【基本案情】

2011年1月，原告为出口货物至比利时，将1216个价值44180美元的铝藤椅，在宁波港交付给被告宁波某某货代公司承运，被告宁波某某货代公司以其母公司上海某某货代公司名义，于同月25日向原告签发了提单号为MSNANT11F00XXX的全套已装船正本提单。该提单载明：托运人为IN-ASIA公司,收货人C.SDESING，装运港宁波，货物交付方式为CY-CY，卸货港和交货地比利时安特卫普港，船名航次KOTA LAMBAIU V.0XX，集装箱号PCIU8370XXX等（经查该船及集装箱属实际承运人太平船务有限公司所有）。货物出运后，至今原告仍持有上述全套正本提单，但经查货物已被提取，原告曾多次询问货物下落，被告均未告知相关货物信息，致使原告遭受了巨大经济损失。为此原告向宁波海事法院起诉，现该案已胜诉。  

【代理词】

      尊敬的审判长：

      浙江利群律师事务所接受乐清某某公司的委托，指派我担任原告乐清某某公司诉被告上海某某货代公司等为海上货物运输合同纠纷一案的一审代理人。代理人经过调查取证结合法庭调查，现结合有关事实及本案诉争焦点并依据相关法律法规之规定，发表以下代理意见，望法庭予以充分考虑并采纳：

       一、关于原告法律地位问题

       两被告认为，原告并非提单记载托运人，无权向承运人主张货物。但原告认为虽然提单托运人并非原告，但原告系报关单记载的出口单位，报关单所载提单号码、集装箱号码、货物品名，均与提单相一致，故原告系涉案出运货物实际托运人，依法享有诉权。原告虽非提单记载托运人，但海商法规定，托运人指“本人或者委托他人以本人名义或者委托他人为本人与承运人订立海上货物运输合同的人；本人或者委托他人以本人名义或者委托他人为本人将货物交给与海上货物运输合同有关的承运人的人”。而且涉案贸易方式为FOB，由收货人作为提单托运人委托货物运输，正是FOB贸易方式的基本操作特征，而报关单、销售发票能印证原告作为贸易合同卖方向承运人实际交付货物出运的事实，符合海商法托运人定义，依法可向承运人主张托运人权利。

      二、关于原告与两被告法律关系问题

      原告认为被告宁波某某货代公司签发提单时未告知其仅为代理人，且以承运人身份与原告联系，庭审中未提供任何证据证明以被告上海某某货代公司名义签发提单是经过上海某某货代公司授权的，而被告上海某某货代公司作为涉案提单抬头载明的承运人，且在庭审中自认为承运人，故与两被告均成立海上货物运输合同关系，两被告应承担连带赔偿责任。

      三、关于涉案集装箱状况及无单放货是否成立问题

依据我国《海商法》第七十一条的规定，提单是承运人据以向收货人交付货物的物权凭证，承运人负有在目的港凭正本提单交付货物的义务。原告作为涉案货物正本提单持有人，有权在其货物遭受损坏、灭失时向承运人行使索赔的权利。涉案货物出运后装载货物的集装箱已被提空并重新投入营运，根据国际航运惯例，在整箱货物的交接方式为堆场至堆场的情况下，承运人对于整箱货物应在目的港堆场整箱交付。装载涉案货物集装箱已被拆箱并重新投入营运的事实，可作为证明承运人已无单放货的初步证据。如承运人否认其已实施无单放货行为，应提供反证予以反驳，以证明货物仍在目的港堆场，被告未能提供任何有效证据，依法应承担举证不能的法律后果。现原告已向法庭提交的《涉案集装箱动态跟踪查询结果的公证书及中文翻译件》证明涉案集装箱已被拆箱并投入营运，故已经完成证明被告无单放货初步举证，而两被告庭审中主张涉案货物仍在目的港并在其掌控之下，但庭审及二次举证期限内未提供任何证据证明，如仓库名、联系人等任何有效证据，依法应承担举证不能的法律后果。

       四、关于原告的损失问题

       1、原告已证明自己损失确实存在。原告为证明其损失向法院提供了商业发票、报关单、核销单及销售发票，以证明出运货物的价值为44180美元，二次举证期限内提交申请报告、原告与临海某某公司的购销合同、增值税发票3张、原告与香港某某公司购销合同及中文译本，证明“批次核销”的事实，故已证明涉案货物核销单的收汇并非来自涉案提单项下的货物。

       2、被告未能举证反驳。在上述情况下被告至少应提供银行水单证明买方或收货人确实向原告支付涉案货款，或者举证证明即便原告用以核销涉案货款的外汇并非涉案货物买方或收货人所支付，但涉案货物买方或收货人确实已向原告支付货款，但二次庭审中被告均未能提供该方面证据。且被告二次举证期限内提交所谓的证据恰恰反证出几个事实：一、收货人未付款；二、货物已被拆箱并为收货人收取。具体理由：（1）“我司并未要求收货人C.SDESING就上述货款付款”；（2）被告庭审中一直认为“未收到货或者未拆箱”，而该证据中又表述“存在质量问题及其中三箱存在质量短少”，明显自相矛盾。

       3、至于两被告认为，原告所主张的货款损失可能系信用证退单造成或者由于原告一直未向中间商交付提单导致货物到港后一直未有人来提货才导致损失。但原告认为上述两抗辩均与无单放货没有因果关系的抗辩，并不影响承运人负有在目的港凭正本提单交付货物的义务，不能免除因无单放货致使原告未收货款损失的赔偿责任。

综上被告在无正本提单下放货，致使原告未能收到该提单项下货款，严重损害了原告的合法利益，要求支持原告诉请。

                          代理人：浙江利群律师事务所

                          蒋 希律师

                         二0一二年八月   日

【Basic Case】

In January 2011, the plaintiff delivered 1216 aluminum rattan chairs worth $44180 to the defendant Ningbo freight forwarding company at Ningbo Port for export to Belgium. The defendant Ningbo freight forwarding company, in the name of its parent company Shanghai freight forwarding company, issued a complete set of original on board bills of lading with bill of lading number MSNANT11F00XXX to the plaintiff on the same day. The bill of lading states that the shipper is IN-ASIA Company, the consignee is C.SDESING, the port of shipment is Ningbo, the mode of delivery of goods is CY-CY, the port of unloading and the place of delivery is Port of Antwerp Port, Belgium, the name of the ship, the voyage number KOTA LAMBAIU V.0XX, the container number PCIU8370XXX, etc. (it is verified that the ship and container are owned by the actual carrier Taiping Shipping Co., Ltd.). After the shipment of the goods, the plaintiff still holds the full set of original bills of lading mentioned above, but after investigation, the goods have been extracted. The plaintiff has repeatedly inquired about the whereabouts of the goods, but the defendant has not informed the relevant information of the goods, resulting in huge economic losses for the plaintiff. The plaintiff filed a lawsuit with the Ningbo Maritime Court, and the case has now been won. 

【Proxies】

Dear Chief Justice

Zhejiang Liqun Law Firm has accepted the commission of Yueqing Company to appoint me as the first instance agent in the case of the plaintiff Yueqing Company v. the defendant Shanghai Freight Forwarder Company in the dispute over maritime cargo transportation contracts. After investigation and evidence collection, combined with court investigation, the agent hereby issues the following opinion based on relevant facts and the focus of the case, and in accordance with relevant laws and regulations. We hope that the court will fully consider and adopt it:

1. Regarding the legal status of the plaintiff

The two defendants believe that the plaintiff is not the shipper recorded in the bill of lading and has no right to claim the goods from the carrier. However, the plaintiff believed that although the shipper of the bill of lading was not the plaintiff, the plaintiff was the export unit recorded in the Customs declaration, and the bill of lading number, container number, and goods name in the Customs declaration were consistent with the bill of lading, so the plaintiff was the actual shipper of the goods involved in the case, and enjoyed the right of action according to law. Although the plaintiff is not the shipper specified in the bill of lading, the maritime law stipulates that the shipper refers to "the person who enters into a contract of carriage of goods by sea with the carrier in their own name or on their behalf; the person who delivers the goods to the carrier related to the contract of carriage of goods by sea in their own name or on their behalf". Moreover, the mode of trade involved in the case is FOB, and the consignee, as the shipper of the bill of lading, entrusts the transportation of goods, which is the basic operating feature of FOB. The Customs declaration and sales invoice can confirm the fact that the plaintiff, as the seller of the trade contract, actually delivers the goods to the carrier for shipment, which conforms to the definition of shipper in the Maritime Law, and can claim the shipper's rights from the carrier according to law.

2. On the Legal Relationship between the Plaintiff and the Two Defendants

The plaintiff believes that the defendant Ningbo freight forwarding company did not inform them that they were only agents when issuing the bill of lading, and contacted the plaintiff as carriers. During the trial, no evidence was provided to prove that the issuance of the bill of lading in the name of the defendant Shanghai freight forwarding company was authorized by the Shanghai freight forwarding company. However, the defendant Shanghai freight forwarding company, as the carrier named on the bill of lading in question, believed itself to be the carrier during the trial, Therefore, both defendants have established a contract of carriage of goods by sea, and the two defendants shall bear joint and several liability for compensation.

3. On the Status of the Containers Involved in the Case and the Existence of Delivery Without a Bill of Lading

According to Article 71 of the Maritime Code of China, a bill of lading is a document of title used by the carrier to deliver the goods to the consignee, and the carrier is obligated to deliver the goods at the destination port against the original bill of lading. The plaintiff, as the holder of the original bill of lading for the goods involved, has the right to claim compensation from the carrier in the event of damage or loss to their goods. After the shipment of the goods involved, the container loaded with the goods has been emptied and put back into operation. According to international shipping practices, when the delivery method of the full container goods is from the yard to the yard, the carrier should deliver the full container goods at the destination port yard. The fact that the container carrying the involved goods has been unpacked and put back into operation can serve as preliminary evidence to prove that the carrier has released the goods without a bill of lading. If the carrier denies that it has carried out the act of releasing the goods without a bill of lading, it shall provide counter evidence to refute it, to prove that the goods are still in the destination port yard, and the defendant fails to provide any valid evidence, and shall bear the legal consequences of inability to provide evidence in accordance with the law. The plaintiff has submitted a notarized certificate and Chinese translation of the results of the dynamic tracking and query of the involved container to the court, proving that the involved container has been unpacked and put into operation. Therefore, preliminary evidence has been completed to prove that the defendant did not release the goods without a bill of lading. However, the two defendants claimed in the trial that the goods in question are still under the control of the destination port, but no evidence has been provided during the trial and secondary evidence period, such as the warehouse name, contact person, and any other valid evidence, According to the law, one should bear the legal consequences of being unable to provide evidence.

4. Regarding the plaintiff's losses

(1)The plaintiff has proven that their losses do indeed exist. In order to prove its losses, the plaintiff provided the court with Commercial invoice, Customs declaration, verification sheet and sales invoice to prove that the value of the shipped goods was 44180 US dollars. Within the period of the second adduction of evidence, the plaintiff submitted an application report, the purchase and sales contract between the plaintiff and a company in Linhai, three VAT invoices, the original purchase and sales contract with a company in Hong Kong, and the Chinese translation to prove the fact of "batch verification", Therefore, it has been proven that the collection of the involved goods verification form did not come from the goods under the bill of lading involved.

(2) The defendant failed to provide evidence to refute. In the above circumstances, the defendant should at least provide a bank receipt to prove that the buyer or consignee has indeed paid the plaintiff the involved goods, or provide evidence to prove that even though the foreign exchange used by the plaintiff to verify the involved goods was not paid by the buyer or consignee, the buyer or consignee of the involved goods did indeed pay the plaintiff, but the defendant failed to provide evidence in this regard in the second trial. And the so-called evidence submitted by the defendant within the second proof period exactly proves several facts to the contrary: firstly, the consignee did not pay; second ,the goods have been unpacked and collected by the consignee. Specific reasons: ① "Our company has not requested the consignee C.SDESING to make payment for the above-mentioned goods"; ② The defendant has always believed in the trial that "the goods have not been received or the boxes have not been opened", and the evidence also states that "there are quality issues and three of the boxes have insufficient quality", which is clearly contradictory.

(3) As for the two defendants, they believe that the plaintiff's claim for payment loss may have been caused by a refund of the letter of credit or by the plaintiff's failure to deliver the bill of lading to the intermediary, resulting in no one coming to pick up the goods upon arrival at the port. However, the plaintiff believes that both of the above defenses have no causal relationship with the defense of non delivery of goods without a bill of lading, which does not affect the carrier's obligation to deliver the goods at the destination port against the original bill of lading, and cannot exempt the plaintiff from compensation liability for the loss of unpaid payment caused by non delivery of goods without a bill of lading.

In summary, the defendant released the goods without the original bill of lading, which resulted in the plaintiff not receiving the payment under the bill of lading, seriously damaging the plaintiff's legitimate interests. We request support for the original claim.

Agent: Zhejiang Liqun Law Firm

Lawyer Jiang Xi

August, 2012