On The Sub-delegation Of Freight Forwarding

This article is composed of an introduction,a main body,and a conclusion.The main body is divided into three parts.The content is roughly as follows.The first part aims to discuss the legal application of various legal relations involved in freight forwarding,and provide a basis for the following discussion on the application of law and classification of sub-delegation of freight forwarding.The author believes that the relationship of "shipper-freight forwarder-carrier" can be divided into two parts: the internal relationship between the shipper and the freight forwarder and the external relationship between the freight forwarder and the carrier.The former does not answer the question of "whose name the trustee should act on behalf of",but rather provides the legal reason for the freight forwarder to intervene in the principal’s affairs;as for the external relationship,it is a question of "agent".Therefore,the application of law of freight forwarding could be examined in two different latitudes: internal relations and external relations.Based on that,the two standards of "authority" and "behavior name" shall determine the application of the law.However,based on the study of relevant judicial documents and interpretations,this article has discovered three problems in the trial of relevant cases by judicial organs: First,it does not take into account the fact that the provisions of the “entrustment contract” are mechanically applied to the freight forwarding contract.Whereas the possibility of applying the "brokerage contract" is ignored.Second,it doesn’t care whether freight forwarder 1 is authorized or in whose name it concludes the contract.Third,it is indifferent to whether freight forwarder 1authorizes freight forwarder 2,and is indifferent to the possibility of a subagency.The author believes that the circumstances involved in the freight forwarding are obviously too broad,therefore a single standard will lead to partial generalization.Classification is thus necessary regarding relevant cases according to the following three standards: First,whether the shipper authorizes freight forwarder 1.Second,in whose name the freight forwarder 1 concludes the contract.Third,whether freight forwarder 1 authorizes freight forwarder 2.On this basis,two major types are formed: "sub-delegation of freight forwarding not involving subagency" and "sub-delegation of freight forwarding involving subagency".The second part addresses the first category,which is called "sub-delegation of freight forwarding not involving subagency",which mainly includes the following types of cases:(1)cases where the parties form a contractual relationship respectively,and(2)freight forwarder 2 constitutes the agent of freight forwarder 1.As far as the first type of cases is concerned,this article refers to it as "successive delivery",which is characterized by the establishment of an independent contractual relationship between the parties.In principle,the contractual relationship is independent of each other.However,the two contracts can be concatenated under certain circumstances through Article 926 of the Civil Code.The author believes that,in terms of the scope of application,Article 926 of the Civil Code only applies to indirect agency instead of commission.In terms of its legal effects,neither the right of intervention nor the right of choice provided for in this article constitutes direct agency.In terms of interpretation,the "right of intervention" can be understood as a right of formation,which produces the legal effect of the assignment of creditor’s rights between the shipper and the freight forwarder.In addition,the "right of chioce" can be regarded as a mechanism of "exemption of liability." As far as the second type of cases is concerned,it should be noted that freight forwarder 2 does not constitute the shipper’s subagent.Freight forwarder 2 is the agent of freight forwarder 1,and the contract concluded by it will be indirectly transmitted to the shipper only when the requirements of the two authorities are met at the same time.The third part discusses "sub-delegation of freight forwarding involving subagency",which mainly includes the following types of cases:(1)freight forwarder 2 and the shipper form a contractual relationship.After the shipper authorizes freight forwarder 1,the freight forwarder 1authorizes freight forwarder 2 in the name of the shipper.(2)After the freight forwarder implements the delegation,the freight forwarder 1 authorizes freight forwarder 2 in the name of the freight forwarder after the shipper authorizes freight forwarder 1.There are two agency relationships in the first type: First,freight forwarder 1 enters into a freight forwarding contract with freight forwarder 2 in the name of the shipper,in which the latter directly establishes a contractual relationship with the shipper.Second,the freight forwarder 1authorizes freight forwarder 2 in the name of the shipper,and the freight forwarder2 becomes the new agent of the shipper instead of her subagent.In cases where freight forwarder 1 is granted the agency right,and it selects freight forwarder 2 in its own name to implement the delegation and grants its agency right,freight forwarder 2 may become a subagent.Though subagency describes the phenomenon that the agent authorizes the third party in the name of the principal,it cannot be explained without an intensive study of the basic legal relationship attached upon it.The legal structure of subagency is similar to that of sub-delegation,and its common theoretical basis is "the third party’s performance rules." This means that if freight forwarder 1 is capable to implement sub-delegation,then she is in her capacity to implement subagency.However,we still need to foucus upon the theoretical basis which explains why the subagent could act in the name of the principle.The agent’s capacity to sub-authorize and the trustee’s authority to implement sub-delegation are homogenous,because they are essentially derived from the same “third party performance rules”.In view of the fact that the ultimate function of both is to transfer the authority of concluding contracts from the trustee(agent)to the sub-delegate(subagent),and the contract concluded shall be directly attributable to the principal,which requires us to recognize this rule: the right to sub-delegate and the right to sub-authorize must be accompanied by each other.Finally,the relationship between the subagent and the principal should be interpreted as a situation stipulated in Article 522,paragraph 2 of the Civil Code.