Contaminated Cargo - Burden of Proof
27.12.2017 |Articles
In December 2007, entrusted by a foreign P&I club, Lawyer Huang Yaquan and Chen Qun of Huang & Huang Co. Law Firm disposed of the case of disputes over claim for cargo damage under contract of carriage of goods by waterway filed by an insurance company against a ship company. In the subject case, the insurance company alleged that after “Jian Xing 32”, carrying 1000.100 tons of ethylene glycol owned by the insured from Huizhou, Guangdong to Jiangyin, Jiangsu arrived at the port of destination, the SGS survey appointed by the consignee found the goods unqualified upon analysis of the cargo samples taken from the pipe onboard and the shore tank after discharging, causing the consignee a loss of CNY1.10 million due to contamination of the goods.
After the lawyers of Huang & Huang Co. Law Firm accepted the appointment, they found statement of “tank inspection qualified before discharging of goods” and “qualified manifold at the fifth sampling/ survey” in the evidential materials submitted by the plaintiff during perusal process of the files. However, the plaintiff only submitted to the court the previous four samplings/survey reports issued by SGS survey excluding the fifth sampling/ report issued by SGS proving the goods to be qualified. Considering the importance of such evidence, after communicating with the appointer, the lawyers of Huang & Huang Co. Law Firm immediately applied to the court for evidence investigation. Finally Guangzhou Maritime Court collected the full set of such evidence from SGS Shanghai Branch.
Upon such basis, the lawyers of Huang & Huang Co. Law Firm made the defence for and on behalf of the appointer that the plaintiff failed to submit evidence to prove the cargo damage occurred during the liable period of the defendant and that the defendant had properly kept the goods and the goods were found qualified through survey before discharging, which persuaded the court of 1st instance to reject all the litigation requests of the plaintiff.
In dissatisfaction with the judgment rendered in the 1st instance, the plaintiff filed an appeal with Guangdong High People’s Court, who, however, made the final ruling to sustain the original judgment.