CISG CASE PRESENTATION

China 18 July 2001 Zhejiang Cixi People's Court [District Court] (Carl Hill v. Cixi Old Furniture Trade Co., Ltd.) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/010718c1.html]

Case Table of Contents

• Case identification
• Classification of issues present
• Editorial remarks
• Citations to case abstracts, texts, and commentaries
• Case text (English translation)

• Guide to links contained in case presentations

Case identification

DATE OF DECISION: 20010718 (18 July 2001)

JURISDICTION: P.R. China

TRIBUNAL: Cixi People's Court [District Court], Zhejiang Province

JUDGE(S): Chief Judge: Lu, Yu; Other Judges: Huang, Wenqiong; Zou, Jianxiang

CASE NUMBER/DOCKET NUMBER: (2001) Cijingchuzi No. 560

CASE NAME: Carl Hill v. Cixi Old Furniture Trade Co., Ltd.

CASE HISTORY: Unavailable

SELLER'S COUNTRY: People's Republic of China (defendant)

BUYER'S COUNTRY: United States (plaintiff)

GOODS INVOLVED: Old furniture

Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 32(2) ; 74 ; 77

Classification of issues using UNCITRAL classification code numbers:

32B [Seller's duties when obliged to arrange for carriage];

74A [General rules for measuring damages: loss suffered as consequence of breach];

77A [Obligation to take reasonable measures to mitigate damages]

Descriptors: Carriage of goods ; Damages ; Mitigation of loss

Go to Case Table of Contents

Editorial remarks

Wu Dong, the scholar who called this case to our attention, cites Article 142 of the General Principles of the Civil Law of the PRC which states that:

He remarks that although Article 32 is the only provision of the Convention on Contracts for the International Sale of Goods specifically cited in the Court’s opinion, more provisions of the CISG were actually applied in this case.

Go to Case Table of Contents

Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (Chinese): <http://www.lawyee.net>; <http://www.fayuan.cixi.gov.cn/alfx/dxalm13.htm>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

Go to Case Table of Contents

Case text (English translation) [second draft]

Queen Mary Case Translation Programme

[PROCEEDINGS]

PARTIES AND COUNSEL. Plaintiff: Carl Hill; Citizenship: USA; Date of Birth: 5 November 1965; General Manager of Laote International Co., Ltd. Tianjin Company; Residence: Room 401, Shuiyun Garden Flat Building, Shuixi Village, Nankai District, Tianjin, P.R. China. Attorney (with Special Authorization): ZHANG Chunhu, Attorney-at-law of Tianjin Jinhui Law Firm. Defendant: Cixi Old Furniture Trade Co., Ltd.; Residence: Development Zone, Tianyuan Town, Cixi City, Zhejiang Province, P.R. China. Legal Representative: ZHAO Jianquan, General Manager. Attorney (with Special Authorization): ZHOU Guohua; Male; Date of Birth: 16 December 1968; Defendant's Business Manager; Residence: Room 404, Sanbei Axletree Factory Building, Andong Town, Cixi City, Zhejiang Province, P.R. China. Attorney: SUN Zhichong, Attorney-at-law of Zhejiang Shanglin Law Firm

[POSITION OF THE PARTIES]

[Buyer]'s position. [Buyer] brought the present suit before the Court on 12 January 2001. On March 14, the Court accepted the suit, later established the tribunal according to the law and held two open hearings on 10 May and 2 July. [Buyer] and his attorney, ZHANG Chunhu, [Seller]'s legal representative ZHAO Jianquan's attorneys, ZHOU Guohua and SUN Zhichong attended the hearings. The Court has now finished the trial.

[Buyer] asserted: On 28 November 1999, [Buyer] bought items of old furniture from [Seller] at the price of 40,000 Renminbi [RMB]. After [Buyer] paid the total price, the parties agreed that [Seller] would have the goods transported to Illinois, U.S. and [Buyer] paid [Seller] the relevant fees. But after receiving the fees, [Seller] wrongly delivered the goods to Los Angeles, U.S. The result was [Buyer] could not receive the goods in time and [Buyer] incurred added expenses (losses), storage fee, etc,; total added expenses US $6,570. [Buyer] requested compensation several times, but [Seller] did not pay it. [Buyer]'s position is that [Seller] did not perform its obligation of deliver the goods to the proper place in time and this caused [Buyer] to incur losses. According to the General Principles of the Civil Law of the People's Republic of China, [Buyer] requested the Court to direct [Seller] to compensate [Buyer]'s losses of US $6,570 or 54,465 RMB (at the exchange rate on 1 September 2000, 1 US $ = 8.29 RMB), and to bear all suit fees.

To prove his assertions, [Buyer] provided the following evidence to the Court:

1. Purchasing list dated 28 November 1999 (Evidence exhibit no. 6), to prove that [Buyer] purchased 40,000 RMB of old furniture from [Seller];

2. Fax from [Seller] to [Buyer] on 29 February 2000 (Evidence exhibit no. 1), to prove that [Seller] was responsible for the export procedure, [Seller] requested [Buyer] to pay the export agency fee, fuming fee and antique inspection fee, which in total was US $400;

3. Receipt of Telegraph Transfer by Bank of China (Evidence exhibit no. 2), to prove that [Buyer] paid the price;

4. Bill of Lading [B/L] CNANB 5803634 (Evidence exhibit no. 3), which listed the consignee and his address as "Denetril Fernanoo, 17700 Rosewood Terrace Country Club Hills, Illinois 60411", and the unloading port as Los Angeles. But the final delivery place was blank. This proved that [Buyer] had informed [Seller] of the consignee and his address, but [Seller] did not transport the goods to the address which [Buyer] had appointed.

5. Fax from [Seller] to [Buyer] on 12 May 2000 (Evidence exhibit no. 5), to prove that [Seller] did not fume the old furniture in China and therefore [Buyer] had to pay the fuming fee in U.S.

6. Invoice issued by the Sino-US Sea Transportation Stock Company, No. 03012502 (Evidence exhibit no. 4). The total amount of the invoice was US $6,860.72. [Buyer] asserted that: among this amount, US $125 Customs Application Fee, US $45 Import Documents Fee and US $45.72 Customs Fee should be deducted; the remaining part, i.e. sea or air transport fee (US $1,405), storage fee (US $2,665), fuming fee (US $75), transshipment fee (US $275), vehicle/quay fuming fee (US $275) and freight from Los Angeles to Chicago (US $1,950), were the losses [Buyer] incurred.

[Seller]'s position. In response, [Seller] acknowledged that [Buyer] purchased old furniture from [Seller]. FOB was the price term the parties stipulated. Ningbo Cixi Import and Export Company was entrusted by [Buyer] to take charge of the delivery. Before the goods were delivered, the agent company had faxed the B/L to [Buyer] and [Seller] for confirmation. Illinois was just the address of the consignee appointed by [Buyer], and the delivery place confirmed by [Buyer] was Los Angeles. Therefore, [Seller] had no obligation to deliver the goods to Illinois. The fees claimed by [Buyer] thus should be borne by [Buyer] himself, except that the fuming fee (US $75) should be borne by [Seller] according to the contract.

[Seller] provided the fax dated 9 May 2000 from [Buyer] to [Seller] (Evidence exhibit no. 7) to the Court, which proved the fact that [Seller] did confirm the aforesaid B/L.

FINDINGS AND HOLDINGS OF THE COURT

During trial, the Court summoned the witness Ms. SHI Ruohong. Her attestation proved that:

1. Ms. Shi was the responsible person for the documents in Ningbo Cixi Import and Export Company. In the present case, according to the directions from [Seller], she dealt with the application to customs and consignment.

2. Ms. Shi had never contacted [Buyer] directly, nor did she request [Buyer] to confirm the B/L. The issuance of the B/L was confirmed by [Seller]. Ms. Shi had no idea whether or not [Seller] had requested confirmation from [Buyer]. [Buyer] contacted her only after the dispute arose.

3. The originals of the B/L were posted by Ms. Shi to the consignee on 30 March 2000 according to the direction of [Buyer].

4. Before making the B/L, Ms. Shi found there was no specific name of city in the address of the consignee provided by [Seller], so she could not employ the way of multimodal transport as there was no final delivery place. Ms. Shi thought it was not feasible, thus inquired of the responsible person of [Seller] about this and requested the latter to provide the specific name of the city. As the name of the city was not provided by [Seller], Ms. Shi did not request [Seller] to confirm the final delivery place on the B/L.

5. Ms. Shi also provided a fax from [Buyer] to her (Evidence exhibit no. 7), when the goods arrived in U.S. and [Buyer] and [Seller] were in the present dispute.

As to the Evidence exhibits 1, 2, 3, 4, 5, 6 supplied by [Buyer], after the examination in the Court, [Seller] had no objections on them; they were therefore confirmed by the Court. As to Evidence exhibit 7 supplied by [Seller], it was in foreign language, so the Court directed [Seller] to provide its Chinese translation within a specified period of time. But [Seller] did not provide it. During examination, on the basis of Evidence exhibit 7, [Seller] asserted that the B/L was confirmed by [Seller], not by [Buyer]. In combination with the date of the fax, i.e., 5 May 2000, and the attestation of Ms. Shi, Evidence exhibit 7 provided by [Seller] could not prove [Seller]'s assertion, so the Court did not accept it. As to Ms. Shi's attestation, [Buyer] did not raise any objection. [Seller] deemed the address of the consignee provided by [Seller] was specific enough, even without telephone or fax number. As to that, Ms. Shi said there was no specific name of the city so she could not deliver the goods by multimodal transport, [Seller] raised its objection. As to her other attestations, [Seller] did not raise any objection. As to what Ms. Shi said: "there was no specific name of city in the address of the consignee provided by [Seller], so she could not employ the way of multimodal transport as there was no final delivery place", the Court held that it was just Ms. Shi's own opinion, and whether it was true or not would not affect the other evidence. The Court therefore deemed the attestation of Ms. Shi had proof effectiveness.

To sum up, the Court found that:

• On 28 November 1999, [Buyer] bought items of old furniture from [Seller] at the price of 40,000 RMB. [Buyer] had paid the money. But the parties did not stipulate the delivery place explicitly. Later, the parties agreed orally that [Seller] would be in charge of the application for customs and consignment of the goods and [Buyer] would bear the transport fee and other fees. Thereupon, [Buyer] paid [Seller] US $400 as export agency fee, fuming fee and antique inspection fee.

• [Buyer] also provided the consignee and his address to [Seller]: Denetric Fernanoo (Name), 17700 Rosewood Terrace (Street and number), Country Club Hills (Name of district), Illinois 60411 (State and zip code), U.S. The destination port was Los Angeles or San Francisco. But the parties did not agree on which way of transport would be employed, international maritime transportation or international multimodal transport.

• Because [Seller] had no export competence, it entrusted Ningbo Cixi Import and Export Company to deal with the application for customs and consignment. According to [Seller]'s directions, Ningbo Cixi Import and Export Company had CMA Company transport the goods and listed itself as the consignor. On 16 March 2000, after the goods were laded, the agent of CMA Company issued a set of port-to-port B/L under CNANB 5803634. On the B/L it bore that: the consignor was Ningbo Cixi Import and Export Company; the consignee was the aforesaid person; Freight as Destination; the lading port was Ningbo and unloading port was Los Angeles; the final delivery place on the B/L was blank.

• On 30 March, Ninbo Cixi Import and Export Company according to [Seller]'s direction posted the B/L to the consignee appointed by [Buyer] by express. On 16 May, [Buyer] picked up the goods via the Sino-US Sea Transportation Stock Company; on the No.03012502 invoice issued by the latter, it bore that: the business place of the Sino-US Sea Transportation Stock Company was Wooddel Road North No.1151, Wooddel City 60191 Illinois; [Buyer] should pay US $125 Customs Application Fee, US $1,405 sea or air transport fee, US $45 Import Documents Fee, US $45.72 Custom fee, US $2,665 storage fee, US $75 fuming fee, US $275 transshipment fee, US $275 of vehicle/quay fuming fee and US $1,950 freight from Los Angeles to Chicago when [Buyer] picked up the goods. The total fees were US $6,860.72. The ship number and mark number in the invoice were the same with that in the aforesaid B/L. In the invoice, it was also recorded that the sailing date in the Ningbo Port was 31 March 2000 and the contents of the NGP 035510 B/L. The two parties confirmed that, the aforesaid US $1,405 sea or air transport fee was the freight from Ningbo to Los Angeles which should be borne by [Buyer]. [Buyer] admitted that US $125 Customs Application Fee, US $45 Import Documents Fee and US $45.72 Custom fee should be borne by himself. [Seller] admitted that the US $75 fuming fee should be paid with the US $400 but was not paid by [Seller], thus should be borne by [Seller].

The Court also found that the aforesaid CNANB 5803634 B/L was confirmed by [Seller] before sent to the consignee, but [Seller] had no evidence to prove that it had been confirmed by [Buyer]. [Seller] admitted that the address of the consignee provided by [Buyer] was clear; though [Buyer] provided the name and address of the consignee to [Seller], he did not provide the telephone number, fax number or other information for prompt contact.

The Court held that:

• As the contractual act of the two parties happened in China, according to the closest connection principle, the Chinese law should be applied in the present case. If the international treaties concluded or acceded to by China contain provisions differing from those in the civil laws of China, the international treaties should apply.

• [Buyer] bought old furniture in [Seller]'s place and [Seller] was willing to deliver, so an oral sales contract had been concluded and came into effect. In [Seller]'s place of business, [Buyer] and [Seller] confirmed the subject matter of the contract; [Buyer] paid the price and requested [Seller] to deal with the application for customs and transportation and deliver the goods to the appointed consignee. [Buyer] made it clear that he would bear the application fee and freight, but the parties did not agree explicitly on the delivery place, nor on whether international maritime transportation, international multimodal transport or other reasonable transportation means would be used.

• Thereupon, during performance [Seller] had the obligation to deliver the goods to the first carrier at its place of business so as to transport the goods to [Buyer] or the appointed consignee. [Seller] should conclude the necessary contracts, by means of transportation appropriate in the circumstances and according to the usual terms for such transportation, and transport the goods to the appointed place in order to realize the purpose of the contract for [Buyer]. [Seller] asserted that the unloading port Los Angeles was the destination place confirmed by [Buyer], however, as there was no evidence to prove it, this was not adopted by the Court. [Buyer] informed [Seller] of the detailed address in Illinois of the appointed consignee, which should be deemed as the destination place. Ningbo Cixi Import and Export Company was the agent of [Seller] to deal with the application for customs and consignment, so the effect of its acts should be borne by [Seller]. [Seller] and its agent should have known that there is a long distance between Los Angeles and Illinois, so the reasonable means of performance should be the international multimodal transport by which the goods could be transported to the appointed destination or some other places near to that destination in reasonable distance, such as the capital of the state of Illinois or some other city within Illinois. But [Seller] and its agent during performance chose the international maritime transportation and merely let the carrier unload the goods in Los Angeles, so this was obviously not a proper means to realize the purpose of the contract for [Buyer].

• [Seller]'s act of non-proper performance of delivery should be deemed a breach of contract, [Seller] should therefore bear the relevant economic losses of [Buyer]. Though [Seller]'s agent posted the B/L to the consignee appointed by [Buyer] promptly and properly, it would still cost [Buyer] a reasonable time from when he received the B/L to pick up the goods at the destination. During this period, the storage fee charged by the carrier from the consignee was the loss of [Buyer] caused by [Seller]'s breach, so it should be compensated by [Seller]. The reasonable travel fee and other fees of [Buyer] and his consignee to pick up the goods at the unloading port were also caused by the aforesaid [Seller]'s breach, but as [Buyer] did not claim against [Seller] for this, the Court did not deal with this issue. Among the fees paid to the Sino-US Sea Transportation Stock Company by [Buyer], [Buyer] admitted that the Customs Application Fee, Import Documents Fee and Custom Fee should be borne by himself; except the US $75 fuming fee and US $2,665 storage fee, the other four fees should not be borne by [Seller] according to trade usage and the agreement between the two parties. Meanwhile, transshipment fee, vehicle/quay fuming fee and freight from Los Angeles to Chicago would nevertheless be included in the freight if the international multimodal transport was employed.

• [Buyer] did not prove under normal circumstances what would be the reasonable fee standard for transporting goods from Ningbo via Los Angeles to the delivery place in Illinois appointed by [Buyer] by international multimodal transport. From Los Angeles to Chicago, there were many kinds of transportation available, such as by air, highway or others, and [Buyer] could choose one of them, so the transport fee was not certain. Therefore, these four fees could not be included as losses, thus should be borne by [Buyer] himself. [Seller]'s agent posted the B/L to the consignee on 30 March 2000 and the goods left Ningbo Port on the second day, but the consignee appointed by [Buyer] picked up the goods on 16 May. Considering the normal time for liner sailing from Ningbo to Los Angeles, the time for the B/L arriving at the consignee and the reasonable time for the consignee reaching the port to pick up the goods, it should be deemed that the consignee did not take over the goods within a reasonable time or take reasonable measures to mitigate the losses. The increased storage fee was therefore increased loss and could not be claimed by [Buyer] against [Seller]. [Buyer] had paid US $2,665 storage fee, the range of the increased part of which would be decided by the Court on the basis of the aforesaid situations. [Seller] charged [Buyer] for US $75 fuming fee, which was later paid by [Buyer] when exporting the goods, so it constituted unjust enrichment with the result of reimbursement from [Seller] to [Buyer].

Pursuant to Article 32(2) of the CISG, Articles 92 and 142 para.2 of the General Principles of the Civil Law of the People's Republic of China, Articles 60, 61, 62 para.1 item 5, 64, 112, 113, 119, 126 para.1, 135 and 141 para.2 item 1 of the Contract Law of the People's Republic of China, the Court hereby decides:

1. [Seller] should compensate [Buyer] for his losses of US $1,500.
2. [Seller] should reimburse US $75 to [Buyer].
3. [Buyer]'s other claims were dismissed.

[Seller] should perform the aforesaid items 1 and 2 in seven days as of the effective date of this judgment.

The suit acceptance fee was 2,140 RMB. [Buyer] should bear 1,500 RMB and [Seller] should bear 640 RMB. As [Buyer] had paid the 2,140 RMB of the suit acceptance in advance, [Seller] should pay the 640 RMB directly to [Buyer] when implementing the aforesaid judgment.

If any of the parties is not convinced in this judgment, it may within 15 days after the arrival of the judgment, submit a petition for appeal and copies corresponding to the number of the other party to the Court and appeal before the Zhejing Ningbo Intermediate People's Court.

Chief Judge: Lu, Yu
Judge: Huang, Wenqiong
Judge: Zou, Jianxiang

18 July 2001

Clerk: Shao, Duohao

FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of the United States is referred to as [Buyer]; Defendant of the PR China is referred to as [Seller]. Amounts in the currency of the United States (dollars) are indicated as [US $]; amounts in the currency of the People's Republic of China (Renminbi) are indicated as [RMB].

** Wu Dong, LL.M. candidate, Peking University School of Law, Beijing, P.R. China, 2001 to present; LL.B. Peking University School of Law, 2001.