BRIEF
　　　The carrier claims for the demurrage for discharge to the consignee according to the merger clause on the B/L, for the ship was delayed at the port of discharge. In order to collect the demurrage, the carrier keeps the cargo on board, and applies the court for distraining and auctioning the cargo. The maritime court holds that the merger clause is valid and the consignee is liable for paying the demurrage for discharge to the carrier. However, the time for discharge shall not include the time that the carrier distrains the cargo. This case also involves the question that whether the arbitration clause in the charter-party could be merged into the B/L for binding the consignee or not. DETAIL
　　　Plaintiff (defendant in the counterclaim): Metz Combi Line Ltd. of the Cyprus Republic (hereinafter referred to as Metz Combi Line Ltd.)
　　Defendant (plaintiff in the counterclaim): South (Group) Company of the Shantou Special Economic Zone (hereinafter referred to as South Company) 　　　On February 26, 1993, the plaintiff concluded a voyage charter in GENCON formula with Mine Import and Export Company of Rumania (hereinafter referred to as Mine Company) at Lymasoul. It was agreed upon in the voyage charter: the plaintiff appoints "M/V Selimacy" to ship 9000-ton cargo from a port in Rumania to Shantou in China; the time for loading and unloading is 12 sunshine working days; the demurrage is $4000 per day; the ship-owner holds the lien to the cargo due to the demurrage. On April 13, on three copies of original B/L issued by the captain, it is written that: "to be used along with the charter-party", "all clauses and condition in term of the GENCON charter-party at Lymasoul on February 26, 1993". However, the carrier did not receive the B/L because of the dispute over demurrage for loading and over adding the ports of discharge between the plaintiff and Mine Company. In order to make "M/V Selimacy" to fit in with the requirement of sea gauge, the plaintiff concluded the charter-party "Amendment No. 1" with Mine Company on May 8. It was agreed upon that: The GENCON charter-party concluded at Lymasoul on February 26, 1993, and the one "Amendment No. 1" concluded at the same place on May 8, 1993, are merged into the B/L; the ports of discharge are changed into (1) Dongshan in China, (2) Shantou in China; The ship would berth safely at Dongshan in Fujian Province (100 kilometers away from Shantou) where the sea gauge is 8 meters firstly in order that the sea gauge is fit for the consignee. Only the notice that it is ready for loading and unloading would be presented when arriving Dongshan. The notice would not be presented at Shantou. The time for loading and unloading shall include the period of remove from Dongshan to Shantou or the time for berthing, but shall exclude the result of remove. On May 13, the plaintiff collected the demurrage for loading. On May 14, the plaintiff told Foreign Deputy of Dongshan, Ship Deputy of Shantou, Mine Company and the defendant that the B/L had been changed into "all clauses and condition in term of the GENCON charter-party at Lymasoul on February 26, 1993 and the one 'Amendment No. 1' concluded at the same place on May 8, 1993". Afterwards, the plaintiff handed the original B/L to Mine Company.
　　　At 12:30 on May 9, "M/V Selimacy" arrived at Dongshan and moved to the working anchorage ground at 17:00 on May 17. At 18:10, the defendant affirmed to receive the notice that it is ready for loading and unloading and prepared to unload. But the plaintiff refused to open the cabins for discharge because the defendant failed to show the original B/L. On May 15, the plaintiff informed the captain to unload after accepting the letter of guarantee. It began on May 16 to unload and ended at 21:00 on May 25. Then the ship moved to Shantou. At 21:00 on May 26, the ship arrived at the anchorage ground of Shantou and waited for the arrangement. At 9:30 on June 14, the ship moved to No. 13 anchorage ground for discharge. At 16:30 on June 15, the ship berthed at No. 9 buoy for discharge. It began at 9:15 on June 16 to unload. At 21:45 on June 20, it was paused to unload at No.4 hold because No. 7 steeve was damaged under the safe working load. At 18:00 on June 22, the plaintiff ordered the captain to pause unloading in order to exercise the lien on the ground of asking for the demurrage. On June 26, the maritime court impounded 399.24-ton cargo unloaded from "M/V Selimacy" at the dock for foreign ship of Shantou because of the plaintiff's application. At 16:00 on June 28, the plaintiff ordered the captain to load cargo again. All cargo except in No. 4 hold had been unloaded till 17:40 on June 29. The cargos in No. 4 hold also were unloaded at 22:30 at the same day. According to the factual record on the time for loading and unloading, while the cargos on "M/V Selimacy" were unloaded at Dongshan and Shantou, it rained from 00:00 to 24:00 on May 15, from 20:00 to 24:00 on May 24, at 00:00 to 7:00 and 12:00 to 16:00 on May 25, at 00:00 to 12:00 on May 26, at 00:00 to 6:00 on May 27, and at 00:00 to 24:00 on May 31.
　　　Since the defendant did not offer the guarantee within the period prescribed by law, the maritime court sold off those cargos impounded in term of the plaintiff's application. The total amount was RMB1,125,856.8. After taking out the fee for sale and warehouse rent, it remained RMB828,391.11 held by the maritime court.
　　　During the discharge, the defendant entrusted the Taili Notarization of Shantou and the Examination Bureau for Import and Export Commodity of Guangdong to examine the weight of cargos. The Taili Notarization issued the certificate: The total cargos that are kept in the warehouse at Shantou are 15,557 rolls with the weight of 8,505.89 tons. The Examination Bureau for Import and Export Commodity of Guangdong issued the certificate: After examination, the weight of total cargos is 8,505.13 tons, which is not accordant with 8,558.002 tons recorded on the invoice. The discrepancy is 52.872 tons. The defendant did not submit the evidence to examination when "M/V Selimacy" unloaded at Dongshan.
　　　The plaintiff brought an action on the maritime court on July 23, 1993, and asked the defendant to pay the demurrage in the amount of $131,888.88, the cost of preservation and its interest.
　　　The defendant alleges in its answer and brings a counter action: After the joint examination, Harbor Bureau of Shantou cancelled the discharge plan because of the plaintiff's refusal to open the cabin for discharge, and so it was delayed for discharge. Another reason the delay to discharge was the damage of the steeve on board. The defendant is not liable for the demurrage, for it is not indicated on the B/L issued by the plaintiff. According to the examination certificate issued by Taili Notarization of Shantou, the cargos are short 52.87 tons. The defendant asks the plaintiff to pay the damage in the amount of $17,024.784.
JUDGEMENT
　　　The maritime court holds: the place of performance in this case is Shantou in China. In accordance with the principle of proximate connection, it shall apply for Chinese Law. Since it is indicated that all clause and condition follow the charter-party and Amendment No. 1, the defendant, being the holder of the B/L and the actual consignee, shall be bound by the charter-party and Amendment No. 1. The defendant is unable to hold the B/L when receiving the notice that it is ready for loading and unloading at 18:10 on May 11 because the plaintiff changed the B/L on May 14 and handed it to Mine Company. Therefore, it is unreasonable to the plaintiff for refusing to open the cabins due to the defendant's failure to submit the B/L. The delayed time shall be taken out from the time for loading and unloading. The defendant's claim that it is because the plaintiff refused to open the cabins for discharge that Harbor Bureau of Shantou cancelled the discharge plan is not accordant with the fact. On May 16, "M/V Selimacy" began to discharge. The time of the ship being delayed was from 20:00 on June 3, after excluding the time for discharge agreed upon in the charter-party, the rainy days and the holidays. The time delayed due to the pause of discharge shall be excluded from the time of discharge because the means the plaintiff exercised the lien was improper. The time delayed due to the damage of the steeve on board under the condition of safe working load shall also be excluded from the time of discharge. Hence, the time delayed to "M /V Selimacy" shall be nineteen-day-seven-hour-and-forty-minute. According to the B/L and the charter-party, the defendant shall pay the demurrage in the amount of $77,277.78 to the plaintiff. The defendant shall also bear the cost for the proper preservation applied by the plaintiff.
　　　The court shall not give their support to the defendant's counterclaim that during it is during the period of responsibility to the plaintiff that the cargos lacked according to the certificates issued by Taili Notarization of Shantou and Examination Bureau for Import and Export Commodity of Guangzhou because of the lack of the tally evidence during the period of discharge at Dongshan.
　　　The maritime court decides as follow pursuant to Article 95 of Maritime Law of the People's Republic of China, Article 111 and Article 112 of General Principles of Civil Law of the People's Republic of China, and the international convention:
　　　1.The defendant shall pay the demurrage in the amount of $77,277.78, the application fee for lien in the amount of RMB500, the expense of execution in the amount of RMB12,000 and the interest of the cost above to the plaintiff.
　　　2.The defendant's counterclaim shall be dismissed.
　　　The defendant refuses to accept the judgement and submitted its appeal petition. The defendant alleges: 1. The basis on which the judgement of the trial court that the defendant shall bear the demurrage is made is the GENCON charter-party concluded between the plaintiff and Mine Company. There is the arbitration clause in this charter-party. The court shall not accept the case in accordance with Article 257 of Civil Procedure Law of the People's Republic of China. The defendant could not know the right and obligation stipulated in the charter-party because it had never receive the charter-party mentioned in the B/L. It could not demur the jurisdiction when the plaintiff applied the lien to the trial court and brought an action against it because it had not held the original B/L. 2. The plaintiff still held the original B/L and did not give to the carrier when it refused to open the cabin for discharge on the ground that the defendant could not show the original B/L. In fact, the plaintiff kept the B/L and the cargos in order to collect the demurrage for discharge from the carrier, which has no connection with the defendant. It lies upon the plaintiff's fault that the ship was delayed because it refused to open the cabin for discharge in order to collect the demurrage for discharge to the carrier. Therefore, it is improper in the judgement of the trial court not to investigate the tort liability. The defendant asks the court of second instance to quash the original judgement.
　　　The plaintiff replies: 1. The basis on which the plaintiff brought an action against the defendant is the B/L instead of the charter-party. Only the plaintiff and Mine Company are bound by the arbitration clause in the charter-party. Neither arbitration clause exists in the B/L, nor arbitration agreement exists between the plaintiff and the defendant. Therefore, it is proper for the trial court to accept this case according to the B/L. 2. The reason indicated by the defendant that the plaintiff refused to open the cabin for discharge is that the plaintiff kept the cargos due to the carrier did not pay the demurrage. It does not accord with the fact. The actual reason that the plaintiff did not give the B/L to the carrier is the charter-party and the B/L had to be changed owing to adding the port of discharge---Dongshan. 3. The fundamental reason that the ship was delayed is the huddle at Shantou instead of the cancel of discharge plan by the control center of Harbor Bureau of Shantou. Being a section office to Transportation Department of Harbor Bureau of Shantou, the function of the control center is to arrange the ships entering or leaving the port according to the plan made by the relevant superior branch. It has no right to arrange or cancel the plan. According to the schedule on the loading and unloading worked out by Transportation Department on May 20, 1993, "M/V Selimacy" had been listed in the last ten-day of May. Thus, the certificate issued by the control center could not be the evidence. In sum, the plaintiff asks the defendant to bear the liability for paying the demurrage.
　　　The court of second instance holds: The plaintiff brings an action against the defendant, the holder of the B/L, according to the merger clause on the B/L. The merger clause is valid and the defendant shall be bound. The place of performance is Shantou in China. So the application of law to this case shall be Chinese Law according to the principle of proximate connection. Since all condition and clause on the charter-party are merged into the B/L, the plaintiff is entitled to ask the holder of the B/L to pay the demurrage for discharge according to the B/L. The defendant, the holder of the B/L, shall bear liability for compensation to the demurrage for discharge according to the right and obligation stipulated on the B/L and the merger clause. The defendant shall not be bound by the arbitration clause in the charter-party because the clause does not touch upon the right and obligation and it is not agreed upon in the merger clause to merge the arbitration clause into the B/L. The defendant's claim could not be supported that the trial court of first instance has no jurisdiction on this case. Though "M/V Selimacy" arrived at Dongshan on May 9, 1993, and the defendant received the notice that it is ready for loading and unloading at 18:10 on May 11, the plaintiff did not give the original B/L issued on April 13 to the carrier until May 14 after commented on the B/L. It is unreasonable that the plaintiff refused to open the cabin for discharge due to the lack of original B/L when knowing the impossibility for the defendant to show the original B/L. The time delayed resulted from the cancel of the schedule on May 8 shall be excluded from the time for discharge. On May 16, "M/V Selimacy" began to unload. It is from 20:00 on June 3 that the time of demurrage shall be counted excluding the time for discharge and the rainy days and holidays agreed upon in the charter-party. At 18:00 on June 22, the plaintiff paused the discharge for exercising its lien, which is not accordant with the legal principle to avoid the damage. Therefore, the time delayed due to the pause of discharge shall be excluded from the time of loading and unloading. It is the plaintiff's responsibility that No. 7 steeve in No. 4 hold is damaged under the condition of safe working load. So the time delayed also shall be excluded from the time of loading and unloading. The actual time delayed shall be nineteen-day-seven-hour-and-forty-minute and the defendant shall pay the demurrage in the amount of $77,277.78. Since the time delayed by the plaintiff has been excluded from the time of loading and unloading, the defendant's claim that it shall not bear the demurrage due to the plaintiff's fault at all shall not be supported. The defendant's counterclaim shall not be supported because of the lack of enough evidence. In sum, the decision in the original judgement shall be upheld, for the facts are clear and the application and the decision are proper. The defendant's appeal is unreasonable and shall be dismissed. The court decides as follow pursuant to Item 1 of Clause 1 of Article 153 of Civil Procedure Law of the People's Republic of China:
　　　The appeal is dismissed and the decision in the judgement by the court of first instance is upheld.

COMMENT
　　　It is a case in which the carrier brings an action against the consignee according to the B/L with merger clause and asks the consignee to pay the demurrage for discharge. The charterer is not the holder of the B/L issued on the cargo in terms of the voyage charter. The relationship of right and obligation between the lessor (also called as carrier to the holder of the B/L) and the holder of the B/L is determined according to the B/L. The lessor often merges the merger clause into the B/L in order to unify the right, obligation and liability to the charterer in terms of the charter-party and to the holder of the B/L in terms of the B/L and in order to bind the holder of the B/L who is not the lessor. The validity of the merger clause is be admitted in the world generally, including Maritime Law of the People's Republic of China. It is affirmed in the judgement of first instance and of second instance that the merger clause on the B/L is valid and the charter-party invoked in the merger clause binds the holder of the B/L. It is special in this case that not only the charter-party but also its supplemental agreement is merged into the B/L. Both the courts of first instance and of second instance affirmed the principle that the supplemental agreement could be merged into the B/L.
　　　It is legal and valid to merge clause into the B/L. The legal effect is that the holder of the B/L shall bear the obligation and liability stipulated in the charter-party, including the obligation to pay the demurrage for discharge to the carrier. On the basis of affirming the defendant, the holder of the B/L, shall bear the obligation to pay the demurrage for discharge, this case also involves the question of calculating the time delayed and the demurrage. In this case, the time of loading and unloading is counted according to the number of sunny day in the charter-party and excludes the number of rainy day and holiday according to the convention. Moreover, the court excludes three items when calculating the time delayed:
　　　1.The time that the carrier refuses to open the cabin for discharge. When the defendant asked to pick up the cargos after the ship arriving Dongshan, the plaintiff refused because the defendant could not show the original B/L until the defendant submitted the letter of guarantee, which delayed about five days. Both the courts of first instance and second instance holds this period shall be excluded. The reason is that: The defendant could not pick up the cargos by showing the original B/L, for the plaintiff did not give the original B/L to the carrier at that time let alone the consignee. It is well-known that the consignee must show the original B/L when picking up the cargos. Otherwise, the carrier has the right to refuse. However, it is special in this case that the carrier has not handed out the B/L when the consignee asks to pick up the cargos, and so the consignee could not pick up the cargos by showing the original B/L. The reason resulting in the situation lies upon the carrier and the shipper instead of the consignee. Hence, it is unreasonable to ask the consignee to bear the damage in the course of the period. It is obviously unreasonable that the plaintiff refuses to discharge and, on the other hand, counts the time delayed due to its refusal to discharge into the time of loading and unloading.
　　　2.The time the carrier keeps the cargos on board. In the course of discharge at Shantou, the plaintiff ordered the captain to pause discharge in order to collect demurrage and kept the cargos. It is till the carrier applied the maritime court for impounding the cargos that the cargos are unloaded again. It delays about six days. Both the courts of first instance and of second instance affirms this period shall be excluded. The reason is that it violates the principle of avoiding the extension of damage to keep cargos on board. In accordance with Article 87 of Maritime Law, the carrier could keep the cargos reasonably when the demurrage is not paid and no guarantee is submitted. Obviously, the carrier could keep the cargos in order to collect the demurrage. The question is the time and the means to exercise the lien. The plaintiff is improper to exercise its lien by pausing the discharge when it does not finish to unload. It is affirmative to delay the time of discharge and to extend the damage by keeping the cargos on board. Thus, it is proper not to count the time delayed into the time of loading and unloading. The carrier shall exercise its lien by refusing to transact the procedure of delivery after the cargos have been unloaded and stacked at the dock or in the warehouse. The plaintiff is aware of this question afterwards and applied the court to impound the cargos.
　　　3. The time delayed due to the damage of the steeve. In the course of discharge, it is the carrier's liability that No. 7 steeve in No. 4 hold is damaged under the condition of safe working hold. Thus, it is certain to exclude the time delayed from the time of loading and unloading.
　　　The three exclusions above indicate the principle adopted by the courts when calculating the time of loading and unloading and the time delayed.
　　　This case also involves the questions that whether the arbitration clause in the charter-party could be merged into the B/L and how, which are in question.
　　　In theoretically, it is thought that the arbitration clause could only bind the parties concerned instead of the third party as the means to resolve the dispute In accordance with Maritime Law of the People's Republic of China, only the clauses involving the right and obligation to the parties concerned in the charter-party could be merged into the B/L and bind the holder of the B/L. The arbitration clause could not, for it is not such clause. However, the predominant idea at present is that the arbitration clause in the charter-party shall be merged into the B/L on the condition that the merger clause shall indicate clearly to include the arbitration clause. In this case, the merger clause does not indicate clearly to include the arbitration clause although there is the arbitration clause in the charter-party. One of the reasons the defendant appeals is that the arbitration clause in the charter-party has been merged into the B/L, and the dispute over demurrage between the parties concerned shall be resolved by the arbitration. As a result, the court could not accept the case. The court of second instance did not adopt the defendant's opinion because the arbitration clause in the charter-party does not involve the right and obligation and the merger clause does not indicate to merge the arbitration clause into the B/L especially. Therefore, the court of second instance holds that the arbitration clause could be merged into the B/L on the condition that it is indicated especially in the merger clause. This opinion is the dominantly theoretical idea above.