typhoon? The Shanghai Maritime Court ruled

2022-07-19 07:23
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affected by the typhoon, the container in the cabin of the ship has been dumped and fallen on a large scale, resulting in a large number of cargo damage and container damage, the ship charterer and the ship lessor in the time charter contract who should "pay the bill"? The Shanghai Maritime Court recently made a first-instance judgment on a dispute over a time charter contract, and determined that the ship lessor should bear the contractual obligations of binding and the corresponding responsibilities arising therefrom. The original verdict was upheld in the second instance of the case and the judgment has come into effect.

The plaintiff's shipping company and the defendant's shipping company signed a "charter contract", which agreed that the defendant, as the owner of the cargo ship, would lease the ship with crew to the plaintiff to engage in domestic coastal cargo transportation for a period of five months. On the fifth day after the contract was signed, the ship was full of cargo and opened the summer voyage from Shenzhen to Zhuhai, Quanzhou, Taicang and other ports.

unexpectedly, in the first performance voyage, the freighter encountered typhoon weather. In order to avoid the impact of the typhoon, the freighter sailed to the Daya Bay anchorage in Huizhou for anchor disposal. During the anchoring period, the impact of the typhoon was still not small, and the ship swayed violently, causing damage to the containers and cargo in the cargo hold.

damage occurred, the plaintiff entrusted the insurance appraisal company to board the ship on-site survey. According to the assessment report, the inspector did not find a positioning cone in the container during the ship inspection, which could not effectively prevent the container from moving and shaking. The rapeseed oil, wheat, condiments and other goods in more than 30 containers were damaged, and nearly 50 containers were damaged.

In response, the plaintiff sued the defendant to the Shanghai Maritime Court in accordance with the jurisdiction agreement between the two parties, requesting the court to order the defendant to be liable for the losses suffered by the plaintiff.

court held that the case was a dispute over the loss of goods caused by the parties in the course of performing the fixed-term charter contract. The "Charter Contract" concluded by the original and the defendant is established and valid in accordance with the law, and the defendant shall perform the obligations of the ship lessor in accordance with the contract, properly tie the fixed container, and regularly check the container and tie the firm.

court also held that according to the law, the three conditions of "unforeseen", "unavoidable" and "insurmountable" must be met at the same time to constitute force majeure. Accordingly, the court ordered the defendant to pay the plaintiff compensation of 375000 yuan for goods damage, 12000 US dollars for container loss, 88566 yuan for additional operating expenses and corresponding interest.

[Wired Judge: The defense of the typhoon involved cannot be established]]

Zhang Shanshan, Vice President of the Maritime Chamber of Shanghai Maritime Court:

every summer, the eastern and southern coastal areas of our country often face the test of typhoons. For the shipping industry, it is not uncommon to sue the court for cargo damage and container damage caused by typhoons. Defining the rights and obligations under the charter party and clarifying whether the typhoon exemption defense can be established are the key and difficult points in the trial.

fixed-term charter contract is that the ship lessor provides the ship with crew, which is the main difference between the fixed-term charter contract and the bareboat charter contract. In a fixed-term charter contract, the operation and dispatch of the ship is usually arranged by the charterer of the ship, and the instructions on navigation are controlled by the lessor of the ship through the master. The parties in the time charter contract enjoy the freedom of contracting, and the attribution of liability for the binding of the goods in this case shall depend on the special agreement of the parties to the charter contract. The collegial panel fully reviewed the contract involved and determined that the effective binding of the container in the case was the defendant's contractual obligation.

in the cargo damage accidents caused by typhoons, carriers, ship lessors or terminal operators, as different subjects, will generally invoke the typhoon exemption defense. Under normal circumstances, a typhoon is a natural disaster that has been predicted and is spreading by the meteorological department. Unless the real-time wind power has exceeded the forecast of the meteorological department, it is difficult to determine that it is unforeseen.

In addition, if the ship charterer who has the obligation of binding and fixing under the time charter contract wishes to invoke this exemption, he must prove that the ship involved in the case has effectively binding and fixing the container in accordance with the contract before sailing, and Produce that it has fulfilled the duty of care of a kind manager, etc., otherwise it should bear the legal consequences of failing to provide evidence, and the reason for applying the force majeure exemption clause cannot be established.

Source: Pudong release

[Source: Morning News]]

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