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Dispute case of "Xinfeng" wheel towing contract

SOURCE: TIME:2018-09-10

[case]

Plaintiff: Guangzhou Maritime Rescue and Salvage Bureau.

Defendant: Guandong Group Hainan Orient Shipping Co., Ltd.

On May 19, 1992, the defendant's "Xinfeng" ship lost its power due to the failure of its auxiliary machinery in Shantou port. The company sent Wang Shoujiang to Shantou to deal with the ship repair. As the ship was unable to be repaired in Shantou and was to be towed to Guangzhou for repair, the plaintiff was asked about the towage. Wang Shoujiang and Yang Zijian, the plaintiff's representative, negotiated in Shantou port, and both parties signed the towage contract on May 21. Yang Zijian and Wang Shoujiang both signed the contract, but both parties did not affix their official seals. The contract stipulates that: the towing fee is 168000 yuan, 50000 yuan at the time of signing, 50000 yuan at the time of starting towing, 68000 yuan at the time of arrival at the port of destination; if the tow party fails to pay the towing fee as agreed, the interest from the date of payment to the date of actual payment shall be paid at 10% of annual interest; The towed party shall be responsible for paying the insurance premium of the towed object, the third party liability insurance premium and agency fee, the inspection fee, tax and pilotage fee for the towed object and the towing arrangement in all ports and according to the proposal, all port use fees, auxiliary and escort tugboat fees required for port operation and safe navigation, and other fees related to the towed object. On April 24, the plaintiff signed an agreement with the pilot station of Shantou port to entrust the pilot station to take the "new wind" ship out of the port for pilotage, and advanced 5500 yuan of risk fee for pilotage and towing. On the 25th, the plaintiff sent a tugboat named "Deli" to bear and tow the "Xinfeng" ship. The chief of "Xinfeng" ship delivered the "Xinfeng" ship to the tugboat named "Deli", and cooperated with the tugboat named "Deli" to tow the "Xinfeng" ship from the anchorage in Shantou port to Guangzhou. At 1630 on the 26th, after the two ships arrived at Lianhuashan anchorage of Guangzhou port, Guangzhou Wenchong Shipyard sent tugs to assist the tugboat "Deli" to tow the "Xinfeng" to Wenchong Shipyard, and the plaintiff paid 2415 yuan of towing auxiliary fee in advance. On the 27th, the defendant remitted the initial towing fee of 50000 yuan to the account designated by the plaintiff. The rest is in arrears.

The plaintiff filed a lawsuit with the maritime court on April 6, 1993, requesting the court to order the defendant to pay the towing fee of RMB 118000, the pilotage towing risk fee and the auxiliary towing fee of RMB 7915 and interest.

The defendant argued that the standard of towage fee stipulated in the contract was too high and unfair. On May 19, the defendant contacted with the plaintiff about tugboat matters. The defendant was unable to accept the plaintiff's offer of up to 168000 yuan. After many negotiations, the plaintiff refused to give in. At this time, the defendant had contacted Guangzhou Wenchong Shipyard about ship repair and dock time. In order to reduce the loss of ship time, in the absence of other tugs to choose from, the defendant could not have accepted the plaintiff's offer of towage fee. Wang Shoujiang is not the legal representative of the defendant, and the towage contract signed with the plaintiff without the authorization of the unit is invalid. Foreign lawyer

[trial]

According to the maritime court, the defendant Wang Shoujiang's signing of the towage contract with the plaintiff did not violate the defendant's real intention to drag "Xinfeng" to Guangzhou Wenchong Shipyard. After the signing of the contract, the defendant delivered the "Xinfeng" ship to the plaintiff and dragged it to Guangzhou Wenchong Shipyard in accordance with the contract, and remitted the first phase of tugboat fee to the plaintiff's account in accordance with the contract. The above behaviors of the defendant indicate that the defendant has agreed to the act of "tugboat contract" signed by Wang Shoujiang on behalf of the plaintiff, which has also been acknowledged by the defendant in written reply. Therefore, the towage contract signed by Wang Shoujiang and the plaintiff in the name of the defendant is valid and binding on the defendant.

The defendant's claim that the towage clause is obviously unfair cannot be established because there is no evidence. The defendant shall, in accordance with the contract, pay the plaintiff the towage fee, and shall pay the risk fee and auxiliary towing fee advanced by the plaintiff in Shantou port and Guangzhou port, as well as the interest of the delayed towage fee.

Accordingly, the maritime court, in accordance with the provisions of Article 63, paragraph 1 of Article 66, article 85 and Article 111 of the general principles of civil law of the people's Republic of China, made a judgment on September 22, 1993:

1、 The defendant Guandong Group Hainan Dongfang Shipping Co., Ltd. paid the plaintiff the balance of towing fee of Guangzhou Salvage Bureau of 118000 yuan, and the interest of 10% per annum from the date of payment to the date of actual payment;

2、 The defendant Guandong Group Hainan Dongfang Shipping Co., Ltd. repaid the plaintiff's advance risk fee of Shantou port and Guangzhou port auxiliary towing fee of 7915 yuan.

After the judgment, neither party appealed.

[comment]

This case mainly involves the validity of the contract signed by the illegal representative and how to identify the civil acts that are obviously unfair.

1、 Whether the contract signed by the non legal representative is valid. In this case, both parties to the towage contract did not sign the official seal of the unit, nor did they sign the legal representative. Whether the contract is valid and binding on both parties is one of the disputes in this case. Wang Shoujiang is the defendant's staff. Although he did not show the written power of attorney of the legal representative when signing the towing contract, he signed the contract in the name of the company. After the contract was signed, the defendant's "Xinfeng" ship accepted the plaintiff's towing according to the contract, and the defendant's company also paid part of the cost. It can be seen that the defendant knew and acknowledged the contract signed by Wang Shoujiang, and Wang's behavior was not Private behavior. According to Article 43 of the general principles of civil law, an enterprise as a legal person shall bear civil liability for the business activities of its legal representative and other staff members. The towage contract signed by Wang Shoujiang and the plaintiff's representative shall be binding on Dongfang company.


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