Who should bear the cost during the detention of the goods by the customs?

Who should bear the stockpiling cost during the detention of the goods by the customs?

If the cargo and container are detained by the customs due to the reason of the shipper, who will bear the wharf storage charges? What means should the carrier take to recover the loss when the container that the carrier provides to load goods is detained and cannot be used?
One of the disputes involved in the following case is who should bear the storage costs incurred during the detention of the container cargo by the customs. The court believes that the storage costs should not be borne by the carrier. About the container overtime usage fee, the court thinks the owner of the container, be informed that the container is detained by the customs, below the circumstance that cannot take back the container in the short term, the means that can take the replacement contype container will avoid the expansion of the loss. The plaintiff in this case did not take appropriate measures to prevent the further expansion of the loss of containers, and it has no right to claim for the further loss.
[Basic case]
On December 23, 2011, the Defendant Wei-Hong Company applied to the plaintiff Mediterranean Shipping Company for booking the shipping space of one container. The booking in the application was the Defendant Wei-Hong Company, the carrier was the plaintiff, the loading port was Yantian, China, the destination port was Gdynia, Poland, and the expected sailing time was December 31. After accepting the booking, the plaintiff issued a booking confirmation to the defendant.
On December 27, 2011, the defendant took the container belonging to the plaintiff from Yantian Wharf Company, loaded the goods, and returned the container to Yantian Wharf Company for transport on December 28. On December 30, Gangyuan Company declared the export of the above container goods to Dapeng Customs with the export cargo declaration form. The business unit and consignor recorded in the customs declaration form is Tomuer Company, and the name of the commodity is artificial flower.
On February 24, 2012, due to the discrepancy between the actual export quantity and the declared quantity, Dapeng Customs issued the administrative penalty decision and administrative penalty notification form to Tomur Company, saying that its behavior has constituted an illegal act in violation of the regulations of customs supervision.

On March 1, 2012, the plaintiff requested the defendant to solve the problem of the containers involved being detained at the port of origin as soon as possible, and to confirm the expenses incurred during the detention period by the customs, including RMB 81,925 for container overtime fees and RMB 156,300 for storage at the port.
On July 9, 2014, Yantian Terminal Company sent a demand note to the plaintiff, informing it that the container involved in the case had incurred a total dock storage charge of $10,687.20.
On July 15, the plaintiff paid RMB 65,750.86 to Yantian Wharf Company, and the storage fee was indicated on the remittance slip.
The defendant claimed that it was entrusted by Longbang Company to book shipping space for the plaintiff to consign the goods in this case, which the plaintiff recognized, but the plaintiff believed that the defendant was the party with whom the contract of carriage of goods by sea was established.
As for the state of the container involved, the parties to the court unanimously confirmed during the trial that the container was still detained by the customs and could not be used.

The referee view

Guangzhou maritime court that the defendant wei navigation companies accept kalumpang carriage of goods by the company to handle the case after the entrusted matters, in the name of your booking on the plaintiff, the defendant did not provide evidence to prove that it shows that when the plaintiff booking a fiduciary capacity, and the trial when the plaintiff explicitly choose the defendant wei navigation company as the parties to a contract and to claim, shall be deemed established contract of carriage of goods by sea relationship between the plaintiff and the defendant, the plaintiff for the carrier, the defendant to the shipper.

The containers in question provide the means of transport for the plaintiff to use for the defendant to load the goods. The defendant shall, in accordance with the requirements of the plaintiff's booking confirmation, return the containers loaded with the goods to the place designated by the carrier within a specified period of time for the carrier to put into operation.
However, due to the reasons of the goods themselves, the goods and the containers loaded with the goods were seized by the customs, so far the container can not be normally transferred and used will inevitably cause losses to the plaintiff, and the defendant should assume the liability for compensation for breach of contract.

Since the two parties have not agreed in the contract on what standard to pay for the container overdue usage fee, the loss shall be determined according to the loss caused to the carrier by the over-occupancy of the container, which is generally the loss of the expected profit of the carrier due to the loss of normal use of the container and the loss of the cost of renting or replacing the involved containers to a third party.
However, the plaintiff, as the owner of the container involved in the case, can take the way to replace the similar container to avoid the expansion of the loss when he knows that the container loaded with the goods is detained by the customs due to the suspected false declaration, and he cannot get back the container within a short period of time.
On December 11, 2012, the defendant paid to the plaintiff RMB 81,925 for the overdue container usage fee, which was sufficient for the plaintiff to replace similar containers for operation.
The Plaintiff did not take appropriate measures to prevent the further expansion of the loss of the containers, and the Plaintiff is not entitled to claim indemnity against the Defendant for the loss of the overdue containers after December 11, 2012.
The storage expenses incurred during the period of February 20, 2014 belong to the storage expenses incurred during the detention of the container by the customs. According to Paragraph 3 of Article 26 of the Administrative Enforcement Law of the People's Republic of China, "the storage expenses incurred due to the sealing and detention shall be borne by the administrative organ", the expenses shall not be borne by the defendant.
During the seizure of the goods involved by Dapeng Customs, Yantian Wharf Company has no right to directly charge storage fees including storage fees to the plaintiff as a carrier, and the plaintiff has no obligation to pay the storage fees to Yantian Wharf Company. Even if the plaintiff actually paid the storage fees to Yantian Wharf Company, the plaintiff has no right to ask the defendant to pay the storage fees to it.
The plaintiff's claim for the defendant to pay wharf storage charges and interest is not based on facts and law and shall also be rejected.
As for the plaintiff's request that the defendant empty the goods in the container and return the container, until the court hearing of this case, there was no evidence that Dapeng Customs had released the seizure of the cargo and the cargo container involved, so the plaintiff should seek another way to apply to Dapeng Customs for emptying the goods in the container and taking back the container involved.
As the business unit of the goods involved, Tomur Company's false declaration behavior led to the plaintiff's container being detained by the customs, and Tomur Company shall be liable for the loss caused to the plaintiff.
As the claims of the plaintiff for container overtime usage fees and wharf storage fees are not within the scope of reasonable loss stipulated by law, their claims for payment of container overtime usage fees, wharf storage fees and interest by Tomur Company are not supported.
The plaintiff's claim that Toml empty the container and return the container should also be settled by another means.
GGT accepted the authorization of Tomur to handle the export declaration formalities on behalf of Tomur, but there is no evidence to prove that GGT was fully aware of the false declaration of Tomur when accepting the authorization, so GGT shall not be liable for the legal consequences caused by the false declaration of Tomur.
Plaintiff shall not support any claim against GG Source.

The judge reviews

If the cargo and container are detained by the customs due to the reason of the shipper, who will bear the wharf storage charges?
What means should the carrier take to recover the loss when the container that the carrier provides to load goods is detained and cannot be used?
In the past similar disputes, the terminal operator will transfer the terminal storage fees during the detention of the container goods to the carrier, and the carrier will recover the container overdue fees from the shipper together with the actual payment to the terminal operator.
The typical significance of this case lies in that the first-instance court clarified the responsibilities and rights among the terminal operator, the carrier and the shipper according to the provisions of the Administrative Compulsory Law and the Contract Law, and made clear the main body of the storage expenses incurred during the detention of the container goods.
All the claims of the plaintiff were finally rejected, but the plaintiff accepted the judgment and settled the case, which reflected the fairness and rationality of the judgment.

1. If the container goods are detained in the terminal yard, the terminal operator can only claim the storage cost from the administrative authority that implements the detention measures if the container goods are kept on the basis of the entrustment of the administrative authority.

In shipping practice, due to the shipper's illegal acts such as smuggling and transporting contraband, the container goods that have not been shipped in the dock yard or have not been picked up at the destination port may be detained by the customs, inspection and quarantine bureau and other administrative organs.
Due to the limited storage space of the administrative organ, the goods are still stored in the dock yard after being detained, and the terminal operator is responsible for the custody.
During this period, the storage of goods occupies the operating site of the terminal yard, affecting its operating income, and the storage of goods increases the cost of the terminal operator. Objectively speaking, the terminal operator has the right to claim the storage cost.

As for whom to claim, if there was a dispute before the implementation of the Administrative Enforcement Act, the law has made it clear since January 1, 2012.
According to the provisions of Article 26 of the Administrative Compression Law, the custody responsibility of the goods during the detention period belongs to the administrative organ, and the administrative organ may entrust a third party to keep the goods, and the storage expenses arising therefrom shall be borne by the administrative organ.
A terminal operator who is responsible for the custody of the goods can only claim the storage costs from the administrative authority and not from the carrier or the consignor of the goods.

As far as this case is concerned, the dock operator did not claim the storage cost from Dapeng Customs, which made the detention measures, but claimed the cost from the plaintiff as the carrier, which is not in conformity with the legal provisions.
Plaintiff is not entitled to recover the storage costs for which the shipper, the defendant, is not entitled to recover the costs.

2. Once an administrative coercive measure is taken, it has the force of coercive force. No one shall do or require others to do anything inconsistent with the administrative coercive measure unless there is a legal reason to change or eliminate it through legal procedures.

Administrative coercive measure is a kind of specific administrative act, which is a temporary coercive act made by the administrative subject to a specific administrative relative person or specific object in order to achieve a certain administrative purpose, with the content of restricting rights and obligations.
Administrative coercive measures are an effective means of national administration, which directly result in the restriction of relevant rights of administrative counterparts. Therefore, compared with other specific administrative acts, administrative coercive measures are stronger and more direct. Once made, they cannot be changed without authorization.
Unless there are statutory reasons and due to statutory procedures to change the administrative enforcement measures, such as shortening the detention period;
Or it is withdrawn, revoked, determined to be invalid, etc., which makes the effectiveness of administrative coercive measures extinguish.

In terms of the case, the plaintiff all the container together with the goods by customs seized in the cabinet, and seizure measures for continuous and effective cases, even if the seizure measures objectively may cause economic losses to the plaintiff, the plaintiff can only reduce or other ways to restore economic losses, or through a review and administrative litigation relief means, ask the customs for the change or cancel the seizure behavior, and may not be directly asks others will is under a state of the administrative organ to seize the container returned to himself.
The plaintiff's claim violates a fundamental principle of administrative law and cannot be supported.

3. As a means of transport, a container belongs to a category and is not irreplaceable in commercial operation. As the shipper causes the container to be detained by the administrative organ together with the goods, the owner of the container should find a replacement and drag it into operation as soon as possible to avoid the expansion of the loss.

It can be seen from the above two points that the actual loss of the carrier is the operating loss caused by the failure of the container to be put into operation during the detention of the container by the customs.
In shipping practice and judicial practice, the carrier often advocates to calculate the loss according to its published container overtime usage fee combined with the number of days the container was detained.
On the nature of the container overtime usage fee, there have been two viewpoints in the theoretical circle: "rent theory" and "liquidated damages theory".
Either way, the consignor's acceptance of the carrier's claim for the calculation of the overage fees is contingent on agreement between the consignor and the carrier.

In this case, it is clear that this condition is not met, so the carrier's loss shall be calculated on the basis of the loss of the expected profit from the loss of the normal use of the container and the loss of the cost of renting or relocating the container from a third party caused to the carrier during the period of detention.
In shipping practice, the container as the carrier free of charge to the shipper to load the goods, even if the provision of overdue fees, but also urge the shipper or consignee to return the container in time after the completion of the normal delivery procedures.
Its value of existence is to help the carrier to perform the contract of shipping container cargo normally, rather than to make the shipper or consignee use it to earn profits.

When a container is impounted and the carrier knows that it cannot be retrieved in the short term, the carrier should take active measures to minimize the damage.
In the transportation link, containers are not irreplaceable, and the carrier may purchase other containers of the same kind to continue to put into operation.
If the carrier does not purchase a replacement to prevent the further expansion of the loss of the container, according to the first paragraph of Article 119 of the Contract Law of the People's Republic of China, "after the breach of the contract of one party, the other party shall take appropriate measures to prevent the expansion of the loss;
If appropriate measures have not been taken to cause further losses, they shall not claim compensation for such further losses ", and they have no right to claim losses beyond the purchase price of containers.