B&R Cases TM TM 一带一路案例 A.P. Møller - Mærsk A/S and The Shenzhen Branch of Shanghai Xen Freight Agency Ltd. as well as Shanghai Xen Freight Agency Ltd., A Retrial of a Dispute over a Contract for the Carriage of Goods by Sea and Fees for Extended Use of Containers B&R Typical Case 18 Batch 2 Case 10 (Released by the Supreme People s Court on May 15, 2017) CHINA GUIDING CASES PROJECT March 1, 2018 Edition The citation of this translation of this Typical Case is: A.P. 穆勒 - 马士基有限公司与上海蝉联携运物流有限公司深圳分公司 上海蝉联携运物流有限公司海上货物运输合同集装箱超期使用费纠纷再审案 (A.P. Møller - Mærsk A/S and The Shenzhen Branch of Shanghai Xen Freight Agency Ltd., Shanghai Xen Freight Agency Ltd., A Retrial of a Dispute over a Contract for the Carriage of Goods by Sea and Fees for Extended Use of Containers), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, B&R Cases TM, Typical Case 18 (TC18), Mar. 1, 2018 Edition, http://cgc.law.stanford.edu/belt-and-road/b-and-r-cases/typical-case-18. For the original version of this case, see 第二批涉 一带一路 建设典型案例 (Second Batch of Typical Cases Involving the Belt and Road Construction), 最高人民法院网 (WWW.COURT.GOV.CN), May 15, 2017, http://www.court.gov.cn/zixunxiangqing-44722.html. This document was primarily prepared by HUANG Li, Peter Witherington, and Dr. Mei Gechlik; it was finalized by Dimitri Phillips and Dr. Mei Gechlik. Minor editing, such as splitting long paragraphs, adding a few words included in square brackets, and boldfacing the headings, was done to make the piece more comprehensible to readers; all footnotes, unless otherwise noted, have been added by the China Guiding Cases Project. The following text is otherwise a direct translation of the original text released by the Supreme People s Court. B&R Cases TM is a serial publication of the China Guiding Cases Project that provides full-text versions and high-quality English translations of court cases in China that are related to the country s Belt and Road Initiative.
Determination, in Accordance with Law, of Fees for Extended Use of Shipping Containers Maintenance of Fair Shipping Trade Order I. Basic Facts of the Case In January 2010, Xen Shenzhen Branch 1 entrusted Maersk Company 2 with the delivery of five containers of goods from Huangpu [District], Guangdong, to New Delhi, India. On February 23, the goods were delivered to the port of destination. Thereafter, the consignor continuously changed [its designation of] the receiver 3, but no one ever picked up the goods. On February 21, 2011, the [five] containers of goods were auctioned off by customs [authorities] at the Jawaharlal Nehru Port, Mumbai, India. 4 On February 28, customs [authorities] signed a bill of lading requiring Maersk Company to deliver the goods to the buyer [from the auction]. On February 27, 2012, Maersk Company brought suit, requesting that Xen Shenzhen Branch and Xen Company 5 be ordered to jointly bear the fees, amounting to 8,026,425 [Indian] rupees (equivalent to RMB 1,029,554.51 calculated in accordance with the exchange rate on the day when the suit was brought), calculated from March 1, 2010, for the extended use of the containers. 6 1 The original text reads 蝉联深圳分公司, which is translated herein as Xen Shenzhen Branch. In the case name, this party is referred to as 上海蝉联携运物流有限公司深圳分公司, which is translated as The Shenzhen Branch of Shanghai Xen Freight Agency Ltd. For more information about the English translation of the company s name, see infra note 5. 2 The original text reads 马士基公司, which is translated herein as Maersk Company. In the case name, this party is referred to as A.P. 穆勒 - 马士基有限公司, which is translated as A.P. Møller - Mærsk A/S in accordance with the company s website, at http://www.maersk.com/en/the-maersk-group/aboutus#stream_2_ctl00_header. 3 The original text reads 收货人 ( receiver ), which, in the context of the carriage of goods, refers to entities that receive goods from carriers. The receiver of a shipment may or may not be the consignee ( 受貨人 ), which is the entity, shown on the bill of lading, to whom the shipment is consigned. See, e.g., JOHN W. DICKIE, REEDS 21ST CENTURY SHIP MANAGEMENT (Bloomsbury, 2014), at 213, http://books.google.com/books?isbn=1472900707. 4 The original text reads 印度孟买新港 ( Jawaharlal Nehru Port, Mumbai, India ). The customs authorities mentioned here likely refers to the Jawaharlal Nehru Custom House (http://www.jawaharcustoms.gov.in). For more information about this port and the Chinese translation of its name, see the port trust s official website, http://www.jnport.gov.in, and a record of China s global freight forwarding information center ( 中国的全球货代信息中心 ), at http://www.ufsoo.com/port/mumbai. 5 The original text reads 蝉联公司, which is translated herein as Xen Company. In the case name, this party is referred to as 上海蝉联携运物流有限公司, which is translated as Shanghai Xen Freight Agency Ltd. in accordance with the name found on a public record published by the China International Freight Forwarders Association, at http://www.cifa.org.cn/user/show.asp?cname=%c9%cf%ba%a3%b2%f5%c1%aa%d0%af %D4%CB%CE%EF%C1%F7%D3%D0%CF%DE%B9%AB%CB%BE. 6 The term 集装箱超期使用费 is translated herein literally as fees for the extended use of the containers. This type of fee is generally categorized as demurrage fee ( 滞港费 ) and detention fee ( 滞箱费 ). For more information, see, e.g., articles on the websites of two transportation and logistics companies, at http://www.hyun-
II. Results of the Adjudication This case was adjudicated in the first instance by the Guangzhou Maritime Court 7 and in the second instance by the High People s Court of Guangdong Province. 8 These courts of two [different] levels opined [as follows]. This case was a dispute over a contract for the carriage of goods by sea. The time limit for bringing this suit was one year, calculated from the date on which the obligee knew or should have known that [its] rights had been infringed. The cause of the infringement of Maersk Company s rights was that the containers provided by Maersk Company were occupied beyond the time period [stipulated in the contract]. The facts [giving rise to] the harm continued without interruption; only when the goods were auctioned off by customs [authorities] did the harm caused by the extended use of the containers cease and did the amount of fees [for this use] become fixed. Therefore, the time limit for Maersk Company to exercise [its] right to claim [compensation] should be calculated from February 28, 2011 when customs [authorities] at the Jawaharlal Nehru Port, Mumbai, India, issued [Maersk Company] a notice of the delivery of goods through February 27, 2012, when Maersk Company brought suit in the first-instance court. 9 [Thus,] the one-year time limit was not exceeded. Because no one picked up the goods, which resulted in the containers involved in the case being occupied for a long period of time, such that [they] could not be timely put into productive [use] for carriage, consignor Xen Shenzhen Branch should bear the liability for compensation for fees for the extended use of the containers in an amount not exceeding the cost of purchasing new containers. Therefore, [both the first-instance and second-instance courts] held that Xen Shenzhen Branch and Xen Company were to jointly pay Maersk Company RMB 150,000 as compensation for the loss of the fees for the extended use of the five containers involved in the case. Xen young.com/newsview.asp?id=98 and http://www.shiplilly.com/blog/understand-avoid-demurrage-detention. The context of this case suggests that the fees at issue were demurrage fees. 7 原告 A.P. 穆勒 - 马士基有限公司诉被告上海蝉联携运物流有限公司深圳分公司 上海蝉联携运物流有限公司海上货物运输合同纠纷一审民事判决书 (Plaintiff A.P. Møller - Mærsk A/S v. Defendants The Shenzhen Branch of Shanghai Xen Freight Agency Ltd. and Shanghai Xen Freight Agency Ltd., The First-Instance Civil Judgment of a Dispute over a Contract for the Carriage of Goods by Sea)(2012) 广海法初字第 329 号民事判决 ((2012) Guang Hai Fa Chu Zi No. 329 Civil Judgment), rendered by the Guangzhou Maritime Court on Oct. 16, 2013, full text available on the Stanford Law School China Guiding Cases Project s website, at https://cgc.law.stanford.edu/judgments/guangdong-2012-guang-hai-fa-chu-zi-329-civil-judgment. 8 The second-instance judgment has not been found and may have been excluded from publication. 9 According to the first-instance judgment, Maersk Company mailed, on February 27, 2012, its complaint ( 起诉状 ) to the Guangzhou Maritime Court, which received the document on March 1, 2012. The case was formally accepted and registered by the court on April 17, 2012. (2012) 广海法初字第 329 号民事判决 ((2012) Guang Hai Fa Chu Zi No. 329 Civil Judgment), supra note 7.
Shenzhen Branch and Xen Company applied to the Supreme People s Court for a retrial. 10 Supreme People s Court ruled to bring [the case] up for adjudication. 11 The The Supreme People s Court opined in the retrial[:] 12 after the goods involved in the case were delivered to the port of destination, the receiver designated by Xen Shenzhen Branch did not pick up the goods, resulting in the containers which the carrier Maersk Company provided for performing the contract for the carriage [of goods] being occupied for use for a long period of time and not being able to be put into regular operation. [This] constituted a breach of contract. For the losses [arising from] the breach of contract, which was caused by a delay in the performance of the obligation to return the containers, Maersk Company had the right to claim compensation from consignor Xen Shenzhen Branch for fees for the extended use of the containers, in accordance with the relationship [of these parties as stipulated in their] contract for the carriage of goods by sea. According to the Reply of the Supreme People s Court Concerning the Time Limit for a Carrier [to Exercise] Its Right to Claim Compensation from a Consignor, Receiver, or Holder of a Bill of Lading in Relation to a Carriage of Goods by Sea, 13 the time limit for [Maersk Company s] bringing suit on this claim was one year, which should be calculated from the date when Maersk Company knew or should have known that its rights had been infringed. 10 The original text reads 申请再审 ( applied [...] for a retrial ). Article 199 of the Civil Procedure Law of the People s Republic of China provides, inter alia, that a party who considers an effective judgment or ruling to be erroneous may apply to the court at the next higher level for a retrial. 中华人民共和国民事诉讼法 (Civil Procedure Law of the People s Republic of China), passed on, issued on, and effective as of Apr. 9, 1991, amended three times, most recently on June 27, 2017, effective as of July 1, 2017, http://www.npc.gov.cn/npc/xinwen/2017-06/29/content_2024892.htm. 11 The expression in the original text 提审 ( bring [a case] up [to an upper-level court] for adjudication ) refers to Article 13, Paragraph 2 of the Organic Law of the People s Courts of the People s Republic of China: if the Supreme People s Court finds an error in a judgment or ruling rendered by a lower-level court and the judgment or ruling has already come into effect, the Supreme People s Court has the authority to adjudicate the case itself or to direct the lower-level court to conduct a retrial. 中华人民共和国人民法院组织法 (Organic Law of the People s Courts of the People s Republic of China), passed on July 1, 1979, issued on July 5, 1979, effective as of Jan. 1, 1980, amended three times, most recently on Oct. 31, 2006, effective as of July 1, 2007, http://www.npc.gov.cn/wxzl/gongbao/2006-12/05/content_5354938.htm. 12 See 上海蝉联携运物流有限公司深圳分公司 上海蝉联携运物流有限公司等海上 通海水域货物运输合同纠纷申请再审民事判决书 (The Shenzhen Branch of Shanghai Xen Freight Agency Ltd., Shanghai Xen Freight Agency Ltd., et al., A Civil Judgment on an Application for Retrial of a Dispute over a Contract for the Carriage of Goods by Sea or Through Water Channels) (2015) 民提字第 119 号民事判决 ((2015) Min Ti Zi No. 119 Civil Judgment), rendered by the Supreme People s Court on Nov. 26, 2015, full text available on the Stanford Law School China Guiding Cases Project s website, at https://cgc.law.stanford.edu/judgments/spc-2015-min-ti-zi- 119-civil-judgment. 13 最高人民法院关于承运人就海上货物运输向托运人 收货人或提单持有人要求赔偿的请求权时效期间的批复 (Reply of the Supreme People s Court Concerning the Time Limit for a Carrier to [Exercise] Its Right to Claim Compensation from a Consignor, Receiver, or Holder of a Bill of Lading in Relation to a Carriage of Goods by Sea), passed by the Adjudication Committee of the Supreme People s Court on July 11, 1997, issued on Aug. 5, 1997, effective as of Aug. 7, 1997, http://www.pkulaw.cn/fulltext_form.aspx?gid=18619&db=chl.
According to [facts] confirmed by all of the parties, consignor Xen Shenzhen Branch should have paid Maersk Company fees for the extended use of the containers beginning on March 1, 2010. [At that point,] Maersk Company s right to claim payment of fees for the extended use of the containers arose, i.e., from March 1, 2010, Maersk Company knew or should have known that its rights had been infringed. On March 30[, 2010,] Xen Shenzhen Branch pledged, via an email message, to the consignor that [it, Xen Shenzhen Branch,] would bear the fees for the extended use of the containers. [This pledge] constituted a circumstance discontinuing the time limit, as provided for in Article 267 of the Maritime Law of the People s Republic of China. 14 Therefore, the time limit [at issue] in this case should be calculated from March 30, 2010. Maersk Company s bringing suit on February 27, 2012, exceeded the one-year time limit for bringing suit, and [the company] lost the right to prevail on that claim. The Supreme People s Court ruled to revoke the first-instance and second-instance judgments and to reject Maersk Company s litigation requests. III. Typical Significance Following the deceleration of growth in global trade, the shipping market has also experienced a sustained downturn, resulting in a large number of maritime disputes. The types of these disputes range from traditional disputes over damaged goods to disputes over insurance [for the carriage of goods] by sea, etc., and [these disputes] spread across the upstream and downstream chains [in this industry]. Among [these disputes], disputes over fees for extended use of containers have accounted for an increasing percentage of maritime cases in recent years. Problems emerging from [these disputes] have continued to increase and [these problems] include the defining of legal relationships, the standards for calculating [container] detention fees, the time from which the time limit for bringing suit [should be] calculated, etc. The standards [used] in China s domestic judicial practice have not been unified and international opinions about the treatment of such disputes vary, giving rise to a lack of rules for relevant shipping enterprises to follow in [their] practical operation. By bringing up this case [to itself] for adjudication 15 and by reversing the [first-instance and second-instance] judgments, the Supreme People s Court has made a clear determination regarding the nature of disputes over contracts for the carriage of goods by sea and fees for extended use of containers and [a determination regarding] the issue of the time limit for bringing suit. 14 The provision provides, inter alia, that the period for calculating the time limit shall be discontinued by an agreement of the party against whom compensation is claimed to fulfill its obligation ( 时效因 [...] 被请求人同意履行义务而中断 ) and that the period for calculating the time limit shall be calculated anew from the time of discontinuance ( 自中断时起 [...] 重新计算 ). 中华人民共和国海商法 (Maritime Law of the People s Republic of China), passed and issued on Nov. 7, 1992, effective as of July 1, 1993, http://www.npc.gov.cn/wxzl/wxzl/2000-12/05/content_4575.htm. 15 The original text reads 提审 ( bring [a case] up [to an upper-level court] for adjudication ). See supra note 11.
The judgment in this case is a maritime judgment involving a foreign [party]. It has aroused widespread concerns and a high degree of attention from shipping enterprises inside and outside China. While the results of the adjudication protect, in accordance with law, a shipping enterprise s right to claim compensation for fees for extended use of containers, they also clarify how shipping enterprises should, within the statutory time limit for bringing suit, timely assert [their] rights against consignors or receivers. [This case] provides legal support for shipping enterprises inside and outside China to actively take legal action to effectively safeguard their legal rights and interests. [This case] also formulates a uniform standard for China s maritime judicial practice. China is a maritime power, a shipping power, and a trade power, with a wide range of maritime strategic interests. The Belt and Road strategy is an important measure in building [this] strong maritime power. A fair and highly effective judiciary is an essential element in safeguarding the healthy economic environment of the Belt and Road strategy. The handling of this case fully brings to bear the functional role of maritime adjudication in providing judicial safeguards for the Belt and Road construction. [The adjudication of this case also] equally protects, in accordance with law, the legal rights and interests of parties inside and outside China, enhancing the international credibility of China s maritime adjudication and fostering a good ruleof-law environment for the Belt and Road construction.