Case: No fault even mis-lading goods

Case: No fault even mis-lading goods

Case Name:
New National Assurance Company Limited Vs. Shanghai RIJIN-TOP Express International Forwarding Co., Ltd.
 
Citation:
Shanghai Maritime Court of PRC (SMC), Civil Judgment (2004) TMC (Chu) No. 492
Judges: Xin Hai (C. J.), Qian Xu, Sun Ying-wei
Date: 21 April 2005
 
Parties:
Plaintiff: New National Assurance Company Limited
Domicile: 5th Floor, 25Field Street, Durban 4001, South Africa
Legal person: Dawn Bachan, Legal Advisor
Agent: Wang Wei-zhong, JinMao Law Firm
Defendant: Shanghai RIJIN-TOP Express International Forwarding Co., Ltd.
Domicile: Hu Qing Ping Rd. 4502,
Legal Person: Qian Wei-xiang, Board Chairman
Agent: Yang Xiao-jun, Guang Da Law Firm
 
Summary of Facts:
On 15 September 2003, the defendant issued a Bill of Lading (B/L) numbered as DNB030909. Shipper: Auto Best Co. Ltd.; Consignee and Notify Party: Danny’s Automotive Company; Cargo: Spare Tools and Accessories; No. of Pieces: 1,183 (Container GATU8063730); Port of Lading: Ning Bo, China; Destination: Johannesburg; Shipment: KOTA WAJAR 087; Freight to Collect.
 
According to a Marine Cargo Transportation Insurance Contract (No. 2199080) between the plaintiff and a company named as Prologistics. Claimed by the plaintiff, as the agent of Danny’s Automotive Company, the Prologistics appeared as an insured party in the Contract. The plaintiff initiated the suit based on his subrogation rights, which valued as totally USD 67,874.76.
 
On 21 October 2003, the GATU8063730 was confirmed being totally lost in a fire in Sea Elegance (ship name). The report by Maritime Security Bureau of South Africa testified that a container with 20 tons of Calcium Hypochlorite (hereinafter CH) was not declared and labeled as dangerous cargo in Singapore, which made it did not be laded appropriately and eventually exploded. The CH container was loaded in the bottom floor of larboard, beside the H.O. container. In the same cabin, there are containers of plastics, rubber and paper based cargos, and the next cabin is engine room. In International Maritime Dangerous Goods Code (IMDG), CH is listed as the dangerous goods (No. 1748, level 5.1). According to the regulations issued by UN Maritime organization on IMDG, this kind of dangerous shipping unit shall be laded on the deck cabin, avoiding sunniness and heat sources; packages should be stacked reasonably allowing enough ventilation. The International Salvage Union and International Group of P&I suggested that the CH can only be laded on the deck; the chemical cargos shall be packed by drums that each contains no more than 45 kilogram; if the air temperature average out 35 Celsius, the shipper should take measures to restrain temperature of the container of No. 1748 cargos in IMDG, or each container should not contain those goods over 14 tons. The investigation has appeared that in a circumstance of temperature over 35 Celsius, the CH will turns unstable and is quite possible to build a fire or an explosion. Experts made a consensus that the explosion and fire in Sea Elegance was caused by the unstable CH in the circumstance of an over 35 Celsius air temperature.
 
Decision:
Reject the plaintiff’s request. The judge cited article 51 and article 269 of Maritime Code of the People’s Republic of China, as well as article 54 of the Civil Procedure Code of the People’s Republic of China.
 
Issues:
On what ground the shipper shall be exempted the obligation of damages?
 
Reasoning:
The accident is caused by the negligence of the CH’s consignor. He did not declare and label the container as the dangerous goods, which caused the ineligible lading and eventually resulted in fire and explosion. The consignors/shippers should be more aware of the features of the goods than carrier. They are obligated to remind carrier paying attention to the characters of the cargos and relative measures in preventing and dealing with possible accidents. If a shipper did not fulfill this obligation, he would be found responsible to the damages. In this case, the carrier laded the cargos unwittingly, so he and his employees have no negligence on the cause of the fire accident.
 
Even the lost of the goods were because of the inappropriate lading by the employees of the carrier, the plaintiff would not be obligated to the damages for there is a special rule in the legislations. According to the law [Article 51, Maritime Code of the People’s Republic of China, noted by translator], unless caused by the actual fault of the carrier, the carrier will not be liable for the loss of or damage to the goods occurred during the period of carrier’s responsibility arising or resulting from a fire. The evidences provided by the plaintiff did not testified the existence of the actual fault of the carrier himself, so carrier should be exempted to the responsibility to the damages of the fire accident. The plaintiff did not justify his request of the damages from the inappropriate lading.
 
Rules:
If the shipper did not notified the carrier the special features of the goods, the carrier should not be liable to the damages even there was an inappropriate lading by the carrier and/or his employees for no fault were found in the case.

2 Comments

Comments are closed.