4级英语考试试题.doc

A bill of lading has commonly been said to have three characteristics : 1 a contract for the carriage of the goods 2 an acknowledgement of their receipt and 3 documentary evidence of title . However, there is an uncertainty and dispute about its contractual nature. The significance of the establishment of the contractual role of bills of lading based on the necessity that any contractual party should know the final terms of the contract upon which the terms of the International Conventions will be implied to. Contractual terms must not be different to these stated by the International Conventions. Is the bill of lading the contract of carriage upon which the terms of the International Conventions are implied to? In this first article it is proposed to investigate the contractual role of bills of lading as it has been perceived in the different international conventions. The analysis will be based mainly on arguments which have arisen from the content of the conventions themselves, than by investigating the national Acts which were introduced in order to implement the international conventions. Reference to other sources, such as court decisions or views of various scholars, will be made in case that there is a straight relation with the construe of the conventions themselves. The main scope is to find out how the international practice is reflected in the writing of the conventions. This article will be the first of a series of articles which will follow and where their contractual role under the Creek, United States and English law will be investigated. A bill of lading is also referred as BOL or B/L is a document that is issued by a carrier such as ships master to acknowledge that specific products have been received for conveyance and delivery to the consignee. There are four types of bill of lading including Straight bill of lading, order bill of lading, bearer bill of lading and surrender bill of lading. Example of bill of lading is Southern Railway Company bill of lading (1906). It is considered very important in the international trade because in trade transportation of goods is carried out via sea therefore, the transport documents are prepared. Therefore, a bill of lading in international trade acts as an evidence of the contract of the transportation of goods by sea.A bill of lading, is a receipt issued to shipper, in confirmation of receipt of goods apparently in good condition, by the freight forwarder/shipping company for the agreed dispatch.Its the proof or evidence of contract of carriage between shipper & freight forwarder/shipping company.A bill of lading hold title of goods, against which delivery can be claimed / demanded by the shipper/consignee at the agreed destination where the liner/forwarder is responsible to deliver the goods.The most important document in shipping is the bill of lading signed by or on behalf of the transporter or the ships master. Originally called a bill of loading, it is used to certify that the Sellers goods have been received for transportation and delivery as stipulated in bill of lading. A bill of lading fulfills at least three important functions in international transportation trade: (1) it is a receipt of goods indicating in what apparent order and conditions the goods have been received on board; (2) it is a contract between the Seller (Shipper) and the shipping company (the Carrier) for the performance services of transportation of the covered goods from the port of loading to stipulated port of destination; and(3) it is also an evidence of ownership of the goods described and allows the legal owner of the bill of lading to transfer the goods at any time to any relevant party, for the owner of the bill of lading is also the owner of the goods. So when made out “to order”, the bill of lading becomes in practice a negotiable instrument and is often used as security for loans and other purpose.With the rapid development of international trade, transportation facilities have been greatly improved to meet the demand. To meet with the improvement, bill of lading serving different method of transportation appeared. There are Ocean Bill of Lading (for shipment over an ocean), Air Waybill (through the use of an airplane), Inland Bill of Lading (for inland surface transportation), and Intermodal Bill of Lading. No matter how it is titled, a bill of lading is to convey ownership of the goods and to govern their transportation, but an air waybill is neither a document of title nor can it transfer ownership of the goods to which it refers.Electronic bills of ladingTo provide a solution to legal requirements of any national or local law, custom or practice requiring the contract of carriage to be evidenced in writing and signed, the Committee Maritime International (CMI) has adopted Rules for Electronic Bills of Lading (1990). Under the Rules, upon receipt goods, the carrier can send an electronic message to the shipper describing the goods, the contract terms and a “private key or code”. The private key or code can be used to transfer shippers rights to a third party. And the third party then becomes a new holder. The carrier then cancels the original key and gives a new key to the new person entitled to control of the goods. In this way the key holder should have the same rights as the bill of lading holder. Bill of ladingA bill of lading (sometimes referred to as a BOL,or B/L) is a document issued by a carrier to a shipper, acknowledging that specified goods have been received on board as cargo for conveyance to a named place for delivery to the consignee who is usually identified. A through bill of lading involves the use of at least two different modes of transport from road, rail, air, and sea. The term derives from the verb to lade which means to load a cargo onto a ship or other form of transport.A bill of lading can be used as a traded object. The standard short form bill of lading is evidence of the contract of carriage of goods and it serves a number of purposes: It is evidence that a valid contract of carriage, or a chartering contract, exists, and it may incorporate the full terms of the contract between the consignor and the carrier by reference (i.e. the short form simply refers to the main contract as an existing document, whereas the long form of a bill of lading (connaissement intgral) issued by the carrier sets out all the terms of the contract of carriage); It is a receipt signed by the carrier confirming whether goods matching the contract description have been received in good condition (a bill will be described as clean if the goods have been received on board in apparent good condition and stowed ready for transport); and It is also a document of transfer, being freely transferable but not a negotiable instrument in the legal sense, i.e. it governs all the legal aspects of physical carriage, and, like a cheque or other negotiable instrument, it may be endorsed affecting ownership of the goods actually being carried. This matches everyday experience in that the contract a person might make with a commercial carrier like FedEx for mostly airway parcels, is separate from any contract for the sale of the goods to be carried, however it binds the carrier to its terms, irrespectively of who the actual holder of the B/L, and owner of the goods, may be at a specific moment. edit Main types of biledit Straight bill of ladingThis bill states that the goods are consigned to a specified person and it is not negotiable free from existing equities, i.e. any endorsee acquires no better rights than those held by the endorser. So, for example, if the carrier or another holds a lien over the goods as security for unpaid debts, the endorsee is bound by the lien. Although, if the endorser wrongfully failed to disclose the charge, the endorsee will have a right to claim damages for failing to transfer an unencumbered title.Also known as a non-negotiable bill of lading; and from the bankers point of view this type of bill of lading is not safe.edit Order bill of ladingThis bill uses express words to make the bill negotiable, e.g. it states that delivery is to be made to the further order of the consignee using words such as delivery to A Ltd. or to order or assigns. Consequently, it can be endorsed by A Ltd. or the right to take delivery can be transferred by physical delivery of the bill accompanied by adequate evidence of A Ltd.s intention to transfer.edit Bearer bill of ladingThis bill states that delivery shall be made to whosoever holds the bill. Such bill may be created explicitly or it is an order bill that fails to nominate the consignee whether in its original form or through an endorsement in blank. A bearer bill can be negotiated by physical delivery.edit Surrender bill of ladingUnder a term import documentary credit the bank releases the documents on receipt from the negotiating bank but the importer does not pay the bank until the maturity of the draft under the relative credit. This direct liability is called Surrender Bill of Lading (SBL), i.e. when we hand over the bill of lading we surrender title to the goods and our power of sale over the goods.(Guide to Trade Terms (PDF). p. 64. .au/documents/pdf/wibnz/guide-to-trade-terms-payables. Retrieved 2007-12-13.)edit Other terminologyA sea or air waybill is a non-negotiable receipt issued by the carrier. It is most common in the container trade either where the cargo is likely to arrive before the formal documents or where the shipper does not insist on separate bills for every item of cargo carried (e.g. because this is one of a series of loads being delivered to the same consignee). Delivery is made to the consignee who identifies himself. It is customary in transactions where the shipper and consignee are the same person in law making the rigid production of documents unnecessary.The UKs Carriage of Goods by Sea Act 1992 creates a further class of document known as a ships delivery order which contains an undertaking to carry goods by sea but is neither a bill nor a waybill.A straight bill of lading by land or sea, or sea/air waybill are not documents of title to the goods they represent. They do no more than require delivery of the goods to the named consignee and (subject to the shippers ability to redirect the goods) to no other. This differs from an order or bearer bill of lading which are possessory title documents and negotiable, i.e. they can be endorsed and so transfer the right to take delivery to the last endorsee.edit A sample of the issuesIn most national and international systems, a bill of lading is not a document of title, and does no more than identify that a particular individual has a right to possession at the time when delivery is to be made. Problems arise when goods are found to have been lost or damaged in transit, or delivery is delayed or refused. Because the consignee is not a party to the contract of carriage, the doctrine of privity of contract states that a third party has no right to enforce the agreement. However, whether this is a problem to the consignee depends on who owns the goods and who holds the risks associated with the carriage. This will be answered by examining the terms of all the relevant contracts. If the consignor has reserved title until payment is made, the consignor can sue to recover his or her loss. But if ownership and/or the risk of loss has transferred to the consignee, the right to sue may not be clear in contract, although there could be remedies in tort/delict (the issue of risk will have been most carefully considered to decide who should insure the goods during transit). Hence, a number of international Conventions and domestic laws specifically address when a consignee has the right to sue. The legal solution most often adopted is to apply the principle of subrogation, i.e. to give the consignee the same rights of action held by the consignor. This enables most of the more obvious cases of injustice to be avoided.In the municipal law of the U.S., the issue and enforcement of bills which may be documents of title, i