Circular of the Supreme People’s Court concerning Transmitting the Cases of Port-related Economic Dispute and Maritime Dispute
Fa (Jing) Fa [1986] No. 29
October 23, 1986
Local People’s Courts at various levels, military courts at various levels, railway transportation courts at various levels and maritime
courts at various levels:
We hereby transmitted to you 7 cases of port-related economic dispute and maritime dispute compiled by Economic Division of the Supreme
People’s Court. The leaders in charge of economic trial please organize relevant person to study and discuss them. If there is any
comment in your discussion or at work, please report it to us. [Case One]Chemical Machinery Import & Export Corp. __ Branch v. Hong Kong __ Trading Firm over thePurchase and Sale Contract Quality Dispute
Case
Plaintiff: Chemical Machinery Import & Export Corp. __ Branch
Defendant: Hong Kong __ Trading Firm
The plaintiff and defendant have signed a sales confirmation for purchase and sale of air condition in cool & warm air in __ on January
4, 1985, stipulating that the defendant provides the plaintiff with 5000 sets of S-006 air conditions in cool & warm air, USD 28
per set, with the total purchase price of USD 140 thousand, delivering the goods by installments before February 3, 1985. The quality
and quantity of the goods are subject to the inspection certificate of China Commodities Inspection Bureau or the certificate issued
by the seller and the claim period is within 90 days after the arrival of the goods. On January 9, the legal representative of the
defendant discussed with Wang_, the handling person of the plaintiff and required to delete the inspection clause, “subject to the
inspection certificate of China Commodities Inspection Bureau”, in the sales confirmation because this clause will influence him
to purchase from Taiwan factories. Wang_ agreed the requirements of the defendant without the authorization of the legal representative
of the company and deleted the aforementioned inspection clause in the sales confirmation hold by the defendant, while the sales
confirmation hold by the plaintiff remained without any change. On January 19, the plaintiff issued the letter of credit with the
amount of USD 140 thousand. The defendant delivered 3800 sets by installments on February 17 and 25, with the purchase price of USD
106.4 thousand. Regarding the remaining 1200 sets, the parties agreed not to implement any more. However, the air conditions in cool
& warm air delivered by the defendant had neither product mark (indicating the variety, type, specification, manufacturer, manufactured
date and etc.) nor product inspection certificate. After inspection of the sample by our commodity inspection institutions, they
did not satisfy the minimum requirement for safety and normal operation and are completely garbage scrabbled up. On May 10, the plaintiff
required to negotiate with the defendant in accordance with the inspection certificate specifying ill quality of 3300 sets of air
conditions in cool & warm air issued by __ commodity inspection bureau, however, the defendant refused to negotiate based on the
full implementation of the contract. Then the plaintiff sued to the court claiming returning 3300 sets of ill quality air conditions
in cool & warm air to the defendant and the defendant’s reimbursement of the loan USD 92.4 thousand and the interest. In his defence
the defendant insisted that the plaintiff has inspected and paid for the air conditions in cool & warm air, claimed the contract
has been terminated and did not agree to return the goods.
After trial the court held: the deletion of the inspection clause in the sales confirmation hold by the defendant by Wang_, the handling
person of the plaintiff, after his discussion with legal representative of the defendant was not in accordance with the law and international
trade practice both in procedure and substantiality in China and should be regarded as invalid. The air conditions in cool & warm
air provided by the defendant were not in accordance with the quality requirements stipulated in the contract, so it was legal for
the plaintiff to require the return of the goods and the damage compensation. However, Wang_, the handling person of the plaintiff
deleted the clause of the contract without permission and led to the misunderstanding of the defendant, so the plaintiff should be
also partially responsible for the liabilities. According to Article 55 , 32(1) of Economic Contract Law, the judgments are as follows:
(1) The plaintiff should return 3300 sets of ill quality air conditions in cool & warm air to the defendant within 10 days after
receiving the reimbursement of the purchase price, and the cost should be shouldered by the plaintiff; (2) The reimbursement of the
purchase price was USD 92.4 thousand, among which, 30% is shouldered by the plaintiff. The remaining USD 64.68 thousand should be
returned to the plaintiff within 15 days after the judgment becomes effective.
There are following two problems in handling with the case:
1.
It is incorrect to judge the plaintiff to shoulder the loss of 30% the total amount of reimbursement of the purchase price and the
cost. The key issue of the case is the product quality. It is completely reasonable for the plaintiff to challenge the product quality
within the claim period set by the plaintiff. The defendant should be fully responsible for the damage caused by the breach of the
contract. The purchase price of 3300 sets of air conditions in cool & warm air should be completely returned. It is incorrect that
the plaintiff should also bear certain responsibilities judged by the trial court based on the confirmation of the deletion of the
clause of the contract without permission by Wang_, the handling person of the plaintiff, which led to the misunderstanding of the
defendant. Because the deletion of the inspection clause in the sales confirmation held by the defendant by Wang_, the handling person
of the plaintiff without permission does not imply that the defendant may provide the ill quality products, let alone the deletion
of the clause of the contract without authorization does not constitute legal and effective contract modification. It is the defendant’s
own fault to breach the contract and provide ill quality air conditions in cool & warm air. The caused damage should be shoulder
by the defendant alone. It is no legal basis that the court judged the plaintiff to shoulder 30% of reimbursement of the purchase
price and the cost, which, as a result, led to the defendant gain extra economic advantage and thus it could not protect the law
keeper and sanction the contract breaker.
2.
The trial court did not suggest the charging department to investigate whether Wang_, the handling person, had other law-breaking
activities except ultra vires; it did not suggest the plaintiff to properly dispose of the activities of ultra vires by Wang_, the
handling person. Wang _’s deletion of the sales confirmation held by the defendant without permission not only reflected the weak
awareness of Wang’s legal concept but also exposed the unsound contract management system of the plaintiff. The court should grasp
this example to put forward the judicial suggestions to the plaintiff to urge them to strengthen the contract management system and
improve operation and management. [Case Two]Hong Kong _ Co., Ltd. v. Special Economic Zone _ Union Development Service Company over the Assignment of Interest of joint operating
Dispute Case
The plaintiff: Hong Kong _ Co., Ltd.
The defendant: Special Economic Zone _ Union Development Service Company
The plaintiff and special economic zone _ community have signed a joint operating agreement in December of 1981. The parities have
agreed to jointly build and operate a hotel. The community provides a land of 10 thousand sq. feet and the plaintiff is responsible
for contributing all capital, around HK$ 4 million, for building and operating the hotel. After the completion of the hotel, the
joint operating period of the parties is 15 years. During such period, the community drew certain proportion of the total turnover
of the hotel each year, 5% each year in the first 7 years of operation and 9% in the remaining 8 years. In the operation period it
is unnecessary for the community to refund the principal and interest of investment to the plaintiff and unnecessary for the plaintiff
to pay the land use fee either. In case there is any loss occurred in the operation, the plaintiff should wholly shoulder the responsibilities.
Upon expiration, all property and interest of the hotel would unconditionally belong to the community. Without the consent of the
parities, any of the parties cannot modify the agreement or transfer the interest to the third party without permission. The hotel
was put into the normal operation after the completion. In May of 1983, the plaintiff transferred 80% of total investment in the
hotel, RMB 655 thousand, viz. the interest of RMB524 thousand, to site of construction of _ power station (the former of the defendant),
evaluating RMB 960 thousand. The agreement on assignment of interest of the hotel reached by the parties was approved by the government
of special economic zone in December of 1983, which stipulated site of construction of power station possessed 80% of shares and
assets of the hotel by contributing RMB 960 thousand (50% at HK$, 50 at RMB). In the implementation of the agreement, due to the
lack of foreign exchange, site of construction of power station exchanged RMB 480 thousand into HK$ 1203439.5 at the foreign exchange
swap rate of RMB 39.6/HK$ 100 and remitted HK$ 606719.7 to the plaintiff on November 16, 1983. However the plaintiff objected and
insisted it should be exchanged at the foreign exchange rate of RMB 24.67/HK$ 100 issued by the state at that day, thus the defendant
should pay HK$ 732242 more. The dispute was then arisen and the plaintiff sued to _ court on July 12, 1984.
The trial court found out after trial:
(1)
Site of construction of power station has already been quashed and its interest to the hotel has already been transferred to power
station service company, afterwards, with the name changed to _ union development service company, therefore, the development service
company should join in the litigation as the defendant.
(2)
Swap rate is an internal foreign exchange rate for the balance of foreign exchange between local enterprises through the banks. In
accordance with the regulations of state administration of foreign exchange, it cannot be applied to overseas Chinese owned enterprises,
wholly foreign owned enterprises and Sino-foreign joint venture enterprises. It is illegal and invalid for site of construction of
power station to swap foreign exchange on behalf of local enterprises and settle the payment with Hong Kong companies.
(3)
The plaintiff’s assignment of interest of the hotel to site of construction of power station did not get consent of the community
in advance, which broke the joint operating agreement of the parties. Although the government of municipality mediated afterwards,
the community still disagreed and was unwilling to attend the board of directors and claimed to take back the land which was regarded
as the second investment. On May 26, 1985, the community sued to the court based on illegal assignment of interest of the hotel by
the plaintiff and the defendant and infringement of its legal interest and requested the damage compensation of RMB 400 thousand.
The court has convened the plaintiff and the defendant to mediate many times, while the defendant insisted on his own opinion, alleging
it is legal to convert at foreign exchange swap rate and it has already been accepted by Chen_, the former president of the plaintiff
and et al (three persons). The new president cannot deny the legal activity of the former president and refused to compensate the
plaintiff at foreign exchange rate issued by the state, therefore, the mediation failed. Meanwhile, Lu_, the president of the defendant
once acting as the deputy general secretary of provincial People’s government convened the relevant charging person of economic division
of provincial court and the trial court, handling person of the case and the charging person of the defendant to report the result
of the investigation, study the settlement solution and set the principle on how to judge the case:
(1)
Assignment of interest of the hotel has been transacted at RMB, the agreement did not stipulate how to convert RMB to HK$, therefore,
the parties both had negligence. It was the site of construction of power station that exchanged RMB 480 thousand into HK$ on behalf
of the plaintiff and the defendant cannot bear the economic loss;
(2)
Maintain the interest of the defendant and decrease the loss of the defendant, to the extent possible. Make the plaintiff withdraw
the case based on lots of approaching between the parties;
(3)
If the plaintiff insisted not to withdraw the case, the maximum compensation should be one third of the amount.
Due to unsuccessful mediation many times, the plaintiff required the court to judge, however, the court hesitated to do so. In order
to avoid the delay and suffer more economic loss, the plaintiff had to propose to terminate the assignment of interest agreement.
The defendant agreed the proposal of the plaintiff. The parties have finally reached the settlement agreement presiding by the court
after more than half a year’s negotiation.
(1)
The parties agreed to terminate the assignment of interest agreement signed on May 24, 1983. The defendant returned 80% share interest
to the plaintiff and the plaintiff refunded RMB 480 thousand and HK$ 606719.7 with the interest to the defendant;
(2)
The bonus, RMB 93310.02, paid to site of construction of power station before March of 1984 should be deducted from the income of
the hotel;
(3)
The salary of general manager and accountant sent to the hotel by the defendant should be deducted from the operation cost of the
hotel;
(4)
The defendant should not enjoy 80% of the bonus of the hotel any more.
The plaintiff applied to withdraw the case on September 10, 1985 and the court ruled the approval of the withdrawal on September 12,
the litigation fee, RMB 10,000 should be burdened by the plaintiff.
There are certain problems in handling with the case as follows:
1.
The court did not confirm the invalidity of the assignment of the interest agreement. The plaintiff and the defendant under the case
have signed the agreement on assignment of 80% of the interest of the hotel, which did not get the approval of the community in advance,
violated the provision “without the mutual consent of the parties, any of the parties cannot privately assign the interest to a third
party” in the joint operating agreement agreed by the plaintiff and the community and infringed the legal interest of the community.
Although the agreement has been approved by the government of municipality afterwards, it should be regarded as an invalid agreement.
2.
The court did not list the community as a third party with an independent claim to join in the litigation. In the litigation, it is
legal and in accordance with the provision of Article 48 (1) of Civil Procedural Law of the People’s Republic of China (for trial)
for the community to be the party of the litigation due to its filing the case with the court against the plaintiff and the defendant
to maintain its own legal interest. However, the court did not let the community join in the litigation, even file the materials
including the claim of the community, which is obviously incorrect.
3.
The court was subject to the administrative interference and did not judge fairly. The court shall try cases independently in accordance
with the law, and shall not be subject to interference by an administrative organ, public organization or individual, which is a
basic principle for the People’s court to try cases and is clearly stipulated by Constitution, the Organic Law of the People’s Courts
and Civil Procedural Law (for trial). The court of the case did not try the case fairly and delay the case when facing the administrative
interference under the circumstances that the facts of the case have been examined, which led to the plaintiff’s unwilling big concession
to close the case. The charging person at two levels, the president of the defendant and the agent ad litem together listened to
the research report of the handling person and studied the solution, which seriously violated the trial procedures of Civil Procedural
Law (for trial) and the principle of application of the law equally to the parties and harmed the fair image of the court.
4.
Unfair disposal. Reviewing the settlement agreement reached by the plaintiff and the defendant presiding by the court, the plaintiff
refunded the money paid for shares and the interest under the principle of reimbursement, while the defendant only refunded the interest
of the hotel but did not refund the bonus, RMB 93310.02, got in the assignment period before May of 1984, which is obviously unfair
and broke the principle of legally execution of the law and protection of the legal right of foreign companies and Hong Kong and
Taiwan Chinese.
[Case Three]Hong Kong _ Tea House v. _ County Worker Culture Palace over the Joint Operating Contract Dispute Case
The plaintiff: Hong Kong _ Tea House
The defendant: _ country worker culture palace
The plaintiff and the defendant have reached an agreement on joint operating fast food on March 10, 1982. It was stipulated that the
defendant provided the site with 600 square meter and 40 workers and be responsible for organizing the construction and the plaintiff
provided the capital of HK$ 500 thousand without interest for infrastructure and equipment investment, among which RMB 150 thousand
was used for importing the equipments and instruments. In addition, the plaintiff also shouldered to provide HK$ 200 thousand without
interest as the working capital for the turnover of joint operating fast food. The parties also agreed that construction materials
should be bought overseas except that part of them should be imported from Hong Kong. The agreement will take effective as of the
date of approval by the charging department and the period of validity is 5 years. On March 22, the agreement was approved by the
county foreign economic and trade committee. On June 7, the committee issued the official document to terminate the joint operating
project between the plaintiff and the defendant in accordance with the provisions of the provincial People’s government on prohibiting
state organs, public organizations, schools and other public service units from operating commercial activities and import & export.
The plaintiff disagreed with the decision and required to continue to implement the agreement by consulting with the defendant, the
county foreign economic committee and the provincial foreign economic committee. During the period, the plaintiff remitted HK$ 30
thousand to the defendant for the building of fast food; meanwhile, the plaintiff bought part of equipments in Hong Kong and the
defendant paid for accommodation and transportation fee for the plaintiff. The plaintiff sued to the court because of no result of
negotiation and required the defendant to compensate the damage caused by his default of the agreement.
The trial court held through trial: the agreement reached by the plaintiff and the defendant was originally valid; however, it is
terminated and invalid by the decision of the charging department. In the period of validity of the agreement, the plaintiff neither
delivered any equipment nor remitted any capital. The time the plaintiff remitted HK$ 30 thousand is after the charging department
decided to terminate the agreement. The plaintiff insisted on continuing to construct fast food, refused to terminate the settlement
and afterwards, put forward the high amount of damage, which is obviously inappropriate. It is also inappropriate that the defendant
put HK$ 30 thousand remitted by the plaintiff into the use of infrastructure after the termination of the agreement. The court held
the judgments in accordance with Article 2 (2) of the Law on Chinese-foreign Equity Joint Ventures and Article 16 of Economic Contract
Law as follows:
(1)
The agreement reached by the plaintiff and the defendant on joint operating fast food is invalid;
(2)
The defendant should refund the investment of RMB 9576 with the interest of RMB 955.93, namely RMB 10531.93 remitted by the plaintiff;
(3)
The plaintiff should refund the loan and the capital paid by the defendant, with a total amount of RMB 1244.21;
(4)
After offsetting Item 2 and 3, the defendant should refund RMB 9287.72 to the plaintiff and exchange HK$ at foreign exchange rate
of the judgment date and remit outside China via Bank of China.
If the plaintiff had an objection against the judgment, he may file an appeal. The court of appeal held after trial: the joint operating
agreement reached by the plaintiff and the defendant with autonomy and approved by the charging department will be invalid because
of the termination direction of the charging department and the parties shall not shoulder the responsibilities for the breach of
the contract. Regarding the decision of county foreign economic committee, the parties shall unconditionally implement. The plaintiff
insisted on implementing the agreement after the termination of the agreement and remitted the amount to purchase the equipments,
which is only the intention of the plaintiff and the plaintiff should shoulder the responsibilities. Upon receipt of written circular
of county foreign economic committee of termination of implementation of the agreement, it was appropriate for the defendant to accept
the remittance of the plaintiff for infrastructure. There were mistakes for the trial court to judge the agreement invalid and apply
to Article 16 of Economic Contract Law. It is hereby judged as follows:
(1)
Annul the decision on the invalidity of the agreement in Item one of the judgment of the trial court;
(2)
Sustain Items two, three and four of the judgment of the trial court;
(3)
After the termination of the agreement, the cost for the construction of the joint project except held by the aforementioned judgment
is shouldered by the parties respectively without compensating the damage each other.
The key issue in handling with the case is the agreement reached by the plaintiff and the defendant on joint operating fast food cannot
be regarded as invalid due to the termination decision of county foreign economic committee. In the foreign economic communication,
China always insists on the principle of keeping the validity of the contract and the promise. The foreign-related economic contract
is established under the law and is binding on both of the parties. Any of the parties cannot modify or terminate the contract. The
decision of county foreign economic committee may be regarded as the basis of modification or termination of the agreement by negotiation
between the local party and the foreign party and generally it does not fall with the range of Force Majeure unless otherwise agreed
by the parities in the agreement. In case there is any economic loss caused to the other party, it should be reasonably compensated.
The charging organs cannot terminate the economic contract reached by the parties under the law by administrative order. Regarding
the case, the decision made by county foreign economic committee to terminate the agreement between the plaintiff and the defendant
is only directive to the defendant and is not binding on the plaintiff. The defendant may propose to the plaintiff to negotiate and
terminate the agreement based on it, however, the original agreement is still valid before the termination of the agreement negotiated
and agreed by the parties. Therefore, they were incorrect for the trial court and the appellate court to judge that the joint operating
agreement between the plaintiff and the defendant was invalid due to the termination decision of county foreign economic committee,
that the parties shall unconditionally implement the decision of country foreign economic committee and that the plaintiff shall
shoulder the responsibility for continuing implementing the agreement after the county foreign economic committee made the termination
decision.
[Case Four]_ County Medicine Company v. _ Army over the Goods Damage Compensation Dispute Case
The plaintiff: _ County Medicine Company
The defendant: _ army
The transport ship, “Dai Shang No. 3” owned by the plaintiff, with the ratified carrying capacity of 20 tons and actual carrying capacity
of grocery of 21.6 tons, sailed for Mountain Dai from Ningbo Harbor at 9:20 am on July 5, 1984 and encountered one landing craft
owned by the defendant, which sails against the current at 8.2 kts when sailing in Yong Jiang which is between Wang Jia Yang and
Qing Shui Pu at 10:30. The drum wave attacked the cargo ship of the plaintiff, water swarmed into engine room and warehouse and the
ship quickly inclined and went down. Although rescuing by other ships and then landed in the south of the river, the damage of the
goods still reached RMB 32798.21. The plaintiff sued to the maritime court and claimed to judge the defendant to compensate 50% of
the damage. The defendant denied the facts of damage caused by wave in the defence and refused to bear any responsibility for compensation.
The court seriously investigated and collected abundant evidence, especially found the witness, Yu_, who was a shepherd and witnessed
“Dai Shang No. 3” damaged by the landing craft. Before the evidence, the defendant had to confess the fact. The court found out in
the trial that “Dai Shang No. 3” owned by the plaintiff surcharged the cargo of 1.6 tons against the regulations and loaded inappropriately.
The captain did not take any measure to avoid when encountering landing craft. The defendant violated the harbor rule of Ningbo harbor
regarding the maximum speed of sailing against the current in Yong Jiang is 6 kts and sailed at high speed. Moreover, the defendant
did not accept the dissuasion of the supervisor of the harbor and continued to sail at high speed, which led to the wave attacked
the cargo ship of the plaintiff and the damage of the cargo. Based on the above, the court judged the overloading and inappropriate
loading by the plaintiff is the main reason of the accident, and the defendant’s sailing with high speed is the direct reason of
the accident. Therefore, the court ruled that the plaintiff should shoulder 70% of the responsibilities and the defendant should
shoulder 30%.
The key issue in handling with the case is that the judgment regarding the loss of cargo is inappropriate. Overloading and inappropriate
loading the cargo by the plaintiff is a potential risk in the sinking of the ship and the damage of the cargo, however, it is just
a kind of possibility, not the necessary cause for the sinking and the damage. It is the damage of wave that changed the possibility
into the reality. The direct and main cause for the sinking and the damage is that the defendant sailed at high speed in Yong Jiang
against the harbor rule and attacked “Dai Shang No. 3”. Especially, the defendant did not accept the dissuasion of the supervisor
of the harbor, set the safety of other ships aside, and continued to sail at high speed, which finally led to the sinking of the
ship and the damage of the cargo. It should be dealt with seriously. Although the responsibility of the defendant can be mitigated
due to the fault of the plaintiff, the defendant still should be judged to shoulder more responsibilities. [Case Five]_ Publishing and Materials Company v. _ County Transportation Department over the Goods Damage Compensation Dispute Case
The plaintiff (the defendant of the counter-claim): _ Publishing and Material Company
The defendant (the plaintiff of the counter-claim): _ County Transportation Department
The third party: _ Paper Manufacturer
The plaintiff ordered 3500 tons of 52 gram No. 2 web-fed anastatic paper from the third party in 1981 and entrust the third party
to handle with the matter of water transportation of goods and the defendant as the carrier. On November 8, 1981, the ship, “Yuan
Bo No. 10” owned by the defendant loaded 76.137 tons paper from the third party and be pulled by the tug to Shanghai. After reaching
the destination harbor on December 7, the ship stayed in the fourth berth of Suzhou River and moved to the first berth at 9 am. At
24 pm, Yang_, the captain of “Bo Yuan No. 10” examined the damp warehouse to see whether there is any water swarmed into, misunderstood
the wide set in and then went to sleep. Because of no watch in the tug, in the morning on 10, water started to swamp into the warehouse
and then sink in. Through investigation, the tug ran aground due to the wane of tide, the bottom of the ship was leaked by the abandoned
iron staircase in the riverway and the damage of the paper reached 67.763 tons, with a total amount of RMB 48335.3. The plaintiff
has thought this was a responsible accident and required the defendant to shoulder all the responsibility of the damage. While the
defendant insisted on this was an accident and refused to shoulder any responsibility. With the parties’ negotiation for many years
and even the mediation through maritime administration, there was still no result and then the plaintiff sued to the court in January
of 1985. During the period of litigation, the defendant filed a counter-claim regarding the detainment of another voyage fee with
the amount of RMB 20250.55 and the rescuing fee, tug repairing fee and deferment of rescuing fee after the occurrence of the average
by the plaintiff, with a total amount of RMB7842.54.
The court held after trial: the defendant violated Article 9 of Certain Interim Measures for Suzhou River Administration for Voyage
in Harbor regarding duty system during the anchoring of the ship. From 24:00 of December 9 to the morning of the next day, no person
was arranged on duty. Meanwhile, the captain of the tug incorrectly estimated the time of rising and wane of tide, which caused the
tug run aground and the water swamp into the warehouse. Therefore, the defendant should be responsible for the damage and the third
party should be exempted. It is appropriate for the plaintiff to detain the fee of another voyage and should return the fee to the
defendant. Presiding by the court, the plaintiff and the defendant have reached the following agreement:
(1)
The plaintiff shoulder 65% of the economic damage;
(2)
The defendant shoulder 35% of the economic damage and the defendant compensate the plaintiff RMB 16917.33;
(3)
The freight of the defendant, RMB 20250.55 detained by the plaintiff should be refunded to the defendant and the remaining should
be shouldered by the defendant;
(4)
The parties have agreed the verdict made by the court regarding the litigation fee: the litigation fee of the claim, RMB 507.24 should
be shouldered by the defendant; regarding the litigation fee of the counter-claim, RMB 344.9, the plaintiff should shoulder RMB 260.9
and the defendant should shoulder RMB 84.
There are the following problems in handling with the case:
1.
It is incorrect to rule the plaintiff without any responsibility shoulder most of economic loss. The occurrence of average accident
was mainly because of the negligence of the carrier. If the carrier arranged the person to watch at night in accordance with the
regulations, they could loosen the cable rope upon the wane of tide and make the barge move to the center of th
