Voest Alpine Trading USA Corporation v. Jiangsu Jiangyin Foreign Trade Company

沃斯特－阿尔卑斯(美国)贸易公司诉江苏省江阴市对外贸易公司购销合同纠纷上诉案

Voest Alpine Trading USA Corporation v. Jiangsu Jiangyin Foreign Trade Company

(Appellate Case of Dispute over Sales Contract)

Appellant (defendant of the original instance): Jiangsu Jiangyin Foreign Trade Company.

Legal Representative: Zheng Yuan, general manager.

Authorized Agent: Xia Xipu, lawyer from Beijing Dingming Law Firm.

Appellee (plaintiff of the original instance): Voest Alpine Trading USA Corporation.

Legal Representative: Michael Hawker, president of the company.

Authorized Agent: Ma Qun, Sun Jinlong, lawyers from Jiangsu Taihe Law Firm located at Nanjing City.

With regard to the case of dispute over sales contract with the appellee Trading USA Corporation (hereinafter referred to as Voest Alpine), the appellant Jiangsu Jiangyin Foreign Trade Company (hereinafter referred to as Jiangyin Company) was dissatisfied with the civil judgment of the Higher People's Court of Jiangsu Province and appealed to the Supreme People's Court.

It was verified in the original instance that: on June 23rd, 1995, Jiangyin Company concluded an agreement on commissioned import with Gansu Guangxing Chemical Industry Co., Ltd. (hereinafter referred to as Guangxing Company), which is not a party to the present case, both parties agreed that: Jiangyin Company shall import 1000 tons of styrene on the commissioned basis; the port of destination is Zhangjiagang Port; the CFR price is USD 1200/ton; the delivery time is July of the same year; after the goods arrive at the port, Jiangyin Company shall inform Guangxing Company immediately, which shall be responsible for picking up the goods at the port area by itself upon the strength of the customs clearance formalities handled by Jiangyin Company; and the commission is 0.8% of the total export-import volume. On the same day, Jingyin Company concluded a contract with Voest Alpine, both parties agreed that: Jiangyin Company shall purchase 1000 tons of styrene (5% more or less) from Voest Alpine; the CFR price is USD 1200/ton; the port of destination is Zhangjiagang; the time of shipment is July 1995; the payment shall be made by letter of credit, an irrevocable letter of credit, whose beneficiary is Voest Alpine, shall be issued by Wuxi Branch of the Bank of China (the present Jiangyin Branch) one month before the goods are shipped; and Voest Alpine shall inform Jiangyin Company, by wire, of the contract number, commodity name, quantity, gross weight, vessel name and the sailing date immediately after the goods are shipped. After this contract was concluded, upon the application made by Jiangyin Company, Jiangyin Branch of the Bank of China issued a letter of credit with a total sum of USD 1.2 million on July 6th of the same year. On July 11th of the same year, Voest Alpine informed Jiangyin Company of such shipping information as the vessel name, goods, unloading port and unloading time through telex. At the same time, Jiangyin Company replied through telex that: the shipping information has been received, we hereby affirm the vessel, but we hope that the unloading time may be prolonged to 24 hours and please have the goods shipped as soon as possible. On the next day, Jiangyin Company sent a fax to Jiang Wenyuan, who was in charge of Shanghai Office of Voest Alpine, claiming that: “As the price of styrene fell sharply recently in both the domestic and international markets, we will suffer great losses, please ask the head office of your company to seriously consider our following suggestions: (1) due to the change of the price of styrene, our company is unable to operate this business right now, so we hope your company can defer the shipment, and the specific date of shipment will be determined after negotiation; (2) our company encountered some difficulties in handling the quota for duty-free importation because of the change of customs policies, which caused greater losses to us; (3) we hope your company can take the long-term cooperation relationship between both parties into consideration and agree with our requirement to reduce the price and amend the price under the letter of credit.” On July 21st of the same year, Jianyin Company sent another fax to Jiang Wenyuan: “Please contact with the Hong Kong party and send us the photocopies of the certificates on quantity and quality by fax either today or tomorrow. On the next day, the vessel “Duv-carmen” that shipped the styrene arrived at Zhangjiagang Port and the unloading began the same day, all the relevant personnel of Jiangyin Company and Guangxing Company were present at the unloading site. On July 25th of the same year, Guangxing Company handed the photocopy of the bill of lading, invoice, contract, processing manual and other relevant materials submitted by Jiangyin Company over to Zhangjiagang Ocean Shipping Agency Company and entrusted the latter to go through the customs declaration formalities at Zhangjiagang Customs. Zhangjiagang Customs, in accordance with the relevant provisions of the customs law, believed that Jiangyin Company, the consignee of the import goods, misrepresented the general trade as processing imported materials and was suspected of smuggling and detained the goods for supervision. On August 9th of the same year, Jiangyin Branch of the Bank of China received the documents sent by the Texas Commercial Bank of US. Upon examination, Jingyin Branch believed that the documents had some discrepancies and informed Jianying Company and Texas Commercial Bank of the fact on August 11th of the same year. On August 16th of the same year, Texas Commercial Bank retorted over the discrepancies indicated by Jiangyin Branch of the Bank of China. On August 17th, Jiangyin Company sent a fax to Jiang Wenyuan and told him that: as there are many discrepancies in the documents under the letter of credit, it is impossible for our company to redeem the documents, our company will not take any step against the goods if we can't redeem the documents, customs declaration has nothing to do with our company. On the same day, Zhangjiagang Customs sent the Letter on Agreeing to Handle the Styrene in Advance (No.87 [1995] of Zhangjiagang Customs) to Jiangyin Company and informed the latter that: as the 997.731 tons of styrene, which are produced in South Korea, imported according to the contract signed by your company and under the letter of credit issued by your company and shipped into China by the vessel “Duv-carmen” on July 22nd, are suspected of smuggling, this Customs has notified Changshan Branch of Jiangsu Petroleum Head Office in written form and decided to detain the goods, which may be picked up by no entity or individual without the approval of the customs. Considering that the quality-guaranteed period of styrene is relatively short and it is easy to deteriorate and can't be stored for a long time, and in order to avoid losses, this Customs hereby agrees with your company's selling off the goods as soon as possible (the price shall be verified by the customs) and remitting the revenue from selling off the goods to the account designated by the customs in accordance with the provision of Article 22 of the Detailed Rules for the Administrative Penalties of the Customs Law of the People's Republic of China, otherwise, your company will have to bear all the relevant responsibilities. Jiangyin Company did not dispose of the goods in the way required by the customs and asked Jiangyin Branch of the Bank of China to refuse to pay all the money for the goods under the letter of credit on August 23rd of the same year. On the next day, Jianyin Branch of the Bank of China informed Texas Commercial Bank and returned the whole set of documents. On October 16th of the same year, Voest Alpine brought a lawsuit against Jiangyin Company to the Higher People's Court of Jiangsu Province under the ground that Jiangyin Company refused to perform the payment obligation, and demanded Jiangyin Company to make full payment for the goods and bear all the legal costs.

The Higher People's Court of Jiangsu Province held that: the contract concluded by both parties was valid. Under the circumstance that Jiangyin Company did not obtain the original bill of lading, it picked up the goods upon the strength of the photocopy of the bill of lading and deposited the goods at the designated oil depot. Jiangyin Company presented no objection to the acceptance of the goods. The goods were detained by Zhangjiagang Customs when Jiangyin Company was going through the formalities for customs declaration upon the strength of the photocopy of the bill of lading, then Jiangyin Branch of the Bank of China found that there existed some discrepancies in the documents and refused to make the payments for goods, Jianyin Company's taking the above-mentioned facts as its reasons for refusing to accept the goods shall not be supported. The clause on letter of credit stipulates the mode of payment selected by the parties concerned, when there is any discrepancy between the letter of credit and the relevant documents, the parties concerned shall stipulate the mode of payment again, which does not affect the performance of the obligation of delivering goods. As Jiangyin Company had actually accepted the goods, it shall undertake the obligation of paying money for the goods. This Court, in accordance with Article 16 of the Law of the People's Republic of China on Foreign-related Economic Contract, Article 15 of the Provisional Rules on Foreign Trade Agency System and the provisions of the relevant international conventions, adjudicates that: Jiangyin Company shall pay back the money for goods of USD 1,197,277.20 to Voest Alpine and the case acceptance fee of 59,697 yuan shall be born by Jiangyin Company.

Jiangyin Company was dissatisfied with the judgment, it appealed and claimed that: the court of the original instance failed to verify the important facts and its ascertainment was wrong. It was legitimate for Jiangyin Company to refuse to make the payment for goods under the pretext that there were discrepancies under the letter of credit. The delivery of goods and customs declaration were not conducted by Jiangyin Company, Guangxing Company's breach of contract and irregular acts had nothing to do with Jiangyin Company, who did not actually accept the goods, it thus shall not undertake the payment obligation. In addition, as the customs unlawfully detained the goods and Voest Alpine failed to conduct emergency treatment for the goods, the subject matter deteriorated, which caused Jiangyin Company unable to accept the goods and fulfill the sales contract. Therefore, Jiangyin Company pleaded the court of the second instance to reject the claims of Voest Alpine and terminate the sales contract concluded by both parties.

Voest Alpine defended that: Jiangyin Company's act of shifting its responsibilities under the pretext that “the delivery of goods and customs declaration were not conducted by itself and Guangxing Company's breach of contract and irregular acts had nothing to do with it” went against the facts and laws. According to the contractual stipulations and legal rules, only Jiangyin Company may undertake the contractual obligations against Voest Alpine. As for the relationship between Jiangyin Company and Guangxing Company, it had nothing to do with Voest Alpine, and in fact, it was after the occurrence of the dispute when Voest Alpine was aware of the fact that the relationship between Guangxing Company and Jiangyin Company was one of mandate relationship. It was after the sales contract concerned in this case was concluded and before the goods arrived at the port when Jiangyin Company urged Voest Alpine to send documents to it and was clearly informed when and where the goods would arrive at the port. After the goods arrived at the port, the bill of lading, invoice, contract and other relevant documents necessary for the delivery of goods and customs declaration were provided by Jiangyin Company. In the process of going through the customs formalities, Zhangjiagang Customs believed that the goods were suspected of smuggling and pointed out in the letter sent to Jiangyin Company on August 17th that: the goods has been detained by the customs and Jiangyin Company shall be responsible for handling them. It was after the goods were detained by the customs that the discrepancies under the letter of credit were pointed out by Jiangyin Branch of the Bank of China. Letter of credit was only a mode of payment, as Jiangyin Company had picked up the goods and gone through the customs declaration formalities, so it shall make the payment. The facts verified in the original judgment were clear and the application of law was right, thus this Company pleaded the court to sustain the original judgment and the interests occurred from August 9th, 1995 shall be compensated.

The Supreme People's Court believed that: the international sales contract concluded by Jiangyin Company and Voest Alpine on June 23rd, 1995 did not violate any legal provision and both parties' expression of will was true and consistent, therefore, this contract was valid. In the process of fulfilling this contract, Voest Alpine had, all along, submitted the relevant documents, shipping information and other relevant materials in accordance with the requirements made by Jiangyin Company in the faxes it sent, so it had no fault. Voest Alpine had neither legal relationship nor factual relationship with Guangxing Company. Jiangyin Company was fully aware of the arrival of the goods and had actually participated in the unloading work. In accordance with the contractual stipulations of both parties, the customs law of China and the provisional rules on foreign trade agency system, Jiangyin Company was the only obligor of the international sales contract and had the obligation to make customs declaration. Even though it concluded an agency agreement with Guangxing Company, the obligation of handling customs clearance formalities shall be performed by Jiangyin Company. Although Guangxing Company entrusted Zhangjiagang Ocean Shipping Agency Company to go through the customs declaration formalities, all the documents and other relevant materials necessary for customs declaration were provided by Jiangyin Company, therefore, it shall be deemed that Guangxing Company was authorized by Jiangyin Company to go through the customs declaration formalities. In accordance with the provisions of the customs law, the consignee of import goods shall be the statutory customs declarant. On the basis of legal provisions, Zhangjiagang Customs sent the Letter No.87 [1995] to Jiangyin Company, asking the latter to dispose of the goods in advance and bear all the relevant responsibilities, and informed the latter that it may bring an administrative lawsuit if it had any objection to the customs' detainment and possession of goods, but may not refuse to undertake the responsibilities under the pretext that it had entrusted Guangxing Company to go through the customs declaration formalities. Even if it was sure enough that there were discrepancies under the letter of credit, the buyer may only refuse to pay the money under the letter of credit, but may not refuse to accept the goods and finally refuse to make the payment for the goods. The buyer of the contract of this case, Jiangyin Company, had already picked up the goods but did not make the payment for the goods yet. Its ground for refusing to make payment for the goods shall not be supported. The facts verified in the original instance were clear and the application of law was right. Voest Alpine's petition for compensating the lost interests shall be supported. The appealing grounds of Jiangyin Company lacked both factual and legal basis and shall not be supported by this court. In accordance with the provision of Item (1), Paragraph 1 of Article 153 of the Civil Procedure Law of the People's Republic of China, the Supreme People's Court adjudicated on October 9th, 1998 that:

1. The main body of the civil judgment No.72 [1995] of the Higher People's Court of Jiangsu Province shall be maintained;

2. Jiangyin Foreign Trade Company shall pay the interest of the payment for goods USD 1,197,277.20 to Voest－Alpine Trading USA Corporation (which shall be calculated from the date when Jiangyin Company refused to pay the sum under the letter of credit, namely, August 23rd, 1995, to the date when the payment is made on the basis of the loan interest of the same term of the Bank of China).

The case acceptance fee of the first instance shall be handled in accordance with the first judgment. The case acceptance fee of the second instance, 59,697 yuan, shall be born by Jiangyin Foreign Trade Company.

沃斯特－－阿尔卑斯（美国）贸易公司诉江苏省
　江阴市对外贸易公司购销合同纠纷上诉案

　　上诉人（原审被告）：江苏省江阴市对外贸易公司。
　　法定代表人：郑远，总经理。
　　委托代理人：夏希普，北京鼎铭律师事务所律师。
　　被上诉人（原审原告）：沃斯特－－阿尔卑斯（美国）贸易公司（ＶＯＥＳＴ－ＡＬＰＩＮＥ　ＴＲＡＤＩＮＧ　ＵＳＡ　ＣＯＲＰＯＲＡＴＩＯＮ）。
　　法定代表人：迈克尔·霍克（Ｍｉｃｈａｅｌ　Ｈａｗｋｅｒ），该公司董事长。
　　委托代理人：马群、孙金龙，南京市江苏泰和律师事务所律师。
　　上诉人江苏省江阴市对外贸易公司（以下简称江阴外贸）因与被上诉人沃斯特－－阿尔卑斯（美国）贸易公司（以下简称美国贸易公司）购销合同货款纠纷一案，不服江苏省高级人民法院民事判决，向最高人民法院提起上诉。
　　原审查明：１９９５年６月２３日，江阴外贸与案外人甘肃广星化工实业有限公司（以下简称广星公司）签订一份代理进口协议，约定由江阴外贸代理进口１０００吨苯乙烯；目的港张家港；ＣＦＲ价格１２００美元／吨；交货时间在同年７月；货物到港后，由江阴外贸及时通知广星公司，并由广星公司凭江阴外贸办理的海关放行手续自行负责到港区提货；代理费为进出口总额的０．８％。同日，江阴外贸与美国贸易公司签订一份合同，约定：江阴外贸向美国贸易公司购买１０００吨苯乙烯（溢短装５％）；ＣＦＲ价格１２００美元／吨，目的港为中国张家港；装运期为１９９５年７月；以信用证方式付款，在货物装运前一个月通过中国银行无锡支行（后改为江阴支行）开立以美国贸易公司为受益人的不可撤销信用证；货物装运后，美国贸易公司应立即将合同号、商品名称、数量、毛重、船名和开船日期电告江阴外贸。该合同订立后，经江阴外贸申请，中国银行江阴支行于同年７月６日开出总金额１２０万美元的信用证。同年７月１１日，美国贸易公司将船情资料电传给江阴外贸，告知其船名、货物、卸货港、卸货时间等资料。同时，江阴外贸回电称：船情资料收悉，我们确认上述船，但希望将卸货时间延长至２４小时，另请尽快装船。次日，江阴外贸传真给美国贸易公司驻上海办事处负责人江文元称：“由于近来苯乙烯国际国内行情暴跌，我们将遭受重大的损失，请向贵公司本部反映慎重考虑我们的建议。１）由于行情的变化，目前我们已无法经营此项业务，垦请贵方暂缓装运，具体装运日期另请商定。２）我方由于海关政策的变化，办理免税进口指标遇到困难，据此我们遭受的损失更加巨大。３）望贵公司考虑今后双方长期合作关系，同意我们提出的降价要求，修改信用证价格。”同年７月２１日，江阴外贸又给江文元发传真称：请你与香港联系，在今明两天将数量与质量证明复印件传真给我们。次日，装运该批苯乙烯的都夫卡门号船到达张家港，并于当天开始卸货，当时江阴外贸和广星公司的有关人员均在卸货现场。同年７月２５日，广星公司将江阴外贸交其的提单副本、发票、合同及加工手册等有关资料委托张家港外轮代理公司向张家港海关报关。张家港海关根据海关法的有关规定，认为进口货物的收货人江阴外贸以一般贸易伪报成进料加工涉嫌走私，故扣留监管该批货物。同年８月９日，中国银行江阴支行收到美国得克萨斯商业银行寄来的单据。中国银行江阴支行经审单后认为单证存在不符点，即于同年８月１１日通知江阴外贸和美国得克萨斯商业银行。同年８月１６日，美国得克萨斯商业银行针对中国银行江阴支行提出的单证不符点进行反驳。同年８月１７日，江阴外贸传真给江文元称：由于Ｌ／Ｃ项下单证有诸多不符点，使我司无法赎单，我司在没有赎单的情况下不会对货物采取任何行动，报关与我司无关。同日，张家港海关以张关调（１９９５）８７号“关于同意提前处理苯乙烯的函”致函江阴外贸：由你司签约，开证进口并由“都夫卡门”轮于７月２２日运进的南韩产苯乙烯９９７．７３１吨，因涉嫌走私，我关于１９９５年７月３１日书面通知江苏省石油总公司长山分公司，决定将该批货物予以扣留，未经海关许可，任何单位和个人不得提取此货物。鉴于苯乙烯保质期较短，存放时间过长容易变质，为避免损失，我关同意你司速将该批货物变卖处理（价格由海关核定），并依照《中华人民共和国海关法行政处罚实施细则》第二十二条，将变卖款汇至海关指定账号；否则，你司将承担由此造成的一切责任。江阴外贸并未按海关要求处理货物，并于同年８月２３日要求中国银行江阴支行拒付信用证项下所有货款。次日，中国银行江阴支行通知美国得克萨斯商业银行并退回全套单据。同年１０月１６日，美国贸易公司以江阴外贸拒不履行应尽的付款义务为由诉至江苏省高级人民法院，要求江阴外贸付清货款，并承担全部诉讼费用。
　　江苏省高级人民法院认为：双方签订的合同有效。江阴外贸在没有拿到货物正本提单的情况下，以提单副本提货，并已将货物存放在其指定的油库。江阴外贸对接收此批货物并没有异议。在江阴外贸持提单副本等单据向海关报关时货物被张家港海关扣留，此时中国银行江阴支行发现信用证不符点而拒付货款，江阴外贸以此拒收货物的理由不予支持。信用证条款属于当事人选择支付货款的一种方式，在信用证与单据之间存在瑕疵时，当事人应重新约定付款方式，不影响货物交接义务的履行。江阴外贸已实际接受货物，应承担支付货款的义务。该院依照《中华人民共和国涉外经济合同法》第１６条、对外经济贸易部《关于对外贸易代理制的暂行规定》第１５条及有关国际公约之规定判决：江阴外贸偿付美国贸易公司货款１１９７２７７．２０美元，案件受理费５９，６９７元由江阴外贸负担。
　　江阴外贸不服上述判决，上诉称：原审法院对重要事实未查清，导致认定错误。江阴外贸以信用证不符而拒付货款是正当的。提货、报关不是江阴外贸所为，广星公司违约违规行为与江阴外贸无关，江阴外贸并未实际接受货物，不应承担支付货款之义务。另外，由于海关的不当扣留和美国贸易公司对货物不进行紧急处理，使标的物发生变质，也使江阴外贸接受不能，无法履行购销合同。因此请求二审法院驳回美国贸易公司的诉讼请求，终止双方的购销合同。
　　美国贸易公司答辩称：江阴外贸以“提货、报关非其所为，广星公司违约违规行为与其无关”为由推卸责任与事实和法律相悖。根据合同约定和法律规定，对美国贸易公司承担合同义务的，只能是江阴外贸。至于江阴外贸与广星公司之间的关系与美国贸易公司毫不相干，且事实上是在纠纷发生之后，美国贸易公司才知道广星公司与江阴外贸的委托代理关系。本案买卖合同签订后至货物到港前，江阴外贸向美国贸易公司催要文件，并被明确告知货物到港时间和地点；货物到港后，提货、报关所用的提单、发票、合同等文件是江阴外贸提供的。通关过程中，张家港海关认为涉嫌走私，并在８月１７日致江阴外贸的函中指出：货物已被海关扣留，且由江阴外贸负责处理。至于中行江阴支行就信用证提出不符点，已在货物被海关扣留之后。信用证仅仅是付款的一种方式，江阴外贸已提货报关，理应付款。原审判决认定事实清楚，适用法律正确，请求维持原判，赔偿从１９９５年８月９日起产生的利息损失。
　　最高人民法院认为：江阴外贸与美国贸易公司于１９９５年６月２３日签订的国际货物买卖合同没有违反法律规定，双方意思表示真实一致，为有效合同。在履行该合同的过程中，美国贸易公司始终按照江阴外贸的传真要求递交有关单据和船情资料等文件，并无过错。美国贸易公司与广星公司没有任何法律上和事实上的联系。货物到港江阴外贸是明知的，并参与卸货。根据双方合同约定以及我国海关法和对外贸易代理制的暂行规定，江阴外贸是国际货物买卖合同中的唯一义务人，有义务报关提货。即使按江阴外贸与广星公司的委托代理合同约定，办理海关放行手续的义务也在江阴外贸。虽然广星公司出面委托张家港外轮代理公司报关，但是广星公司报关所需单据等文件均由江阴外贸提供，因此广星公司的报关行为应视为江阴外贸的授权，而且根据海关法的规定，进口货物的收货人是法定的通关申报人。张家港海关正是基于法律规定以张关调（１９９５）８７号函致函江阴外贸要求其提前处理货物并承担一切责任，江阴外贸如对海关扣物持有异议，可以提起行政诉讼，而不能以广星公司委托报关为由拒绝承担责任。即使信用证确实存在不符点，也只构成拒付信用证款的理由，并不构成买方拒收货物和最终拒付货款的理由。本案合同买方江阴外贸已经提取了货物。但至今未付货款，其拒付货款的请求理由不予支持。原审认定事实和适用法律均无不当。美国贸易公司关于利息损失的请求，应予支持。江阴外贸的上诉理由没有事实和法律依据，本院不予支持。最高人民法院根据《中华人民共和国民事诉讼法》第一百五十三条第一款第（一）项之规定，于１９９８年１０月９日判决如下：
　　一、维持江苏省高级人民法院（１９９５）苏经初字第７２号民事判决主文；
　　二、江阴市对外贸易公司偿付沃斯特－－阿尔卑斯（美国）贸易公司货款１１９７２７７．２０美元利息（自信用证拒付之日１９９５年８月２３日起至给付之日止，按中国银行同期贷款利率计算）。
　　一审案件受理费按一审判决执行。二审案件受理费５９６９７元，由江阴市对外贸易公司承担。