International trade╱ sale law.docx

Chapter 5 International Goods Transportation5.1 Brief View 一、Definition International goods transportation law is the rules governing transnational goods transportation. It has the following particularities: 1. It adjusts the relations come from transnational transportation. 2. It is independent from the contract of sale. 3. It is generally international and domestic rules , especially international, that governs international goods transportation. 二、Types By sea By railway By air Multi-transportation 5.2 International Goods Transportation by Sea 一、Instructions There are two types of contract for carriage of goods by sea, which are contracts contained in a charterparty and contracts evidenced by a bill of lading. 二、 Contracts contained in a charterparty （一）particularities 1. Flexible route 2. Flexible port 3. Flexible period 4. Flexible rate （二）Types 1. Voyage charterparties When a charterer hires a ship and its crew for the carriage of goods from one place to another, the charterer and the shipowner have conclude a voyage charterparty. 2. Time charterparties The charterer engages the use of the vessel for a stated period of time under a time charterparty contract. 3. charterparties by demise( bare boat charterparty ) Under this kind of contract, the charterer obtains possession and control of the ship and puts in his own master and crew, who are his employees. 三、 Contracts evidenced by a bill of lading （一）Particularities: 1. Fixed route 2. Fixed port 3. Fixed period 4. Fixed rate （二）Parties of the contract 1. Carrier means any person by whom or in whose name a contract of carriage of goods by sea has been concluded with a shipper. 2. Actual carrier means any person to whom the performance of the carriage of the goods, or of part of the carriage, has been entrusted by the carrier, and includes any other person to whom such performance has been entrusted. 3. Shipper means any person by whom or in whose name or on whose behalf a contract of carriage of goods by sea has been concluded with a carrier, or any person by whom or in whose name or on whose behalf the goods are actually delivered to the carrier in relation to the contract of carriage by sea. 4. Consignee means the person entitled to take delivery of the goods. 四、B/L （一）Definition Bill of lading means a document which evidences a contract of carriage by sea and the taking over or loading of the goods by the carrier, and by which the carrier undertakes to deliver the goods against surrender of the document. （二）Legal functions of B/L 1. It is an evidence of the contract. 2. It is a receipt of the goods issued by the carrier. 3. It is a document of title. （三）Validity of B/L A bill of lading shall be prima facie evidence of the receipt by the carrier of the goods. （四）Types of B/L 1. Shipped B/L & Received for Shipment B/L 2. Straight B/L, Open B/L & Order B/L 3. Clean B/L & Unclean B/L 4. Advanced B/ L & Anti dated B/ L 五、Liability of the Parties （一）Liability of the carrier 1.The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to (a)Make the ship seaworthy. (b)Properly man, equip and supply the ship. (c)Make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation. 2.Subject to the provisions of Article 4, the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried. 3. After receiving the goods into his charge the carrier or the master or agent of the carrier shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things: (a) The leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage. (b)Either the number of packages or pieces, or the quantity, or weight, as the case may be, as furnished in writing by the shipper. (c)The apparent order and condition of the goods. Provided that no carrier, master or agent of the carrier shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received, or which he has had no reasonable means of checking. 4. The carrier should ship the goods through a usual line without any unreasonable deviation. （二）Liability of the shipper 1. The shipper shall pay the price of carriage as well as any additional fees arising from transportation. 2. The shipper shall be deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks, number, quantity and weight, as furnished by him, and the shipper shall indemnity the carrier against all loss, damages and expenses arising or resulting from inaccuracies in such particulars. 3. Goods of an inflammable, explosive or dangerous nature to the shipment whereof the carrier, master or agent of the carrier has not consented with knowledge of their nature and character, may at any time before discharge be landed at any place, or destroyed or rendered innocuous by the carrier without compensation and the shipper of such goods shall be liable for all damage and expenses directly or indirectly arising out of or resulting from such shipment. If any such goods shipped with such knowledge and consent shall become a danger to the ship or cargo, they may in like manner be landed at any place, or destroyed or rendered innocuous by the carrier without liability on the part of the carrier except to general average, if any. 六、Immunity of the carrier 1.Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy and to secure that the ship is properly manned, equipped and supplied, and to make the holds, refrigerating and cool chambers and all other parts of the ship in which goods are carried fit and safe for their reception, carriage and preservation. Whenever loss or damage has resulted from unseaworthiness the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this article. 2. Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from: (a)Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship. (b)Fire, unless caused by the actual fault or privity of the carrier. (c)Perils, dangers and accidents of the sea or other navigable waters. (d) Act of God. (e) Act of war. (f) Act of public enemies. (g) Arrest or restraint or princes, rulers or people, or seizure under legal process. (h) Quarantine restrictions. (i)Act or omission of the shipper or owner of the goods, his agent or representative. (j)Strikes or lockouts or stoppage or restraint of labor from whatever cause, whether partial or general. (k) Riots and civil commotions. (l)Saving or attempting to save life or property at sea. (m)Wastage in bulk or weight or any other loss or damage arising from inherent defect, quality or vice of the goods. (n) Insufficiency of packing. (o) Insufficiency or inadequacy of marks. (p)Latent defects not discoverable by due diligence. (q) Any other cause arising without the actual fault or privity of the carrier, or without the actual fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage. 3.The shipper shall not be responsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without the act, fault or neglect of the shipper, his agents or his servants. 4.Any deviation in saving or attempting to save life or property at sea or any reasonable deviation shall not be deemed to be an infringement or breach of this Convention or of the contract of carriage, and the carrier shall not be liable for any loss or damage resulting therefrom. 5.Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connexion with goods in an amount exceeding 100 pounds sterling per package or unit, or the equivalent of that sum in other currency unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. This declaration if embodied in the bill of lading shall be prima facie evidence, but shall not be binding or conclusive on the carrier. By agreement between the carrier, master or agent of the carrier and the shipper another maximum amount than that mentioned in this paragraph may be fixed, provided that such maximum shall not be less than the figure above named. Neither the carrier nor the ship shall be responsible in any event for loss or damage to, or in connection with, goods if the nature or value thereof has been knowingly misstated by the shipper in the bill of lading. 特别提款权(SDR) SDR是国际货币基金组织于1969年创设的一种储备资产和记账单位，亦称“纸黄金”，最初是为了支持布雷顿森林体系而创设，后称为“特别提款权”。最初每特别提款权单位被定义为0.888671克纯金的价格，也是当时1美元的价值。 自1981年1月1日起，特别提款权由5种世界上贸易出口额最高国家的货币，即美元、德国马克、日元、法国法郎和英镑按每5年调整一次的比例构成。据基金会1990年10月9日新闻公报，自1991年1月1日起，调整特别提款权构成比例为：美元40，德国马克21，日元17，法国法郎11，英镑11。此比例于1995年底以前不变。 经过多年调整，目前以美元、欧元、日元和英镑四种货币综合成为一个“一篮子”计价单位。作为IMF分配给会员国的一种使用资金的权利，中国拥有的特别提款权配额为63.692亿，是第8位份额最大的成员，而美国以371.493亿特别提款权作为最大份额成员。成员国拥有的特别提款权可以在发生国际收支逆差时，用来向基金组织指定的其它会员国换取外汇，以偿付国际收支逆差或偿还基金组织贷款。特别提款权还可与黄金、自由兑换货币一样充作国际储备。用特别提款权作为统一的记价单位时，国际货币基金组织的各成员国货币和特别提款权之间的折算比例，也就体现了各成员国货币的汇率情况。同时也能更好地反映一国货币的综合汇率。 按照国际货币基金组织的规定，每一单位特别提款权，是由0.5770美元、0.4260欧元、21日元和0.0984英镑组成的一个“一篮子”货币。由于四种货币的汇率在不断变化，因此特别提款权的价格每天都会不同。按照IMF的规定，SDR一般以伦敦市场午市欧元、日元、英镑对美元的汇率中间价作为计算标准，先计算出含有多种货币的特别提款权对美元的比价，得到一个用美元标价的特别提款权价格；然后再根据成员国央行公布的各自货币对美元的汇率，计算出各种货币对特别提款权的兑换比例，得到其它各种货币标价的特别提款权值。为了应对伦敦市场休市，国际货币基金组织还规定，如果当天没有伦敦市场的价格，则以纽约市场的午市中间价进行计算，如果也没有纽约市场价格，那么特别提款权的价格就在欧洲央行公布的欧元指导汇率的基础上进行计算。 Chapter 3 Brief View of International Trade Law3.1Definition, Adjusted Scope, Source and Development of International Trade Law 一、 History 二、Definition 三、 Scope 1. Rules on international sale of goods( including transportation, insurance and payment) 2. Rules on trade in service 3. Rules on trade related intellectual property 4. Rules on international merchandise system 5. Rules to regulate trade by government 四、 Source 1. International treaties 2. Bilateral agreement 3. International trade practice 4. Domestic rules 5. Decisions made by international organizations 6. Standard contract 第三章 国际贸易法概述第一节 国际贸易法的概念、调整范围、渊源和发展 一、国际贸易法的概念、调整范围、渊源 概念 范围 渊源 二、历史 （一）中世纪的商人法 （二）国际贸易法的统一与编纂 五、Newly Development of International Trade Law 1. The scope has enlarged a lot and been across over other subjects of law. 2. The state manage to supervise international trade through more measures other than Tariff in the Past. Thus formed a systematic and modern mode. 3.The emergence of regional trade group has enriched international trade law a lot. 4. The emergence of word-wide trade organization-WTO asks many states to modify their domestic trade law to suit their duties under WTO agreements. 三、国际贸易法的最新发展 1、贸易法的调整范围不断扩大且与其他法律学科交叉联系的特点更为突出。 2、国家管理贸易的手段从关税深入扩展到了非关税领域，形成系统的、现代的管理模式。 3、区域贸易集团的诞生极大的丰富了国际贸易法的内容。 4、随着国际贸易组织的成立与扩大，许多国家都依照世贸组织的要求对国内贸易法进行了修改获颁布了新法。 Chapter 4 Rules on International Sale of Goods4.1 Domestic Legislation 一、Mode Uniform Separate 第四章 国际货物贸易法第一节 国际货物贸易的国内立法 一、立法模式 民商分立 民商合一 二、Important domestic Legislation 1. Sale of Goods Act 2. Uniform Commercial Code 二、重要的国内立法 英国1893年货物买卖法 美国统一商法典 4.2 International Treaties 一、History of CISG 二、 Sphere of Application of CISG Article 1 (1) This Convention applies to contracts of sale of goods between parties whose places of business are in different States: (a) when the States are Contracting States; or (b) when the rules of private international law lead to the application of the law of a Contracting State. (2) The fact that the parties have their places of business in different States is to be disregarded whenever this fact does not appear either from the contract or from any dealings between, or from information disclosed by, the parties at any time before or at the conclusion of the contract. (3) Neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be taken into consideration in determining the application of this Convention. Article 2 This Convention does not apply to sales: (a) of goods bought for personal, family or household use, unless the seller, at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any such use; (b) by auction; (c) on execution or otherwise by authority of law; (d) of stocks, shares, investment securities, negotiable instruments or money; (e) of ships, vessels, hovercraft or aircraft; (f) of electricity. Article 3 (1) Contracts for the supply of goods to be manufactured or produced are to be considered sales unless the party who orders the goods undertakes to supply a substantial part of the materials necessary for such manufacture or production. (2) This Convention does not apply to contracts in which the preponderant part of the obligations of the party who furnishes the goods consists in the supply of labour or other services. Article 4 This Convention governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract. In particular, except as otherwise expressly provided in this Convention, it is not concerned with: (a) the validity of the contract or of any of its provisions or of any usage; (b) the effect which the contract may have on the property in the goods sold. Article 5 This Convention does not apply to the liability of the seller for death or personal injury caused by the goods to any person. Article 6 The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions. 二、Chinas Reservation 三、Critics of CISG 第二节 国际货物贸易的国际公约 一、CISG的订立过程 二、公约的适用范围 （1） 公约的适用范围是营业地位于不同国家的当事人之间订立的货物销售公约。（2）不适用公约的买卖范围：主要包括六个方面，购买供私人、家人或家庭使用的货物买卖；以拍卖方式进行的买卖；根据法律执行令状或其他令状的买卖；股票、公债、投资证券、流通票据或货币的买卖；船舶、船只、气垫船或飞机的买卖；电力的买卖。公约也不适用卖方的主要义务是提供劳务或其他服务的买卖；另外，公约也不涉及买卖合同的效力或惯例的效力等问题，买卖合同对标的货物的所有权的影响问题，出售的货物引起的人身伤亡或伤害的责任问题。 三、我国对公约的保留 我国在核准加入公约时作出了两项保留，一是对公约适用范围的保留，我国只同意公约的适用范围仅限于当事人的营业地是位于不同国家的国际货物买卖合同，对中国来说，公约仅适用于公约缔约国的当事人之间订立的合同；二是对公约的合同形式规定的保留，依据该项保留，我国在合同形式条款上可以不受公约的约束。 三、对CISG的批评 1、货物的所有权的转移 2、合同效力 3、产品责任 4、公约的自动适用性 4.3 International Trade Practice 一、Definition & Particularities International trade practice is the rule or standard, which was applied repeatedly and usually by parties and could set their rights and obligations. It has the following particularities: 1. It should be widely accepted in trade practice and be applied repeatedly and usually. 2. Its content should be definite, so that to regulate the parties conduct. 3. It is not mandatory. It will rule the parties only when it is sited in the contract. 第三节 国际货物贸易的国际惯例 一、国际贸易惯例的概念和特征 国际贸易惯例是国际货物买卖活动中，国际货物买卖合同的当事人之间长期、经常并反复使用的，用以确定他们之间的权利和义务关系的标准或准则。国际贸易惯例通常具有下列特征：1必须为国际经济贸易熟悉并能在国际贸易实践中得到普遍认可，并在国际货物买卖活动中得到长期、反复和经常的使用。2国际贸易惯例应该具有确定的内容，能够对国际贸易的当事人的国际贸易实践活动起到规范性的作用。 3国际贸易惯例对当事人的适用具有非强制性，但是如果当事人一致同意引用该惯例时，该惯例就对当事人具有法律约束力。 4.4 Contract for International Sale of Goods 一、Definition & Particularities International trade Particularity of the object Complexity of the legal relations 二、Establishment of contract （一）The parties （二）The process of concluding a contract1. Offer(1)Definition A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance. (2)Constitutive Requirements i. An offer should be sent to one or more specific persons. ii. It should be sufficient definite. A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price. iii. It should arrive at the offeree (3) Invitation of offer A proposal other than one addressed to one or more specific persons is to be considered merely as an invitation to make offers, unless the contrary is clearly indicated by the person making the proposal. (4)Withdrow an offer An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the sa