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The legal risk and risk of unmanned delivery in port of dest

日期:2018-02-23 浏览:
Recently, there are many cases of unpickled goods in the port of destination. As a long-term lawyer engaged in shipping agency, it is necessary for us to make a simple combing of such cases, so that we can have a clear understanding of freight forwarding enterprises or related enterprises.
First of all, nondelivery is more common in international freight forwarding dispute case, through our analysis of the case, that nondelivery has the following main reasons: 1, after the goods arrive at the destination, because the cargo delays, missed the best opportunity of trading products, the consignee can not obtain better economic benefits. Choose 2, according to the agreed jettison; the consignee shall collect fresh products, but the carrier transport goods without good management, and lead to deterioration or damage of goods when the goods arrive at the destination, which has lost business value, the consignee will choose to jettison; 3, and is due to the influence of the international situation and the market environment the international situation is constantly changing, the port of destination port, national policy changes, or the consignee to receive the goods are unprofitable and other circumstances, may There is a phenomenon of unmanned delivery in the port of destination. 4, is the force majeure factors, such as the port of destination port of destination coup, natural disasters, a large number of goods can not be unloaded, congestion, the consignee can not delivery, the seller jettison etc.. Because of the buyer's enterprise or the buyer's country port policy cause. Of course, also due to the reasons for nondelivery, if the seller intentionally does not provide true information, the export of foreign garbage, the buyer will certainly recognize jettison etc..
Based on the above, some reasons I can analyze at present are that no one will pick up the goods at the port of destination, which will cause losses. Especially when the freight arrives, the carrier will have the following losses.
1 freight:
The freight is the carrier's or charterer's Charterers who use the ship to deliver the goods from the port of shipment to the port of destination, and the other party's payment is paid by the other party of the goods transportation contract. Usually, the freight forwarding company and the shipper sign the "freight forwarding contract". The freight forwarder acts as the agent for the Charter, the booking, the export and the customs clearance. At this time the freight forwarder is responsible for the carrier, and he has the right to charge the freight. However, when the buyer or the seller or the consignee jettison jettison, will refuse to pay the freight. The carrier will not be able to charge the freight, and the freight forwarder will not be able to charge the cost. This is the risk that a freight forwarder often meets. So who should take this part of the cost to recover the loss of the carrier when the destination is unmanned? Is it a claim to the shipper or to the consignee? If the carrier claims to the shipper, the consignor will propose that I am a contract signed with the freight forwarding company, which is not directly related to the carrier, but the consignee will put forward for various reasons that the goods have not arrived at the port of destination, or fail to meet the contract requirements, and cannot pay the freight.
For this situation, we can make the following analysis: according to the sixty-ninth clause and second clause of the People's Republic of China maritime code, "the shipper and the carrier can agree that the freight is paid by the consignee, but this agreement should be stated in the transport document." At this point, we understand that the freight is paid by the consignee by the two parties, and the transport fee is paid by the consignee, and the shipper does not have to pay the freight. However, when we meet the port of destination, we should combine the sixty-ninth paragraph 1 of the maritime code, that is, "the shipper should pay the freight to the carrier according to the contract". That is to say the shipper may have agreed in the contract to pay the freight, the situation at that time, only freight forwarding enterprises is one of the agent's identity, the rights and obligations of the contract is for the shipper and carrier, and the "contract law" article sixty-fifth of the sixty-fifth agreed upon by the parties to fulfill their obligations to the creditors of third people third people do not perform the debt or non-conforming performance, the obligor shall bear the liability for breach of contract to the creditor." The rule is to understand, that is to say, when the port of destination does not pick up the goods, when the consignee refuses to fulfill the obligation to pay the freight, it means the third party fails to fulfill the obligation, so the shipper as a debtor should bear the liability for breach of contract. This situation is only limited to the agency of the freight forwarding company, because the freight forwarding business involves a complex legal relationship. If the freight forwarding company has already undertaken the carrier's obligations at this time, it will not be listed here.
1 overdue fee for containers:
Normally, when the goods arrive at the port of destination, the consignee shall pick up the heavy container and unload the goods, and return the empty container to the carrier on time, and pay the cost of the container. If the goods at the port of destination, the consignee fails to take delivery of the goods, or suddenly failing to jettison, the period will be returned to the container carrier, the container became a temporary warehouse for imported goods, will produce the extended use of cost. Who should pay for this part of the cost? As a freight forwarding company should undertake this part of the cost, we also need to determine the position according to the freight forwarding, freight forwarding company for 1) on the bill of lading shipper; 2) a booking agreement between the carrier and the freight booking, booking freight agreement for the shipper; 3) to the letter of guarantee issued by the carrier to the generation of goods his own name, guarantee clear freight and other charges by freight forwarder bear; 4) in the bill of lading not shown as shipper. In the first two cases, as a consignor, it should be the person who entrust the carrier to book the cabin, and also the person who rents the container. It should pay the cost of the container on time. If it is overdue, it should also be overpaid by the freight forwarding company. However, in the fourth case, the freight forwarding company is only the agent, not the shipper, but the contractual relationship only constrains the trustor and the trustee, and the freight forwarding company certainly has no responsibility. Of course, because of the complexity of the freight forwarding industry, there is a case of entrustment, and it becomes more complicated to bear the corresponding cost. Of course, we believe that the contract can be agreed in advance in order to prevent the situation from being difficult to handle. However, because the terms of the contract are relatively cured, it can not cover all the cases, and when the corresponding situation occurs, it should be analyzed in a timely manner to solve it.
The storage fee:
This part refers to the cost of goods stored in the warehouse, the port yard, in addition to the provisions of the period of free storage, according to the time of storage, cargo volume, weight and the provisions of the standard rates, the fees charged to the owner. When the consignee jettison, namely nondelivery, the cost becomes the carrier loss. The carrier has the right to charge the shipper according to the agreement of the contract.
Other expenses
Other expenses include possible storage fees, storage fees, garbage fees, these costs are related to the processing of goods at the port of destination, no one under the condition of delivery, but only the first carrier of storing goods, and subsequent processing after a certain period of time, and pay the relevant expenses incurred. The claim for this part of the loss can also be made to the consignee or to the shipper, like the other previous costs.
Based on the analysis and sorting out of the above points, we believe that the fact of no pickup at the port of destination is unavoidable, but what we can do is to know who can advocate when the goods appear to be unpickled, and what requests can be made timely. And at the time of signing the contract in terms of the contract to be constrained to avoid taking delivery, the goods of long-term retention of ports, and greater losses, and should know as the legal right of the carrier: "maritime law" article eighty-seventh, article eighty-eight: "the necessary expenses shall be paid to the carrier freight, general average sharing, demurrage and advance the goods by the carrier and other charges to be paid to the carrier have not been paid in full, and failed to provide adequate security, the carrier can be retained the goods within reasonable limits. The goods held by the carrier are not extracted from the ship sixty days after the arrival of the port of discharge. The carrier can apply for a court decision and auction. If the goods are perishable or the storage cost of the goods may exceed their value, the carrier can apply for auction ahead of schedule. The proceeds from auction shall be used for clearing up the cost and freight of holding and auctioning goods, as well as other expenses that should be paid to the carrier. If the amount is insufficient, the carrier shall have the right to recover the goods from the shipper.