尊敬的审判长、审判员：

浙江利群律师事务所接受本案原告的委托，指派本人为代理人。通过本律师庭前对本案诉讼材料的查看和有关单位的调查及经过庭审调查，本案事实很清楚，即被告浙江中德金属有限公司（以下称“中德公司”）通过被告台州中基外贸有限公司（以下称“中基公司”）与原告签订买卖合同，原告按约在装货港将三票货物交中德公司指定的承运人，货物运至目的港被告收货后，因价格下跌被告不予支付货款。具体理由如下：

一、被告中德公司支付本案所涉三票货物到港后的关税、检验费等事实，证明被告中德公司以其行为认可已收取上述货物。被告中德公司认可通过中基公司与原告签订了买卖合同，原告按约发了三票货物给被告，这三票货物到达卸货港海门后其支付外代公司检验检疫费、动植检费、海关关税、边检费、理货费、港建港务费、装卸费、货代包干费等，总计为1874202.89元。除货代包干费由外代公司收取外，其他费用均是外代公司代收代付。其中检验检疫费、动植检费、海关关税、边检费是货物到港卸至码头后，国家检验检疫局、海关、边检等部门对货物进行检查后向被告收取的费用，理货费、港建港务费、装卸费等，是货物卸至码头被被告提走后，港口有关单位对货物产生的实际理货、装卸等向被告收取的费用。被告中德公司对上述费用的支付，毫无疑问证明了被告中德公司以其行为认可在目的港收取本案所涉三票货物的事实。

二、被告中德公司主张原告与案外人陈子明串通，将本案所涉的三票货物的正本提单交由陈子明，让陈子明将三票货物提走和出卖，没有任何依据。首先，本案所涉三票货物的提单均是记名提单，收货人一栏均记载被告中德公司的进口代理商中基公司。记名提单依据《海商法》第79条的规定“不得转让”，也就是虽然记名提单在实务中还被认为是物权凭证，但船公司必须凭提单上记载的收货人放货。即便原告将正本提单交付陈子明，他也提不了货。如果确实是陈子明以其个人名义提取货物，证明外代公司错误放货，但从中德公司支付外代公司上述到港费用的行为，显然外代公司没有错误放货。其次，我们从三票货物到达海门港、被告中德公司通过中基公司委托外代公司申请清关、被告中德公司支付外代公司上述费用和提取货物的时间分析。根据外代公司代表船公司出具给收货人的提货单上记载的三票货物到达目的港的时间分别为：船名TIAN CHEN 8，提单号HH-01为2008年9月23日；船名HONGDA 提单号HH-01为2008年10月3日；船名TIAN CHEN 8，提单号HH-1为2008年11月3日。被告中德公司委托外代公司代向海关申请通关的时间分别为2008年9月25日、2008年10月7日和2008年11月6日。向外代公司支付上述到港费用的时间分别为2008年9月26日、2008年10月10日和2008年11月7日（前两票是以备用金方式先行支付，但支付的时间均在货物到达目的港后，第三票是三票业务最后结清后支付）。向浙江省台州市海门港埠总公司（以下称“港埠总公司”）和浙江省海门港外沙港埠集装箱公司（以下称“外沙集装箱公司”）提取货物的时间分别为2008年9月27日、2008年10月17日和2008年11月5日（该事实原告要求庭后提供补强证据）。如果被告中德公司的主张成立，在第一票货物于2008年9月23日到达海门港后，被告中德公司于2008年9月25日清关，于2008年9月26日支付外代货物到港费用，货物却因为原告将正本提单交由陈子明而被其于2008年9月27日提走，那么第二票货物到达海门港的时间为2008年10月3日，被告中德公司为何在原告违约将正本提单交由第三人提取货物后，于2008年10月7日办理该票货物的清关手续和于2008年10月7日交付外代公司到港费用，如果该票货物又被陈子明于2008年10月17日提走，那么第三票货物到达海门港的时间为2008年11月3日，在第一、二票货物均因为原告违约交付陈子明正本提单而货物被陈子明提走后，被告中德公司又为何在2008年11月6日办理该票货物的清关手续和2008年11月7日支付外代公司到港费用。从上述时间分析我们很清楚地知道：本案后一票货物达到目的港的时间均在前一票货物被提走之后！被告中德公司在每票货物办理清关手续前就知道货物已到达海门港，并在货物提走后与外代公司结算货物到港费用！因此被告中德公司主张货物被提走几个月后才知道原告交付陈子明正本提单，货物被陈子明提走，和其证人陈子明陈述原告是因为被告中德公司未支付货款而将正本提单交与他，请他代为提取和处理货物（请注意陈子明是如何回答主审法官的问题：你是以何身份去外代提货的？他回答：原告收不到货款，给了我正本提单，委托我提货和处理货物，我就拿了正本提单，我不认识外代的人，他们就给我提货单了！被告中德公司提供的证据外代公司的证明，证明陈子明拿了三份正本提单换取提货单，并没有证明受原告的委托，代表原告提取货物）均为无稽之谈。如果原告因为被告未付款将正本提单交与陈子明提货和处理货物，为何在第一票被告未支付货款时，又发运被告第二票货物，在前二票被告均未付款时，为何又发第三票货物给被告，同时又将正本提单交与案外人提货？原告根本没有理由做出以上如此不合常理之举。原告与被告中德公司约定本案三票货物的货款支付方式是后T/T（电汇），被告在收货后半个月内支付货款，对此被告中德公司认可，该支付方式也与原告为何在被告中德公司前一票货物提取后未支付货款，即发运后一票货物的事实相符合。

三、为何被告提供的证据外代公司出具的证明证明本案三票货物“放行单（提货单）由陈子明凭该三单货的正本提单领走”和台州市港安疏运有限公司（以下称“港安公司”）的证明证明三票“废五金由陈子明提走”。根据《浙江省限制类进口废物环境保护管理办法》第六条“列入限制类进口废物的，……按照国家有关规定取得固体废物进口许可证”和第十三条“禁止擅自变更固体废物进口许可证载明的利用企业，禁止买卖、转让、出租、出借进口固体废物”、第十六条“从事拆解、利用进口废物活动的企业应当建立经营记录制度，如实记载每批进口固体废物的来源、种类、重量或者数量，去向，收集（接收）、拆解、利用、存储、处置的时间，运输者的名称和地址……，定期向所在地设区市环境保护行政主管部门报告利用状况。经营记录薄及相关单据、影像资料等应当至少保存五年”等规定，本案三票货物是国家限制类进口货物，按照上述规定，必须凭进口许可证进口，原、被告提供的证据进口许可证上显示利用商均记载被告中德公司，原告在装货港也是凭被告中德公司提供的许可证向中国设在该港口的检验部门申报出口的。那么被告中德公司依据其持有的许可证与原告签订买卖合同，和货物到达目的港以其名义清关、交纳到港费用均符合上述规定。但是为何外代公司和港安公司会出具陈子明持正本提单换取提货单和提走货物的证据呢？本代理人就被告中德公司支付外代公司到港费用的三份台州市商业银行进账单右下角为何分别以手写方式记载“天辰8陈子明9，23”、“鸿达10，3，陈子明”、“天辰8，陈子明11，3”调查外代公司，该公司有关人员陈述：货主提货时，我们是认单不认人，根据记名提单的相关法律规定，我们对提货人的身份必须进行核实，该三票货物提单上均记载收货人是中基公司，我们是经过中基公司的认可放货给陈子明的，但是我们知道其实货物就是陈子明的，所以在上面记载上述内容。综合港埠总公司和外沙集装箱公司两公司在其保存的提货记录本上的记载：货主陈子明，我们分析陈子明与被告中德公司的关系有两种可能：（一）、陈子明在目的港凭正本提单换取提货单，至港埠公司凭提货单提取货物完全是受被告中德公司的委托（被告与原告签订买卖合同，和办理货物进口清关和支付货物到港费用等完全能够证明上述事实，本代理人根据国家关于进口限制类货物的有关规定，已在开庭前申请法院向有关部门调取被告将货物拆解后出售交税等证据，以进一步证明上述事实）；（二）、陈子明作证其将货物提取后运至位于路桥峰江太刚公司的堆场，并以太刚公司的名义拆解后销售和交纳税收，本代理人当庭要求其提供上述证据。如陈子明能够提供有效证据证明其上述陈述，那么毫无疑问证明了被告中德公司利用其持有的许可证与原告签订买卖合同，货物到目的港以其名义办理到港手续和支付到港费用的同时，已经将货物卖于陈子明，并授权其至外代提取货物，那么这是被告中德公司于陈子明之间的关系，与原告无关！另外如果陈子明和被告中德公司之间的买卖关系成立，他们的行为严重违反了国家对限制类固体废物进口的有关规定，如果法院在本案证据如此充分证明了被告中德公司其实是授权陈子明提货的情况下，仍然认为陈子明是受原告的委托，原告将正本提单交付他提货，而判决支持中德公司的请求，无疑滋长了限制类固体废物进口的非法行为，也扰乱了国家行政部门对限制类固体废物进口的管理。

另外，本案原告支付律师代理费，系被告中德公司违约造成的损失。那么涉外案件律师代理费用由造成损失一方承担，这是我国司法实践的习惯做法，请合议庭予以考虑。

综上，原告认为，本案被告依据与原告签订的货物买卖关系，在目的港提取货物和交纳到港费用后，因货物价格下跌拒绝支付原告货款事实清楚，依据充分。本案是一涉外重大案件，具有一定得国际影响力，恳请合议庭根据本案事实，公正裁决，依法支持原告的诉讼请求。

浙江利群律师事务所律师  郑峰

二00九年三月六日

Dear Chief Justice and Judge

Zhejiang Liqun Law Firm accepts the commission of the plaintiff in this case and appoints me as the agent. Through our lawyer's examination of the litigation materials in this case before the trial and the investigation of relevant units, as well as the court investigation, the facts of this case are very clear. The defendant Zhejiang Zhongde Metal Co., Ltd. (hereinafter referred to as "Zhongde Company") signed a sales contract with the plaintiff through the defendant Taizhou Zhongji Foreign Trade Co., Ltd. (hereinafter referred to as "Zhongji Company"), and the plaintiff delivered the three shipments of goods to the carrier designated by Zhongde Company at the loading port according to the agreement, After the goods were delivered to the destination port and received by the defendant, the defendant did not pay for the goods due to a decrease in price. The specific reasons are as follows:

1、 The fact that the defendant Sino German Company paid the customs duties, inspection fees, and other fees for the three shipments of goods involved in this case after their arrival at the port proves that the defendant Sino German Company recognized the receipt of the aforementioned goods through its actions. The defendant, Zhongde Company, recognized that a sales contract was signed between Zhongji Company and the plaintiff. The plaintiff sent three shipments of goods to the defendant according to the agreement. After these three shipments arrived at the discharge port of Haimen, they paid the inspection and quarantine fees, animal and plant inspection fees, customs duties, border inspection fees, tallying fees, port construction and port affairs fees, loading and unloading fees, freight forwarding lump sum fees, etc., totaling 1874202.89 yuan. Except for the freight forwarder's lump sum fee collected by the outsourcing company, all other fees are collected and paid by the outsourcing company. Among them, inspection and quarantine fees, animal and plant inspection fees, customs duties, and border inspection fees refer to the fees charged by the National Inspection and Quarantine Bureau, customs, border inspection and other departments to the defendant after the goods arrive at the port and are unloaded at the port. The tallying fees, port construction fees, loading and unloading fees, etc., refer to the fees charged by the relevant port units to the defendant for the actual tallying, loading and unloading of the goods after the goods are unloaded at the port and taken away by the defendant. The payment of the above-mentioned fees by the defendant Zhongde Company undoubtedly proves the fact that the defendant Zhongde Company recognized the receipt of the three goods involved in this case at the destination port through its actions.

2、 The defendant Zhongde Company claims that the plaintiff colluded with the outsider Chen Ziming to hand over the original bill of lading of the three goods involved in this case to Chen Ziming, and asked him to take and sell the three goods without any basis. Firstly, the bills of lading of the three goods involved in this case are all registered bills of lading, and the consignee column records the import agent of the defendant, Zhongji Company, in China. According to Article 79 of the Maritime Code, a registered bill of lading is "non transferable", which means that although it is still considered a document of title in practice, the shipping company must release the goods against the consignee recorded on the bill of lading. Even if the plaintiff delivers the original bill of lading to Chen Ziming, he cannot pick up the goods. If it is indeed Chen Ziming who picked up the goods in his personal name, proving that the foreign agent company mistakenly released the goods, but paying the above-mentioned arrival fees from the Sino German company to the foreign agent company, it is obvious that the foreign agent company did not mistakenly release the goods. Secondly, we conducted an analysis of the three shipments arriving at Haimen Port, the defendant Zhongde Company entrusting a foreign agent company through Zhongji Company to apply for customs clearance, and the defendant Zhongde Company paying the aforementioned fees to the foreign agent company and the time for extracting the goods. According to the bill of lading issued by the foreign agency on behalf of the shipping company to the consignee, the time of arrival of the three shipments at the destination port is as follows: the ship name TIAN CHEN 8, and the bill of lading number HH-01 is September 23, 2008; The name of the vessel is HONGDA, and the bill of lading number HH-01 is dated October 3, 2008; The ship's name is TIAN CHEN 8, and the bill of lading number HH-1 is November 3, 2008. The defendant, Sino German Company, entrusted a foreign agency to apply for customs clearance on September 25, 2008, October 7, 2008, and November 6, 2008, respectively. The payment of the above-mentioned arrival fees to the outsourcing company was made on September 26, 2008, October 10, 2008, and November 7, 2008 (the first two invoices were paid in advance through reserve funds, but the payment was made after the goods arrived at the destination port, and the third invoice was paid after the final settlement of the three invoices). The time for extracting goods from Haimen Port General Company (hereinafter referred to as "Port General Company") in Taizhou City, Zhejiang Province and Waisha Port Container Company (hereinafter referred to as "Waisha Container Company") in Haimen Port, Zhejiang Province was September 27, 2008, October 17, 2008, and November 5, 2008, respectively (the plaintiff requested additional evidence after the court). If the claim of the defendant Zhongde Company is valid, after the first shipment of goods arrived at Haimen Port on September 23, 2008, the defendant Zhongde Company cleared customs on September 25, 2008, and paid for the arrival fee of the outsourced goods on September 26, 2008. However, the goods were picked up by Chen Ziming on September 27, 2008 because the plaintiff handed over the original bill of lading. Therefore, the second shipment of goods arrived at Haimen Port on October 3, 2008, Why did the defendant, Sino German Company, handle the customs clearance procedures for the goods on October 7, 2008 and deliver the arrival fees to the foreign company on October 7, 2008 after the plaintiff breached the contract and handed over the original bill of lading to a third party to pick up the goods? If the goods were picked up by Chen Ziming on October 17, 2008, the third batch of goods arrived at Haimen Port on November 3, 2008, on the first Why did the defendant Zhongde Company handle the customs clearance procedures for the two shipments of goods on November 6, 2008 and pay the arrival fee to the foreign agent company on November 7, 2008, after Chen Ziming took them away due to the plaintiff's breach of contract in delivering the original bill of lading to Chen Ziming. From the above time analysis, we clearly know that in this case, the time when the last shipment of goods arrived at the destination port was after the previous shipment was picked up! The defendant, Sino German Company, knew that the goods had arrived at Haimen Port before completing customs clearance procedures for each shipment, and settled the arrival fee with the foreign company after the goods were picked up! Therefore, the defendant Zhongde Company claims that it was only a few months after the goods were taken away that it became known that the plaintiff had delivered the original bill of lading to Chen Ziming. The goods were taken away by Chen Ziming, and their witness Chen Ziming stated that the plaintiff had handed over the original bill of lading to him because the defendant Zhongde Company had not paid for the goods, Ask him to pick up and handle the goods on his behalf (Please note how Chen Ziming answered the question from the presiding judge: In what capacity did you go to pick up the goods on behalf of another party? He replied: The plaintiff couldn't receive the payment and gave me the original bill of lading. He entrusted me with picking up and handling the goods, so I took the original bill of lading. I don't know the person from the other party, so they gave me the bill of lading! The evidence provided by the defendant, Zhongde Company, and the proof provided by the other party, proves that Chen Ziming exchanged three original bills of lading for the bill of lading, but did not...) It is baseless to prove that being entrusted by the plaintiff to pick up the goods on behalf of the plaintiff. If the plaintiff hands over the original bill of lading to Chen Ziming for pickup and handling of the goods due to the defendant's failure to pay, why did the plaintiff ship the defendant's second shipment of goods when the first defendant did not pay for the goods, and why did the plaintiff send the third shipment of goods to the defendant when the first two defendants did not pay, while also handing over the original bill of lading to an outsider for pickup? The plaintiff has no reason to make such an unreasonable move. The plaintiff and the defendant Zhongde Company have agreed that the payment method for the three shipments of goods in this case is post T/T (wire transfer). The defendant shall pay the payment within half a month after receiving the goods, which is recognized by the defendant Zhongde Company. This payment method is also consistent with the fact that the plaintiff did not pay the payment for the previous shipment of goods after the defendant Zhongde Company picked it up, that is, the shipment of the first shipment of goods.

3、 Why did the evidence provided by the defendant prove that the "release note (bill of lading)" of the three shipments in this case was taken away by Chen Ziming with the original bill of lading of the three shipments, and the proof from Taizhou Gang'an Transportation Co., Ltd. (hereinafter referred to as "Gang'an Company") that the three shipments "abandoned five gold were taken away by Chen Ziming. According to Article 6 of the Measures for the Administration of Environmental Protection of Restricted Import Wastes in Zhejiang Province, "Those who are listed as restricted import waste shall obtain a solid waste import license in accordance with relevant national regulations" and Article 13, "It is prohibited to change the utilization enterprises specified in the solid waste import license without authorization, and it is prohibited to buy, sell, lease, or lend imported solid waste" Article 16: "Enterprises engaged in the dismantling and utilization of imported waste shall establish a business record system, truthfully recording the source, type, weight or quantity, destination, collection (reception) of each batch of imported solid waste The time of dismantling, utilization, storage, and disposal, as well as the name and address of the transporter, shall be regularly reported to the environmental protection administrative department of the district or city where the utilization is located. The business record book, relevant documents, and image materials should be kept for at least five years. According to the regulations, the three shipments of goods in this case are imported goods restricted by the state. According to the above regulations, they must be imported with an import license. The evidence provided by the plaintiff and the defendant on the import license shows that the user is recorded in the defendant's Sino German company, The plaintiff also declared for export to the Chinese inspection department located at the loading port based on the license provided by the defendant Sino German Company. So the defendant Sino German Company signed a sales contract with the plaintiff based on the license it held, and the goods arrived at the destination port for customs clearance and payment of arrival fees in its name all met the above requirements. But why would the outsourcing company and Hong Kong Security Company issue Chen Ziming's original bill of lading in exchange for the bill of lading and evidence of the goods being taken away? This agent investigates the reasons why the defendant Zhongde Company paid the foreign agent company's arrival fees in the lower right corner of the three Taizhou City Commercial Bank receipts, which were handwritten with "Tianchen 8, Chen Ziming 9,23", "Hongda 10,3, Chen Ziming", and "Tianchen 8, Chen Ziming 11,3". The relevant personnel of the company state that when the shipper picked up the goods, we were the person who recognized the order but not the person who recognized it. According to the relevant legal provisions of the registered bill of lading, We must verify the identity of the consignee. The three bills of lading for the goods all record that the consignee is Zhongji Company. We released the goods to Chen Ziming with the approval of Zhongji Company, but we know that the goods are actually Chen Ziming's, so the above information is recorded on them. According to the records of the two companies, Comprehensive Port Corporation and Waisha Container Company, in their preserved delivery records, the shipper Chen Ziming, we analyze that there are two possible relationships between Chen Ziming and the defendant Zhongde Company: (1) Chen Ziming exchanges the original bill of lading for the delivery note at the destination port, The delivery of goods to the port company with the bill of lading was completely entrusted by the defendant Sino German Company (The signing of a sales contract between the defendant and the plaintiff, as well as the handling of goods import customs clearance and payment of goods arrival fees, can fully prove the above facts. In accordance with the relevant regulations of the country on import restricted goods, this agent has applied to the court to obtain evidence such as the defendant dismantling the goods and selling them for tax payment from the relevant departments before the hearing to further prove the above facts.); （2） Chen Ziming testified that he picked up the goods and transported them to the storage yard of Taigang Company located in Fengjiang, Luqiao, and dismantled them in the name of Taigang Company before selling and paying taxes. This agent requested him to provide the above evidence in court. If Chen Ziming can provide valid evidence to prove his above statement, it undoubtedly proves that the defendant Zhongde Company used the license it held to sign a sales contract with the plaintiff, processed the arrival procedures and paid the arrival fees in his name at the destination port, and sold the goods to Chen Ziming, and authorized him to pick up the goods on behalf of others. This is the relationship between the defendant Zhongde Company and Chen Ziming, and has nothing to do with the plaintiff! In addition, if the buying and selling relationship between Chen Ziming and the defendant Zhongde Company is established, their behavior seriously violates the relevant regulations of the state on the import of restricted solid waste. If the court still believes that Chen Ziming was entrusted by the plaintiff to deliver the original bill of lading to him to pick up the goods even though the evidence in this case so fully proves that the defendant Zhongde Company actually authorized Chen Ziming to pick up the goods, and the judgment supports the request of Zhongde Company, Undoubtedly, it has fostered the illegal behavior of restricting the import of solid waste, and also disrupted the management of the national administrative department on the import of restricted solid waste.

In addition, the plaintiff in this case paid the lawyer's agency fee, which was caused by the defendant's breach of contract by Sino German Company. So, it is a common practice in China's judicial practice that the lawyer's agency fees for foreign-related cases should be borne by the party causing the loss. Please consider this by the collegial panel.

In summary, the plaintiff believes that the defendant in this case, based on the goods sales relationship signed with the plaintiff, refused to pay the plaintiff for the goods due to a decrease in the price of the goods at the destination port after picking up the goods and paying the arrival fee, which is clear and well founded. This case is a major foreign-related case with certain international influence. We kindly request the collegial panel to make a fair ruling based on the facts of this case and support the plaintiff's litigation request in accordance with the law.

Zheng Feng, a lawyer from Zhejiang Liqun Law Firm

March 6, 2009