Higher People's Court. The court held as follows after hearing: ZHUZHOU North Station appealed to claim that it should not bear responsibilities for the overdue damages and the breach of contract because the capacity of LILING pass was restricted and it was the irresistible force to retain the freight car. However, as a matter of fact, just on the next day when the case-concerned cargoes were consigned, Hong Long Ltd. consigned another freight car of TD glycerin which arrived in Shanghai after 8 days. So even if it was necessary to take retaining measures because of the capacity restriction, it was hard to believe that ZHUZHOU North Station should not bear responsibilities for the reason of retaining under the circumstances that cargoes consigned later reached first. TD glycerin had a certain quality guaranteed time limit, and YINGTAN Station failed to reload the reached cargo freight car in good time so that the TD glycerin consigned by Hong Long Ltd. was retained at this station, causing overdue delivery and deterioration. Thus, the carrier did have gross negligence and should bear full compensation responsibilities. It was not inappropriate for Hong Long Ltd. to appeal to compensation according to actual losses. Hereby, the Shanghai Higher People's Court abrogated the judgment of first instance and decreed that HEJIAWAN Station should pay RMB 600,000 to Hong Long Ltd. as the compensation for the losses of cargoes in accordance with the decision by the Ministry of Railways that the compensation for railroad cargo transportation losses shall be paid by the destination station. 宏隆公司和株州北站不服一审判决,向上海市高级人民法院上诉。该院经审理认为:株州北站上诉称由于醴陵限制口的车辆通过能力有限,因此该车被保留,属不可抗力,株州北站不应为保留承担逾期运到的货损和违约责任。而事实是,宏隆公司于本案货物托运的次日又托运的另一车TD甘油,8天后即运抵上海。即便是由于车辆通过能力受限需要采取保留措施,但后运的货物却能先到达,株州北站以保留来拒绝承担责任的理由难以采信。TD甘油有一定的保质期,鹰潭站对到站货车没有及时倒装,致使宏隆公司托运的TD甘油在该站滞留,造成逾期变质。承运人确实存在重大过失,应当承担全部赔偿的责任。宏隆公司上诉请求按实际损失赔偿,并无不当。据此,上海市高级人民法院按照铁道部关于“铁路货运损失由到达站赔偿”的决定,判决撤销一审判决,改判由何家湾站赔偿宏隆公司货物损失60万元。
The reason for ZHUZHOU North Station to apply for retrial was that: the carrier concluded the car of cargoes was up to the conditions of retaining car just on the bases that Hong Long Ltd. disguised the actual situation of the cargoes such as the real name and value of the articles as well as the quality problems existed before the cargoes being carried back. ZHUZHOU North Station should not bear any responsibility because it had no right to change the retaining decision according to the dispatch order under the circumstance that the pass capacity of the station was limited. 株州北站申请再审的理由是:由于宏隆公司隐瞒了货物的真实品名、价值和返运前就存在质量问题的真相,使承运人判定此车货物符合保留车条件。在车辆通过能力受限的情况下,根据调度命令将该车保留,株州北站无法改变,不应对此承担责任。
The reason for YINGTAN Station to apply for retrial was that: (1) The quality of the cargoes was easy to judge while all of them became barmy and degenerative just over 20 days after the quality guaranteed time limit expired. Moreover, the cargoes were packed with old metal pails, on which there was not a single Chinese mark. And the quality problems had already existed before consignment. The consignor was bound to shoulder certain liabilities because it failed to manifest the above situation to the carrier, which made the carrier treated the "glycerin" as ordinary goods. (2) Hong Long Ltd. overloaded the freight car, which led to the car damage, and it was in order to prevent the car from overturning that the station decided to retain the car for reloading and repairing, thus the station should not bear the responsibility for the cargo retention. 鹰潭站申请再审的理由是:(1)该批货物超过保质期20多天就能全部发酵变质,其产品质量可想而知。况且该批货物使用旧铁桶包装,桶上没有任何中文标识,且发运前就存在质量问题。这些情况托运人从未向承运人声明,致使承运人将该批“甘油”按普通货物运输,托运人对此负有不可推卸的责任。(2)宏隆公司超重装车致使货车损坏,我站为防止列车颠覆而决定将该车倒装扣修,不应对由此发生的货物滞留负责。
Hong Long Ltd. claimed at the court trial that: (1) This case concerned not a sales contract but a transportation contract, and the carrier did not need to take cargo quality into consideration. The carrier shall confirm the package and weight of the consigned cargoes according to article 19 of Railway Law, so the carrier was thought to agree with the situation of the cargoes as long as it received them. (2) The carrier should bear the obligation to carry cargoes to destination within the time limit agreed upon in the transportation contract and keep them in good condition as long as it charged the freight, and in such a state of affairs, the carrier had no right to take the capacity limitation as a confrontation to the consignor. The case-concerned cargoes reached the destination 47 days after the time limit expired and the carrier certainly had gross negligence. 宏隆公司在庭审中辩称:(1)本案是运输合同,不是购销合同,铁路无需关心货物质量问题。按照铁路法十九条的规定,铁路对承运货物的包装和重量应该查实,既然接收了就应视为同意。(2)铁路收了运费,就负有在运输合同约定的期限内将货物完好运到目的地的义务,不能以运能紧张对抗货主。本案货物逾期47天运到,承运人当然有重大过失。
YANGPU Station claimed that it agreed completely with the reasons for application for retrial brought forth by ZHUZHOU North Station and YINGTAN Station. It also claimed that Hong Long Ltd. unloaded the cargoes by itself when the car reached the station, piled up the cargoes on an uneven outdoor place and transferred them into an indoor warehouse several days later. And it was the quality problems that made the cargoes become barmy and degenerative, so the carrier should not bear the compensation responsibility. The excuse that the cargoes had gone beyond the quality guaranteed time limit and thus became degenerative when they arrived at the destination, which brought forth by Hong Long Ltd., was not tenable. 杨浦站陈述称:我站完全同意株州北站和鹰潭站的申请再审理由。本案货物到站后,是由宏隆公司自行卸车,卸后堆放在凹凸不平的露天场地,数天后才转入室内仓库。货物变质发酵是本身质量问题造成的,承运人不应承担赔偿责任。宏隆公司称货物运到已超过保质期因此变质的理由,不能成立。
JUDGMENT'S REASONING好饿但是不想动 
The Supreme People's Court held: article 19 of Railway Law of the People's Republic of China stipulates: "The consignor shall fill in the consignment bill according to the facts, and the railway transportation enterprise has the right to examine the name of articles, weight and quantity of the cargoes and packages filled in". Article 20 stipulates that the carrier shall pack the consigned cargoes according to the State standards or trade standards to protect the cargoes from damaging in the period of transportation. 最高人民法院认为:《中华人民共和国铁路法我我我什么都没做》第十九条规定:“托运人应当如实填报托运单,铁路运输企业有权对填报的货物和包裹的品名、重量、数量进行检查。”第二十条规定,托运人对托运货物应当按照国家的或者行业的包装标准包装,使货物在运输途中不因包装原因而受损坏。
The content of the consignment bill determines what kind of transportation measures should be taken by the carrier in order to guarantee the safety of the cargoes, so filling in the consignment bill according to the facts is enacted to be a compulsive obligation of the consignor. The consignor entrusted by Hong Long Ltd. failed to perform the obligation of filling in the consignment bill according to the facts, it filled the name of articles as glycerin, which indeed was TD glycerin, and filled the cargo value as RMB 60,000, which indeed was RMB 600,000. 由于运单内容决定着承运人采取何种运输措施以保证货物安全,所以法律将如实填报运单规定为托运人必须履行的义务。宏隆公司委托的托运人在货物运单中填写的品名是甘油,而实际托运的是TD甘油;运单上申报的货物价格6万元,而实际整批货物价值60万元,没有履行如实填报运单的义务。
Glycerin has a relatively stable nature and a less strict demand for transportation. If it is not airtight enough or if it goes beyond the time limit for one or two months, it will absorb moisture and make the content of glycerin reduced, which however will not result in chemical changes. While the main chemical component of TD glycerin is hexan-hexol with a major component carboxyl in it. It has a relatively active nature and is easily oxidized. If the exterior package is not airtight enough, the oxidization will be accelerated, leading to degeneration. Hong Long Ltd. installed TD glycerin being carried back with metal pails that had been used to install isosorbitol, a kind of chemical material with more active nature than that of hexan-hexol, which complied neither with the trade standard by the glycerin plant of Taixing city that TD glycerin shall be packed with clean and dry plastic-coated or zinc plating pails, nor with the State standard that TD glycerin shall be packed with aluminium pails (with enhanced iron frame) or with zinc-coated or resin-coated metal containers, and that it must be guaranteed to cover and seal the pail tightly, preventing it from leaking and absorbing of moisture. Problems such as leakage, partial ferment and pail inflation had already existed when this batch of cargoes was carried from Shanghai to Guangzhou, which indicated that the crucial cause for the problems above taking place during the period of carrying back was the improper package manner leading to the oxidizing reaction of cargoes and that those problems had no positive connection with overdue delivery. 甘油的化学名称是“丙三醇”,其性质较稳定,对运输没有严格要求,如包装密闭不严或过期一、二个月,只会因吸潮使甘油含量减少,但不至引起化学变化。而TD甘油的主要化学成分是己六醇,含羟基成分较多,化学性质比较活跃,属极易被氧化物质。如果外包装密闭不严,会加速氧化过程,导致变质。宏隆公司使用曾盛装过化学性质比己六醇更活跃的异构山梨醇的旧铁桶盛装返运的TD甘油,既不符合泰兴市甘油厂关于TD甘油需使用洗干燥的涂塑或镀锌桶包装的企业标准,又不符合甘油应使用铝桶(带铁制加强框架)、涂锌或涂树脂铁制容器包装,并保证桶罐盖紧、封牢,不渗不漏、不吸潮的国家标准。该批货物从上海运至广州时,就已经存在渗漏、部分货物发酵、桶鼓胀等问题,说明返运过程中出现的包装破损渗漏和大部分桶顶鼓胀、货物发酵变质等现象,其根本原因是包装不当造成货物发生氧化反应,与逾期运到没有必然联系。
The whole car of cargoes whose insured value is above RMB500,000 shall be arranged to depart in good time and the transfer stop time of which shall not exceed 24 hours in general in accordance with article 8 and article 10 of Regulatory Measures on Railway Value-insured Cargo Transportation. The consignor entrusted by Hong Long Ltd. did not declare the cargo value according to the facts, which made the carrier consider this patch of cargoes as of low value common cargoes with no special demand for mode of transport and thus decided to retain the car according to the principle of common goods go first before special ones when choosing the retained car. This patch of cargoes was carried with covered cars and were loaded and locked by the consignor itself. According to article 47 (1) of Regulations Concerning Railway Cargo Transportation issued by the Ministry of Railways of People's Republic of China in 1991, the consignor shall be responsible for the condition of inner cargoes and package when the consignor and the carrier hands over and takes over according to the seal. What stipulated in article 19 of Railway Law promulgated in 1991 that the railway transportation enterprise examination of the cargoes is the right, not the obligation, of the carrier. It was according to the content filled in the consignment bill and to the transportation regulations that the carrier decided to retain the car, which prolonged the transportation period and expedited the degeneration of the cargoes, but the damages resulted actually from the natural character of the cargo itself and the consignor's fault. The carrier should not bear responsibilities in accordance with item 2 and item 3 of the first section of article 18 of Railway Law. 铁路货物保价运输管理办法》第10条规定,保价金额50万元以上的整车货物,应及时挂运,中转停留一般不超过24小时。由于宏隆公司委托的托运人未如实申报货物价值,使承运人确认该批货物属对运输无特殊要求的低值普通货物,故在选择保留车时,根据先普通货物后特殊货物的原则决定将该车保留。该批货物使用棚车运输,由托运人自装自锁。按照中华人民共和国铁道部1991年公布的《铁路货物运输规程》等47条(1)的规定,承运人与托运人凭封印交接,内货状况和包装由托运人负责。铁路法法宝十九条规定的铁路运输企业对货物进行检查是承运人的权利,并非义务。承运人按照运单填报内容,依据运输规章决定将该车保留,延长了运输时间,使货物的变质加剧,属货物本身的自然属性和托运人的过错造成的。依照铁路法十八条第一款第(二)、(三)项规定,承运人不承担赔偿责任。
LILING Station is normally capable of letting 700 heavy freight cars pass through daily according to regulations enacted in the run diagrams. This station is a restricted pass in the railway transportation network, but not all the cars passing through may be restricted. Under the circumstance that the passing capacity is limited, the only way to keep the lines clear and guarantee the waltzing through of more cars coming after is to retain some of the cars. And that it is according to the cars passing condition and to the operation principle of organizing by groups, not according to the order of arrival, that the train dispatcher chooses retained cars, the retaining time and the order of departure. It was not tenable for the second hearing court to presume the gross negligence of the carrier on the bases that another patch of glycerin carried back later by Hong Long Ltd. arrived in destination within 8 days so that the overdue delivery did not result from the limited passing capacity of LILING pass. 按照列车运行图的规定,醴陵站每天可以正常通过近700辆重车,醴陵站虽是铁路运输中的限制口,但并非所有车辆的通过都要受到限制。在通过能力受到限制时,正因为对部分车辆采取了保留让路的办法,才能够保证线路畅通,使后面更多的车辆顺利通过。而需要保留的车数、时间以及挂车的次序,是由列车调度根据车流情况和编组作业原则掌握,不是按先来后到的顺序排队。二审判决以宏隆公司后返运的另一批甘油在8天内运到来说明逾期运到并非由于醴陵限制口车辆通过能力有限所致,从而推定承运人有重大过失不成立。
The time limit for transportation of the case-concerned cargoes was 9 days while the cargoes actually arrived in 47 days after the time limit expired. Article 16 of Railway Law stipulates: "Railway transportation enterprises shall carry cargoes, packages or baggage to the destination station within the time limit agreed upon in the contract or stipulated by the railway authorities under the State Department; and railway transportation enterprises shall pay breach of contract damages when exceeding the time limit". The fifth section of Article 18 of Detailed Rules for the Implementation of Railway Cargo Transportation Contracts stipulates that the carrier shall pay to the consignee the breach of contract damages of an amount 5% to 20% of the freight charged for this patch of cargoes where the carrier fails to deliver the cargoes to the destination station within enacted time limit. Although the overdue delivery resulted from ZHUZHOU North Station's retaining of the freight car for the limitation of transportation capacity, this was also a breach of contract of the carrier and had nothing to do with the consignor or the consignee. ZHUZHOU North Station should pay breach of contract damages of this overdue period according to the law.
The capacity limit of No. P362697 freight car used by the consignor was 60 tons, and there were 240 pieces of cargoes being consigned, so the average gross weight of each piece of cargo should be no more than 250KG. However, the gross weight labeled on the exterior package of the case-concerned cargoes was 296KG, and the average weight of the full pails was above 270KG, from which we could conclude the car was actually overloaded. YINGTAN Station found that this car had been damaged for the overloading and decided to retain it for reloading and repairing in order to guarantee the railway transportation security, it should not bear responsibilities for the damages.
However, YINGTAN Station failed to arrange reloading car in good time according to the actual situation, so that it should bear responsibilities for the very delay at this station. Considering that it was the overloading by the consignor that led to the damage of the car, the overdue responsibility of YINGTAN Station might be mitigated accordingly.
 本案货物的运到期限为9天,逾期47天运到。铁路法十六条规定:“铁路运输企业应当按照合同约定的期限或者国务院铁道主管部门规定的期限,将货物、包裹、行李运到目的站;逾期运到的,铁路运输企业应当支付违约金。”《铁路货物运输合同实施细则》第十八条第五款规定,承运人“未按规定的运到期限,将货物运至到站,向收货人偿付该批货物所收运费5%至20%的违约金。”株州北站虽然是因运输能力的限制而对该车采取保留措施造成逾期,但仍属承运人的违约行为,与托运人或者收货人无关,株州北站应当依法给付该段逾期时间内的违约金。托运人使用的P362697号棚车限制吨位是60吨,托运240件货物,每件平均毛重应当在250公斤以内。而本案货物的包外装上标明的毛重是296公斤,满桶货物平均在270公斤以上,确实存在着超重装车的现象。鹰潭站发现该车因超重被损坏,为了保证铁路运输安全而决定将该车倒装扣修,本不应当对因此造成的损失负责。但是鹰潭站没有根据具体情况及时安排倒装车辆,故亦应对在该站的逾期负责。考虑到车辆的损坏是托运人超重装车造成的,可以相应减轻鹰潭站逾期的违约责任。
JUDGMENT 
Thus, The Supreme People's Court adjudged as follows on Sept 12, 2000: 综上,最高人民法院于2000年9月12日判决:
1. disaffirm the civil judgment of second instance by the Shanghai Higher People's Court and the civil judgment of first instance by the Shanghai Intermediate Railroad Transport Court; 一、撤销上海市高级人民法院的二审民事判决和上海铁路运输中级法院的一审民事判决;
2. deny the motion of Hong Long Ltd. claiming the compensation for the cargo losses; and 二、驳回宏隆公司要求赔偿货物损失的诉讼请求;
3. order YANGPU Station under Shanghai Railway Sub-bureau, the destination station, to pay RMB496.84 to Hong Long Ltd. as breach of contract damages for overdue delivery. 三、由到站上海铁路分局杨浦站代表承运人向宏隆公司支付逾期运到违约金496.84元。
The opposing party Hong Long Ltd. should assume totally the court acceptance fees of RMB 30,520 and the appraisal fees of RMB 3,000 of the first and second hearings. 一、二审案件受理费共30520元,鉴定费3000元,由对方当事人宏隆公司负担。

 

     
     
Scan QR Code and Read on Mobile
【法宝引证码】        北大法宝en.pkulaw.cn
Message: Please kindly comment on the present translation.
 
Confirmation Code:
Click image to reset code
 
  Translations are by lawinfochina.com, and we retain exclusive copyright over content found on our website except for content we publish as authorized by respective copyright owners or content that is publicly available from government sources.

Due to differences in language, legal systems, and culture, English translations of Chinese law are for reference purposes only. Please use the official Chinese-language versions as the final authority. Lawinfochina.com and its staff will not be directly or indirectly liable for use of materials found on this website.

We welcome your comments and suggestions, which assist us in continuing to improve the quality of our materials as we dynamically expand content.
 
Home | About us | Disclaimer | Chinese