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Identification of Maritime Freight Forwarder Within the Framework of “One Country, Two Systems”

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Identification of Maritime Freight Forwarder Within the Framework of “One Country, Two Systems” Identification of Maritime Freight Forwarder within the Framework of “One Country, Two Systems” LI Ke I. Introduction II. International Maritime Freight Forwarding Scheme and Identification of Freight Due to the differences in the fields of history, politics Forwarder in Mainland China and legal culture, the international maritime freight forwarding scheme has shown regional characteristics in With regard to the rights and obligations between the Mainland China, Hong Kong, Macao and Taiwan freight forwarders, including the maritime transport freight respectively. In the course of the development of economic forwarders, and their consignors, no specific laws could be integration among Mainland China, Hong Kong, Macao and found under the present Chinese legal system, but only the Taiwan, international maritime freight forwarding industry, fundamental laws, such as the Civil Law of the People’s on the one hand, plays the role of “organizer and designer of Republic of China and the Contract Law of the People’s the international transportation” which makes great Republic of China could be applied to the determination of contributions to the economy and trade development. On the such kind of relationship. In practice, maritime transport other hand, the differences lie in the provisions regulating freight forwarders may play many roles. Sometimes they act international maritime freight forwarding in Mainland China, as entrusted agents to handle the cargo transportation in the Hong Kong, Macao and Taiwan give rise to many name of their principals, however sometimes they participate uncertainties in disputes settlement which holds back the in maritime transport services as independent operators. development of such industry. Diverse roles of maritime transport freight forwarders are This article puts emphasis on the analysis and confirmed by Detailed Rules for the Implementation of the comparison to the similarities and differences among the Regulations of the People’s Republic of China on the international maritime freight forwarding schemes within the Administration of the International Freight Forwarding law districts of Mainland China, Hong Kong, Macao and Industry.1 However identifying the legal role of a freight Taiwan from the perspective of relationship between the forwarder under Chinese law is difficult, especially when the Agency Scheme and Maritime Freight Forwarding Scheme. freight forwarder sign the transport contract in his own name. It may discuss on the feasible mode for resolving the legal On one hand Civil Law of the People’s Republic of China conflicts pertain to the international maritime freight follows the custom of continental law, it only admit direct forwarding in aforesaid four law districts on the basis of the agency 2 , which means if the freight forwarder sign said analysis and comparison. Due to the limitation on space, transportation contract in its own name, it will be deemed as this article may only discuss on the issues of “identification independent operator, not agency. On the other hand of freight forwarder” which has decisive effect on the rights unnamed agency and undisclosed agency in and obligations of the freight forwarder. Anglo-American laws, entitle the principles rights of intervention and the third parties rights of election, are adopted in Contract Law of the People’s Republic of China 3, PhD candidate of the Faculty of Law, the University of Macao @ DLE @ Identification of Maritime Freight Forwarder within the Framework of “One Country, Two Systems” freight forwarders who sign the transportation contract in his performance of the contract into consideration, the fact that own name would be deemed as agency under certain freight forwarders sign shipping documents in their names condition. In practice, whether the freight forwarder take shall be deemed as the essential condition for the principal to responsibilities as independent operator, in most cases carrier, request the freight forwarders to assume the carrier’s liabilities. or as agency depends on which law applies. Lots of In the future judicial practice, it would be convinced that the arguments arise but no specific provisions have been Chinese courts will treat the fact that “freight forwarders sign provided by the current Chinese laws. the shipping documents in their own names” as an important On 27th February 2012, the Supreme People’s Court of basis for the determination of a carrier. the People’s Republic of China issued Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Cases of Disputes over Marine Freight Forwarding4, III. International Maritime Freight which presents the position of Chinese highest judicial organ Forwarding Scheme in Hong Kong and provides important guidance for the following trial. This judicial interpretation comes into force on 1st May 2012. In The international maritime freight forwarding scheme this judicial interpretation the Supreme People’s Court in Hong Kong is rooted in the agency scheme under the explains its understanding on how to identify the legal role of Anglo-American law system. The agency scheme under a marine freight forwarder. Article 3 of this judicial which the identity of the principal is undisclosed as stipulated interpretation rules that people’s court shall decide whether a in the Agency in English Law is for the purpose of protecting marine freight forwarding contractual relationship is the principal “who is left in the dark” or the third party. It established according to the nature of the rights and vests the principal and the third party relevant rights and obligations stipulated in the written contract, the name and remedies after the agency relationship is disclosed so as to manner in which the freight forwarding enterprise receives protect the equity and efficiency of the law. The agent is not payment, the type of invoice issued, the fees charged, the entitled to take the initiative to deny its legal status as trade usage between the two parties and other information on contracting party on the ground of the existence of agency the actual performance of the contract. Article 4 rules that relationship. This special agency scheme makes the legal when a freight forwarding enterprise issues bills of lading, status of the freight forwarder become elusive. seaway bills or other shipping documents in its own name in In the case Italia Marittima SpA v Translink Shipping the course of handling marine freight forwarding affairs, if (Hong Kong) Ltd 5, action was brought by the plaintiff- the consignor claims that the freight forwarding enterprise carrier against the defendant-freight forwarder for contractual assume carrier’s liability on those grounds, a people’s court indemnity and/or common law indemnity for container shall uphold such a claim. When a freight forwarding demurrage and expenses incurred in respect of containers enterprise issues bills of lading, seaway bills or other carried by the plaintiff-carrier. District Court of Hong Kong shipping documents in the name of the carrier’s agent but held that the defendant freight forwarder shall take fails to prove that it has obtained authorization from the contractual liability towards the plaintiff for not disclosing carrier, if the consignor claims that the freight forwarding the dangerous nature of the cargo to the carrier. The judger enterprise assume carrier’s liability on those grounds, a views that being a freight forwarder did not mean that the people’s court shall uphold such a claim. In light of this party would only contract with the carrier as agent of its provision, the Supreme Court did not respond positively to clients. In this case the freight forwarder booked space for the question whether Civil Law of the People’s Republic of carrying the cargo with the carrier in his own name, the China or Contract Law of the People’s Republic of China carrier then issued booking confirmations to the freight applies in identifying the legal roles of freight forwarder. forwarder. Although it is the principal of the freight However, combining the analysis on the provisions as forwarder who picked up containers, packed cargos and stipulated by Article 3 and 4, the Supreme Court holds that in delivered to the carrier, he did all these things in the freight addition to take the written contract, usage and actual forwarder’s name. The principal has not been disclosed to the @ DLF @ 《“一國兩制”研究》2013 年第 3 期(總第 17 期) carrier till the bill of lading was issued. The court held that of Taiwan prescribe the other identity of the “forwarding the freight forwarder should take contractual liability in the agent”, i.e. “carrier”. Article 663 provides that unless antecedent contract contained in or evidenced by the booking otherwise provided by contract, the forwarding agent may confirmations up to the time the bills of lading was issued. himself assume the transportation of the goods, in which case From this case, it seems that Hong Kong courts focus on the he has the same rights and obligations as a carrier. The element that whether the principal is disclosed to the third aforesaid article regulates the right of transportation- party at the time when the contract is concluded. Hong Kong intervention enjoyed by the forwarding agent. Article 664 courts are inclined to protect the third party who is left in the provides that if a fixed price for the whole of the dark, as what is recorded in the judgment that it would be transportation has been agreed upon, or if the forwarding against commercial reality to infer that the carrier intended agent has himself delivered to the shipper a bill of lading, the that the guarantee (of the cargo fitness) by the freight forwarding agent is deemed to have himself assumed the forwarder in the antecedent contract should be discharged transportation of the goods, in which case he is not entitled to and replaced only by an indemnity from a party with whom remuneration. This is a legal fiction to the right of the carrier had no direct dealing.
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