国际商法英文版：6 chapter11.doc

Chapter 11 Transportation

Contents
Summary………………………………………………………………………2
Outline…………………………………………………………………………3
Questions ………………………………………………………………………17
Vocabulary………………………………………………………………………21

Part 1 Summary

This chapter is divided into eight parts:
A. Trade terms
B. Transportation
C. Inland carriage
D. Carriage of goods by sea
E. Charter parties
Maritime liens
Maritime insurance
Carriage of goods by air

(1) Trade terms: trade terms define the time and place where the buyer is to take delivery, the times and place of payment, the price, the time when the risk of loss shifts from the seller to the buyer, the costs of freight and insurance, for instance, FOB.

(2) Transportation: goods are picked up at seller's place of business by an inland carrier and transported to a seaport for carrying abroad.

(3) Inland carriage: the first stage of transporting goods overseas involves an inland carrier, either a trucking or rail company, which moves the seller's goods from the seller's place of business to a seaport or airport. Carriers are liable for loss, damage, or delay up to the liability limit set by the convention, so long as the consignment note states that carriage is governed by the CMR.

(4) Carriage of goods by sea: In the carriage of goods by sea, goods may be lost, damaged or deteriorated. The bill of lading is a contract of carriage between the consignor, the carrier and consignee that acts as a receipt of transfer of goods and as a negotiable instrument. The bill of lading also determines rights and liabilities agreed between parties to an international sale contract. The consignor retains ownership of the goods until the bill of lading is transferred to the consignee. Most bills of lading today are governed by international conventions such as the Hague Rules, Hague-Visby Rules and Hamburg Rules.

(5) Charter parties: it is a contract for the hire of an entire ship for a particular voyage or a set period of time.

(6) Maritime lien: it is a claim laid against maritime property, most often a vessel, but may also be brought against other personal property involved in maritime transactions such as cargo. A maritime lien arises from services rendered to or injuries caused by maritime property. Generally a maritime lien attaches to the property and is valid whether or not recorded. It travels with the vessel or personal property from port to port and owner to owner until it is extinguished or discharged.

(7) Maritime insurance: Insurance against perils is an important aspect of international commercial transactions. In the event of loss or damage to cargo due to hazards during voyage, an insured party will be able to recover losses from the insurer. The type of insurance required depends on the mode of transport agreed between parties to transport the cargo.

(8)Carriage of goods by air: Warsaw Convention emulates it. Four amendments to the convention have been adopted and are now in force.

Part 2
Chapter 11 - Transportation
A. TRADE TERMS
1. Use of Trade Terms: Sales contracts involving transportation customarily contain abbreviated terms to describe —
a. Time when the buyer is to take delivery.
b. Place where the buyer is to take delivery.
c. Additionally:
1) Place of payment.
2) The price.
3) The time when the risk of loss shifts from the seller to the buyer.
4) The costs of freight and insurance.
2. Trade Terms are not Consistently Used
a. Many domestic laws define trade terms for both domestic and export sales.
b. Almost all domestic laws allow the parties to define the terms themselves.
1) The United Nations’ Convention on Contracts for the International Sale of Goods similarly allows parties to incorporate trade terms of their choosing.
2) This may be done by incorporating definitions from:
a) Foreign legislation.
b) Private rules.
1] the most widely used private trade terms are those published by the International Chamber of Commerce.
a] Called Incoterms.
b] Trade councils, courts, and international lawyers encourage their use in international sales.
c] First published in 1936.
d] The current version was published in 2000.
e] This outline focuses on the Incoterms.
Case 11-1. St. Paul Guaranty Insurance Co. v. Neuromed Medical Systems & Support, GmbH
3. “Free” Terms
a. Several of the common trade terms begin with the word “free” (e.g., free on board, free alongside, free carrier).
b. “Free” means: The seller has an obligation to deliver the goods to a named place for transfer to a carrier.
4. FOB - Free On Board Contracts
a. Free on board is a maritime trade term.
1) In most of the world its use remains limited to seaborne commerce.
a) Incoterms only uses it in connection with the carriage of goods by sea.
b) In common law countries it is also used for inland carriage aboard any “vessel, car, or other vehicle.”
b. FOB (port of shipment) contract: Requires a seller to deliver goods on board a vessel that is to be designated by the buyer in a manner customary at the particular port.
1) “On board” means that the goods:
a) Have been appropriated to the contracts.
b) Have crossed a ships’ rail.
5. FAS - Free Alongside Contracts
a. Free Alongside or Free Alongside Ship: Requires the seller to deliver goods to a named port alongside a vessel to be designated by the buyer and in a manner customary to the particular port.
1) “Alongside” has traditionally meant that the goods be within reach of a ship’s lifting tackle.
6. CIF - Cost, Insurance, and Freight Contracts
a. Cost, Insurance, and Freight (port of destination): Requires the seller to arrange for the carriage of goods by sea to a port of destination and to turn over to the buyer the documents necessary to obtain the goods from the carrier or to assert a claim against an insurer if the goods are lost or damaged.
1) The three documents that the seller (as a minimum) has to provide are:
a) The invoice.
b) The insurance policy.
c) The bill of lading.
2) These documents represent the three elements of the contract: cost, insurance, and freight.
3) The seller’s obligations are complete when the documents are tendered to the buyer.
a) At that time, the buyer is obliged to pay the agreed price.
7. CFR - Cost and Freight Contracts
a. The Cost and Freight (port of destination) term is the same as the CIF term, except that the seller does not have to procure marine insurance against the risk of loss or damage to the goods during transit.
Case 11-2. Phillips Puerto Rico Core, Inc. v. Tradax Petroleum, Ltd.
8. DES - Delivered Ex-Ship Contracts
a. The delivered ex-ship or arrival contract requires the seller to deliver goods to a buyer at an agreed port of arrival.
1) The seller remains responsible for the goods until they are delivered.
a) The seller is not therefore obliged to obtain insurance for the buyer’s benefit.
9. FCA - Free Carrier
a. The F.C.A. term requires the seller to deliver goods to a particular carrier at a named terminal, depot, airport, or other place where the carrier operates.
1) The costs of transportation and the risks for loss shift to the buyer at that time.
10. EXW - Ex-Works
a. An “ex-works” contract requires a seller only to deliver the goods at his own place of business.
1) All the costs connected with transportation are the responsibility of the buyer.
B. INLAND CARRIAGE
1. It is Common Practice for the Seller to Arrange for Inland Carriage, with the inland carrier transferring the goods to a freight forwarder at a seaport or airport for the latter to arrange and oversee the shipment of the goods abroad
2. There are no Universal Conventions
a. In Europe:
1) Road transport is regulated by: Convention for the International Carriage of Goods by Road (the CMR Convention).
2) Rail transport is governed by: Convention Concerning International Carriage by Rail (the COTIF Convention).
b. Similar agreements exist in other parts of the world.
1) Exception: North America.
3. The Convention for the International Carriage of Goods by Road (the CMR Convention)
a. Representative of the conventions governing road transport.
b. Applies whenever goods are shipped between two countries, at least one of which is a signatory of the convention.
c. The convention requires a carrier to issue a “consignment note.”
1) Not a negotiable instrument.
2) It is prima facie evidence of:
a) The making of a transport contract.
b) The receipt of goods.
c) The condition of the goods.
d. The Convention grants the consignee the right to:
1) Demand delivery of the goods in exchange for a receipt.
2) Sue the carrier in the carrier’s own name for any loss, damage, or delay for which the carrier is responsible.
e. Until the time that the goods are turned over to the consignee, the shipper (consignor) has the right to order the carrier to stop them in transit, to change the place for delivery, or to order them delivered to a different consignee.
f. If a road carriage contract involves multiple carriers.
1) Each carrier is treated as a party to the contract.
2) Each carrier is responsible for the entire transaction.
3) Suits can be brought against:
a) The first carrier,
b) The last carrier, or
c) The carrier in possession at the time of the loss.
g. Carriers are liable for loss, damage, or delay up to the liability limit set by the Convention, so long as the consignment note states that carriage is governed by the CMR.
1) The liability limit is 8.33 Special Drawing Rights per kilogram, unless the consignor declares a higher value and pays a surcharge.
2) If the consignment note fails to include a reference to the CMR, the carrier will be liable for any resulting injury.
h. Carriers are excused from liability if they can prove that the loss, damage or delay was caused by:
1) The consignor, or
2) The consignee.
i. A consignee has to notify the carrier:
1) Within 7 days of delivery to assert a claim for loss or damages.
2) Within 21 days of delivery to make a claim for losses resulting from delay.
4. The Convention Concerning International Carriage by Rail (COTIF Convention)
a. Most provisions are the same as the CMR.
b. The carrier’s liability for losses is 17 Special Drawing Rights per kilogram.

C. CARRIAGE OF GOODS BY SEA
1. Common Carriage
a. Defined: The owner or operator of a vessel carries goods for more than one person.
1) The vessel is known as a general ship, or common carrier.
b. Common carriers are the subject of extensive municipal legislation and international conventions.
c. Three types of common carriers:
1) A conference line is an association of sea-going carriers who have joined together to offer common freight rates over scheduled routes.
2) An independent line is a carrier with its own rate schedule over scheduled routes.
3) A tramp vessel has its own rate schedule, but it does not operate on established routes.
d. In most countries the tariffs of ocean carriers are not regulated, and both conference and independent lines will commonly offer regular shippers substantial rebates.
1) In the United States:
a) Ocean carriers have to file their tariffs with the Federal Maritime Commission.
b) Rebates are forbidden by American law.
2. The Bill of Lading
a. Governing law:
1) International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading.
a) Originally adopted in 1924 and commonly known as the Hague Rules.
b) Extensively amended in 1968: The amended 1968 version is known as the Hague-Visby Rules.
c) Most countries are parties to the 1924 Rules.
2) The domestic legislation implementing these conventions is typically called Carriage of Goods by Sea Acts (COGSAs).
a) Many states have supplementary legislation that also governs bills of lading in both municipal and international settings.
b. Bill of Lading Defined: An instrument issued by an ocean carrier to a shipper with whom the carrier has entered into a contract for the carriage of goods.
1) A bill of lading serves three purposes:
a) It is a carrier’s receipt for goods.
b) It is evidence of a contract of carriage.
c) It is a document of title.
1] The person rightfully in possession of the bill is entitled to possess, use, and dispose of the goods that the bill represents.
c. Receipt for goods.
1) A bill of lading:
a) Describes the goods.
b) States their quantity.
c) States their condition.
2) The form itself is normally filled out in advance by the shipper and completed by the carrier.
a) Bills certifying that the goods have been properly loaded on board are known as “on board bills of lading.”
b) If there is a discrepancy, the statement on the bill is considered prima facie evidence that the goods were received in the condition shown in any dispute between the shipper and the carrier.
1] As long as the bill has not been negotiated to a third party the carrier can introduce proof to rebut this evidence.
a] The carrier is barred from introducing evidence to contradict the bill of lading once it has been negotiated.
3) If a discrepancy is noted on the face of the bill, it is called a “claused” bill of lading.
a) Claused bills are normally unacceptable to third parties.
b) Note: a notation as to a discrepancy may only be made on the bill at the time the goods are loaded.
1] Later notations have no effect, the bill will be treated as if it were “clean.”
Case 11-3. M. Golodetz & Co., Inc. v. Czarnikow-Rionda Co., Inc. (The Galitia)
d. Contract of Carriage.
1) A bill of lading is evidence of the contract of carriage between the shipper and the carrier.
a) As long as the bill has not been negotiated to a third party either the shipper or the carrier can introduce proof to rebut this evidence.
e. Document of Title.
1) Straight bill of lading: Issued to a named consignee and non-negotiable.
a) The transfer of a straight bill gives the transferee no greater rights than those of his transferor.
2) Order bill of lading: Issued to a named consignee and negotiable.
a) The holder has a claim to title.
1] The holder must have received the bill in good faith through due negotiation.
2] By surrendering the bill the holder is entitled to delivery of the goods.
b) Form of order bills - may be made out:
1] “To bearer.”
a] Bearer instruments are transferred by delivery.
b] Seldom used.
2] “To the order” of a named party.
a] Order instruments are transferred by negotiation, that is, by endorsement and delivery.
c) Significance of negotiability: The person named on the bill is able to transfer the goods while a ship is in transit.
d) Distinguish order bills of lading from bills of exchange and drafts.
1] No holder in due course status.
2] Endorsers transfer all contractual rights to endorsees.

3. The Carrier’s Duties under a Bill of Lading
a. A carrier transporting goods under a bill of lading is required to exercise “due diligence”