韩国三荣公司诉盘锦庆道服装有限公司海运货物纠纷案

Korean Samyung Company v. Panjin Qingdao Clothing Co., Ltd.

Korean Samyung Company v. Panjin Qingdao Clothing Co., Ltd.

(Dispute over Marine Cargo)

Plaintiff: Korean Samyung Company, located at 37120 Sinsu-dong, Mapo Gu, Seoul, Korea.

Legal Representative: Zheng Enjiu, board chairman.

Authorized Agent: Duan Xinxia, lawyer of Dalian Asia Pacific Law Firm.

Defendant: Panjin Qingdao Clothing Co., Ltd., located at Zhanqian Street, Dawa Town, Dawa County, Liaoning Province.

Legal Representative: Zhang Zhenyan, manager.

Authorized Agent: Wang Zhongsheng, lawyer of Liaoning Law Firm.

Authorized Agent: Liu Qingchun, cadre of the Bureau of Foreign Trade and Economic Cooperation of Dawa County, Panjin, Liaoning Province.

Korean Samyung Company brought a lawsuit with Dalian Maritime Court due to a dispute with Panjin Qingdao Clothing Co., Ltd. (hereinafter referred to as Panjin Company) over marine cargo.

Korean Samyung Company alleged: Samyung Company carried 3 containers of leather and auxiliary materials with the value at 4 million yuan for Korean Qingdao Trade Company (hereinafter referred to as the consignor). After the batch of cargo arrived at Dalian, the port of discharge, Panjin Company applied to Samyung Company for picking up the cargo and promised to supplement the bills of lading later as the bills of lading had not yet arrived. Due to its good cooperation relationship with Panjin Company, Samyung Company delivered the cargo to Panjin Company who had not made payment to the bank or taken the bills of lading. Korean Samyung Company pleaded with the court to order Panjin Company to return the cargo.

Panjin Company argued: The batch of cargo was the raw and auxiliary materials delivered by the consignor to Panjin Company for processing. Since Panjin Company was the consignee, it should certainly possess the batch of cargo. As the cargo consigned by the consignor did not meet the quantity standards for declaration to the customs, there were serious quality problems with the cargo, and the consignor still defaulted the processing fee and the loss to Panjin Company, Panjin Company had all along negotiated with the consignor and discussed about the solution. Samyung Company was merely the carrier, had no ownership over the cargo, thus the batch of cargo should not be refunded to Samyung Company.

It was found out by Dalian Maritime Court after trial: On February 29, 1992, Panjin Company and the consignor concluded the “Contract on Processing of Supplied Leather Clothes” which sets froth that the consignor shall provide Panjin Company with raw and auxiliary materials, and Panjin Company shall process them. In order to perform the contract, the consignor delivered the raw and auxiliary materials in 3 containers in Busan, Korea, to Samyung Company for carriage separately on August 31, September 25 and October 6, 1995. Samyung Company issued 3 bills of lading separately numbered QTC82103, QTC83076 and QTC84032 to the consignor. The above bills of lading describe: The consignor is Qingdao Trade Company, the consignee shall follow the order, the port of loading is Busan, Korea, and the port of discharge is Dalian, China; the containers are separately numbered: PCSU2101160 /93965, PCSU2107868/26984 and TEXUZ049256/06885, and the name of the ship is “Chaoyang”. The consignor settled the exchange in Korea First Bank upon strength of the bills of lading issued by Samyung Company, and mailed the original bills of lading to Bank of China, Panjin Branch, the issuing bank, via the Korean exchange settlement bank. The cargos under the 3 bills of lading arrived at Dalian Port separately on September 8, September 30, and October 12. When picking up the goods, Panjin Company asked Samyung Company to let it supplement the bills of lading after it picks up the cargo on the ground that the original bills of lading had not yet arrived. Samyung Company consented, and delivered the batch of cargo to Panjin Company upon strength of the “letter of guarantee” issued by Panjin Company. After accepting the cargo, Panjin Company refused to make the payment to Bank of China, Panjin Branch to take the bills of lading on the ground that the batch of cargo contained quality problems, etc. Thus, the Branch mailed the 3 original bills of lading back to Korea First Bank. Consequently, Panjin Company was unable to supplement the original bills of lading to Samyung Company. Samyung Company requested Panjin Comapny to return the cargo but was refused. On March 19, 1996, Korea First Bank, the holder of the original bills of lading for the batch of cargo, brought a lawsuit with Korean court on the ground of Samyung Company's unlawful delivery of the cargo, and requested Samyung Company to compensate for the economic losses incurred from the delivery of cargo without the original bills of lading. On March 21, Samyung Company brought a lawsuit on the ground that Panjin Company picked up cargo without the original bills of lading and possessed the cargo. It pleaded with the court to order Panjin Company to immediately return the above said 3 containers of cargo. In that month, Samyung Company applied for property preservation, pleading with the court to seal up the 3 containers of leather and auxiliary materials illegally possessed by Panjin Company. After Samyung Company paid the preservation fee, the court ruled to seal up the batch of cargo deposited by Panjin Company in its warehouse.

Dalian Maritime Court held that the cargo under the bills of lading in dispute should be lawfully possessed by Samyung Company during Samyung Company's carriage and before the consignee picked up the cargo upon strength of the bills of lading. Despite the “Contract on Processing of Supplied Leather Clothes” with the consignor, Panjin Company did not make the payment to the bank to take the bills of lading, and thus had no right to pick up and possess the batch of cargo; it was on the basis of Panjin Company's commitment on supplementing the bills of lading that Samyung Company delivered the cargo to Panjin Company. Therefore, Panjin Company should possess the cargo only before the bills of lading were circulated to the issuing bank. When the bills of lading were circulated to the issuing bank, Panjin Company did not take them, and broke its prior commitment. It had no lawful basis to continue possessing the batch of cargo. Therefore, its continuing possession of the cargo fell within unjust enrichment. Article 92 of the “General Principles of Civil Law of the People's Republic of China” prescribes, “If profits are acquired improperly and without a lawful basis, resulting in another person's loss, the illegal profits shall be returned to the person who suffered the loss.” Samyung Company's claim against Panjin Company for return of the cargo had legal basis and should be upheld; Panjin Company's demurral that it should possess the cargo was not well grounded and cannot be tenable. Samyung Company failed to follow lawful procedures to deliver the cargo to Panjin Company, and should also bear certain liabilities for the cause of the present case. Therefore, Dalian Maritime Court decided as follows on May 6, 1996:

Panjin Company shall, within 15 days as of effectiveness of the present judgment, return the 3 containers of cargo at the original state to Korean Samyung Company in its warehouse.

For the case acceptance fee and preservation fee prepaid by Korean Samyung Company, totaling 53,531 yuan, Panjin Company shall bear 28,531 yuan, and Samyung Company shall bear the remaining amount.

After the judgment of the first instance was announced, neither party appealed.

韩国三荣公司诉盘锦庆道服装有限公司海运货物纠纷案

　　原告：韩国三荣公司。
　　法定代表人：郑恩救，董事长。
　　委托代理人：段新霞，大连亚太律师事务所律师。
　　被告：盘锦庆道服装有限公司。
　　法定代表人：张振岩，经理。
　　委托代理人：王钟声，辽宁省律师事务所律师。
　　委托代理人：刘庆春，盘锦市大洼县外经局干部。
　　原告韩国三荣公司因与被告盘锦庆道服装有限公司海运货物纠纷，向大连海事法院提起诉讼。
　　原告韩国三荣公司诉称：原告承运韩国庆道经贸公司（以下称发货人）３个集装箱价值４００万元人民币的皮革及辅料，该批货物抵达卸货港大连后，被告以提单未到为由向原告申请提货并承诺提货后补交提单。原告基于与被告的良好合作关系，将货放给被告，但被告一直未向银行付款赎单。请求判令被告返还货物。
　　被告盘锦庆道服装有限公司辩称：该批货物是发货人为让被告方加工而发来的原材料与辅料，被告是收货人，该批货物理应由被告占有。由于发货人发来的货物与报关的数量不符，质量也有严重问题，且发货人尚欠被告加工费及损失费，被告已与发货人进行协商并研究解决。原告只是承运人，对该货物没有所有权，因此该批货物不能返还原告。
　　大连海事法院经审理查明：１９９２年２月２９日，被告盘锦庆道服装有限公司与发货人韩国庆道经贸公司签订了《来料加工皮革服装合同》。合同约定由发货人向被告提供原材料、辅料，由被告负责加工。为履行该合同，发货人分别于１９９５年的８月３１日、９月２５日、１０月６日将３个集装箱的原材料及辅料，在韩国釜山交与原告韩国三荣公司承运。原告向发货人签发３份提单，提单号为ＱＴＣ８２１０３、ＱＴＣ８３０７６、ＱＴＣ８４０３２。上述提单记载：发货人庆道贸易公司，收货人凭指示，装货港韩国釜山，卸货港中国大连，集装箱号分别为：ＰＣＳＵ２１０１１６０／９３９６５、ＰＣＳＵ２１０７８６８／２６９８４、ＴＥＸＵＺ０４９２５６／０６８８５，承运船为“朝阳”轮。发货人凭原告签发的提单已于韩国（株）韩一银行结汇，并通过韩国结汇银行将正本提单邮寄给开证行中国银行盘锦分行。该３份提单项下的货物分别于同年９月８日、９月３０日、１０月１２日抵达大连港。提货时，被告以正本提单未到为由向原告提出先行提货后补交提单的请求，原告同意，并凭被告出具的“保函”，将该批货交与被告。被告接受货物后，以该批货物存在质量等问题为由，未向中国银行盘锦分行付款赎单，该分行便将３份正本提单邮回韩国（株）韩一银行，故被告无正本提单补交给原告。原告要求返还货物，被告予以拒绝。１９９６年３月１９日，该批货物的正本提单持有人韩国（株）韩一银行以本案原告不法放货为由向韩国法院提起诉讼，要求本案原告赔偿因无单放货造成的经济损失。同年３月２１日，原告以被告无正本提单提货并占有货物为由提起诉讼，要求判令被告立即返还以上３个集装箱的货物。同月原告又提出财产保全的申请，请求查封为被告非法占有的３个集装箱的皮革及辅料，原告缴纳保全费后，法院裁定将被告存放于仓库内的该批货物予以查封。
　　大连海事法院认为，争议提单项下的货物在原告承运期间至收货人凭提单提取之前，应属原告合法占有，被告与发货人之间虽有《来料加工皮革服装合同》，但未向银行付款赎单，依法无权提取并占有该批货物；原告将货交与被告是基于被告的补单承诺而为之。因此，被告仅在提单流转至开证银行前可以占有该货物。当提单流转至开证银行，被告不予赎取，违背了先前的承诺，继续占有该批货物没有合法依据，强行占有属不当得利。依照《中华人民共和国民法通则》第九十二条规定“没有合法根据，取得不当利益，造成他人损失的，应当将取得的不当利益返还受损失的人。”原告要求被告返还货物于法有据，应予以支持；被告主张应由其占有的抗辩理由不能成立。原告未按合法程序将货物放给被告，对本案诉讼起因也负有一定责任。据此，大连海事法院于１９９６年５月６日判决如下：
　　被告盘锦庆道服装有限公司于其仓库向原告韩国三荣公司按原状返还本案争议的３个集装箱的货物。自本判决生效之日起１５日内返还。
　　本案原告韩国三荣公司预交的诉讼费、保全费共计人民币５３５３１元，被告盘锦庆道服装有限公司承担人民币２８５３１元，余额由原告韩国三荣公司承担。
　　第一审宣判后，当事人未提起上诉。