Details
of the case
The plaintiff, an import and export company A signed a sales
contract with a foreign company S in September, 2001, in the
contract A agreed to provide S an array of knitted skirts valued
$7564 and the terms of payment is T/T. The cargo was handed
over by plaintiff A to the defendant, a container transporting
company and was shipped from Shanghai to Melbourne. In October,
the defendant issued a bill of lading showing the shipper is
the plaintiff and the consignee is "to order" and
marked three originals bill of lading. In November, customs
clearance and devanning at the destination. In December, the
plaintiff was advised that the cargo had been picked up by company
S, when the plaintiff asked the defendant about the cargo through
their agent. As company S had not paid the plaintiff all the
time, the plaintiff pleaded cargo release without bill of lading
for claiming the defendant compensated the cargo loss valued
$7564 and the loss of tax rebateŁ¬but the plaintiff offered the
court only one copy of original bill of lading.
Judgment
After hearing this case, the court considered the sea freight
contract signed by the two sides established. The foreign
agent of the defendant admitted that the cargo had released
to company S and the defendant also confirmed the container
had been devanned, so the fact of releasing cargo without
bill of lading established. But the court held that the plaintiff
only offered one copy of original bill of lading, which existed
right flawŁ¬that is the plaintiff didn’t have a complete and
exclusive property right to the cargo under the involved bill
of lading. Meanwhile, rights under the sea freight contract
can be transferred with the bill of lading and the court can
not determine that the plaintiff was also a party of the contract,
so they lost their lawsuit.
Analysis
According to the shipping practices, the holder of the bill
of lading can claim to pick up the cargo with one copy of
original bill of lading after it arrives the destination,
when the carrier receives this one copy of original bill of
lading, the other two copies are invalid automatically. The
carrier has the right to take back full set of original bills
of lading while claimed to deliver the goods out of destination
port. In this case, quoting the fact of releasing cargo, the
plaintiff should provide further evidence to prove the defendant
had handed over the goods to the non-bill of lading holder
under the circumstances of not taking back the original bill
of lading. But the plaintiff held only one set of original
bill of lading and claimed the right out of destination which
can not remove the possibility of other bill of lading holders
and picking up goods with original bills of lading, so it
would obviously not be sustained to ask for compensation under
the circumstances.
Remind
In the practice of sea freight, the phenomenon of losing bill
of lading or out of control often happens, the parties should
ask for the marine court to declare the invalidation of bill
of lading or other vouchers through public notice according
to Maritime Procedure Law.
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