How much do you know about cross-border e-commerce shipping risks?

After the goods crossed the ocean and arrived at the destination port, no one took delivery, which caused the container to stay in Hong Kong for a long time and the cost was high. Domestic shipyards accept contracts with unfavorable formats, which leads to arbitration failure; With the deepening of internationalization and globalization of marine economy, cross-border electronic commerce is booming, and various legal risks hidden in international shipping trade have surfaced. Recently, Ningbo Maritime Court issued the White Paper on the Trial Status of Foreign-related Cases involving Hong Kong, Macao and Taiwan to teach you to guard against international shipping risks.

No one at the port of destination asked for demurrage exceeding 200,000.

On June 20 13, Zhejiang Cixi Lizhuo Electric Appliance Company wanted to export a batch of electric irons, and entrusted Zhejiang Sinotrans Ningbo Mingzhou Branch (hereinafter referred to as Sinotrans Mingzhou Branch) to book shipping space with Maersk Shipping Company.

Maersk's bill of lading shows that the shipper is Li Zhuo Electric, the consignee is Fage Company, the loading port is Ningbo, the unloading port is Barcelona, and the 1 40 foot container is paying the freight.

In June of the same year165438+1October 19, the goods arrived at the destination port for unloading, but Fage delayed the delivery of the goods due to bankruptcy, resulting in high demurrage charges for containers at the destination port.

According to the fee standard published by Maersk on the website, as of 20 14129 October, the demurrage fee for a 40-foot container was 30 104 Euro (calculated at the current exchange rate of1:76,474, equivalent to more than RMB 200,000).

Maersk filed a lawsuit in Ningbo Maritime Court, demanding that Li Zhuo and other defendants pay demurrage and freight and other related expenses.

The Ningbo Maritime Court ruled that after the goods involved arrived in Hong Kong, when Li Zhuo Electric Company applied for bankruptcy protection in early February of the same year, it confirmed that it knew that the consignee Fage Company could not take delivery of the goods. Although he immediately asked the plaintiff about the return of the goods and the cost, he didn't get an answer, but as the shipper of the goods involved, he should continue to pay attention to the current situation of the goods at the destination port and the subsequent handling matters, and give instructions on the handling of the goods arriving in Hong Kong in time to avoid high costs at the destination port. In this case, Maersk is also responsible for paying higher port of destination fees. Maersk Company did not notify the relevant parties until the goods arrived in Hong Kong for about three months and no one took delivery. When the shipper fails to give instructions on the handling of the goods, it also fails to take effective measures to reduce losses, such as transferring the goods to a warehouse with lower storage costs, which is also at fault. Therefore, Li Zhuo Electric and Sinotrans Mingzhou Branch bear the freight, which is equivalent to RMB 16690; Li Zhuo Electric also needs to pay a demurrage fee of RMB50,000.

■ Judge's statement

Affected by the international economic downturn, some foreign buyers have closed down, some hope to reduce the price of goods through delay, some goods are detained by the customs when they arrive in Hong Kong, and some buyers find quality problems in advance, which will cause container goods to stay in Hong Kong for a long time, resulting in a lot of expenses.

At present, because the goods have been stranded in the port for a long time, there are frequent disputes that the shipping company claims the port storage fee and the container overdue use fee from the owner. During the trial, it was also found that the buyers in some countries in South Asia were malicious at the beginning of the trade, which led the customs to auction the goods for a low price and bring losses to domestic exporters through long-term non-delivery.

Therefore, when concluding sales contracts with foreign buyers, foreign trade units should adopt CIF terms as far as possible, use letters of credit to settle foreign exchange, and require the issuance of instruction bills of lading. The advantage of these measures is that even if the buyer wants to default on payment, the seller can directly collect the payment under the letter of credit.

When the consignee fails to take delivery of the goods, the shipper shall take measures as soon as possible to prevent the charges at the port of destination from increasing further, and make up his mind to inform the carrier to abandon the goods as soon as possible if necessary. As a carrier, it is necessary to promptly inform the shipper or its freight forwarder of the non-delivery, prompt the risk of increased costs, and seek advice on the handling of goods; If there is no feedback from the consignee, the goods should be properly disposed of according to law and the obligation of impairment should be earnestly fulfilled.

Accept the unfavorable contract arbitration failure and be enforced.

In 2007, Fenjiade Shipping Company signed shipbuilding contracts with Ningbo Arts and Crafts Company and Zhejiang Hangchang Shipbuilding Company. It is agreed to pay the payment in five installments, and the remaining 20% of the fifth installment will be paid after the ship is delivered and accepted; All payments made by the buyer before the delivery and acceptance date of the ship shall be regarded as advance payment. If the contract is cancelled or cancelled by the buyer according to the agreement, all the payments under this contract and the corresponding interest shall be returned to the buyer in US dollars within three banking days; The seller shall provide the buyer with an irrevocable repayment guarantee covering the first phase to the fourth phase of the contract; The Buyer shall deliver the items including the main engine specified in the specification at the Seller's shipyard; In case of any dispute, both parties shall settle it by arbitration in London, England according to English law.

After the signing of the agreement, because Ningbo Arts and Crafts Company and Zhejiang Hangchang Shipbuilding Company failed to deliver the ship as scheduled, Fingard Company dissolved the contract in May of 20 1 1, and filed an arbitration lawsuit in London according to the arbitration clause stipulated in the contract, requesting Ningbo Arts and Crafts Company and Zhejiang Hangchang Shipbuilding Company to refund the futures money and interest, and bear the corresponding contract interest, compound interest and expenses.

2065438+July 2003, the Arbitration Commission finally ruled that Ningbo Arts and Crafts Company and Zhejiang Hangchang Shipbuilding Company paid interest of 2,790,7921.90 USD, with an annual interest rate of 6%.

Because the two companies failed to fulfill their payment obligations, Fenjiade Company applied to Ningbo Maritime Court for recognition and enforcement of the above arbitral award on May 23rd, 20 14.

Ningbo Maritime Court held that the arbitral award in this case met the requirements for the recognition and enforcement of foreign arbitral awards stipulated in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the laws of China, and the court supported Fingard's application.

■ Judge's statement

In recent years, the unequal contracting status has caused domestic shipbuilders to be in a passive position in dispute settlement, which deserves special attention. Most foreign-related shipping contracts have arbitration clauses, and many clauses stipulate that any dispute arising from the interpretation and performance of shipbuilding contracts shall be arbitrated in London in accordance with the provisions of the London Maritime Arbitration Commission, and English law shall apply. Most foreign-related ship construction contracts adopt the standard shipbuilding contract model of BIMCO (Baltic Shipping Association) in Japan, Norway or Britain. However, domestic shipyards don't have much research on contract mode, and they don't know enough about foreign arbitration or litigation procedures and lack experience.

In the past five years, Ningbo Maritime Court has accepted a total of three applications 13 for the recognition and enforcement of foreign-related maritime arbitration awards, showing an overall upward trend. The arbitration institutions selected by the parties are all London Maritime Arbitration Commission. Among them, 10 cases involved disputes over ship construction contracts, and all the arbitral awards were lost by domestic shipbuilders without exception, and the effectiveness of the arbitral awards was also confirmed by the ruling.

This case is a typical case of domestic shipbuilders in disputes over the performance of foreign-related ship construction sales contracts. The reasons why the two defendants lost the case can not be ignored. They accepted a standard contract with many unfavorable clauses. The specific performance is: (1) The agreed payment period is too long, and the proportion of the final payment of the ship is too large, so it can only be paid after the ship is delivered and accepted. If there is a dispute between the two parties over the delivered ship, the domestic shipyard may not be able to recover the balance; (2) The agreement of advance payment and repayment guarantee increases the responsibility of the seller, and there is no corresponding restrictive clause to limit the rights of the buyer. In the event of a dispute, the seller is immediately in a passive position; (3) It is agreed that the buyer has the right to terminate the contract unilaterally. In the case of extension agreed in the contract, if the seller fails to notify the buyer within 3 days, it is not entitled to the corresponding extension. Because the seller did not inform the buyer in time when the delay agreed in the contract occurred, he did not get an extension of the delay. Finally, because he did not deliver the ship on the revised final delivery date, the buyer unilaterally notified him to terminate the contract. (4) It is agreed that the buyer will deliver the goods including the main engine specified in the specification at the seller's shipyard, but there is no detailed agreement on the specifications of the main ship accessories provided by the buyer, the quality to be achieved and how to deal with the quality problems of the goods provided by the buyer. The arbitration tribunal held that the main reason for the non-delivery of the ship was that the ship was not ready for delivery, and the cause of the main engine problem had not been determined. In the end, the two defendants lost the case.

Therefore, shipbuilding enterprises, especially shipbuilding industry associations, should organize relevant experts to deeply study commonly used international shipbuilding contract models, and actively cultivate business and legal professionals and negotiators. On the one hand, on the premise that the format contract can be negotiated, shipbuilding enterprises should strive to include favorable terms and delete unfavorable terms as much as possible. On the other hand, in order to strictly regulate the whole process of contract conclusion, we should not only pay attention to the basic terms such as ship cost and ship technical requirements, but also ensure that the important terms such as shipbuilding cycle extension and determination of breach of contract are clear and feasible. At the same time, we should also pay attention to whether the terms dealing with breach of contract are obviously unfair or obviously unfavorable to the builder.

The goods failed to prove that the claim was compensated according to the minimum standard.

In 20 13, the plaintiff Yiwu Duizheng Import & Export Co., Ltd. (hereinafter referred to as Duizheng Company) received an order for foreign trade clothing with a total amount of US$ 236,640, and entrusted the freight forwarder to book shipping space with the defendant Modern Merchant Shipping Co., Ltd. (hereinafter referred to as Merchant Shipping Company), and the containers involved were loaded and transported in Ningbo Port.

After the goods arrived in Hong Kong, the Ji Fang truck driver of the merchant ship company reported to the local police that the truck and container he was driving were robbed by armed gangsters.

Therefore, Duizheng Company filed a lawsuit on the grounds that its merchant was unable to obtain the goods because the goods involved were lost during the liability period of the merchant ship company, and requested that the merchant ship company compensate for the loss of the goods of 232,000 US dollars, the sea freight of 23,955.43 yuan and two delays in payment of liquidated damages.

After hearing the case, Ningbo Maritime Court ruled that Merchant Shipping Company should compensate Zhengzhong Company for the loss of goods of US$ 65,438+0,396,5438+0.67 and the corresponding interest, and rejected other claims of Zhengzhong Company.

■ Judge's statement

FOB terms of trade are the main foreign trade methods adopted by Chinese foreign trade export enterprises. Under the influence of "going out" strategy, China's small and medium-sized foreign trade enterprises vigorously explore the markets of emerging economies, and at the same time bear multiple risks such as foreign market integrity, security order and destination port policy.

The verdict of this case is that the goods with a value of $232,000 can only get compensation of more than $ 1000 in the end, which also sounds the alarm for the majority of small and medium-sized foreign trade enterprises: when the goods are shipped, the carrier must be required to issue a bill of lading and record the value of the goods on the corresponding documents.

According to the provisions of China's Maritime Law, if the loss or damage of goods occurs in a certain section of multimodal transport, the relevant legal provisions on adjusting the mode of transport in this section shall apply to the limitation of liability and compensation of multimodal transport operators. The transportation in this section takes place in Mexico, and Mexican laws shall apply. Merchant shipping companies have submitted legal opinions notarized locally and certified by China embassies and consulates, which can be used as the basis for determining the carrier's liability and its limit. According to the relevant Mexican laws and regulations, if the service user fails to declare the value of the goods, the liability for compensation will be limited to the current minimum wage standard in the Federal District of Mexico per ton 15 days, and less than one ton will be calculated in proportion.

The customs declaration submitted by Dunzheng Company shows that the value of the goods is * * * US$ 232,000, which is consistent with the value recorded in the foreign trade order. However, the copy of the bill of lading and the Mexican inland waybill do not show the value of the goods, which cannot prove that the value of the goods has been declared and informed to the carrier and the carrier of the land transport section. Therefore, the carrier's liability should be limited to the current minimum wage of 65,438+05 days per ton in the Federal District of Mexico.

Accordingly, according to the exchange rate of USD and Mexican peso in October 2065 10 of 438+065,438+0.67 USD, Ningbo Maritime Court determined that the compensation liability of merchant shipping company was USD 65,438+03,65,438+065,438+0.67 USD.

■ Judicial observation

Establish a fair and authoritative image of international maritime justice

As a major province of marine economy and foreign trade, Zhejiang faces great opportunities and new challenges in accelerating the construction of the strategic hub area of the 2 1 century Maritime Silk Road and the pioneering area of open cooperation. Maritime trials involving foreign countries, Hong Kong, Macao and Taiwan are very arduous.

In the past five years, Ningbo Maritime Court has accepted a total of foreign-related maritime cases 150 1 piece, and concluded 1366 pieces, involving 7.859 billion yuan, with a total amount of 63190,000 yuan. Among them, 36.90% are disputes over the contract of carriage of goods by sea, which has become the largest category of maritime cases in first instance.

Lu Mingming, vice president of Ningbo Maritime Court, said that the foreign-related maritime cases accepted by the court involved more than 50 countries and regions, and the parties were distributed in all continents except Antarctica, but they were mainly concentrated in traditional maritime countries such as the United States, Britain, France, Singapore, South Korea, Japan, Panama, Marshall Islands, Liberia and countries that opened their ships to register or import goods. "The distribution of cases largely reflects the close relationship between maritime justice and shipping economy, port industry and foreign trade."

It is understood that foreign-related cases involving Hong Kong, Macao and Taiwan have many links and take a long time to serve, and the procedures for foreign-related evidence and authorized notarization and authentication are complicated, and there are limited ways to identify foreign laws. These factors have objectively restricted the trial efficiency of the "four-involved" cases for a long time and lengthened the trial cycle of the cases. In recent five years, the average trial days of "four-involved" cases in Ningbo Maritime Court are longer than those of first instance 16.74 days.

In order to establish a fair and authoritative image of international maritime justice, Ningbo Maritime Court has been exploring new ways to improve the judicial ability of maritime judges, focusing on improving the comprehensive quality of judges, striving to build a high-quality trial team that understands law, foreign languages and shipping, and exploring the establishment of a professional practice system for maritime judges, a young judge tutor system and a trial experience inheritance system. In view of the strong foreign-related characteristics of maritime trials, front-line judges are regularly organized to study relevant laws and regulations, judicial interpretations, international conventions and shipping practices and update their knowledge in time. Encourage new judges to actively participate in exchanges with ports, shipping and freight forwarding enterprises, deepen their understanding of shipping practices and habits, and comprehensively improve the judicial ability of maritime judges.

In order to protect the legitimate rights and interests of Chinese and foreign parties equally, the court not only pays attention to actively exercising maritime jurisdiction, earnestly safeguarding judicial sovereignty, but also pays attention to party autonomy when examining jurisdictional objections; When handling special procedure cases, pay attention to the interests of both Chinese and foreign parties, and take the form of hearing when necessary to ensure the fairness of the ruling; In order to solve the problem of difficult overseas service, the hospital tried to serve overseas parties with the help of foreign affairs departments, the captain of the ship involved, the institutions or lawyers recorded in the letter of guarantee, and effectively urged overseas parties to actively respond to the lawsuit; In the process of substantive trial, reasonably determine the time limit for adducing evidence, investigate and collect evidence according to law, and objectively examine and certify electronic information evidence such as e-mail, electronic signature, chat record, mobile phone short message, etc., which are widely used in the practice of maritime cargo transportation; When applying the law, we should adhere to the principles of national sovereignty and autonomy of the parties, fully respect the parties' choice of law application, not only legally admit that the parties voluntarily choose to apply China law, but also actively broaden the ways to find foreign laws when necessary, and try cases by applying or referring to international conventions, international practices and foreign laws many times, so as to establish a good image of international maritime justice.