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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
2016 LC CASE SUMMARIES Civil Judgment (2015) Lu Shang Zhong Zi No.151 The High People’s Court, Shangdong Province [China]
Abstracted by ZHANG Zheng
Topics: Negligence of Carrier in International Transportation, Applicability of the Limitation of Liability Clause in the Transportation Contract
Type of Lawsuit: Breach of duty of care by a carrier.
Parties: Appellant – Industrial and Commerce Bank of China Corporation Limited by Shares Jimo Branch
Appellee – DHL International Aviation Express Ltd., Shandong Branch
Underlying Transaction: Transportation contract.
Instruments: Documentary collection.
Decision: The carrier of documents for collection who, upon a notice from the self-claimed buyer, delivered documents to a place other than the one indicated by the collection bank and thus caused the seller’s loss, is grossly negligent and liable to all the losses suffered by the seller despite the liability exemption clause in the transportation contract.
Rationale: Carriers bore duty of care in delivering documents for clients, failure of which constitutes negligence and causes liability of carriers. Such a liability cannot be limited via contract if the negligence is gross. In the case at hand, DHL as carrier should have consulted the shipper, ICBC, for reconfirmation when being notified of the change of delivery address by the buyer, especially when the courier itself on its appearance did not show the identity of the buyer but only the identity of the correspondence bank. DHL’s negligence was gross and therefore the limitation of liability clauses in the transportation contract did not apply. Therefore DHL should be liable for all and any losses of ICBC as the result of its discharge of duty to the Seller Guohua.
Article
Factual Summary: Summary: Industrial and Commerce Bank of China Corporation Limited by Shares Jimo Branch (ICBC) and DHL International Aviation Express Ltd. Shandong Branch (DHL) entered a transportation contract, according to which ICBC as a collection bank in an international sales transaction between a Guohua Artistic Wares Ltd. (Guohua) and a buyer in Greece, engaged DHL to transport the collection documents to the designated place of a correspondence bank in Greece. After transporting the documents to Greece, DHL, after receiving a phone call from the buyer’s representative, delivered the documents to a newly designated address which later proved to be wrong. The goods were taken by someone by presenting the documents, and the corresponding bank and the buyer claimed never having received the documents. Not being paid, the Seller Guohua sought liability of ICBC the collection bank, who in turn sought liability from DHL.
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The views expressed in this Case Summary are those of the Institute of International Banking Law and Practice and not necessarily those of the ICC or Coastline Solutions.