Identification and Application of "Reasonable Shortage" in Water Gauge Weighing in Bulk Cargo Transportation
Water gauge weighing in bulk cargo transportationThe recognition and application of "reasonable short quantity"
——Analysis of China's Maritime Judicial Practice Centered around 5 ‰
Introduction:
In the practice of bulk cargo maritime transportation, the most common dispute is the claim for shortage of goods caused by the weight measured by the water gauge at the discharge port being lower than the quantity recorded on the bill of lading. The consignee often claimsThe quantity on the bill of lading shall prevail, and any shortage shall be compensated, "while the carrier argues that" there is a reasonable error in the weight measured by the water gauge "and that" a quantity within 5 ‰ is a reasonable shortage ". Is this "5 ‰ reasonable short quantity" a statutory exemption reason, international practice, or just a unique industry measurement tolerance in China? Can it be equally applicable in ocean transportation, coastal transportation, and inland transportation? How to allocate the applicable prerequisites and burden of proof? These issues directly determine the judgment results of cases involving hundreds of thousands or even millions of tons of goods, and are worthy of in-depth analysis.
oneTheThe normative source and legitimacy basis of "5 ‰ reasonable short quantity"
The term "5 ‰" originated from the "Regulations for Weight Appraisal of Import and Export Commodities - Water Gauge Weighting" formulated by the former National Import and Export Commodity Inspection Bureau (currently valid version is SN/T 3023.2-20)21/2012Etc.). This chapterfourArticle clearly stipulates:If the ship is listed in a tableRelative errorin1 ‰, its water gauge weightThe relative error can reachWithin 5 ‰. This clause was originally only a technical tolerance standard for the issuance of weight appraisal certificates by the inspection agency, and is not a statutory exemption clause. However, in long-term maritime judicial practice, Chinese maritime courts have gradually transformed it into a "quasi exemption reason" for carriers: in international maritime cargo transportation (ocean transportation), as long as the shortage does not exceed 5 ‰ and the carrier has fulfilled its duty of prudent cargo management, it can be recognized as the sum of unavoidable measurement errors and trace natural losses, and the carrier can be exempted from liability without providing evidence in principle. This conversion process roughly went through 200one- Exploration period in 2015 and maturity period after 2015The earliestIn 2001, the Shanghai High People's Court clarified in the "Minutes of Discussion on Several Issues Concerning the Trial of Maritime Cases (Part 1) (Trial)" that "referring to international practice, the measurement tolerance for bulk cargo during transportation handover can be determined as 0.5%". After that,To（In 2015, Xiamen Maritime Court referred to the landmark case of Xiahai Fa Shang Chu Zi No. 102 as "a common sense of social life" for the first time, and after it was rejected for retrial by the Supreme People's Court, the rule quickly became popular in maritime courts across the country.
（The measurement method of bulk cargo weight by water gauge has reasonable errors, which is a common sense in social life. According to the regulations of the "Regulations for the Appraisal of the Weight of Import and Export Commodities - Water Gauge Weight" issued by the former State Administration for Import and Export Commodity Inspection and still in effect, there are many factors that affect the accuracy of water gauge weight calculation, and the error of water gauge weight can be within 0.5%. Therefore, unless the consignee of the bill of lading has evidence to prove that the shortage within 0.5% is caused by the fault of the carrier's liability for compensation, the carrier should be exempted from liability
twoThe carrier citesThe prerequisite for exemption from liability for "5 ‰ reasonable short quantity"
Even in ocean transportation,5 ‰ is by no means a 'death free gold medal'. Judicial practice unanimously believes that carriers can only invoke the following two conditions simultaneously:
1. Has fulfilled the duty of prudent management of goods as required by the Maritime Code（proper care of cargo）；
2. There is no other gross negligence, especially when issuing a clean bill of lading or issuing a clean bill of lading based on a letter of guarantee, knowing that the cargo is short or in abnormal condition. Once the carrier is at fault as mentioned above, even if the shortage is only2 ‰, 3 ‰, the court also ruled that it should compensate for all the short-term losses and may determine that it constitutes a fundamental breach of contract.
The Supreme People's Court（The core viewpoint of the case (2011) Min Ti Zi No. 313 (Yuanda Materials Group, Ningbo Zhongmeng Steel Co., Ltd. v. Fuzhou Tianheng Shipping Co., Ltd., etc.) is that if the shipper issues a letter of guarantee in exchange for a clean bill of lading, and the content of the letter of guarantee is broad or the carrier knowingly issues a clean bill of lading despite knowing that the quantity/condition of the goods does not match, the letter of guarantee may be deemed invalid or constitute fraud, and the carrier loses the right to defend against a third party in good faith and must compensate for all losses. (This case has been cited multiple times to illustrate that "issuing a clean bill of lading based on a guarantee is not absolutely valid")
Shanghai Maritime Court（In 2016, Court No. 1006 of the Republic of China ruled that the letter of guarantee is an independent contract, but emphasized that if the carrier knowingly issues a clean bill of lading based on the letter of guarantee despite the abnormal condition of the goods, it constitutes fraud to the consignee in good faith and must compensate for all shortages/cargo damage.
Guiding Cases of the Supreme People's Court/Meeting Minutes (Article 56 of the 2021 National Symposium on Foreign related Commercial and Maritime Trial Work of Courts)“According to shipping practices and customs, during the transportation of bulk cargo, shortages within a reasonable range are often caused by natural wear and tear, scattering and leakage during loading and unloading, and measurement tolerances such as water gauge weights. If there is a shortage of goods after unloading, the carrier claims exemption and provides evidence to prove that the shortage is due to reasonable loss, measurement tolerance, and relevant industry standards or practicesIn principle, the people's court should support it, unless there is evidence to prove that the carrier has an unavoidable fault for the shortage of goods; If the shortage of goods after unloading exceeds the relevant industry standards or practices, and the carrier cannot provide evidence to distinguish the losses caused by reasonable and unreasonable factors, and the claimant requests the carrier to bear full liability for the shortage of goods, the people's court should, in principle, support it.”
threeRules for the allocation of burden of proof (ocean transportation)
The Chinese Maritime CourtThe allocation of burden of proof within and outside 5 ‰ has been highly unified:
1. Short inCarriers within 5 ‰ generally do not need to provide evidence to exempt themselves from liability, unless the consignee presents contrary evidence to prove that the shortage is caused by the carrier's poor management of the goods or other negligence. This rule has been approved by maritime courts in Shanghai, Guangzhou, Tianjin, Qingdao, Dalian, and other placesmultipleAs confirmed by the precedent, the Supreme People's Court has repeatedly upheld it during the retrial stage.
2. Shortage exceeds5 ‰ preliminarily indicates the existence of abnormal factors during transportation, and the burden of proof is reversed. The carrier must prove that the excess of 5 ‰ is not caused by their own fault, or reasonably distinguish the proportion of measurement errors, natural losses, and their own fault. Otherwise, they will be liable for compensation for all shortages. In practice, if both loading and unloading ports use water gauge weighing, the court usually does not allow the carrier to "double deduct 5 ‰" (i.e. deduct 5 ‰ from the loading port and deduct another 5 ‰ from the unloading port), otherwise it will excessively indulge the carrier.
(2008) Qinghai Fahai Shangchu Zi No. 44: "According to the regulations of the" Regulations for the Appraisal of the Weight of Import and Export Commodities - Water Gauge Weighting ", the allowable error of water gauge weighing is within 5 ‰. However, since the loading and unloading ports in this case use water gauge weighing, there may still be an error of 5 ‰ in both the bill of lading records and the inspection numbers at the unloading port. Therefore, the defendant's request to deduct 5 ‰ cannot be established, and this court does not support it
fourThe significant difference between ocean transportation and coastal and inland waterway transportation——The most easily overlooked 'trap'
Chapter 4 of China's Maritime CodeThe provisions of the "Contract for the Carriage of Goods by Sea" do not apply to the transportation of goods along the coast and inland rivers. In 2016, the Ministry of Transport officially abolished the "Domestic Waterway Freight Transport Rules" that came into effect on January 1, 2001. CurrentlyDomestic waterway (coastal)/The transportation of goods by inland rivers shall be governed by the chapter on transportation contracts in the Contract Compilation of the Civil Code，There is nothing similar“5 ‰ reasonable short quantityofExemption clause, carrier's liability for shortage of goodsIn principleTake on stricter responsibilitiescontractResponsibility.
becauseDomestic waterway (coastal)/Inland waterway transportation of goodsClassified as a typical contract, lacking clear legislative exemptions, whether the carrier can enjoy5 ‰ reasonable short quantityObviously, it willDepending on the contract agreement: if the contract (booking confirmation, voyage charter agreement) explicitly statesThe court almost 100% supports the exemption of liability, stating that an error of 5 ‰ or more in the weight measurement of the water gauge is considered a reasonable shortage and the carrier is not responsible. If there is no agreement in the contract, the court tends to strictly require the carrier to "deliver the goods according to the agreed quantity", but will combine shipping practices and industry standards (such as the draft weighing regulations)，Especially for bulk cargo，For minor shortages (usually still present)If the carrier provides evidence of natural wear and tear, measurement tolerance, or residue (within 5 ‰ reference range), it is still deemed reasonable and exempted from liability or only awarded compensation for the excess.
The domestic voyage format contracts of large ship owners such as COSCO Shipping and Zhonggu Xinliang have already included this clause, so they can still be exempted from liability; Small and medium-sized ship owners or temporary charter parties often omit this clause, resulting inThere is uncertainty about the legal consequences it may bear.
fiveSpecial treatment for multiple sets of bills of lading mixed cargo (mainly applicable to ocean transportation)
When goods under multiple bills of lading are mixed in the same cargo hold:
· If all bills of lading are unloaded as a whole and weighed with a water gauge at the same port, they can be used as a whole5 ‰, and then allocate the unloading weight according to the proportion of each bill of lading;
· If unloading is carried out at different ports, each port must be separately weighed with a water gauge after unloading, and the entire ship cannot remain shortClaiming full exemption within 5 ‰.
(2020) Su 72 Min Chu No. 35: In this case, the vessel unloaded the goods under three sets of bills of lading in Zhangjiagang and only conducted one overall water gauge weighing. The three weight certificates corresponding to the bill of lading issued by the inspection agency based on the draft report are made according to the quantity ratio recorded on each bill of lading. Therefore, the carrier can invoke the "reasonable shortage" rule based on the 5 ‰ water gauge weighing error system for each set of bills of lading, and defend the consignee of each bill of lading separately.
sixTheStrict distinction between "measurement error" and "natural loss"
The court treats the two differently:
· Measurement error is an inherent limitation of methodology,Directly considered reasonable within 5 ‰ (ocean transportation);
· Natural losses (such as water evaporation, drying and weight loss) require the carrier to provide evidence to prove the causal relationship, inevitability, and specific magnitude, otherwise they will not be supported. （The case law (2012) Yue Gao Fa Min Si Zhong Zi No. 17 and others clearly states that natural losses are only claimed based on differences in moisture content at loading and unloading ports. If the testing standards and methods are different, or if the difference is significantly different from the actual shortage, the court will not recognize it.
（two thousand and twelve）Yue Gao Fa Min's Four Final CharactersNo. 17：In this case, although the goods involved were shortzero point four five%It is caused by the weight measurement error of the water gauge and does not exceed the weight measurement of the water gaugezero point five%The allowable deviation range is, but it is subject to the loading portFOSFAThe moisture content obtained from the rule sampling iseleven point five seven%According to Chinese national standards at the port of discharge（SN/T0800.1）The moisture content obtained from random inspection isten point seven%If calculated by the difference between the two proportions, the shortage of goods should befive hundred and seventy-three point five nineTon, but in fact, the goods are only in short quantitytwo hundred and ninety-fourThe difference between the two is significant, and it is not sufficient to reasonably prove the causal relationship between the decrease in the quantity of goods and the change in their moisture content. And except for the moisture content, the proportions of other components in the two tests are not the same - it can be seen that the corresponding results of the two tests are not comparable due to the different standards and methods adopted. The defendant also failed to provide evidence to prove the objective inevitability and specific degree of evaporation of the moisture in the goods involved. Therefore, the difference in moisture content between the cargo inspection results at the loading and unloading ports cannot be used as a basis for determining the shortage of goods. The defendant's defense that the shortage of goods was caused by natural loss due to water evaporation cannot be established.
sevenTheIs 5 ‰ an international practice? ——Cold thinking from an international perspective
5 ‰ is not an international practice, but an extension of China's import and export inspection standards in local judicial practice. The Shipowners' P&I Club has repeatedly warned that "assuming a reasonable shortage of 0.5% in bulk cargo transportation is dangerous, and this concept is not recognized in many Anglo American legal systems
inTheCarlisleIn the case, the US court held that the existence of the carrier's claim in oil transportationThe convention of a reasonable short quantity of 0.5% should not be supported. The appellate court hearing the case conducted an analysis based on the spirit of the Hague Rules, and found that the consignee had provided preliminary evidence to prove that the goods were short, and the carrier had a burden of proof to prove that it had fulfilled its duty of due diligence. It believes that if the carrier is recognized to enjoy the reasonable short quantity exemption of 0.5%, the burden of proof will be reversed, which violates the spirit of the Maritime Goods Transport Law and the interpretation of this clause by the court in previous cases. inThe SonjaIn the case, the judge ruled that the carrier proved that the shortage in question was during the transportation processAPIDue to changes in temperature, temperature, and other factors, there is no need for the shipper to make any claims0.6% of the goods shortage shall be liable for compensation.
eighty percentConclusion: Practical operation suggestions
(Omitted) Please consult the author's lawyer for specific details
The "5 ‰ reasonable short quantity" rule is the most distinctive localized product in the practice of Chinese maritime law, and its "ice and fire duality" in both long-distance and domestic transportation has been fully demonstrated. Only by understanding and accurately applying this difference can we stand undefeated in short-term disputes.
Author: Cheng Yingwenhttp://39.97.61.144:10001/hhr/42.html
