In 2004, Sinotrans Xi 'an and its long-term cooperative customer Qing 'an Company made a ticket of imported equipment transportation business, and the equipment price clause of the trade contract was FOB Hamburg Port. Because of long-term cooperation, the transportation project has not signed a formal contract, but only an oral agreement, according to the previous operation mode. After the equipment imported by Qing 'an Company was shipped to Tianjin Port for customs clearance, Xi 'an of Sinotrans entrusted Tianjin Tanggu Dangerous Goods Transportation Company to unpack and transport it back to Xi 'an. When the vehicle was transported to the junction of Henan and Shaanxi, the rainy road slipped, and the high-speed car could not stop and roll over, causing equipment damage. The damaged equipment is worth more than 2.3 million yuan. Because Qing 'an Company insured the imported equipment, Shaanxi Ping 'an Insurance Company paid Qing 'an Company more than 2.3 million yuan. One month after the payment, Ping An Insurance Company sued Sinotrans Shaanxi Company and demanded that Sinotrans Shaanxi Company pay Ping An Insurance Company 2.3 million yuan.

Chapter I Freight Accidents and Claims

With the occurrence of freight accidents under international trade, the transportation, storage and delivery of goods have long working hours, large spatial span, many operational links, complicated documents and changeable environmental conditions. Therefore, in the whole process of transportation, storage, acceptance and delivery of goods, there are often problems such as the quality and quantity of goods, the shipper's failure to pick up the goods in time, the carrier's wrong delivery and delayed delivery.

The loss or damage of goods caused by freight accidents during transportation also includes document errors, delayed delivery, delivery of goods at sea without bill of lading, etc.

Causes of freight accidents

The main causes of cargo difference accidents caused by freight accidents in maritime transportation are unclear cargo labels, which lead to wrong loading, wrong unloading, wrong cargo handling and wrong transit treatment; All goods may be lost due to sinking, hitting rocks, fire, dumping of goods, embargo and confiscation by government decrees, theft, piracy, detention of ships, detention of goods, acts of war and other reasons.

The main causes of freight accidents in air transport are work mistakes in handover, airport storage and loading and unloading.

Chapter I Freight Accidents and Claims

3. The main causes of freight accidents in land transportation are cargo damage, mixed tickets, lack of overflow, damaged packaging and damaged goods caused by the carrier.

4. The goods carried by the non-freight accident carrier are collected and transported according to the quantity and weight of the goods, and are not responsible for how much is in the parcel; Irresponsible for the quality of goods;

5. In case of loss of goods caused by other circumstances in international cargo transportation, the carrier may be exempted from the liability for compensation for loss of quantity and quality of goods caused by force majeure; As the goods themselves are poorly packaged and unsuitable for long-distance sea transportation, the carrier shall not be liable for damages.

Division of responsibility for freight accidents

In principle, except for force majeure and the shipper's reasons, the carrier shall bear the responsibility for cargo damage accidents that occur during the carrier's supervision. The carrier's responsibility period refers to the period during which the carrier assumes responsibility for the goods.

The carrier's responsibility for transporting goods mainly refers to the means of transport, keeping the goods, reasonable scheduling, delayed delivery, etc.

Chapter I Freight Accidents and Claims

The carrier's responsibility for transporting goods. In the contract of carriage of goods, one party shall compensate the other party for the losses caused by the breach of the contract. When the carrier breaches the contract, there are two possibilities for the goods to suffer losses. The first is the actual loss, that is, the loss or damage of goods, and the other is the economic loss and reputation loss. Although the goods were not lost or damaged, they did not get the benefits that the owner should get. The most typical thing is to delay the delivery, because the arrival time at the destination is late, which delays the best time to sell the goods.

Carrier's Exemption and Limitation of Liability Even if the carrier should be liable for cargo damage and cargo difference according to the contract or law, the relevant conventions on international cargo transportation and the laws of various countries give the carrier a special right, that is, the carrier can limit its liability to a certain amount. In addition, the carrier cannot use the limitation of liability in two cases. One is that there are special agreements, for example, the shipper has declared the nature and value of the goods at the time of shipment and gone through the corresponding procedures; The other is that the carrier has lost the right to enjoy the limitation of liability, that is, the carrier's intention and inaction.

The shipper's responsibility is to provide freight information correctly, and the shipper shall bear the responsibility for the losses caused by false declaration; Pack the goods properly. When the goods are damaged, it is difficult to judge whether the carrier is careless in keeping the goods or the shipper's packaging defects. Generally, the third party will confirm and then divide the responsibilities.

Chapter I Freight Accidents and Claims

Discovery and Responsibility Judgment of Freight Accidents In the delivery process of each node of transportation, the first discoverer has the responsibility to report the operation of the previous link and record the accident truthfully so as to divide the responsibilities. When the party responsible for the accident or dispute cannot be determined, it may apply for the intervention of a third-party inspection agency.

Shipper's liability The shipper shall be responsible for the damage and discrepancy of the goods before consignment; The carrier shall bear the responsibility for the cargo damage and cargo difference accidents that occur during the carrier's supervision, except for force majeure and the shipper's reasons; Third-party liability refers to port loading and unloading enterprises, land and water transport enterprises, third-party ships, vehicles and warehouses. In the process of transportation, although the third party may cause damage and poor quality of the goods, neither the carrier nor the shipper can be exempted from liability. The time when the goods are damaged and which party is under effective control are important methods to determine the party responsible for the goods damage.

For the settlement of cargo damage and cargo difference accidents, the first is the compensation settlement between the shipper and the carrier, and then the carrier and the shipper recover from the third party.

Chapter I Freight Accidents and Claims

Claiming the loss caused by a freight accident from the carrier and other responsible persons is called claim, and the carrier's handling of the owner's claim is called claim settlement.

The principle of filing a claim is the principle of seeking truth from facts, the principle of being justified, the principle of being reasonable and the principle of paying attention to practical results.

Conditions that a claim must meet.

The claimant has the right to claim compensation. In principle, the goods claimant is the owner of the goods, or the consignee or the holder of the bill of lading specified in the bill of lading.

The person in charge must bear the actual liability for compensation. The claim made by the consignee as the claimant should belong to the cargo damage and cargo difference outside the carrier's exemption clause, or to the insurer's underwriting responsibility, or to the seller's responsibility according to the sales contract.

The amount of compensation should be reasonable and based on the actual degree of damage to the goods.

Claiming within the prescribed time limit is the time limit for claiming.

Chapter I Freight Accidents and Claims

Claim procedure The claimant issues a claim notice and submits a claim letter to settle the dispute. If the dispute cannot be settled through consultation, it will be resorted to litigation or arbitration.

After the claim is notified that the damage to the maritime cargo has occurred, the carrier or his agent shall notify the carrier or his agent in writing within the specified time or within the specified time, stating that he reserves the right to claim compensation, otherwise the carrier may be exempted from liability. The written notice shall be issued within 7 days from the day after the delivery of the goods, and within 15 days from the day after the delivery of the container goods. If the air cargo is damaged, it should be raised immediately. If it is luggage, it should be raised within 7 days after receipt, and within 14 days after receipt. International railway transportation should file claims and lawsuits with the railway department within 9 months.

Submit a claim application or claim list. The claim application, claim book or claim list is a written claim document.

If the two sides can't reach an agreement, they can solve the problem of cargo damage through arbitration and litigation. The limitation period of maritime litigation is one year, and the claimant must bring a lawsuit to the court with final jurisdiction within the limitation period. The permanent institution of maritime arbitration in China is China Maritime Arbitration Commission.

Chapter I Freight Accidents and Claims

In order to ensure the realization of the claim, measures must be taken through legal procedures to make the parties involved in the damage to the goods fulfill their responsibility to execute the judgment of the arbitration institution or the court. This measure is called the right of claim preservation measure. In practice, there are generally two ways: detaining the carrier's means of transport or providing a guarantee by the carrier.

Claim documents include shipping documents, inspection certificates, commercial documents and original records, which can prove the cause, type, scale and degree of the loss and the responsibility for the damage.

Original bill of lading, port of discharge tally sheet, cargo damage list and other unloading documents, re-adjustment list, cargo damage inspection report, commercial invoice packing list, repair cost list, claim amount calculation basis, rights transfer and claim letter.

Air transport claim documents, claim letters, waybills, commercial invoice box contracts, copies of cargo manifests, cargo transport accident visas, commodity inspection certificates, transport accident records, correspondence and telegrams.

Land transport and multimodal transport can refer to the principle of documents required by sea transport and air transport.

Part II Litigation and Arbitration

Disputes are inevitable after freight accidents. First of all, the two sides should settle the dispute through consultation. If negotiation fails, judicial proceedings, submission to an arbitration institution or mediation by a third party may be taken as appropriate.

Litigation is one of the important tools to solve freight accident disputes, which refers to the court's activities of hearing and resolving disputes according to law with the participation of the parties and all litigation participants, and the sum of various legal relationships arising from this activity. The judicial power of a case is exercised by the court, and activities without the participation of the court cannot be called litigation.

The court is the main party, organizer and commander of the lawsuit. The parties refer to both the original defendant and the participants in the proceedings, mainly including witnesses, agents ad litem, experts and translators.

Litigation jurisdiction refers to the division of labor and authority between the courts that accept cases, and is under the jurisdiction of the courts of the defendant's origin, destination or domicile; The air plane first landed within the jurisdiction of the court; The lawsuit of ship collision shall be under the jurisdiction of the court of the place where the ship collided or first arrived, the lawsuit of general average shall be under the jurisdiction of the court of the place where the ship first arrived, the place where the ship was adjusted in general average or the place where the voyage was terminated, and the lawsuit of port operation shall be under the jurisdiction of the court where the port is located.

Part II Litigation and Arbitration

Whether the injured party collects evidence in time after the cargo damage accident has a great influence on the claim.

Mediation The cost of mediation is lower from the point of view of the cost of solving cargo damage claims and the future continuous cooperation and business development of interested parties such as cargo owners, freight forwarders and carriers. However, if the parties hold their own opinions and do not compromise with each other, then they can only rely on the court's ruling. The agreement reached through mediation must be voluntary.

If the judgment cannot be executed or is difficult to be executed due to the reasons of the parties, the property preservation court shall make a ruling on property preservation. For car owners who are worried that they will not get compensation after winning the case, they can apply to the court for preservation measures, and the carrier can also apply to the court to reduce their losses.

The basic procedure of litigation: preparation and trial before prosecution; Listening; Suspension and termination of litigation; Judgments and rulings.

Prosecution and acceptance of prosecution means that the subject of litigation is the plaintiff, and the court accepts the plaintiff's prosecution and brings a civil lawsuit, which is called acceptance;

The preparation before the trial is to make the parties fully prepared for the court debate and ensure the smooth progress of the trial.

The trial in court refers to the litigation process in which the court tries the case entity in court with the participation of the parties or other participants in the proceedings in accordance with legal procedures and forms. The trial procedure includes announcement of court session, court investigation, court debate, collegial panel deliberation and announcement of judgment.

Part II Litigation and Arbitration

4. Suspension and termination of litigation If one of the parties dies or loses the capacity for litigation, the litigation will be suspended, and if it is impossible for the litigation to return to normal again, the litigation will be terminated.

5. Judgments and rulings refer to the judgments made by the court to solve the disputes over civil rights and obligations of the parties through legal procedures according to the facts of the case and applicable laws; Ruling refers to the judgment made by the court to solve the procedural problems in the trial of civil cases, which is mainly applicable to cases of inadmissibility, property preservation, jurisdiction objection and so on.

Arbitration is an important way of dispute settlement, which means that both parties reach an agreement and voluntarily submit the dispute to an arbitration institution agreed by both parties for arbitration, and this award is final and binding on both parties, and both parties must abide by it.

The forms of arbitration include institutional arbitration and ad hoc arbitration, international arbitration and domestic arbitration, statutory arbitration and friendly arbitration.

Institutional arbitration, also known as institutional arbitration, is the most important arbitration method in the international community at present. It relies on a permanent institution and has its fixed arbitration rules and procedures. Ad hoc arbitration does not rely on permanent institutions, and the arbitrators of both parties to the dispute organize their own ad hoc arbitration tribunals to conduct arbitration.

Whether there are foreign-related factors in the legal relationship involved in arbitration matters can be divided into international arbitration and domestic arbitration. Disputes involving Hong Kong, Macao and Taiwan are also foreign-related arbitration compared with foreign-related disputes.

Part II Litigation and Arbitration

Arbitration institutions The arbitration institutions in China include China International Economic and Trade Arbitration Commission, which mainly deals with international trade disputes, and China Maritime Arbitration Commission, which deals with maritime freight disputes. They all have branches. Internationally renowned arbitration committees include icc International Arbitration Court, London Arbitration Court, American Arbitration Association, Stockholm Chamber of Commerce in Sweden and Zurich Chamber of Commerce in Switzerland. In Asia, there are Japan International Commercial Arbitration Association, Singapore International Commercial Arbitration Association and Hong Kong International Arbitration Center.

Arbitration rules include arbitration jurisdiction, arbitration institution, arbitration application, defense and counterclaim procedures, composition of arbitration tribunal, arbitration trial and award procedures, arbitration institution, etc.

Arbitration agreement is the basis of arbitration, and the parties have concluded an arbitration clause in the contract. Without arbitration agreement, there is no effective arbitration. Model clause of China Maritime Arbitration Commission: Any dispute arising from or related to this contract shall be submitted to China Maritime Arbitration Commission for arbitration in accordance with its arbitration rules in effect at the time of applying for arbitration. The arbitral award is final and binding on both parties.

Part II Litigation and Arbitration

The basic principles of arbitration: voluntary participation of the parties, independence of arbitration, fairness and reasonableness, and termination of arbitration.

The basic procedure of arbitration: the principle of voluntariness of the parties, the principle of independence of arbitration, the principle of fairness and reasonableness, and the principle of final award.

Comparison between litigation and arbitration

Litigation based on different jurisdictions is a legal jurisdiction and a national judicial act; Arbitration is non-governmental and is conducted on the basis of the arbitration agreement.

Arbitrators from different organizations are generally NGOs. Arbitrators are not appointed by the state, but listed by arbitration institutions, and the parties appoint arbitration tribunals from among the arbitrators to settle disputes. Arbitration is more flexible than litigation.

Litigation with different trial principles is the final instance of second instance, which can be appealed or appealed, and arbitration is final. The parties may not apply for arbitration again for the same fact, nor may they bring a lawsuit or appeal to the court.

Different ways of hearing lawsuits are based on the principle of openness, and there are no special circumstances that must be heard in public; Arbitration is usually held in private to protect the secrets of the parties.

The third part, case 2, claims caused by operational process errors.

A logistics enterprise is entrusted by the owner to engage in import customs declaration agency business. After the customs declaration is completed, the customs declaration documents will be handed over to the customers according to the operation process of the unit. Later, because the owner did not pay the import agent, the import agent filed a claim on the grounds that the logistics enterprise sent the documents by mistake. The key issue of the case is that the client on the power of attorney of the customs declaration is an import agent and the client is a logistics enterprise. In this case, although the customs shipper is the owner, there is still a lack of clear understanding of how the two shippers determine their respective rights and obligations. In the end, the court ruled that the logistics enterprise was at fault and should be liable for compensation to the importer. Summarize; The root of this case lies in the operation process of the logistics enterprise itself. According to this process, logistics enterprises should return the documents to the customs declaration customers after the customs declaration is completed, not to other customers.

Part III Case 3 Risk of Goods Handover

An air transport company signed an agreement with a customer to transport a batch of silver, entrusting an airline to use air transport from A city to B city and road transport from B city to Hong Kong. The air carrier is the whole transportation carrier, and the airline is the segment carrier. After the airline delivered the silver to City B, it was stored in the supervision warehouse of the airline. When the air carrier picks up the goods in the warehouse, the business personnel only count the number of boxes and check the outer packaging of the boxes, and do not weigh the goods. After the goods arrived in Hong Kong, they were found to be in short supply. After analysis, it was very likely that the goods were lost in the supervised warehouse of B city airline, but the problem was not found in time because they were not weighed.

In this case, the air carrier's behavior of picking up goods in the warehouse under the supervision of the airline is actually the handover of goods between the company and the actual carrier. Since the air carrier has not found any shortage of goods, it is presumed that the airline has completed the delivery of the goods, and the airline will not bear any responsibility. However, according to the provisions of Article 106 of the Maritime Law, if the transport section where the goods are lost, damaged or in short supply cannot be determined, the multimodal transport operator shall be liable for compensation in accordance with the provisions of this chapter.

The third part, case 4, the operator illegally delivered the goods.

In June 2007, a transportation company signed a tripartite agreement with an import and export company and a trade center, and the transportation company undertook the customs declaration and transshipment of 500 tons of wood pulp at the import port of Qingdao Port. In the agreement, it is clearly stipulated that the ownership of the goods belongs to the import and export company, and it is stipulated that the goods in Qingdao Port can only be picked up by the relevant outbound order or outbound instruction of the import and export company. According to the operation flow of the transportation company, the business personnel should verify the delivery order or delivery order of the owner before releasing the goods. However, the specific manager of the company seriously violated the business operation process and did not act in accordance with the agreement. Based on his previous cooperation experience, he listened to and accepted the letter of guarantee issued by the Trade Center, and went through the delivery procedures of the goods.

When the import and export company picked up the goods as agreed, it found that the transportation company had no goods to deliver, resulting in disputes. After the maritime court concluded the case, it ruled that the transportation company should bear all the liability for compensation. When the transportation company subsequently pursued the Trade Center through legal channels, the Trade Center had its business license revoked by the Administration for Industry and Commerce, and the whereabouts of its legal representative were unknown. The case caused the transportation company an economic loss of 800,000 yuan.

Part III Legal Questions and Answers

At the end of 2009, a few friends and I set up a logistics company. In the course of company operation, we often encounter different titles such as "legal person", "legal representative" and "legal representative". What is the legal difference between the three?

A legal person is not a legal representative. A legal person refers to an organization that has the capacity for civil rights and civil conduct, enjoys civil rights and undertakes civil obligations independently according to law. Legal person is an organization, not a natural person. The legal representative is a natural person who represents a legal person according to law.

Legal representative and legal representative are completely different legal concepts. According to the different ways of production, legal representatives can be divided into legal representatives and authorized representatives, and legal representatives are one kind of legal representatives. A legal person can only have one legal representative.

The legal representative and the authorized representative bear different legal responsibilities. If the unit violates the law, it will be subject to double sanctions, that is, in addition to the legal person's responsibility to the unit, the legal representative, as the person in charge, will also bear personal legal responsibility. The foreign activities of authorized representatives are restricted by the authorization of legal persons, and they can only carry out foreign activities on behalf of legal persons within the scope authorized by legal persons.