Judge Comments
If the goods and containers are seized by the customs due to the shipper's reasons, who is responsible for the resulting storage fees at the terminal? The cargo container provided by the carrier cannot be used due to seizure. How should the carrier recover the loss?
In similar disputes in the past, the terminal operator will transfer the terminal storage fee during the detention of the container to the carrier. After the carrier actually pays the terminal operator, it will recover the compensation from the shipper together with the container overdue usage fee. The typical significance of this case is that the court of first instance clarified the responsibilities and rights between the terminal operator, the carrier and the shipper in accordance with the "Administrative Enforcement Law" and the "Contract Law", and clarified the storage costs incurred during the detention of the container cargo. The subject of responsibility. All the plaintiff's claims were eventually rejected, but the plaintiff accepted the judgment and settled the lawsuit, reflecting the fairness and rationality of the judgment.
01
If the container cargo is seized in the terminal yard, the terminal operator is based on the administrative agency's entrusted storage of the containerized cargo, and can only claim the storage cost from the administrative agency that implements the seizure measures.
In shipping practice, due to the shipper’s illegal activities such as smuggling and shipment of contraband, container goods that have not been shipped in the terminal yard or arrived at the destination port and have not yet been picked up may be seized by the customs, inspection and quarantine bureaus and other administrative agencies. . Due to the limited storage space of the administrative agency, the goods are still stored in the terminal yard after being seized, and the terminal operator is responsible for custody. During this period, the storage of goods occupied the operating space of the terminal yard, affecting its operating income, and the storage of goods increased the cost of the terminal operator. Objectively speaking, the terminal operator has the right to claim storage costs.
Regarding the question of whom to claim, if there is still a dispute before the implementation of the "Administrative Enforcement Law," then the law has clearly stipulated this issue after the implementation of the law on January 1, 2012. According to Article 26 of the "Administrative Enforcement Law," the responsibility for storage of the goods during seizure belongs to the administrative agency. The administrative agency can entrust a third party to keep it on its behalf, and the resulting storage costs shall be borne by the administrative agency. A terminal operator who has fulfilled its responsibility for safekeeping of the goods can only claim storage costs from the administrative agency, but not against the cargo carrier or shipper.
As far as this case is concerned, the terminal operator did not claim the storage cost from Dapeng Customs, which took the detention measures, but instead claimed to the plaintiff as the carrier that the cost was not in compliance with the law. The plaintiff had borne the storage costs that should not be borne by the shipper, the defendant Weihang, and therefore had no right to recover the costs from the defendant.
02
Once an administrative compulsory measure is taken, it has compulsory force. Unless there is a legal reason to change or eliminate it through legal procedures, no one may act or require others to act inconsistent with the administrative compulsory measure.
Administrative coercive measures are a type of specific administrative acts. They are temporary coercive measures made by administrative subjects on specific administrative counterparts or objects in order to achieve certain administrative purposes, with the content of restricting rights and disciplinary obligations as the content. behavior. Administrative coercive measures are an effective means of national administrative management, which directly lead to the restriction of the relevant rights of administrative counterparts. Therefore, they are stronger and more direct coercive than other specific administrative actions. Once taken, they cannot be changed without authorization. Unless there are statutory reasons and legal procedures, the administrative compulsory measures are changed, such as shortening the detention period; or there are circumstances in which the administrative compulsory measures are withdrawn, revoked, or deemed invalid.
As far as this case is concerned, when all of the plaintiff’s containers and the goods in the container are seized by the customs and the seizure measures continue to be effective, even if the seizure measures objectively cause economic losses to the plaintiff, the plaintiff can only reduce or restore the economy through other means Loss, or through reconsideration and administrative litigation remedies, require the customs to change or revoke the seizure, and shall not directly ask others to return the container that is still under the state of administrative agency to return to oneself. The plaintiff’s request violated the basic principles of the administrative law and could not be supported.
03
Containers, as a means of transportation, belong to a category, and they are not irreplaceable in commercial operations. Due to the shipper’s reasons, the container and the cargo were seized by the administrative agency. The owner of the container should find alternatives and drag them into operation as soon as possible to avoid the expansion of losses. .
From the above two analysis, it can be seen that during the period when the container cargo is seized by the customs, the actual loss of the carrier is the operating loss caused by the inability of its container to put into operation. In shipping practice and judicial practice, carriers often advocate calculating losses based on their published container overdue usage fees combined with the number of days the container has been detained. Regarding the nature of container overdue usage fees, there have always been two viewpoints in the theoretical circles: "rent theory" and "liquidated damages theory". Regardless of the point of view, the premise for the shipper to accept the carrier’s claim for calculating the overdue usage fee is that the shipper and the carrier reach an agreement on this.
As far as this case is concerned, this condition is obviously not met, so the carrier’s losses should be based on the loss of the expected benefits of the loss of the normal use of the container during the detention period and the loss of the lease or replacement of the container involved in the case from a third party. The cost loss is calculated. In shipping practice, the container is a free tool provided by the carrier to the shipper to load goods. Even if an overdue usage fee is specified, it only urges the shipper or consignee to return the container in time after completing the normal delivery procedures. The value of its existence is to help the carrier to perform the contract of maritime container cargo transportation normally, rather than to let the shipper or the consignee use it for profit.
When the container is seized and the carrier knows that it cannot be retrieved in the short term, the carrier should actively take measures to reduce losses. In the transportation link, the container is not a specific item that cannot be replaced, and the carrier can purchase other containers of the same type to continue operations. If the carrier does not adopt the method of purchasing substitutes to prevent the loss of the container from further expanding, according to Article 119 of the Contract Law of the People’s Republic of China, the first paragraph of “After one party breaches the contract, the other party shall take appropriate measures to prevent losses. Expansion; if appropriate measures are not taken to cause the loss to be enlarged, no compensation for the enlarged loss shall be required, and it has no right to demand losses beyond the purchase price of the container.
In this case, regarding the container overdue usage fee, the court held that the owner of the container, knowing that the container has been seized by the customs and cannot retrieve the container in a short period of time, can adopt the method of replacing similar containers to avoid the expansion of losses. The plaintiff in this case did not take appropriate measures to prevent the further expansion of container losses, and he has no right to claim for the expanded losses.
