Applicant of Retrial (appellee): Changma Transportation Ltd. of Merchants Bureau
Address: Cining Street No. 18, Jiannidi City, Hong Kong
Legal Representative: Shi Jianxiang, general manager
Authorized Attorneys: Zhu Jie, Shi Tongwen, attorneys-at-law of Zhengyi Law Firm of Beijing
Applicant of Retrial (appellee): Shenzheng Foreign Ship Deputy Company of China (former Shekou Branch, Foreign Ship Deputy Company of China)
Address: Industry Building, Shekou, Shenzheng
Legal Representative: Fan Jianxiong, general manager
Applicant of Retrial (appellee): Development Company of Shenzheng Special Economy Zone
Address: 30th floor of Development Center, Jianshe Street, Shenzheng
Legal Representative: Li Jingquan, manager
Authorized Attorneys: Zeng Yijun, He Zhengda, attorneys-at-law of Junxin Law Firm of Guangdong
The party against whom the application is made (appellant): Yuehai (Hong Kong) Electron Ltd.
Address: 4th floor of Yuehai Building, Mid. No. 74-77, Gannuo Avenue, Hong Kong
Legal Representative: Kong Hongyan, director and vice general manager
Authorized Attorney: Li Ming, attorney-at-law of Li Ming Law Firm of Guangdong
The party against whom the application is made (appellee): Haidao Exploitation Trade Company of Zhuhai
Address: No. 29, Huazishixi Village, Nanhua Street, Xiangzhou, Zhuhai City, Guangdong Province
Legal Representative: Jiang Youfen, general manager
Authorized Attorney: Sun Yanan, vice general manager
The party against whom the application is made (appellee): Huakang (Hong Kong) Development Company
Address: Room E, 9th floor, No. 1, Weihua Center, Shatin, New Territories, Hong Kong
Representative of Action: Liang Jianhua

　　　 The maritime court of Guangzhou heard jointly the case of the dispute over delivering cargos without the B/L Yuehai Electron Ltd. (hereinafter referred to as Yuehai Company) v. Changma Transportation Ltd. of Merchants Bureau (hereinafter referred to as Changma Company) and the case of the dispute over delivering and picking-up cargos without the original B/L Changma Company v. Shenzheng Foreign Ship Deputy Company of China (hereinafter referred to as Foreign Deputy Company), Development Company of Shenzheng Special Economy Zone (hereinafter referred to as Development Company), Haidao Exploitation Trade Company of Zhuhai (hereinafter referred to as Haidao Company), Huagang Development Company (hereinafter referred to as Huagang Company), and worked out the judgement of the first instance. Yuehai Company refused to accept the judgemnet and submitted its appeal petition. The Higher People's Court of Guangdong worked out the civil judgement as final on July 29, 1993. Changma Company, Foreign Deputy Company and Development Company refused to accept and submitted their appeal petition to the Supreme People's Court for arraignment respectively. The Supreme People's Court determined to arraign this case.
　　　The Supreme People's Court finds, after investigation, Fuhui Company, the subsidiary company of Yuehai Company concluded two contracts on sales and purchases with Huagang Company respectively on January 3 and February 21, 1989. It was agreed upon that Fuhui Company sold 10,000 sets of hardware for refrigerator into two groups to Huagang Company. The delivery price at the bargainor's storehouse in Hong Kong was $250 per set and the total value was $2,500,000. The purchaser was responsible for the stockpile after arriving at the port of destination. On January 10, 1989, after the conclusion of the contract, Fuhui Company, being consigned by Huagang Company, consigned the Yuehai Company in written form to transact the procedure for transporting 10,000 sets of hardware for refrigerator from Hong Kong to Chiwan of Shoukou, Shenzheng. Yuehai Company delivered two groups of hardware for refrigerator in which there are 5,000 sets to Changma Company for shipping in Hong Kong on January 26 and February 21, 1989, repectively. Changma Company issued four copies of original B/L to Yuehai Company. It was indicated on the B/L: The shipper is Yuehai Company on behalf of Huagang Company; the consignee is Yuehai Company. The container company was responsible for unloading two groups of hardware recorded on the B/L at Chiwan of Shekou, Shenzheng. The cargo record of the container company showed: The consignation unit was "Shekou" Ltd. of Barge Transportation Company of Merchant Bureau on behalf of Huagang Company. Yuehai Company did no hand the original B/L to Huagang Company because Huagang Company did not pay all money for cargos following the agreement.
　　　On January 26, 1989, Huagang Company consigned Development Company through Yongming to declare the first group hardware in 5,000 sets at the custom. Ye Yongming asked to transact the procedure of picking up cargos by showing the letter of guarantee to Foreign Deputy Company in the name of Development Company. Foreign Deputy Company gave Ye Yongming a copy of B/L with the stamp for picking up imported cargos. Development Company declared at the custom with this copy of B/L. The unit of management, receipt and declaration at the custom on the custom declaration was Development Company. On May 3, Wanke Company affiliated to Development Company paid the tariff for the 5,000-set hardware on behalf of Development Company and the custom let it go. On October 23, Huagang Company and Wanke Company concluded that Huagang Company picked up 3,000-set hardware by paying RMB500,000. The 2,000-set hardware left was mortgaged to Shekou Branch of the People's Construction Bank of China and Shekou Branch paid the $500,000 tariff on behalf of Huagang Company who was paid by Wanke Company in advance.
　　　On February 21, 1989, the second group of hardware with 5,000 sets shipped by Changma Company arrived at Chiwan. Foreign Deputy Company provided the copy of the B/L with the stamp for picking up the imported cargos to Chen Gang, the clerk of the container company, in order to declare at the custom on February 22. On September 30, Haidao Company declared this group of hardware at the custom with those necessary documents, such as the license for importing cargos, custom declaration, etc. The custom did not let it go, for the tariff had not been paid. Later, the court and the custom auctioned the group of cargos jointly in order to settle the dispute caused by the reason of stockpiling in the storehouse for a long time.
　　　On July 9, 1990, Yuehai Company brought an action against Changma Company for its delivering cargos to the one without the original B/L and asked Changma Company to compensate the loan in the amount of $2,150,000 and relevant interest in the amount of $550,000. Changma Company also brought an action against Foreign Deputy Company, Huagang Company, Development Company and Haidao Company for its delivering and picking up cargos without the original B/L. The maritime court of Guangzhou held that these two cases were the dispute over joint tort basing on the same fact and the same object of action actually. The defendant in the later case who was the interested person in the previous case was the party of the joint action. Therefore, the court determined to add the defendant in the later case to the previous case as the defendant and heard two cases jointly.
　　　In addition, it was found: Yuehai Company bought the cargos recorded on the original B/L it held from Kingsum Susumi of Korea at the cost price in the amount of $190 every one. Yuahai Company paid $85,389 for the freight and incidental expenses. Fuhui Company had claimed its ownership to the 10,000-set hardware sold according to the contract on sales and purchases concluded with Huagang Company to the final trial court on December 1, 1992. Fuhui Company expressed to support the action Yuehai Company brought against Changma Company with all its strength and would not bring another action to the same object additionally.
　　　Some evidences could prove the facts above, including the contract on sales and purchases, the B/L, the custom declaration, the record of court, and the documents evidence.
　　　Yuehai Company shall have the ownership to the hardware because of its payment for buying it. The relationship between Fuhui Company and Yuehai Company is the fiduciary and agency relationship, and the ownership to cargos does not transfer, because Fuhui Company concluded the contract with others for selling the cargos on behalf of Yuehai Company. Moreover, Fuhui Company had claimed that Yuehai Company had the ownership to cargos. The fact that Fuhui Company accepted the consignation of Huagang Company and then consigned Yuehai Company to ship these cargos to Chiwan of Shekou, Shenzheng, and the shipper issued the straight B/L on which Yuehai Company was the consignee indicates that Yuehai Company is the ownership to cargos and the final place of delivery affirmed by Fuhui Company and Huagang Company is Chiwan of Shenzheng. Although Huagang Company concluded the contract with Fuhui Company for buying the hardware, Huagang Company did not pay the money to the cargos following the contract; and there is no legal delivery happened at the place of delivery. Yuehai Company always holds the original B/L. Therefore, Yuehai Company still has the ownership to cargos that are the object of this action, and takes other rights and interests as the holder of the B/L. The legal rights above shall be protected, for Yuehai Company owns the cargos and holds the original B/L. However, Yuehai Company shall bear the damage of the acquirable interests and its interest as the result that it did not fulfill the obligation for the consignee actively and did not pick up the cargos for a long time. Yuehai Company also shall bear the liability for the damage of the later 5,000-set hardware.
　　　Development Company is not the holder of the B/L and could not have the ownership to cargos legally. Therefore, it is tort to declare the previous 5,000-set hardware at the custom. It results in the damage that the cargos could not be returned that Development Company handed the effective B/L to Huagang Company and Shekou Branch of the People's Construction Bank of China for delivery. Thus, Development Company shall bear all damage suffered by Yuehai Company for the previous 5,000-set hardware.
　　　Haidao Company is not the holder of the B/L and could not have the ownership to cargos legally. Therefore, it is tort to declare the later 5,000-set hardware at the custom, too. Although Haidao Company failed to pick up the cargos because it did not pay the tariff, its act of declaring at the custom had hampered the holder of the original B/L to pick up the cargos and results in the auction of cargos. Haidao Company shall bear the main liability for the damage due to its tort.
　　　Changma Company, being the shipper, accepted the cargos consigned by Yuehai Company and issued the original B/L. It shall freight the cargos to the port of destination and deliver to the holder of the original B/L. Foreign Deputy Company, the deputy of Changma Company, shall fulfill its responsibility properly. However, it delivered the cargos to the one without original B/L, which is tortious to Yuehai Company. Changma Company and Foreign Deputy Company shall bear the joint and several liability for joint tort to the damage suffered by Yuehai Company.
　　　Huagang Company is not the subject of tort. The jural relations between it and Development Company, Haidao Company shall be settled separately according to law.
　　　The court of second instance holds: This case involves the dispute over the damage caused by the tort involving Hong Kong. Since the place of the tortuous act lies in China, in accordance with Charpter 8 of General Principles of Civil Law of the People's Republic of China, the law of the place where a tort is committed, namely, Chinese Law, shall apply. The court decided: Development Company shall pay the damage in the amount of $99,270,000 and its interest to Yuehai Company; Haidao Company shall pay the damage in the amount of$69,490,000 and its interest to Yuehai Company; Changma Company and Foreign Deputy Company shall bear the joint and several liability for the compensation above.
　　　After the final judgement took effect, Changma Company, Development Company and Foreign Company refused to accept and submitted their appeal petition to the Supreme People's Court respectively.
　　　The petition of Changma Company is based on the following reasons: The purchaser Huagang Company consigned Development Company to declare at the custom and delivered the first group of hardware actually. Therefore, it is lacking in legal support to decide Changma Company and its deputy shall bear the joint and several liability for the compensation Development Company pay to Yuehai Company. The consignor Yuehai Company trades the license illegally on purpose to elude the supervision of custom. Thus, the damage it suffered shall be calculated according to the assessment by the custom instead of the price of cargos when loading. The second group of hardware was not picked up by the one without the original B/L actually, but was auctioned by the custom and the court in order to settle the dispute over storage fee. Therefore, Changma Company and its deputy shall not bear the joint and several liability for the second group of cargos.
　　　The petition of Development is based on the following reasons: Development Company is not the one who picks up the cargos because there is no cachet of Development Company on the letter of guarantee submitted by Ye Yongming and it does not involve the ownership to cargos when declaring at the custom; It indicates that Yuehai Company had given up the ownership to cargos because it preferred helping Huagang Company to pick up the cargos to picking up for itself though it held the original B/L for a long time; Yuehai Company shall bear extended damage because it did not inform the carrier timely when knowing that the cargos had been picked up; The limitation of actions had been over one year which is stipulated in Hague Rules when Yuehao Company claimed for its right.
　　　The petition of Foreign Deputy Company is based on the following reasons: Yuehai Company is not the legal holder of the B/L in this case; it was not the B/L that Foreign Deputy Company provided to the container company and Haidao Company had never used the B/L; it is lacking in legal support to decide Changma Company and Foreign Deputy Company shall bear the joint and several liability for the tort of Development; the price of cargos shall be calculated according to the market price when the result of tort happens; it is lacking in legal support to decide Foreign Deputy Company shall bear the joint and several liability with Changma Company for the first group of cargos.
　　　Yuehai Company replies: The B/L is the warrant of ownership, and it did not agree to deliver the cargos; the relationship between it and Huagang Company is independent of this case; it is permitted that Yuehai Company declares at the customs through its sister company inland; it is improper for the court of first instance to mix two different jural relation of delivering cargos without the B/L and picking up cargos without the B/L together; the one-year limitation of actions stipulated in Hague Rules only included the damage and the loss of cargos and does not include the delivery of cargos without the B/L.
　　　Haidao Company replies: It declared the second group of hardware according to the consignation of Huagang Company. It is not purposive tort.
　　　The Supreme People's Court holds: This case involves the dispute over the delivery and picking-up of cargos without the B/L Yuehai Company (holding the original B/L) v. Changma Company, and Changma Company v. Development Company, Haidao Company, Huagang Company and Foreign Deputy Company.
　　　Yuehai Company is the consignee recorded on the order B/L that could not be transferred. Yuehai Company holds all set of original B/L and takes the ownership of cargos recorded on the B/L. It is the only legal party to delivering cargos. However, Yuehai Company is not a domestic corporation. In accordance with Article 18 and Article 21 of Maritime Law of the People's Republic of China, the cargos recorded on the B/L could not be imported and shall be withdrawn or be auctioned by the custom without the license for importing the cargos. Therefore, the right to the cargos recorded on the B/L shall be protected till being withdrawn.
　　　The relationship of transportation contract has existed between the carrier Changma Company and Yuahai Company after Changma Company issued the straight B/L on which Yuehai Company is the consignee. According to the clause on the back of the B/L and Chapter 4 of Maritime Law of the People's Republic of China, the obligation for transportation the carrier fulfills shall include to deliver the cargos to the legal holder of the B/L. As far as the straight B/L, the cargos shall be delivered to the consignee recorded on the B/L. Changma Company shall bear the liability for infringement to the damage resulted from the failure of Yuehai Company delivering the cargos with the original B/L.
　　　Foreign Deputy Company shall bear the liability for the damage Changma Company suffered because it delivered the cargos basing on the letter of guarantee, which surpassed the delegated authority to a deputy of the carrier.
　　　Development Company, though not the party to the contract on sales and purchases, declared at the custom and picked up the cargos in its own name, which had ratified Ye Yongming's behavior of transacting the procedure to pick up the cargos. It shall bear the liability for the damage Changma Company suffered.
　　　As a foreign corporation, Huagang Company violated Maritime Law by importing cargos and picked up the first group of hardware actually. Its civil liability shall not be exempted and it shall bear the liability for compensation, together with Development Company and Foreign Deputy Company.
　　　Yuehai Company shall bear the liability itself because it did not pick up the second group of hardware that was withdrawn timely.
　　　According to the clause on the back of the B/L, all disputes involved with this B/L shall be settled in accordance with China Law; Hague Rules (1924) shall apply the carrier's liability, right and obligation, and exemption. Yuehai Company did not ask to pick up the cargos basing on the original B/L when the cargos arriving at the port of destination and brought an action on July 9, 1990. The limitation of actions stipulated in Hague Rules had been over. It lacks evidence for Yuehai Company to claim that Hague Rules does not apply this case and its claim to Changma Company shall not be supported. The claims of Changma Company on the dispute over delivering and picking up cargos without the B/L Changma Company v. Development Company, Haidao Company, Huagang Company and Foreign Deputy Company shall be dismissed because its civil liability to Yuehai Company has been exempted. The decision shall be corrected due to the fault of finding fact and of applying for the law. The petition reasons alleged by the applicants of retrial are proper and shall be supported. The Supreme People's Court hereby decides as follow pursuant to Clause 1 of Article 184 and Item 3 of Clause 1 of Article 153 of Civil Procedure Law of the People's Republic of China on August 27, 1996:
　　　1.The judgement filed as 1993-Yue-Fa-Jing-Shang-Zi-255 and 1993-Yue-Fa-Jing-Shang-Zi-256 decided by the Higher People's Court of Guangdong shall be withdrawn.
　　　2. The judgement filed as 1990-Guang-Hai-Fa-Shang-Zi-27 and 1991-Guang-Hai-Fa-Shang-Zi-06 decided by the Maritime Court of Guangzhou shall be withdrawn.
　　　3.The claim of Yuehai Company against Changma Company shall be dismissed.
　　　4. The claim of Changma Company against Development Company, Haidao Company, Huagang Company and Foreign Deputy Company shall be dismissed.
　　　The cost of the first instance of this case shall be borne by Yuehai Company for the previous case and by Changma Company for the later case; the cost of the second instance of this case shall be borne by Yuehai Company.