Original: Lawyer Cao wending

Notes of lawyers handling cases

Disputes during the carrier's liability period, determination of the scope of compensation expenses, determination of the value of cargo damage, and cargo damage caused by abnormal refrigeration of refrigerated containers are common phenomena in cargo damage disputes of refrigerated container transportation. It is very important to identify the liability period and prove the value of goods damage in the claim settlement operation. Once the period of liability is misjudged, there are many cases of shipowners refusing to pay compensation.

Summary of case

Plaintiff: l Fruit Industry Co., Ltd. (hereinafter referred to as the "owner")

Litigation agent: Lawyer Cao wending

Defendant: s Shipping Co., Ltd. (hereinafter referred to as "the owner")

In October 2018, the cargo owner exported a batch of fruits, and on November 6, he returned the container to the terminal for customs declaration and departure. However, due to insufficient refrigerant in the freezer, the refrigeration was abnormal, resulting in the deterioration of the goods before shipment. On November 13, the container was put forward to the wharf and submitted to the third-party inspection agency approved by the cargo owner and the ship owner for inspection. The cargo damage rate was as high as 67.33%. The cargo owner claimed nearly 180000 US dollars for cargo damage and garbage disposal fees from the ship owner according to the cargo damage rate. The ship owner refused to pay compensation on the ground that the cargo was not loaded on the ship, so the cargo owner sued it to the Guangzhou Maritime Court.

The focus of pleading

1. Can the shipowner be exempted from liability for damage to the goods before shipment?

2. Does the garbage disposal fee and trailer fee belong to the scope of cargo damage compensation?

3. Is it necessary to provide "cargo damage identification report" when claiming cargo damage to the ship owner?

4. If the refrigeration of the freezer is abnormal, can it be determined that the ship owner has failed to fulfill the duty of careful cargo management?

Court decision

The shipowner agrees to compensate the cargo owner, settle the case, and the court decides to withdraw the lawsuit. (the ruling is attached at the end of the text)

Comments on Lawyers

The above is the case of frozen container freight contract. The disputes caused by cargo damage due to abnormal refrigeration of frozen containers. In combination with the handling experience of a large number of similar cases, we comment on this case as follows:

(I) the period of responsibility of the shipowner is different from that of bulk cargo transportation.

The period of responsibility of the carrier is used to specify the start and end time of the carrier's responsibility for the carriage of goods. In this case, the ship owner signed and issued the original bill of lading and agreed that the mode of transportation was FCL / FCL, that is, the goods were transported by full container delivery. According to the first paragraph of Article 46 of the maritime code, "the period of responsibility of the carrier for the goods shipped in containers refers to the entire period from the time when the goods are received at the loading port to the time when the goods are delivered at the unloading port, during which the goods are under the control of the carrier." After the cargo owner transports the frozen container to Shekou Wharf in Shenzhen, he will be responsible for the frozen container from the time when the ship owner receives the container. If the frozen container involved in the case is rotten due to abnormal refrigeration, if the ship owner cannot prove that the frozen container has abnormal refrigeration before delivery and there is no other exemption, he will bear the liability for cargo damage compensation. In addition, if the case belongs to bulk cargo transportation, according to the second paragraph of Article 46 of the maritime law, "the period of responsibility of the carrier for non containerized goods refers to the entire period from the time when the goods are loaded onto the ship to the time when the goods are unloaded, and the goods are under the control of the carrier." And "the provisions of the preceding paragraph shall not affect any agreement reached by the carrier on the responsibilities of non containerized goods before loading and after unloading." Unless otherwise agreed, the shipowner shall not be liable for any damage to the goods not loaded on the ship.

(II) whether the cargo owner can claim other handling costs caused by cargo damage is controversial.

In this case, the owner of the goods could not be shipped for export due to the deterioration of the fruit, which resulted in the identification fee, garbage disposal fee and other expenses caused by the damage of the goods. There is a dispute as to whether such expenses belong to the scope of compensation of the carrier. In judicial practice, one of the viewpoints is that according to Article 55 of the maritime law, "the amount of compensation for damage to the goods shall be calculated according to the difference between the actual value of the goods before and after the damage or the repair cost of the goods." The expenses such as cargo damage handling fees do not belong to the scope of cargo damage compensation specified by law; Another view is that the literal meaning of Article 55 of the maritime law cannot be simply understood. If it belongs to the expenses incurred in determining the value of the cargo damage and handling the cargo damage, and the parties can have sufficient evidence to prove that such expenses are necessary expenses incurred due to the cargo damage, then the expenses have a clear causal relationship with the carrier's breach of contract, then it should be recognized that such expenses are borne by the fault carrier. In order to make up for the cargo damage as soon as possible and reduce the lawsuit burden, the cargo owner of this case made appropriate concessions to the garbage disposal fee, finally reached a settlement with the ship owner and quickly obtained compensation.

(III) cargo damage identification can reduce the burden of proof of the cargo owner

Once cargo damage occurs, there are usually many disputes between cargo owners and shipowners on the fact of cargo damage and the amount of compensation for cargo damage. When the cargo owner claims against the ship owner, he shall bear the burden of proving the cargo damage. As a strong party, the ship owner generally requires the cargo owner to provide the cargo damage identification report, otherwise he does not agree with the cargo damage compensation. In practice, cargo damage identification is not the necessary and only way to prove cargo damage. It can also prove cargo damage through presumption of cargo damage and the owner's self admission of loss. However, relatively speaking, cargo damage identification involves a third-party notary institution, which is relatively convincing. In addition, when the identity of the cargo owner is different from that of the ship owner, the cargo owner shall handle the cargo damage identification in time, and the reported cargo damage rate can be used as a reference for calculating the compensation amount, which is more conducive to claiming the cargo damage from the ship owner. In this case, the ship owner discovered the abnormality of the frozen container before shipment and informed the cargo owner. After putting forward the container, the cargo owner shall submit the cargo to the third party organization recognized by both parties for inspection and issue the inspection report. Finally, the owner also recognized the fact of cargo damage. To a certain extent, the cargo damage dispute between the cargo owner and the ship owner is reduced, and the burden of proof of the cargo loss value of the cargo owner is reduced. It can be seen that the importance of the cargo damage identification report.

(IV) the shipowner shall bear the responsibility for dereliction of duty of "prudent cargo management"

Freezer / freezer is a special functional container, which is generally used for the storage and transportation of fresh and corrosive goods. If the carrier provides refrigerated containers, it shall carefully inspect the refrigerated containers, and the obligation of fitness for goods of refrigerated containers shall begin before or at the time of providing. Its obligation of "careful management of goods" shall at least include: 1. Ensure that the refrigerated equipment is qualified and within the inspection validity period before the end of transportation; 2. Take appropriate measures to check the refrigeration equipment; 3. In case of any problem, appropriate measures shall be taken for maintenance, so that the refrigerated container is suitable for and can safely receive, transport and keep the goods. In this case, the cargo was delivered to the ship owner, and the abnormal refrigeration problem was found during the ship owner's charge. The ship owner should repair and keep the cargo in time. Although the shipowner claims that the cargo owner has adjusted the temperature of the frozen container, if the shipowner fails to prove that the refrigeration abnormality of the frozen container occurred before delivery and that the refrigeration abnormality is related to the temperature adjustment, he shall bear the adverse consequences of failure to prove. Therefore, the ship owner's cargo management behavior in this case has a causal relationship with the cargo damage, and he shall be liable for compensation for the cargo damage.

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