Author: Hua Junli
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Every time it is the peak shipping season, "throwing the cabinet" occurs from time to time.
Especially in the past two years, due to the impact of the COVID-19 pandemic, the international logistics capacity has declined, the freight of container ships has risen sharply, and the domestic transportation capacity is tight.
In fact, "cross-border e-commerce sellers" and "freight forwarders" (the "freight forwarders" mentioned in this article are limited to "ocean freight forwarders") are both victims of the "shipping company" dumping the cabinet; however, it is clear that the "freight forwarder" is sandwiched between the "seller" and the "shipping company"; and the "freight forwarder" is the party that directly signs the transportation agency contract with the seller. When the seller bears losses or compensation, it is not uncommon to sue the freight forwarder in anger.
So, for the freight forwarding company, it can be described as "disaster from the sky". How to prevent and resolve the risk of litigation, and reduce the "disaster" to nothing?
This article will briefly explain from the following two aspects:
(1) What is a dump cabinet?In the foreign trade and maritime industry, "dumping cabinets" is a popular term. For example, the "shipping company" clearly allocated only 100 shipping spaces to a port, but released 120 shipping spaces to the forwarder or cargo owner. (If it is simply understood by "addition and subtraction") At that time, the extra 20 shipping cabinets will definitely not be loaded, and they can only be dumped and postponed to the next ship; so, let us briefly explain as follows: "container" is "dumped" in the port and does not board the ship as expected, which is called "dumping cabinets".
The reason why the "shipping company" did this? It was very simple. In order to be fully loaded, no shipping space would be wasted. In reality, there were a lot of reasons such as withdrawal of cabins, temporary failure to catch up with the ship, and failure to leave due to customs declaration problems. Therefore, even if the shipping company released 120 cabins, it might not be fully loaded when it left the port.However, during the peak shipping season, the volume of cargo on some popular routes suddenly increases, and the shipping company's space is limited, so it is easy to "explode" and the container is dumped. In this way, "cross-border e-commerce sellers" may face various losses and accountability for delayed delivery.
As mentioned earlier, although the "freight forwarder" is sandwiched between the "seller" and the "shipping company", the "freight forwarder" is the party that directly signs the transportation contract with the seller. When the seller bears the loss or compensation, it is not uncommon to sue the freight forwarder in anger.
(2) Key points for freight forwarding companies to prevent the risk of losing the lawsuit.In a narrow sense, only from the literal understanding, the cabinet is only the case of "the seller and the freight forwarder are not at fault", and the shipping company's cabinet dumping behavior. But in practice, we can also see from a large number of legal precedents that the judgment document has a broad understanding of "cabinet dumping", which includes the cabinet dumping (or "extended cabinet") caused by "the seller's own reasons".
1. Clarify the real reason for "throwing the cabinet".Obviously, for freight forwarding companies, how to prevent risks? First of all, the first point: to distinguish whether the cabinet was dumped (or extended) due to their own fault, there is a big difference in their own responsibility:
a\ "The seller's own reasons" caused the cabinet to be thrown away.The freight forwarder should determine whether the cabinet was thrown away due to "the seller's own reasons." If it is indeed the case, the freight forwarder naturally does not need to be responsible for the cabinet. Case cited: From the Shanghai Maritime Court's "Shanghai Wanze International Logistics Co., Ltd. Nanjing Branch and Xiamen Zhongmao International Freight Forwarding Co., Ltd. Shanghai Branch Maritime Freight Forwarding Contract Dispute", it can be clearly seen in the court verdict that in this case, although the situation of "throwing the cabinet" occurred, a large amount of evidence provided by the freight forwarder company and found out after the trial: "
The plaintiff was responsible for packing and declaring the goods and transporting the goods to the port areaBecause the weight, number and size of the goods in the confirmation of the bill of lading submitted by the plaintiff to the shipping company were inconsistent with the data declared by the plaintiff, the goods failed to board the ship on the same day and were stranded in the port area". That is to say, the seller himself has a very important responsibility for the" dumping cabinet ", and finally the Shanghai Maritime Court rejected the seller's lawsuit against the freight forwarding company.
b\ "Shipping company" caused by dumping the cabinet.First, the freight company cannot be exempted from liability because "the delivery of the cabinet is caused by the shipping company and has nothing to do with me"; second, even if the freight company and the seller sign a corresponding exemption clause, the clause cannot be applied between the seller and the freight company. So, for the freight forwarding company, what is the correct approach? We directly quote the original text of the "Guangzhou Maritime Court Trial Circular" white paper issued by the Guangzhou Maritime Court on June 17, 2022: "
As far as the freight forwarder is concerned, after receiving the notice from the shipping company, it should inform the client as soon as possible, handle the transshipment and document matters according to the client's instructions, actively coordinate with the shipping company to reduce additional costs, and work together to minimize the loss caused by the cabinet.". Our view is that when the freight forwarder actively coordinates all parties and strives to reduce losses, the possibility of the freight forwarder taking responsibility will be minimal. Details are as follows.
Citing case: From the "Ningbo Siming Automotive Technology joint stock company and Jianfeng (Shanghai) International Freight Forwarding Co., Ltd. Ningbo Branch Company's first-instance civil court verdict on the dispute over the contract of carriage of goods by sea and sea waters", it can be seen that in this case, the contract signed by the freight forwarder and the seller has an exemption clause for "losses caused by third parties", but the court verdict makes it clear that this clause does not apply to both parties to the contract, and the freight forwarder company cannot use "the uncontrollable behavior of the shipping company" as a legal reason to exempt its carrier from liability. The original text of the court verdict is as follows: "
Although both parties agreed in the freight forwarding agreement involved in the case that Jianfeng Ningbo Branch would not be responsible for the losses caused by the third party to Siming Company, the nature of the agreement is a sea freight forwarding contract, and the two parties in this case are in a contractual relationship of sea freight transportation. The liability of the carrier can only be applied to the relevant provisions of the Maritime Law of the People's Republic of China. The agreement in the case agreement to exempt Jianfeng Ningbo Branch from liability is not binding on both parties in this case.
In this case, the shipping company is the actual carrier, and its behavior of dumping goods at Busan Port for a week and docking at Ningbo Port a week later does not belong to the carrier's exemption under the Maritime Law of the People's Republic of China, and Jianfeng Ningbo Branch cannot use the uncontrollable behavior of the shipping company as a legal reason for exempting its carrier's liability...It can be seen that the freight forwarding company cannot simply claim exemption on the grounds of "the shipping company has nothing to do with me" and "we have signed a waiver clause". Moreover, the freight forwarding company should actively coordinate the seller and the shipping company after the "dumping" incident occurs to ensure that the goods are dispatched as soon as possible on other ships; so as to reduce the loss, or prevent the loss from continuing to expand. To sum up, under different "dumping" reasons, the responsibility of the freight forwarding company is different. First of all, it is necessary to figure out the reason for the "dumping".
2. Establish the enterprise's own compliance risk control system and carefully retain communication evidence.For freight forwarders, another key point to prevent risk is to "establish an enterprise's own compliance risk control system and carefully retain communication evidence".
A\ Establish an enterprise's own compliance risk control system to prevent risks in advance.In practice, there are many cases to show that the "cabinet dumping" incident occurred, and both the "seller and the freight forwarding company" were unaware of it, and they only learned of the cabinet dumping for many days after the fact. Freight forwarding companies should strive to strengthen their own risk prevention and control levels, and take the initiative to investigate the situation of "cabinet dumping". Although "cabinet dumping" is a small probability event, it should not be careless. Freight forwarding companies should make specific business as detailed and process-oriented as possible; after knowing that the cabinet has been dumped, communicate with the seller as soon as possible.
Develop detailed and thorough work processes and employee operation manuals, conduct employee training for special projects within the company, and take the initiative to prevent risks in advance.
B\ Evidence, evidence, evidence.In the process of shipping services, a lot of evidence is involved, such as: "QQ chat records, WeChat chat records, cargo consignment notes, booking slips, declaration slips, bills of lading, cargo logistics information, ordinary VAT invoices, freight call notices, tax refund information descriptions, screenshots of terminal release information, screenshots of customs system failure to clear customs, screenshots of terminal fees, customs declaration bank statements..." and so on.
The above evidence is very important, and at the same time, after the "dumping of the cabinet" happened, the evidence that the freight forwarding company "actively coordinated with the seller and the shipping company to prevent the loss from expanding" is particularly important. And this kind of evidence is basically formed by "WeChat, QQ, phone, email" and other carriers, and many freight forwarding companies do not have a strong sense of keeping such evidence at ordinary times. Moreover, because lawsuits often occur six months or one year after the incident, during which time employees leave and change mobile phones, etc., these important evidence is nowhere to be found before the trial.
In this way, even if the lawyers of the freight forwarding company are highly capable, they are powerless. Therefore, the preservation of evidence is very, very important.Regularly backup the WeChat chat records of key employees, pay attention to the preservation of emails, use emails with company suffixes as much as possible for official emails, and hand over such evidence when employees leave their jobs. The training and specific implementation of these work habits are very important; when a specific lawsuit occurs, the role of these habits can be strongly revealed. Here, I repeat the original text in the white paper "Guangzhou Maritime Court Trial Circular" issued by the Guangzhou Maritime Court on June 17, 2022: "
As far as the freight forwarder is concerned, after receiving the notice from the shipping company, it should inform the client as soon as possible, handle the transshipment and document matters according to the client's instructions, actively coordinate with the shipping company to reduce additional costs, and work together to minimize the loss caused by the cabinet.". See above, we believe that the words" preservation of relevant evidence "are the key points in the key. However, what is more important than this key point is not to preserve the evidence of a certain case, but to develop the habit of" preservation of communication evidence "in the process of company management, so that there can be no disadvantages. The above is our shallow analysis. I hope this small article can be helpful to you. Please point out the inexhaustibility. We will actively improve, thank you very much.
