Shanghai Zhenhua Port Machinery Co., Ltd. v. United Parcel Services Company of United States

上海振华港口机械有限公司诉美国联合包裹运送服务公司国际航空货物运输合同标书快递延误赔偿纠纷案

Shanghai Zhenhua Port Machinery Co., Ltd. v. United Parcel Services Company of United States

(Case of Dispute of International Contract for Carriage of Cargo by Air over the Compensation for Express Delay of Bid Documents)

Plaintiff: Shanghai Zhenhua Port Machinery Co., Ltd.

Legal Representative: Liu Shaoyao, president of the company.

Attorney: Yang Zhi抋o and Sun Jianming, lawyers from Shanghai Foreign Economic Law Firm.

Defendant: United Parcel Services Company of United States (hereinafter referred to as UPS), located at 55 Glenlake Parkway, NE Atlanta , GA 30328 United States.

Legal Representative: Robert旿旵lanin, president of the company.

Attorney: Wang Xiaoyun, lawyer from New Century Law Firm.

Attorney: Chen Jianhua, manager of the law department of Sinotrans Shanghai.

As for the dispute of international contract for carriage of cargo by air over the compensation for express delay of bid documents, Shanghai Zhenhua Port Machinery Co., Ltd. brought a lawsuit to the People抯 Court of Jing抋n District, Shanghai against UPS.

Shanghai Zhenhua Port Machinery Co., Ltd. (hereinafter referred to as Zhenhua Company) claimed that: in order to submit a tender to the Harbor Bureau of the Republic of Yemen for facilities of quayside container cranes, the plaintiff entrusted the defendant to make express delivery of its bid documents on July 21st, 1993 and asked the defendant to deliver them to the specified destination before July 25th, and the defendant promised that the documents would be delivered as scheduled. But because of the carelessness of the handling person of UPS, the documents were detained in Shanghai for two days and were delivered at destination in the afternoon of July 27th. As the deadline for offering a bid is July 26th, the plaintiff lost the chance of winning the bid, suffered from great economic losses and lost possible profits. Thus the plaintiff requests the court to order the defendant to return the freight of 1,432 yuan, compensate for the plaintiff抯 direct economic losses of USD 10,360 and pay the legal cost of this case.

UPS argued that: it did not reach any agreement with the plaintiff on the date when the bid documents shall be delivered at destination. The delivery time was six days and five hours, which is within the reasonable time of 4-7 days for sending international express mail from China to Yemen, so the fact of delivery delay of bid documents does not exist at all. As the plaintiff failed to indicate the category and nature of the express mail, which made it impossible for the defendant to go through the customs declaration, the bid documents were detained in Shanghai for two days. Therefore, the plaintiff shall be liable with regard to this aspect. Even if the defendant was liable for making compensation for the delivery delay of bid documents, it shall only compensate within the maximum liability limit for carriers as provided in the Convention for the Unification of Certain Rules Relating to International Carriage by Air (the Warsaw Convention for short) or the Protocol to Amend the Convention on the Unification of Certain Rules Relating to Internationa1Carriage by Air Signed in Warsaw on 12 October 1929 (Amendment Protocol for short). The plaintiff抯 claims have no legal basis and shall be rejected.

Upon trial, the People抯 Court of Jing抋n District verified that: Zhenghua Company called UPS in the morning of July 20th, 1993 and told the latter that it needed UPS to make express delivery of its bid documents to the Republic of Yemen on July 21st. In the afternoon of July 21st, the defendant gave the plaintiff a consignment note and asked the plaintiff to fill it in. It was indicated in the reverse of the note that 揟he Warsaw Convention and its Amendment Protocol completely apply to this consignment note?and 揟he consignor agrees to all clauses indicated in the reverse of this consignment note and entrusts UPS to handle the formalities for export and customs declaration? etc. In the morning of July 21st, the defendant went to the plaintiff抯 place to pick up the consignment, the bid documents, and signed on the consignment note, which indicated UPS?acceptance of the bid documents. After accepting the bid documents, the defendant did not send them to Shanghai Hongqiao Airport for customs declaration on that day. The defendant did not finish the exit formalities until the night of July 23rd. The bid documents arrived at destination on July 27th. After being informed of the fact that the bid documents did not arrive at destination before July 26th, the deadline for submitting a tender, the plaintiff sent a letter to the defendant on July 27th and asked the latter to make a thorough investigation with regard to this incident and give a reply to the plaintiff. The defendant replied and acknowledged that UPS was very sorry that it made three mistakes in handling the express delivery of the bid documents, namely, failing to accept mails in strict accordance with the prescribed time limit (the deadline for accepting mails is 16:00, but the time when the bid documents of the plaintiff arrived at Shanghai Pudong Office of UPS is 16:45), failing to carefully check the nature of the cargo indicated in the consignment note, and failing to find out whether the client has any special requirement in terms of delivery time.

The People抯 Court of Jing抋n District held that: as the carrier, UPS shall rapidly and safely deliver the bid documents entrusted by Zhenhua Company to the designated destination in time. After accepting the documents on the morning of July 21st, 1993, it did not send the documents to the airport for customs declaration as required by practices of the industry on the same day. It did not send the documents out of the country until the night of July 23rd. Thus the bid documents were detained in Shanghai for two days. The defendant抯 act goes against the principles of rapidity and timeliness as featured by express mail, thus shall be deemed as a delay. So the defendant shall assume corresponding civil liabilities. The plaintiff did not fill in the consignment note in the way required by the defendant, but the defendant shall also be liable as it did not seriously examine and verify the consignment filled in by the plaintiff after receiving it. The grounds of the defendant抯 claims that the fact of delay delivery did not exit at all and that the principal reason for the delay in sending the bid documents out of the country lied in the fact that the plaintiff failed to fill in the consignment documents as required do not hold water. The plaintiff抯 request for the defendant抯 returning freight and compensating for the direct economic losses lacks legal basis. It is provided in Paragraph 2 of Article 142 of the General Principles of the Civil Law of the People抯 Republic of China that: 揑f any international treaty concluded or acceded to by the People抯 Republic of China contains provisions differing from those in the civil laws of the People抯 Republic of China, the provisions of the international treaty shall apply, unless the provisions are ones on which the People抯 Republic of China has announced reservations.?The Chinese government has acceded to and approved both the Warsaw Convention and its Amendment Protocol. It is stipulated in Item 2 of Article 11 of the Amendment Protocol that: 揑n the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of two hundred and fifty francs per kilogram, unless the passenger or consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires.?and 揑n the case of loss, damage or delay of part of the registered baggage or cargo, or of any object contained therein, the weight to be taken into consideration in determining the amount to which the carrier抯 liability is limited shall be only the total weight of the package or packages concerned.?As these provisions are clearly indicated on the back side of the consignment issued by the defendant, it shall be deemed as that both the plaintiff and the defendant have accepted to be governed by these provisions, so the defendant shall compensate for the plaintiff抯 economic losses within the maximum liability limit as prescribed in the Amendment Protocol. The total weight of the bid documents as indicated in the consignment note is 8 kilograms. Therefore, this Court decided on September 18th, 1995 that:

1. UPS shall, within 10 days since the day when this judgment comes into force, compensate for the plaintiff抯 economic losses of 2000 francs (amount to 12,695.47 yuan) once and for all.

2. The plaintiff抯 other claims shall be dismissed.

After the judgment of the first instance was announced, neither the plaintiff nor the defendant appealed. The defendant has uted the judgment.

上海振华港口机械有限公司诉美国联合包裹运送服务公司
　国际航空货物运输合同标书快递延误赔偿纠纷案

　　原告：上海振华港口机械有限公司。
　　法定代表人：刘绍尧，该公司董事长。
　　委托代理人：扬志鳌、孙建明，上海市对外经济律师事务所律师。
　　被告：美国联合包裹运送服务公司（简称ＵＰＳ公司），地址：美国佐治亚州格兰雷克帕街５５号。
　　法定代表人：罗伯特·Ｊ·克兰宁，该公司董事长。
　　委托代理人：王小耘，新世纪律师事务所律师。
　　委托代理人：陈建华，中国外运上海公司法律部经理。
　　原告上海振华港口机械有限公司因与被告美国联合包裹运送服务公司发生国际航空物资运输合同标书快递延误赔偿纠纷，向上海市静安区人民法院提起诉讼。
　　原告上海振华港口机械有限公司（以下简称振华有限公司）诉称：原告为参与也门共和国港务局岸边集装箱起重件投标业务，于１９９３年７月２１日上午委托被告办理标书快递，要求其于当月２５日前将标书投递到指定地点，被告表示可以如期送达。但是，因被告经办人的疏忽，致使标书在沪滞留两天，延迟到同月２７日下午才到达指定地点，超过了２６日投标截止日期，使原告失去投标机会，蒙受较大经济损失及可能得到的利润。请求法院判令被告退还所收运费人民币１４３２元，赔偿直接经济损失１０３６０美元，承担诉讼费用。
　　被告美国联合包裹运送服务公司辩称：被告与原告未就标书到达目的地的日期有过明确约定；被告为原告快递标书费时六天零五个小时，并未超过国际快件中国到也门四到七天的合理运输时间，无延误送达标书的事实。标书在上海滞留两天，系原告未按规定注明快件的类别、性质，以致被告无法报关，责任在原告。即使被告延误送达，应予赔偿，亦应按《统一国际航空运输某些规则的公约》（简称华沙公约）或《修改１９２９年１０月１２日在华沙签订的统一国际航空运输某些规则的公约的议定书》（简称修改议定书）规定的承运人最高责任限额赔偿。原告的诉讼请求无法律依据，法院应予驳回。
　　静安区人民法院经审理查明：原告振华有限公司于１９９３年７月２０日上午电话通知被告ＵＰＳ公司揽货员，表明７月２１日需快递一份文件到也门共和国参加投标。当日下午，被告交给原告一份ＵＰＳ公司运单，让原告填写。该运单背面印有“华沙公约及其修改议定书完全适用于本运单”和“托运人同意本运单背面条款，并委托ＵＰＳ公司为出口和清关代理”等字样。７月２１日上午，被告到原告处提取托运物标书，并在ＵＰＳ公司收件代表签字处签名，表示认可。被告收到原告标书后，未在当天将标书送往上海虹桥机场报关。直至７月２３日晚，被告才办完标书的出境手续。该标书７月２７日到达目的地。原告得知标书未在投票截止日－－７月２６日前到达目的地后，于７月２７日致函被告，要求查清此事并予答复。被告回函承认ＵＰＳ公司在该标书处理上犯有未严格按收件时间收件（截止时间为１６时，而原告标书到被告上海浦东办事处是１６时４５分）、未仔细检查运单上的货品性质、未问清客户有否限时送到的额外要求三点错误，并表示遗憾。
　　静安区人民法院认为：被告ＵＰＳ公司作为承运人，理应迅速、及时、安全地将原告振华有限公司所需投递的标书送达指定地点。但是，被告于１９９３年７月２１日上午接受标书后，未按行业惯例于当天送往机场报关，直到２３日晚才将标书报关出境，以致标书在沪滞留两天半，被告的行为违背了快件运输迅速、及时的宗旨，其行为属延误，应当承担相应的民事责任。原告虽未按被告运单规定的要求填写运单，但被告在收到原告所填运单后，未认真审核，责任在被告。被告提出的无延误送达标书的事实及致使标书延期出境的主要原因在于原告运单填写不适当的理由不能成立。原告要求被告退还运费及赔偿直接经济损失，缺乏法律依据。《中华人民共和国民法通则》第一百四十二条第二款规定：“中华人民共和国缔结或者参加的国际条约同中华人民共和国民事法律有不同规定的，适用国际条约的规定，但中华人民共和国声明保留的条款除外。”“华沙公约”和它的“修改议定书”，我国政府均已加入和批准。该公约修改议定书第十一条第二项关于“在运载登记的行李和载运货物时，承运人的责任以每公斤二百五十法郎为限，除非旅客或托运人在交运包件时，曾特别声明在目的地交付时的利益并缴付必要的附加费”和“如登记的行李或货物的一部分或行李、货物中的任何物件发生遗失、损坏或延误，用于决定承运人责任限额的重量，仅为该一包件或该数包件的总重量”的规定，在被告运单背面书写明确，故应视为原告和被告双方均接受上述规定，被告应按“修改议定书”规定的承运人最高责任限额赔偿原告经济损失。标书运单上填写总重量为８公斤。据此，该院于１９９５年９月１８日判决：
　　一、被告美国联合包裹运送服务公司自判决生效后１０日内一次赔偿原告经济损失２０００法郎（折合人民币１２６９５．４７元）。
　　二、原告其它诉讼请求不予支持。
　　第一审判决宣判后，原告和被告均未提出上诉，被告已履行了判决。