货代能否以自己名义起诉承运人
基本事实：出口工厂委托货代公司出口电脑配件，货代公司接受委托后，向韩进海运订舱。韩进签发海运单，托运人为货代公司，并承运该批货物。到达目的港后，该货物被错误交付给其他人。出口工厂与固为公司约定将海运单项下对承运人韩进海运会社的债权转让给货代公司，固为公司以自己的名义向相关债务人提起诉讼;货代公司如诉讼成功所追回的损失，在扣除上述拖欠的运杂费及相应的法律费用，应当将余额全数退回出口工厂;货代公司如败诉，则债权转让自动失效。之后，固为公司对韩进提起诉讼。
一审广州海事法院认为：货代公司作为涉案海运单记载的托运人，与韩进海运会社存在海上货物运输合同关系，其有权在因涉案货物运输合同的履行而遭受损害时提起诉讼，且仅有权对其自身权益所遭受的损害提起诉讼。货代公司并不对诉争实体权益承担风险，即使货代公司在本案中胜诉，其亦未实际享有诉争利益。货代公司在本案中对诉争标的并不享有诉的利益，本案诉讼的实体处理结果与货代公司之间并无法律上的利害关系。货代公司试图通过与出口工厂的协议取得本案诉权，但此种权利转让在我国法律上缺乏依据。判决驳回固为公司诉讼请求。
固为公司不服一审判决，上诉至广东省高级人民法院。广东省高院认为：《中华人民共和国海商法》第四十一条关于海上货物运输合同及第四十二条关于承运人、托运人等法律规定中并未限制托运人托运其不享有所有权的货物，因此货代公司是否对涉案货物享有所有权、其与出口工厂之间存在何种法律关系，均不影响货代公司与韩进海运会社之间运输合同的成立及生效。货代公司作为涉案海上货物运输合同一方当事人的托运人，有权就运输所致损失提出索赔。判决撤销广州海事法院判决，支持固为公司诉讼请求。
律师分析：1、本案中，货主与货代关系为委托代理合同关系。根据合同法第四百零三条，作为受托人的货代因为第三人（承运人）的原因对委托人不履行义务，受托人应当向委托人披露第三人，那么作为委托人可以行使受托人对第三人的权利，就是说货主有权起诉承运人，这也是诉讼中的通常做法。但是，本条款并没有说委托人应该行使权利，对行权利人并没有作出限制。在民事诉讼中，转让权利也是允许的。我国《合同法》第七十九条规定：债权人可以将合同的权利全部或者部分转让给第三人，但有下列情形之一的除外：(一)根据合同性质不得转让;(二)按照当事人约定不得转让;(三)依照法律规定不得转让。本案中，货主已经将债权转让给货代公司，因此货代有诉权。
2、《中华人民共和国海商法》第四十一条，海上货物运输合同，是指承运人收取运费，负责将托运人托运的货物经海路由一港运至另一港的合同。在运输合同中，不存在所谓货主，当事人只有托运人与承运人。固为公司以其自己名义进行订舱，韩进海运会社接受订舱后出具了记载托运人为货代公司的涉案海运单并实际承运，足以表明双方之间已成立涉案海上货物运输合同关系，货代公司为托运人，韩进海运会社为承运人。作为托运人，有权要求承运人正确交付货物，若货物丢失，有权要求承运人赔偿。反过来说，如果货代作为托运人，因为货物问题导致承运人受损，承运人也有权向货代索赔。货代赔偿之后，可以再向货主追偿。
Author of this article: attorney of Win & Win Law Firm
Basic fact:
the export factory entrusts the forwarder to export computer accessories, and the forwarder company, after accepting the entrustment, orders the cargo to South Korea for sea transportation. Hanjin issues the sea waybill, the shipper is the forwarder. Upon arrival at the port of destination, the goods were wrongly delivered to others. The export factory agrees to transfer the claims of the carrier Hanjin Shipping to the forwarder company under the bill of lading; if the freight forwarding company recovers the loss successfully, the freight forwarding company shall return the balance to the export factory after deducting the above-mentioned freight and other legal expenses; If the freight forwarding company loses the lawsuit, the transfer of the claim will automatically become invalid. After that, the company filed a lawsuit against Hanjin.
Guangzhou Maritime Court of first instance holds that as the shipper recorded in the shipping documents involved, the freight forwarding company has a contractual relationship with Hanjin Shipping Association for the carriage of goods by sea. It has the right to bring a lawsuit when it suffers loses due to the performance of the contract, and to bring a lawsuit against the carrier suffered by its own rights and interests. The freight forwarding company does not have the interest of litigation in this case for the object of the lawsuit. There is no legal interest between results of the case and the freight forwarding company. Even if the forwarder wins the lawsuit in this case, it does not actually have the interests of the litigation. Freight forwarding company tried to obtain the right of action through agreement with export factory, but the transfer of such right is lack of basis of law. The decision rejected the company’s claim.
The company refuses to accept the first trial decision and appeals to the Guangdong Provincial High People’s court. Guangdong provincial high court believes that: the contract of carriage of goods by sea in Article 41 of the maritime law of the people’s Republic of China and the provisions of Article 42 on the carrier and shipper do not limit the shipper to consign the goods which they do not have ownership. Therefore, whether the forwarder has ownership of the goods involved and the legal relationship between the goods and the export factory will not affect the establishment and effectiveness of the transport contract between freight forwarding company and Hanjin Shipping Association. As the shipper of the contract of carriage of goods by sea, the freight forwarding company has the right to claim for the loss caused by the transportation. The decision annulled the Guangzhou Maritime Court decision and supported the firm action request.
Lawyer analysis:
1. In this case, the relationship between the owner and the forwarder is the principal-agent contract relationship. According to Article 4303 of the contract law, the consignor fails to perform his obligations to the principal because of the third party (carrier) reasons, the trustee shall disclose the third party to the client, so as to exercise the rights of the trustee to the third party, that is to say, the owner has the right to sue the carrier, which is also the common practice in the lawsuit. However, this clause does not mean that the client should exercise its rights and does not restrict the exercising right holder. In civil proceedings, the transfer of rights is also allowed. Article 79 of the contract law of China stipulates that the creditor may transfer all or part of the rights of the contract to a third party, except in one of the following cases: (1) it shall not be transferred according to the nature of the contract; (2) it shall not be transferred according to the agreement of the parties; (3) it shall not be transferred according to the provisions of the law. In this case, the owner has transferred the claim to the forwarder company, so the forwarder has the right to sue.
2. Article 41 of the maritime law of the People’s Republic of China, a contract for the carriage of goods by sea means a contract for the carrier to collect freight and be responsible for transporting the consignor’s consigned goods through sea to another port through sea. In the contract of carriage, there is no so-called owner, the parties are the shipper and the carrier. After receiving the booking, Hanjin Shipping Association issued the shipping bill recording the shipper as the forwarder company and actually carried it, which is enough to show that the contract relationship between the two parties has been established. The freight forwarding company is the shipper and Hanjin Shipping Association is the carrier. As a shipper, the carrier has the right to require the carrier to deliver the goods correctly, and if the goods are lost, it is entitled to claim compensation from the carrier. Conversely, if the forwarder is the shipper, the carrier is also entitled to claim against the forwarder if the carrier is damaged by the cargo problem. After the freight forwarder makes compensation, it can recover the compensation from the owner.
