27/5000 B/L lost was awarded compensation of 3.16 million, how to lose: how to solve and deal with?
A bill of lading is a document certifying that the contract of carriage of goods by sea and that the goods have been received or loaded by the carrier, and that the carrier warrants that the goods are delivered thereagainst. Only by bill of lading can goods be extracted, so in international trade, especially under the FOB, CFR conditions, bill of lading is of great significance, is considered as the representative and symbol of goods.
However, one bill of lading can only be issued for one set of goods, and the bill of lading is also transferable document, so once the bill of lading is lost, it will have a great impact on the development of foreign trade business, which may lead to the seller's inability to settle foreign exchange and the buyer's inability to pick up the goods. With the continuous growth of China's import and export trade, this kind of loss has been occurring frequently in foreign trade companies recently.
So how to deal with the loss of b/L?
Generally, the bill of lading is lost in the following cases:
1. Lost under the control of the exporter.
2. The exporter loses the documents to the issuing bank after sending them to the bank.
3. The issuing bank loses the documents after handing them over to the Courier company.
4. Lost after delivery to negotiating bank by Courier company.
5. The negotiating bank loses it after delivery to the consignee.
In the case of articles 1 and 5, the exporter and importer shall be liable respectively;
In cases 2 and 4, the issuing or negotiating bank shall be held responsible;
The problem is that losses often occur in a third category, and postal authorities have only a very limited liability under current postal regulations.
According to incoterms 2000, the seller must present the shipping documents to the buyer on CIF, CFR and FOB terms without delay and at its own expense. It follows from this that the risk of document loss should generally be borne by the seller.
To secure their rights, the carrier requires the consignee to guarantee the delivery of the goods in the absence of the original bill of lading and the bank to provide the guarantee.
Bill of lading in different circumstances of the loss, the responsibility for each aspect is also different, but this is later, after the loss of the bill of lading, first or to solve the following measures to reduce the possibility of risk.
1. Timely notify relevant shipping companies and their agents. In such cases, the shipping company and its freight forwarding agent are under the obligation of prudence, and should no longer release the goods simply because the holder of the bill of lading has the original bill of lading, but should require the drawers to provide sufficient evidence that they obtained the bill of lading in good faith. For example, is the endorsement continuous? Does it meet the requirements? Has reasonable consideration been paid? The carrier may also discharge the liability for the goods under the bill of lading by placing them in escrow through legal procedures.
2. Apply for public notice to the court in time. One can ensure that the rights under the bill of lading is not infringed; Two can solve the problem of margin long - term hysteresis pressure. Because once the court decides to accept the public notice, the transfer of bill rights within the period is invalid. The legal cost of the procedure of publicizing the claim is lower, the lawyer's fee is also lower, the expiration of the claim period (generally 60 days) can apply for the court to make an extermination judgment.
3. Generally speaking, the loss of documents should not affect the port of discharge, because the consignee is obliged to receive the goods and cannot refuse to unload accordingly; Likewise, the carrier shall not refuse to discharge the goods on the ground that the consignee does not have the original bill of lading, although he has the right to refuse to release the goods.
4. What responsibilities should the postal express company bear? The current regulations give it almost exemption from liability; Whether can pass insuring postal express risk insurance to pass on loss, current insurance company seems if did not carry out this insurance.
5, the bank issued a letter of guarantee as long as the wording of the letter of guarantee is specific and comprehensive, there is generally no risk. If it involves a large amount of guarantee letter, it is better to ask the legal adviser to check it, because there are indeed many precedents of invalid bank guarantee letter in practice.
If the bill of lading is lost after the shipper's settlement of exchange, the ownership of the goods has been transferred to the holder of the good faith Bill of lading, so generally there is no need to issue a new bill of lading, the carrier's obligation is to deliver the goods to the good faith bill of lading holders. Treatment should also vary according to different circumstances:
Under a straight bill of lading: the carrier may deliver the goods to the consignee on the straight bill of lading upon receipt of the consignee's letter of guarantee and the consignor's written guarantee to deliver the goods to the consignee.
Under the direction of bill of lading: if the agent at the port of discharge has received the consignee's request that the consignee be unable to take delivery of this bill of lading due to the loss of the Bill of lading, the consignee shall be required to produce the original/photocopy of the bill of lading issued by the original carrier, commercial invoice, commercial contract, packing list and other documents to verify whether the consignee is the consignee. The agent at the port of discharge shall at the same time require the consignee to provide a letter of guarantee in a standard form issued by a first-class bank and shall at the same time ask the agent at the loading port to contact the shipper on the Bill of lading and obtain the shipper's written consent to release the goods to the shipper in such case.
In bearer bill of lading: the specific practice refers to the directive bill of lading. If the consignee returns the full set of original bill of lading, the guarantee can be returned to the consignee. If the consignee cannot return the full set of the original bill of lading, the guarantee shall in principle be retained indefinitely. If the consignee requests for return, the agent at the port of discharge shall retain a minimum period in accordance with the laws of the host country. Domestic ports are recommended to be retained for 6 years. After the bill of lading is lost, in any case, contact the shipping company immediately to control the goods. In this way, the loss can be reduced without damaging the rights and interests of the receiver and shipper.
When shipping documents are lost in express delivery, the consignee is often unable to pick up the goods at the port of destination by the original bill of lading. In practice, the consignee usually picks up the goods by the copy bill of lading. Or a new set of bill of lading shall be signed by the carrier and used by the supplier to pick up the goods and settle the exchange, or telex release shall be authorized by the exporter; However, in the above three cases, the carrier usually requires the shipper to provide reliable guarantee.
At present, shipping companies often require exporters and their bank to jointly provide a guarantee, guarantee period for one year, three years, six years ranging. Generally, the guarantee issued by the bank requires the exporter to pay the deposit. If the amount is huge, the huge capital will be kept unchanged for three to six years, which will bring great pressure to the exporter. If the bill of lading is obtained in good faith by a third party, the exporter will face the consequence of both goods and money being empty.
The following case express company due to the loss of the bill of lading was awarded compensation of 3.16 million!
In December 2009, Guohua Company (shipper) shipped the goods to Greece in accordance with the sales contract entered into with Greece VA Company (consignee).
In January 2010, Guohua Company entrusted Jimo ICBC to handle payment collection from VA Company of Greece, and Guohua Company designated this collection business to be handled in accordance with the Uniform Rules for Collection. The amount of collection is us $381,888.51. The collection matters also include the documents attached to this collection
In January 2010, Qingdao branch of icbc to fill in the waybill and the file letter of sealing, is responsible for sending by DHL shandong company collection, including Marine bill of lading documents under one of the bills of lading stated by the recipient and the receipt address are guohua company name and address of the specified, bills of lading in the "details of shipment items" column to fill in for the "file".
The rights and obligations of the sender and the carrier in this express service, the liability for breach of contract and the liability of the carrier, etc., are determined by the DHL Transport Service Contract between China and Foreign Countries signed by ICBC Qingdao Branch and DHL Shandong Company on January 1, 2010 and the corresponding terms in the TERMS and Conditions of DHL Transport. Jimo ICBC will pay 148.48 yuan for the express delivery service.
According to the inquiry records provided by DHL Shandong, the express mail arrived in Athens, Greece on February 2, 2010. On the same day, the third-party delivery sent by DHL could not get the receipt result.
On February 3, the express mail was sent and signed for receipt.
On April 1, 2010, THE Beijing branch of DHL-SINOtrans International Air Express Co., Ltd. reported the dispatch of the express to ICBC Qingdao Branch in writing, stating that the express was delivered to DHL-SINOtrans for shipment from China to Greece on January 29, 2010, Beijing time.
Greek DHL company (DHL) feedback to express the actual recipient Mr. GREMOTSIS, called the Greek DHL company request to change the delivery address, after get the customer's requirements, the Greek DHL delivery agent in accordance with the requirements of the customers will express delivery to new address on February 3, through the investigation to understand local Greek, actual recipient Mr. GREMOTSIS provide new address for a store (shop name is: For example, the delivery agent will deliver the item directly to this store, but the store is closed, the sign-in is not available and the item cannot be retrieved.
At the end of 2010, Guohua Took Jimo INDUSTRIAL and Commercial Bank of China as the defendant and DUNhao Shandong Company as the third party to Sue the Qingdao Intermediate People's Court.
Accordingly, this case final judgment decides, jimo industrial and Commercial Bank of China compensates RMB 2607496 yuan and interest to Guohua company. During the execution of this case, through the court presided over, Jimo ICBC and Guohua Company reached an execution settlement, and Icbc actually paid GUOhua Company RMB 3153,708.63.
The first trial judge
The Qingdao Intermediate People's Court of the first instance held that: according to the above agreement of the contract, the express goods transported by DHL Shandong company in this case should be delivered to the address indicated on the surface of the express waybill. It is reported that the behavior of DHL's Greek agent is in line with the industry's usual operating practices, and its change of delivery address does not constitute a breach of contract.
Dunhao Shandong also failed to demonstrate that its agents in Greece took reasonable and prudent steps to verify the identity of Mr. GREMOTSIS after receiving the call. At the same time, its Greek agent did not verify whether there is an entrustment and authorization relationship between the actual delivery address and the consignee as stated in the express waybill when it arrives at the actual delivery address.
The act of delivery complies with industry practice, and even if the Courier industry does have such practice, such practice should not be recognized and protected by law because it violates the law that the parties to the contract should perform their contractual obligations in a reasonable, prudent and good faith and may cause significant losses to the sender.
To sum up, THE wrong investment of DHL Shandong company in the delivery process of express mail has constituted a breach of contract, and it shall bear the corresponding liability for breach of contract to JIMO ICBC in accordance with the law and the contract.
About the second focal point, according to the provisions of article one hundred and thirteen of the our country "contract law", the parties to a contract breach, a party, thereby causing loss to the other party entrusted agent of cieme icbc icbc branch in Qingdao during the express mail delivery to express was wrong did not inform DHL express the nature of the company in shandong, the DHL company in shandong under no obligation to review the express mail to send documents to contents, value, practice, DHL company shandong also didn't have a chance to understand the contents of the documents, value, and the waybill to send the goods only expressed as "file".
If the bank considers the documents or goods to be of high or very important value, it shall and has the opportunity to give a good faith notice or presentation to the express carrier, and THE ICBC and its trustee, ICBC Qingdao Branch, fail to perform the obligation of such notice, which is the fault of ICBC in the process of performing the transport service contract.
Transportation service contract according to the case, the case of "transport services" refers to the DHL company in shandong Qingdao branch of icbc provide express service, therefore, express mail delivery process should also be included in the transportation process, due to express wrong default liability to pay compensation, the amount of also shall be punished according to the stipulations of the contract.
First instance judgment: DHL shall not be primarily responsible for:
1. Sinotrans DHL International Air Express Co., LTD. Shandong Branch shall repay the express freight of RMB 148.48 to industrial and Commercial Bank of China Co., LTD. Jimo Sub-branch.
2. Sino-foreign DHL International Air Express Co., LTD. 's Shandong Branch compensated the plaintiff industrial and Commercial Bank of China LTD.' s Jimo Branch for the loss of us $100.
Judge of the second instance: DHL compensation of 3.16 million!
Ink icbc defy the first-instance judgment, appeal, the appellant as a professional Courier companies, after the entrusted party, should be in strict accordance with the contract and the express industry code of conduct, will express according to specify the address of the security, timely delivered to the recipient, but of which the appellant was in violation of the basic norms and contract, express delivery industry directly to express with the above documents to the consignee, leading to withdraw the goods by the consignee, involved caused loss payment to shipper.
According to the provisions of Article 53 of The Contract Law of China and paragraph 3 of Article 47 of the Postal Law of China, the mis-investment is an intentional or gross negligent act, and it does not enjoy the right of exemption from liability and limitation of liability. In January 2009, DHL's Weihai branch compensated Shirong for all the loss of payment for goods because it wrongly invested the documents collected by Bank of China's Weihai Branch.
"Not doing as agreed" is at best a breach of contract, not necessarily an "intentional breach". In this case, although the appellee did not check the identity of the addressee during the delivery of the express mail, which constituted a certain fault, the fault obviously did not constitute "willfulness".
In this case, however, not only did the Appellant fail to disclose the value of the documents sent, nor did the Appellant take out any insurance or insurance, there was no possibility of foreseeing the amount of damages the Appellant was seeking. Therefore, the judgment of the first instance is absolutely correct in finding that the amount of the claim of the appellant is obviously greater than that reasonably foreseen by the appellee.
According to the second instance of Shandong High Court:
DHL Shandong said the Greek company changed the delivery address of the express mail in response to a telephone notification request from a Mr. GREMOTSIS, but provided no evidence of the call or the content of the call.
When DHL (Greece) delivers the express to VA (Greece), the consignee, it not only knows the content and value of various documents in the express, but also can foresee the possible losses caused by the delivery of the bill of lading and bank collection voucher to VA (Greece) which is not the collecting bank.
As a result, the original court ruled that DHL company in shandong in the process of express delivery, to the express mail goods, the value of the perverse, with DHL company in shandong due to wrong to express default not possible losses, citing the highest limited liability, the relevant provisions of the ordered the appellee improper limitation of liability, should be corrected.
Shandong High Court judgment of the second Instance:
I. The first paragraph of Civil Judgment No. 59 of Qingmin Sichu Zi (2013) of Qingdao Intermediate People's Court of Shandong Province shall be annulled;
The second sentence of civil judgment of Qingdao Intermediate People's Court of Shandong Province (2013) Qingmin Sichu No. 59 is: The Appired DHL-SINOair Express Co., LTD. Shandong Branch shall compensate the Appired Industrial and Commercial Bank of China Co., LTD. Jimo Branch RMB 3164,027.63 yuan and interest.
RMB short - term substantial appreciation! Should exchange be settled now? Then the exchange rate moves...