Win case over the supply contract of ship materials and spare parts
Lu 2 Min Chu No.188
Plaintiff：TANG International Trading Co., Ltd.,
Legal representative: Dong, Chairman.
Agent ad litem: Attorney of Shandong Win & Win Co. Law Firm.
Defendant: Oc Fishing Company Limited,
Legal representative: ZE, Chairman.
Agent ad litem: Asia Law Firm.
Defendant: ZE, Male,
The case of dispute is over the supply contract of ship materials and spare parts between the plaintiff TANG International Trading Co., Ltd. (hereinafter referred to as the ” Win Company”) and the defendant Oc Fishing Company Limited (hereinafter referred to as ” Ocean Fishing”) and the defendant ZE, after the case was filed on July 30, 2018, ordinary procedures were applied in accordance with the law, and a public hearing was held on December 15, 2018. Win Company entrusted agents ad litem Zhang, Oc Fishing and ZE jointly entrust agent ad litem to appear in court to participate in the lawsuit. This case has been concluded now.
Win Company filed a lawsuit to this court: 1. The two defendants were adjudged to pay the plaintiff’s principal of USD 1,590,127.50 (equivalent to RMB 11,243,791.55 according to the exchange rate on July 1, 2018) and interest; 2. The two defendants shall bear all the costs of the case, including acceptance fee, preservation application fee and guarantee fee. Facts and Reasons: On July 16, 208, Oc Fishing andOIL BUNKERING PTE LTD (hereinafter referred to as “Shun Company”) has entered into the Contract for Fuel Oil Transaction(hereinafter referred to as Contract) with the order number, which stipulates that Shun Company will supply Fuel at USD705/MT to the Ocean Fishing, and the payment term is T/T within 60 days after refueling. During July 208, according to the Contract, Shun Company supplies fuel at sea for “Long owned/operated by the Oc Fishing a total of 2255.5 tons. Total USD 1,590,127.5 (according to the middle exchange rate on July 1, 2018 of 7.0710, equivalent to RMB 11,243,791.55).However, the Oc Fishing has not paid the amount owed yet despite repeated requests. According to the Contract, both Oc Fishing and Shun Company agreed to unconditionally transfer all the rights and obligations under this contract to the plaintiff Win Company to enjoy and undertake. The contract also stipulates that the dispute resolution court is Qingdao Maritime Court. Zhenprovided the Oc Fishing with joint and several guarantee liability for the performance of the above-mentioned Contract. The plaintiff hereby instituted a lawsuit in order to protect legitimate rights and interests.
Oc Fishing and ZE argued that: the plaintiff was not qualified, the transfer of creditor’s rights under the contract between Oc Fishing and Shun Company was not confirmed by the creditor, nor was the debtor notified; the guarantee provided by Zhen was not notified to the debtor, nor was the creditor confirmed.
Win Company submitted the following eight sets of evidence to this court in accordance with the law:
- Contract for Fuel Oil Transaction. To prove: On July 10, 208, Oc Fishing and Shun Company signed a contract with order number , the main agreement: the commodity name is GAS OIL; Receiving tankers are “Long ”, ; the supplying oil price is USD705/MT; The amount of oil is about 2545MT; the payment term is T/T payment within 60 days after refueling; Shun Company transferred the claim against Oc Fishing Company Limited which was entitled to the contract with the order number to the plaintiff.
- Delivery order. To prove: During July 208, Shun Company provided 2255.500 tons of GAS oil to “Long , ships in accordance with the Contract agreed.
- Commercial invoice. To prove: Shun Company issued an invoice of USD 1,590,127.50 to Ocean Fishing.
- Letter of Guarantee. To prove: (1) The plaintiff and the Oc Fishing reconciled the refueling payment of six contracts including , and both parties confirmed that the amount owed is USD4,085,226.60; (2) Shun Company transfer the creditor’s rights of the contract with the order number to the plaintiff, and the defendant Oc Fishing agreed to this; (3) ZE bears joint and several guarantee liability for the creditor’s rights of USD 1,590,127.50 under the contract with order number.
- Case acceptance fee invoice. To prove: the plaintiff paid the case acceptance fee of RMB 89,263.00.
- Preservation application fee invoice. To prove: In order to apply for preservation of the relevant properties of the two defendants, the plaintiff paid the preservation application fee of RMB 5,000.00 .
- Preservation guarantee fee Invoice. To prove: In order to apply for the preservation of the relevant properties of the two defendants, the plaintiff paid the preservation guarantee fee of RMB 27,000.00.
- Detailed confirmation of arrears of refueling payment. To prove: As of June 30, 2018, Shun Company and Oc Fishing reconciled the refueling payments of ten contracts including, and both parties confirmed that the amount owed is USD 4,580,726.60.
The Oc Fishing and ZE did not submit evidence.
Oc Fishing and ZE have no objection to the evidence submitted by Win Company, and all the evidences have been verified with originals. This court accepts the evidence submitted by Win Company.
Based on the statements of the parties and the evidence and facts confirmed by review, this court finds the facts as follows:
On July 10, 208, Oc Fishing and Shun Company signed Contract for Fuel Oil Transaction which the order number was. the main contents are as follows: the commodity name is GAS OIL; Receiving tankers are “Longthe supplying oil price is USD705/MT; The amount of oil is about 2545MT; the payment term is T/T payment within 60 days after refueling. Clause 10 of the contract stipulates:“With the consent of both parties, Shun Company (transferor) under this contract enjoys and undertakes all the rights and obligations under the contract, and at the same time, Win company (transferee) shall unconditionally enjoy and undertake them. When in the event of a breach of contract by the buyer, Win Company has the right to exercise all rights of recourse against the buyer.”
During July 208, Shun Company provided 2255.50 MT of GAS oil to “Longxing ships in accordance with the Contract agreed, and issued an invoice of USD 1,590,127.50 to the Ocean Fishing.
On December 25, 208, ZE issued a Letter of Guarantee to Shun Company and Win Company. The main contents are: Whereas 1. During the period from September 25, 2018 to July 25, 208, Shun Company supplied oil at sea to a number of ocean-going fishing vessels owned/operated by Oc Fishing many times in accordance with Contract for Fuel Oil Transaction (order number includes ).The quantity of oil supply is 8,452.707MT. The total value is USD 6,307,448.08. 2. According to the contract, the Oc Fishing should pay off the oil supply under the corresponding contract within 60 days after refueling, but the Oc Fishing has not been able to pay the money according to the contract and the payment period has exceeded; 3. After the reconciliation of Shun Company and Ocean Fishing, Oc Fishing still owed Shun Company USD 4,085,226.60 and the corresponding interest as of December 15, 208; 4. Contract for Fuel Oil Transaction Article 10 clarifies that the rights and obligations are transferred to Win Company, and the Oc Fishing agrees to this. In view of the above facts, ZE, as the legal representative and shareholder of Ocean Fishing, fully understands the above-mentioned facts of fuel supply, the amount of arrears for fuel supply and the contents of the Contract for Fuel Oil Transaction, and voluntarily takes all his personal property as Oc Fishing provides joint and several guarantees for the payment of the above arrears and interest, whether it is based on the Contract for Fuel Oil Transaction of all 6 order numbers, or based on the Contract for Fuel Oil Transaction of any one or more order numbers to bring any forms of claims and compensation against Oc Fishing and hereby guarantee. ZE signed the Letter of Guarantee as a guarantor.
On July 2, 2018, Oc Fishing as the debtor, and Shun Company as the creditor jointly signed the Detailed confirmation of arrears of refueling payment, confirming that as of June 30, 2018, Oc Fishing still owed Shun Company the total amount of refueling payments USD 4,580,726.60, of which USD 1,590,127.50 is still owed for refueling under the contract.
Win Company incurred pre-litigation property preservation fee of RMB 5,000.00 and preservation guarantee fee of RMB 27,000.00 due to the recourse of the arrears.
The above facts, supported by the evidence submitted by the plaintiff and the trial transcripts in the file, are sufficient to confirm.
This court believes that this case is a dispute over a contract for the supply of ship materials and spare parts. According to the claims of the plaintiff and the defendant, the focal issue of this case is whether Win Company is a qualified plaintiff in this case.
The Contract for Fuel Oil Transaction signed by Oc Fishing and Shun Company is legal and valid, and this court also recognizes the legality and validity of the contract. Both parties shall undertake corresponding obligations and enjoy corresponding rights at the same time. Both parties shall fully perform their obligations under the contract according to Article 60 of the Contract Law of the People’s Republic of China. Shun Company has fulfilled its obligation to provide fuel for ships in accordance with the contract, and Oc Fishing is obliged to pay Shun Company the corresponding refueling fee. According to the Detailed confirmation of arrears of refueling payment jointly signed by Oc Fishing and Shun Company, Oc Fishing has owed Shun Company USD 1,590,127.50 for refueling under theAcontract involved in this case.
As to whether Win Company is a qualified plaintiff in this case. Article 88 of the Contract Law of the People’s Republic of China stipulates: “A party may, with the consent of the other party, assign its rights and obligations in the contract to a third party”. According to the Contract for Fuel Oil Transaction involved in this case, Shun Company enjoys and undertakes all the rights and obligations under the contract, Win Company unconditionally enjoys and undertakes it. In the event of a breach of contract by the buyer, Win Company has the right to recourse against the buyer, and the Oc Fishing confirms with the official seal on the contract, which is regarded as consent. Therefore, Shun Company transferred the creditor’s rights against the Oc Fishing under the contract involved in this case to Win Company, and the transfer had legal effect on the Ocean Fishing. Win Company has the right to recourse against Ocean Fishing, Win Company is the qualified plaintiff in this case.
ZE issued a Letter of Guarantee to Shun Company and Win Company, reconciled the refueling payments in the six contracts includingAinvolved in this case, confirmed the amount of arrears, and recognized the transfer of the creditor’s rights, voluntarily provide the Oc Fishing with joint and several guarantee liability for the payment of the arrears and interest involved in this case with all the personal property, including any form of claims and compensation against the Oc Fishing based on the six contracts. Article 6 of the Guarantee Law of the People’s Republic of China stipulates: “The term “guarantee” as used in this law refers to the guarantor and the creditor agreeing that when the debtor fails to perform the debt, the guarantor performs the debt or assumes the responsibility according to the agreement”; Article 18 stipulates: “If the parties agree in the guarantee contract that the guarantor and the debtor shall bear joint and several liability for the debt, it is a joint liability guarantee. If the debtor of the joint liability guarantee fails to perform the debt upon the expiration of the debt performance period stipulated in the main contract, the creditor may require the debtor to perform the debt, or may The guarantor is required to bear the guaranty responsibility within the scope of its guarantee.” To sum up, since the Oc Fishing failed to perform its payment obligations as agreed, Win company has the right to require ZE to bear joint and several liability for the debts of the Ocean Fishing.
Oc Fishing has confirmed the refueling payment of USD 1,590,127.50 owed to Shun Company under the contract involved in this case, and should pay Win Company the aforesaid arrears for refueling. Win Company claimed that the Oc Fishing shall pay USD 1,590,127.50 according to the exchange rate of USD/RMB 7.0710 equivalent to RMB 11,243,791.55 on the day of the lawsuit on July 1, 2018.The request is reasonable and this court supports it.
Regarding the interest, the contract stipulates that the payment terms is within 60 days after refueling. The plaintiff claims that the interest shall be calculated from the payment time agreed in the contract, the fuel supply date is July 12, 208, and the interest is calculated from September 11, 208, which is supported. According to the regulations of the People’s Bank of China, since August 20, 2018, the People’s Bank of China has authorized the National Interbank Funding Center to announce the loan market quoted interest rate at 9:30 on the 20th of each month (extended during holidays). The benchmark interest rate has been abolished. Therefore, the interest will be calculated from September 11, 2018 according to the loan market quoted interest rate announced by the National Interbank Funding Center in the same period until the date of payment determined in this judgement.
The pre-litigation property preservation application fee and preservation guarantee fee claimed by the plaintiff, the pre-litigation property preservation fee of RMB 5,000.00 is due to the recourse for the arrears of plaintiff. According to paragraph 3 of Article 38 of the Measures for The Payment of Litigation Costs, The prescribed application fee shall be borne by the applicant. If the applicant files a lawsuit, the application fee can be included in the claim; the preservation guarantee fee of RMB 27,000.00 is due to breach of contract of the defendant and the lawsuit in this case is caused by the plaintiff. The plaintiff provided guarantee for property preservation in the form of a policy guarantee letter issued by the insurance company, and paid the insurance premium for the preservation guarantee letter to the insurance company.The above expenses are reasonable and necessary expenses incurred by the plaintiff, and are part of the loss of the plaintiff. This request is supported by this court.
In conclusion, the claim of the plaintiff is clear in facts and the evidences are sufficient, and this court supports it. According to Articles 8、60 and 88 of the Contract Law of the People’s Republic of China, and Articles 6 and 18 of the Guarantee Law of the People’s Republic of China, the judgment is as follows:
- The defendant Oc Fishing Company Limited paid the plaintiff TANG International Trading Co., Ltd. RMB 11,243,791.55 and interest (interest from September 11, 2018 in accordance with the loan market announced by the National Interbank Funding Center for the same period). The quoted interest rate is calculated until the date of payment determined by this judgment);
- The defendant Oc Fishing Company Limited paid the plaintiff TANG International Trading Co., Ltd. the pre-litigation property preservation application fee of RMB 5,000.00 and the preservation guarantee fee of RMB 27,000.00 ;
- The defendant ZE shall be jointly and severally liable for the above-mentioned first and second debts of the defendant Oc Fishing Company Limited.
The above payment obligations, the defendant Oc Fishing Company Limited and the defendant ZE shall pay within ten days from the date when this judgment takes effect. According to Article 253 of the Civil Procedure Law, the debt interest during the period of deferred performance shall be doubled.
The acceptance fee in sum of RMB 89,263.00 shall be jointly borne by the defendants, Oc Fishing Company Limited and ZE.
If dissatisfied with this Judgment, any party can submit an appeal petition to this court within 15 days from the date of service of the judgment, and submit a copy according to the number of the opposing parties or representatives, and appeal to the Shandong Higher People’s Court.
Presiding Judge:
People’s Juror:
People’s Juror:
Qingdao Maritime Court of The People’s Republic of China
December 15,2018
Clerk:
