中国：ばら積み貨物の不足クレーム
中国のHai Tong & Partners法律事務所は、ばら積み貨物のショーテージクレームについて、最近の天津最高裁判所の判例を報じています。キャリアーとは誰か、貨物の不足分を計る際、陸側とドラフトサーベイのどちらの数字を使用するべきかについて論じています。
ご参考までに、2021年4月の記事、『中国 - 積地港でのばら積み貨物不足クレーム』もご参照ください。
Bulk cargo shortage claim in China: Who is the Carrier? Shore scale figure or draft figure?
The Club would like to refer Members to a summary of a recent Tianjin High Court decision by the Chinese law firm of Hai Tong & Partners. The Tianjin High Court had to decide the following two issues:
- The identity of the carrier, and
- Of the discrepant shortage figures from the Customs' shore scales and the ship's draft surveys, which was to prevail?
On the first issue, the candidates were the shipowner, the bareboat charterer and the time charterer. The last had instructed agents to issue the bill of lading. The court determined from the facts that the time charterer was the contractual carrier under the bill of lading and the shipowner, the actual carrier.
On the second issue, the court noted that under Article 46 of the Chinese Maritime Code, the carrier's responsibility for non-containerised cargo spanned the period from the loading of the goods to the discharge of the goods. The court therefore decided that the draft figure was more accurate as it was obtained during the period when the cargo was still under the control and the responsibility of the shipowner whereas the shore scale figure was obtained only after the cargo had left the ship and was no longer under the control and responsibility of the shipowner.
This second instance court judgment was delivered in March 2023. The parties have 60 days to apply to the Supreme Court for a retrial and so an appeal/retrial cannot as yet be ruled out. Hai Tong's concluding comments suggest that other, including potentially conflicting, decisions on the second issue may still be expected.
Members may also find the following Circular from the Club's correspondents, Huatai Marine, on the subject of bulk cargo shortages at loading ports issued at April 2021, China - Bulk Cargo Shortage at Loading Port (ukpandi.com), of interest.
If Members have any questions relating to the above or on bulk cargo shortages generally, your usual contact at the Club will be pleased to assist you.
