【涉外业务部】涉外海事海事诉讼——一起针对埃塞俄比亚航运公司无单放货的

Foreign Maritime Litigation

--A Successful Case against Ethiopian Shipping Company for Releasing Cargo without Bills of Lading

In April 2020, JG Company (hereinafter referred to as JG) and the Ethiopian merchant MA reached an international contract for the sale and purchase of auto parts, the contract agreed on the port of shipment Ningbo, transit Djibouti, the port of destination for the Ethiopian Dire Dawa land port，FOB.After the contract was signed, JG delivered the goods to Ethiopian Shipping Company by multi-modal transportation through NB Foreign Shipping Company, and as the agent of Ethiopian Shipping Company,NB Foreign Shipping Company issued three original bills of lading of Ethiopian Shipping Company to JG .After the goods arrived in Ethiopia, the Ethiopian shipping company released the goods to MA without verifying the original bills of lading, resulting in JG's payment for the goods not being recovered. A lawsuit was filed.

Before the case was entrusted , the attorney understood the case in detail and carefully analyzed the case’s materials, which could reflect the fact that the Ethiopian shipping company released the goods without original bills of lading and any legal reasons. We accepted the commission to file a lawsuit, requesting the Ethiopian Shipping Company to bear the liability for the loss of goods and the corresponding interest loss. The plaintiff also claimed for the loss of inland freight.

The name of the defendant: the bill of lading in this case records that the carrier is ETHIOPIAN SHIPPING & LOGISTICS SERVICE ENTERPRISE.The official record of the defendant’s Chinese name is inconsistent with that of other courts record.When the lawsuit was filed, it was very important to confirm the defendant’s Chinese name. Ningbo Maritime Court thought that the Chinese name of the court's past cases involving Ethiopian Shipping & Logistics Service Company is Ethiopian Shipping Company, which registered NVOCC in the Ministry of Transportation too .Although other courts have used different Chinese names, the Ningbo Maritime Court decided to use Ethiopian Shipping Company as the Chinese name of ETHIOPIAN SHIPPING & LOGISTICS SERVICE ENTERPRISE in consideration of the consistency of the names of the litigation subjects and the convenience for data statistics.

In foreign-related litigations, it is a difficult thing to maintain the uniformity and consistency of the Chinese names of overseas subjects in multiple cases handled by different courts at different times. We believe that translation and cultural cognitive factors as well as other various reasons are leading for this situation. Ningbo Maritime Court unifies the subject names based on the names of subjects filed by the Ministry of Transportation, which greatly facilitates the access and statistics of cases of the same subject.

Delivery of the case: Ethiopian Shipping Company does not have any representative office, branch or subsidiary in China. Before filing the lawsuit, we communicated with the agent of Ethiopian Shipping Company, NB Foreign Shipping Company, and another agent in Beijing for many times about the matter of releasing cargo without an orginal bill.We submitted emails of communication with NB Foreign Shipping Company and the agent in Beijing, as well as emails to and from our direct contact with Ethiopian Shipping Company.The Treaty between the People's Republic of China and the Federal Democratic Republic of Ethiopia on Judicial Assistance in Civil and Commercial Matters sets the service path for the subject service in the State of Ethiopia.The Ningbo Maritime Court mailed the judicial documents to the Ethiopian shipping company's home address and agentS at the same time as the service according to the treaty, and the service time was taken as the first received time. This greatly accelerates the process of the case.

The goods in this case were loaded in a 40 feet high container. Container flow track shows that the container has been an empty container in July, 2020. In the mails between the two sides, the Ethiopian Shipping Company admitted to have released the goods.Three original bills of lading is still held by the plaintiff, so it is clear that the defendant in this case released cargo without any original bill of lading.

In the litigations arising from the unbillable goods, how to identify the unbillable acts is a difficult problem. In general, the identification is made from the following aspects.

1. The original bill of lading holder requests for the goods at the port of destination but can not.

2. The whole container of goods transported, the container has been empty flow.

3. The original bill of lading has not been transferred from the domestic seller to the buyer out, but the open market at the port of destination involves the sell of the goods loaded in the container.

4. The carrier acknowledges the release of goods; (in this case, the plaintiff submits a certificate of empty container flow, the defendant acknowledges the release of goods without a bill of lading)

5. Freight agent informs the bill of lading holder of the fact that the goods have been released.

6. The container yard at the port of destination issued the certificate of delivery.

There is no exemption for the delivery of goods without original bill of lading in this case.

The supreme people's court " several issues on the trial of the case of delivery of goods without original bill of lading applicable law provisions" provides several exemptions for delivery of goods without original bill of lading. Article 7 states:”If a carrier is obligated, according to the provisions of the laws of the place where the port of discharge is located stated in the bill of lading, to deliver the goods arrived at the port of discharge to the local authority in charge of customs or port, the carrier shall not bear the civil liability for delivery of goods without any original bill of lading.”Article 8 states:”In the case no customs declaration is made for the goods that have arrived at the port of discharge within the time limit specified by laws and the relevant customs collects the goods and sells them legally, or the relevant court renders a decision, in accordance with law, to sell the goods left by the carrier, if the carrier alleges the exemption from liability for delivery of goods, the people's court shall uphold such allegation.” Article 9 states:”Where a carrier, according to the requirements by the consignor of a straight B/L, suspends the shipment, returns the goods, changes the port of destination or delivers the goods to other consignees, if the consignee who holds the straight B/L requests the carrier to bear the civil liability for delivery of goods without the original bill of lading, the people's court shall not uphold such request.” Article 10 states:”Where a carrier issues an original B/L in multiple copies, after the carrier delivers the goods to the person who first submits the original B/L, if other persons who hold the same original B/L request the carrier to bear the civil liability for delivery of goods without the original B/L, the people's court shall not uphold such request.” In this case, the delivery of goods by Ethiopian Shipping Company does not fit any of the above circumstances, so Ethiopian Shipping Company is not exempted from civil liability.

After a full pre-trial communication and a court hearing, the court ruled in favor of our claim for compensation for the loss of cargo value and interest incurred by the Ethiopian Shipping Company. Regarding our claim for compensation for the loss of inland expenses incurred in the performance of the trade contract, the court held that the inland expenses were not losses arising from the unbilled release of goods, and even if the Ethiopian shipping company did not release the goods without a bill of lading, the plaintiff had to bear the inland expenses on its own, so it would not compensate for this.

Before the prosecution of this case, the attorney called the Ministry of Transportation and several provincial departments of transportation several times to confirm the communication of the filing and bonding of Ethiopian Shipping Company as a NVOCC in China. We learned that since 2019, the Ministry of Transportation has abolished the filing and bonding system for NVOCCs and implemented the filing of NVOCCs to provincial departments of transportation.When NB Foreign Shipping Company issued the original bill of lading of Ethiopian Shipping Company, the Ministry of Transportation has cancelled the filing of Ethiopian Shipping Company, and Ethiopian Shipping Company did not timely go to the provincial department of transportation for NVOCC filing and bill of lading registration. Article 12 of the Provisions of the Supreme People's Court on Several Issues concerning the Trial of Disputes over Maritime Freight Forwarders stipulates that If the freight forwarder accepts the entrustment of the NVOCC business operator who has not registered the bill of lading with the competent Transportation Department of our country to issue the bill of lading, and the parties claim that the freight forwarder and the NVOCC business operator shall bear joint liability for the losses under the bill of lading, the people's court shall support them. According to this article, the NB Foreign Shipping Company issued the bill of lading with the knowledge that the Ethiopian Shipping Company did not make NVOCC record and did not have the NVOCC status in China, but still issued the bill of lading of the Ethiopian Shipping Company as an agent, so the plaintiff was entitled to request the NB Foreign Shipping Company to bear the joint and several liability of the Ethiopian Shipping Company's liability. However, considering the need to continue business  with NB Foreign Shipping Company, the plaintiff will not pursue the joint and several liability of NB Foreign Shipping Company.

MARITIME CODE OF THE PEOPLE'S REPUBLIC OF CHINA

The Provisions of the Supreme People's Court on the Trial of Cases of Maritime Freight Forwarders

Treaty between the People's Republic of China and the Federal Democratic Republic of Ethiopia on Mutual Legal Assistance in Civil and Commercial Matters

Law of the PRC on Application of Laws to Foreign-Related Civil Relations

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