China 29 July 2011 Ningbo Intermediate People's Court (Glass case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/110729c1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: Unavailable
CASE HISTORY: Unavailable
SELLER'S COUNTRY: China (plaintiff)
BUYER'S COUNTRY: Egypt (defendant)
GOODS INVOLVED: Glass
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
53 [Summary of Buyer's Obligations]; 59 ; 59A [Payment due without Request; Payment due at time fixed or determinable by contract or Convention]; 78 [Interest]
53 [Summary of Buyer's Obligations];
59 ; 59A [Payment due without Request; Payment due at time fixed or determinable by contract or Convention];
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Chinese): CISG-China database <http://aff.whu.edu.cn/cisgchina/en/news_view.asp?newsid=148>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Case text (English translation) [second draft]
The CISG Translation Network
Court 29 July 2011
Translation [*] by Yu Wang
Translation edited by M. Bob Kao [**]
[Seller]: Zhejiang Glass Co., Ltd.
Domicile: Nanfan Industrial Zone, Yangxunqiao Town, Shaoxing County, Zhejiang Province
Legal Representative: Feng, Guangcheng (the Chairman of the Board of the company)
Principal’s Representative: Wang, Chengming (the manager of Foreign Trade Department of that company)
Principal’s Representative: Lou, Zhenrong (the attorney of Zhejiang Longshan Law Firm)
[Buyer]: M&A Glass Processing Company
Domicile: 34,Lebanon St., Mohandesseen, Cario [sic], Egypt
Legal Representative: Mohsen Attia (the Chairman of the Board of the company)
The action of the dispute arising from an international sales of goods contract between the [Seller] and the [Buyer] was brought to this Court on 14th July 2009 and after being accepted on 20 July 2009, the legally composed collegiate panel of judges heard the case on 20th July 2011. The representatives of [Seller] Feng, Chengshi, and Wang, Chengming, took part in the proceedings but the [Buyer] failed to appear without reasonable excuses after being legally served and summoned. Therefore, this case was tried and resolved without the presence of the [Buyer].
The [Seller] claimed that from October 2007 to February 2008, it signed 5 sales of goods contracts with the [Buyer], agreeing to provide glass to the [Buyer], amounting to USD 506,434.46 in total with the term of FOB; port of shipment: Ningbo, China; Port of destination: Alexandria Port; Clause of payment: the purchaser shall make one full payment within 60 days of the shipping date on the bill of lading; insurance: paid by purchaser; loading period deadline: 30 to 35 days after the contract being signed. After signing the contract, the [Seller] shipped 223,630.77 square meters of glass from Ningbo Port and sent the bill of lading to the [Buyer] as agreed. But the [Buyer] has not paid as of now. Thus, the [Seller] sought a decision of the purchase price in the amount of USD 506,434.46 and overdue interest in the amount of RMB 343,567 (taking USD 506,434.46 as the cardinal number to calculate the overdue interest, amounting to RMB 343,567, at the average exchange rate 1 USD per 7.1 RMB, compounding daily, based on an interest rate of two point one in ten Thousand for 455 delayed days). In the proceedings, the [Seller] reduced the overdue interest to USD 49377.34 (From 17th May 2008 to 16th May 2011; after that period, the damages shall be counted at the yearly interest rate of 3.25% for two-year USD deposit).
The [Buyer] was not present and did not submit an answer to the complaint or provide any evidence.
The [Seller] submitted the following evidence in order to establish its cause of action:
The absence of the [Buyer] is treated as a waiver of its right to examine the evidence provided by the [Seller] and the right to rebut. This Court holds that the evidence provided satisfies a chain of evidence sufficiently persuasive to establish the existence of the sales contract between the two parties and the [Seller]’s performance of the obligation to deliver the goods. Absent the objection of the [Buyer], this Court accepts the [Seller] has met the high standard of proof for civil litigation. According to the evidence and testimony provided by the [Buyer], this Court finds the facts as follows:
There existed several courses of dealings between two parties. The [Buyer] transferred USD 87801.63 and 68131.14 on 14th and 29th September 2006 respectively. The two parties entered into contracts with the [Buyer], purchasing 57868.99 square meters, 57871.88 square meters, 13321.08 square meters, 58560.29 square meters, and 35998.53 square meters of glass from the [Seller] on 19th October, 1st November, 20th November, 19th December 2007 and 18th February 2008 respectively, at the price of USD 107057.64, USD 136080.48, USD 35300.86, USD 127891.77, USD 100103.71, resulting in 506434.46 in total. All five agreements are with the term of FOB, port of shipment Ningbo, port of destination Alexandria, Clause of payment: the purchaser shall make one full payment within 60 days of the shipping date on the bill of lading; loading period deadline: 30 to 35 days after the contract being signed. After signing the contracts, the [Seller] handed over the goods to the carrier in 6 batches at the Ningbo Port and the carrier signed six copies of bills of landing stipulating the [Buyer] as consignee and notify party. The numbers of the bills of lading are EGLV859793180237, EGLV859793181390, EGLV859793182621, EGLV859793183015, NBALY8180923, and NBALY8180678 on the shipping dates of 20th November, 4th December, 18th December, 26th December 2007, 24th January, 16th March 2008 respectively. The [Seller] sent the bills of lading to the [Buyer] and completed the customs declaration process for the above shipments.
This Court holds that we have jurisdiction over the dispute because the [Buyer] is a foreign company, giving rise to foreign commercial disputes to which the foreign divisions of the Civil Procedure Law (PRC) applies and the contracts were performed in Ningbo. The CISG shall be applied because the places of business of the two parties are in different countries, the two countries had been contracting parties of the CISG prior to the signing of the contracts and neither party excluded the applicability of the CISG. The sales of goods contracts are binding on both parties under which the purchaser shall pay the stipulated amount at specified times and overdue interest would be imposed in the case of delay. [Seller]’s claim is justifiable and allowed by this Court for the purchase prices and overdue interest calculated in accordance with interest rate of USD deposit from the specified date of the last contract to the date of the issuance of the decision.
Pursuant to Articles 53, 59, and 78 of the CISG and s 130 of Civil Procedure Law (PRC), we hold:
The [Buyer] shall pay the [Seller] the purchase price of USD 506,434.46 and overdue interest in the amount of USD 49377.34 (From 17th May 2008 to 16th May 2011; after that period till the performed date, the damages shall be counted at the yearly interest rate 3.25% for USD deposit) and this shall be performed within ten days after the decision takes effect.
If the obligation of payment is not performed by the deadline according to this decision, interest on the debt shall be incurred during the delay period according to s 229 of Civil Procedure Law (PRC).
The litigation fees amounting to RMB 37184 shall be paid by the [Buyer].
The [Seller] is entitled to appeal within 15 days and the [Seller] within 30 days after this decision is received by filing 4 copies of the petition to Zhejiang Province High Court
Chief Judge: Wang, Jiaxing
Judges: Ma, Hong and Du, Juan
29th July 2011
Clerk: Sun, Bin
* All translations should be verified by cross-checking against the original text.
** M. Bob Kao is Visiting Professor of Law at Henan University in China and a member of the State Bar of California. He can be reached at email@example.com.Go to Case Table of Contents