The Shanghai Maritime Court held that the commercial invoice could not prove
the actual loss of the goods. This was because firstly, the commercial invoice was
unilaterally listed by the plaintiff and secondly, parties to the trade contract had not
actually reached a deal on the commercial invoice price. The record of the value of
the goods in the customs declaration had been expressly stated in both the transit
contract and the sale contract. In addition, it had been reviewed by the relevant state
authorities. Thus, it was more reasonable to take the price in the customs declaration
form as the value for the loss of the goods. Similarly, In Shanghai Chang Ying
Industrial Co., Ltd. v. Pacific International Lines (Pte) Ltd,
16 the Shanghai Maritime
Court also took the CIF value in the customs declaration form to determine the
amount of cargo damage compensation.
4.3 Defects in Article 55 of CMC: Use of Value at Loading
Port for Calculation of Amount of Loss of Goods
Compared with Article 4, paragraph 5 (b),
17 of the Hague-Visby Rules
18 and Article
22(1),
19 of the Rotterdam Rules,
20 under both of which the value of cargo is
calculated according to the price at the port of discharge or the place of delivery,
the Chinese Maritime Code ascertains the value of the goods by referring to the price
at the port of loading. In international trade, the consignee usually makes use of the
goods at the place of delivery, including reselling the goods. Therefore, the value at
the place of delivery better reflects the interests of the consignee. Taking the value at
the place of delivery or discharge can make up losses which have been suffered by
shippers and consignees such as the loss of the goods themselves, or loss of market
value caused by damage or delay in delivery of the goods. The CMC provides less
protection to shippers and consignees, since under the Code, the value of the goods is
its CIF value; and it cannot compensate for any economic losses. Furthermore, if the
price of the goods at the place of discharge or the place of delivery is lower than the
price at the place of loading, the carrier will bear the adverse consequences of the
16 No.1159 Judgement [2014], First Instance, Shanghai Maritime Court.
17 Hague-Visby Rules Art. 4(5)(b): The total amount recoverable shall be calculated by reference to
the value of such goods at the place and time at which the goods are discharged from the ship in
accordance with the contract or should have been so discharged. The value of the goods shall be
fixed according to the commodity exchange price, or, if there be no such price, according to the
current market price, or, if there be no commodity exchange price or current market price, by
reference to the normal value of goods of the same kind and quality.
18 1412 UNTS 127.
19 Rotterdam Rules Art. 22 para1: Subject to Article 59, the compensation payable by the carrier for
loss of or damage to the goods is calculated by reference to the value of such goods at the place and
time of delivery established in accordance with Article 43.
20 A/RES/63/122; www.uncitral.org/pdf/english/texts/transport/rotterdam_rules/Rotterdam-RulesE.pdf.
Compensation for Cargo Damage in International Maritime Transportation:. . .
219
the actual loss of the goods. This was because firstly, the commercial invoice was
unilaterally listed by the plaintiff and secondly, parties to the trade contract had not
actually reached a deal on the commercial invoice price. The record of the value of
the goods in the customs declaration had been expressly stated in both the transit
contract and the sale contract. In addition, it had been reviewed by the relevant state
authorities. Thus, it was more reasonable to take the price in the customs declaration
form as the value for the loss of the goods. Similarly, In Shanghai Chang Ying
Industrial Co., Ltd. v. Pacific International Lines (Pte) Ltd,
16 the Shanghai Maritime
Court also took the CIF value in the customs declaration form to determine the
amount of cargo damage compensation.
4.3 Defects in Article 55 of CMC: Use of Value at Loading
Port for Calculation of Amount of Loss of Goods
Compared with Article 4, paragraph 5 (b),
17 of the Hague-Visby Rules
18 and Article
22(1),
19 of the Rotterdam Rules,
20 under both of which the value of cargo is
calculated according to the price at the port of discharge or the place of delivery,
the Chinese Maritime Code ascertains the value of the goods by referring to the price
at the port of loading. In international trade, the consignee usually makes use of the
goods at the place of delivery, including reselling the goods. Therefore, the value at
the place of delivery better reflects the interests of the consignee. Taking the value at
the place of delivery or discharge can make up losses which have been suffered by
shippers and consignees such as the loss of the goods themselves, or loss of market
value caused by damage or delay in delivery of the goods. The CMC provides less
protection to shippers and consignees, since under the Code, the value of the goods is
its CIF value; and it cannot compensate for any economic losses. Furthermore, if the
price of the goods at the place of discharge or the place of delivery is lower than the
price at the place of loading, the carrier will bear the adverse consequences of the
16 No.1159 Judgement [2014], First Instance, Shanghai Maritime Court.
17 Hague-Visby Rules Art. 4(5)(b): The total amount recoverable shall be calculated by reference to
the value of such goods at the place and time at which the goods are discharged from the ship in
accordance with the contract or should have been so discharged. The value of the goods shall be
fixed according to the commodity exchange price, or, if there be no such price, according to the
current market price, or, if there be no commodity exchange price or current market price, by
reference to the normal value of goods of the same kind and quality.
18 1412 UNTS 127.
19 Rotterdam Rules Art. 22 para1: Subject to Article 59, the compensation payable by the carrier for
loss of or damage to the goods is calculated by reference to the value of such goods at the place and
time of delivery established in accordance with Article 43.
20 A/RES/63/122; www.uncitral.org/pdf/english/texts/transport/rotterdam_rules/Rotterdam-RulesE.pdf.
Compensation for Cargo Damage in International Maritime Transportation:. . .
219