商英国贸判断和案例整理 部分.doc

.True or false questions1. Although the British system and the American system of weights and measures are closely related .there are a number of differences between them. 2. According to the CISG, if the buyer takes delivery of all or part of the excess quantity delivered by the seller ,he must pay for it at the contract rate. 3. the quantity clause in the contract provides”500 M/T 10% more or less at sellers option”. This means the quantity delivered by the seller can be less than 450 M/T or more than 550 M/T. 4. All the marks on the outer packages are called shipping marks.5. Chinas GSI country codes are 960-965. 6. Packing charges are usually included in price 7. Theoretically, use of hard currency(currency that is reliable and stable and more in demand)as payment currency is beneficial to the exporter. 1.T 2.T 3.F 4.F 5.F 6.T 7.T1.Ocean transport is a very fast mode of transport. 2.FIO indicates that the shipowner is responsible for the costs of loading goods onto the vessel and unloading goods from the vessel. 3.Time charter generally does not include loading and unloading costs in the charter rate.4.In voyage charter ,the vessel is under the control of the charterer who is responsible for equipping and manning the vessel. 5.A B/L blank endorsed” refers to the B/L without any endorsement 6.All bills of lading are transferable 7.A bill of lading with a notation of insufficient packingis a foul bill of lading 8.A short form bill of lading is usually not acceptable 9.According to the GISG, in the absence of terms as to whether transshipment is allowed or not in the contract ,transshipment is to construed as allowed. 10.Time charter means that the charterer hires the vessel for a period of time without crew 11.Dispatch money and demurrage clause normally appear in the time charter-party1.The losses shall be admitted as general average if they are a direct consequence of a general average act. 2. General average and salvage charges are covered in both FPA and WA.3. Warehouse to warehouse clause is a shipment clause meaning that the carrier is responsible for shipping the goods from the sellers warehouse to the buyers warehouse. 4. Both general additional risks and special additional risks in the Ocean Marine Cargo Clause of the PICC can be covered independently. 5. ICC(C) does not cover risks of war, strike, but covers loss of or damage to cargo caused by earthquake. 6. The exclusions of ICC(C) are the same as that of ICC (B). 7. ICC (A) is close to All Risks of the Ocean Marine Cargo Clause of the PICC in terms of scope of coverage. 8. Although All Risks in the Ocean Marine Cargo Clause of the PICC does nor cover special additional risks, it covers general additional risks.1.T 2.T 3.F 4.F 5.F 6.T 7.T 8. T1. A promissory note differs from a bill of exchange in that the maker of a note promises to personally pay the payee rather than ordering a third party to do so. 2. Upon acceptance the drawer, now the acceptor, becomes the principal debtor and the party primarily liable for the payment of the bill.3. A cheque is a bill of exchange drawn on a bank payable on a determinable future date. 4. A bankers draft is a draft drawn on a bank. 5. The time of payment in a sight draft may be expressed as “at 30 days after sight”. 6. The draft in D/P at sight is a sight draft.7. The quality of a bankers acceptance draft is particularly identical to a marketable bank certificate of deposit. 8. The transaction was made on D/P after sight. When the goods arrived at the port of destination, the buyer borrowed the documents from the collecting bank against T/R. But the buyer refused to make payment on maturity. In this case, the collecting bank was liable to effect payment to the seller. 9. When payment is made by D/A, the collecting bank should accept the draft and release the documents to the importer. 10. The negotiating bank normally has no right of recourse against the drawer, namely the beneficiary in the credit, in the event of dishonor by the issuing bank after its negotiation. 11. The beneficiary (the seller) should effect shipment immediately upon receipt of the letter of credit. 12. When payment is made by a confirmed letter of credit, the seller is assured that payment will be made by the confirming bank no matter the issuing bank is insolvent or not. 13. under the “buyers usance credit”, the beneficiary can get full sight payment.1.T 2.T 3.F 4.F 5.F 6.T 7.T 8. T 9.F 10.F 11.F 12.T 13.T1. All commodity inspection organizations in its nature are governmental. 2. AQSIQ is a governmental organization in China. 3. In the light of the Britain law, if any party to a contract violates the substantive clauses, the breach is called “breach of warranty”. 4. Any natural disasters such as earthquake, flood, war, etc. are force majeure events. 5. Any force majeure event would result in the termination of contract. 6. In case of a force majeure event, the party seeking to use the clause of force majeure is liable to promptly notify the other party of “the impediment and its effect on his ability of perform.” 7. Breach of condition gives the injured party the right either to terminate the contract and refuse to perform their part of it, or to go through with agreement and sue for damages. 8. Non-fundamental breach of contract does not give the right to the injured party to terminate the contract, the injured party has to complete their part of contract, and can only sue for damages1.An enquiry is not binding 2. Only the buyer makes enquiries to initiate a potential transaction. 3. A counteroffer is actually a new offer made by the offeree of the original offer. 4. The CISG adopts the rule that public offers such as advertisements are only invitations to negotiate “ unless the contrary is clearly indicated”. 5. In the light of thee CISG, a proposal is sufficiently definite if it contains the indication of the goods, the quantity and the price of the goods.6. In the process of negotiation, offer is made by the seller whereas acceptance is made by the buyer.7.An offer without terms of validity is ineffective.8. Any offer can be revoked. 9. In the light of the CISG, an acceptance of an offer becomes effective at the moment it is dispatched. 10. In the light of the CISG, a contract is concluded only if a formal contract is made out.1.T 2.F 3.T 4.T 5. T 6. F 7. F 8.F 9.F 10.F1.Commercial invoice is a key accounting document describing the commercial transaction between the buyer and the seller. 2. The date of the insurance document may be before of later than the date of shipment.3. Partial acceptance of an amendment is not allowed and will be deemed to be notification of rejection of the amendment.4. Customs invoices are required by the customs authority of the exporting country. 5. The shipper usually obtains bill of lading from the shipping company by submitting shipping order to it.1.T 2. F 3.T 4.F 5.FCase study121. Chinese exporter A sold 2 million metric tons of Chinese Northeast Soybean to French Importer B. The contract stipulated:” Moisture (max.)15%, Oil content(min.)18%,Admixure(max.)1.5%.” Afterwards, A sent some sample to B and informed B in a fax that the goods delivered were the same as the sample. But when the goods arrived at the destination, B found the quality of the goods was not in conformity with the goods. It then presented a commodity inspection and made a claim against A.A rejected the claim arguing that the sale was made by specifications. Fortunately the dispute was finally settled by conciliation. Make your comments on this case. 1. In this case, the sale is made by specifications. Therefore the sellers delivery obligation was to provide the goods which were in conformity with the specifications. In other words , the seller was entitled to reject the buyers claim which was on the ground that the goods did not comply with the sample . It was obvious that the buyer regarded the information in the fax as part of quality clause of the contract. Actually it was not . The lesson that A should draw from this case was that the fax should make it clear that the sample was only for reference.2. Japanese distributor A ordered a batch of the West Lake Longjing tea, Grade 2 from a Chinese company B. When B was about to deliver the goods, B found that their stock war running short. In order to effect shipment as schedule, B supplemented some tea of Grade 1 and informed A that the supplemented tea would be priced the same as Grade II， extra charges. Was As method proper? Why?2. Bs method was not proper. Although the supplement tea was superior in quality ,B broke the contract .A may claim for damage on the ground that B was in breach of contract . In such case ,B would be in a very disadvantageous position. 3. Chinese Company A sold canned fruit to Canada. The contract provided “Quantity:200 cartons; Packing: in cartons containing 20 cans of 100 grams each.” The goods delivered by A were 200 cartons containing 10 cans of 200 grams each. Do you think A was in breach of contract? 3.A was obviously in breach of contract as the way of packing was not in conformity with the contract.141. A vessel carrying a bulk good of ore was stranded. Some goods were damaged. In an attempt to get free, some ore were jettisoned, both the engine and the ship were damaged, and a salvage vessel was employed. The ship was refloated in a days and put into a port of refuge for repair. The damage, charges were as follows: 1) Goods damaged because of stranding: US10,000. 2) Jettisoned cargo: US20,000. 3) Service of salvage vessel: US65,000. 4) Refugee and other charge: US35,000. Which of the above damages or charges shall be allowed as general average? Why? 1. All the items except Item 1) shall be allowed as general average because the damage in Item 1) was in case of accidental stranding, not a voluntary stranding. The damages and charges in other three items were a direct consequence of general average act. 2. Company A exported a batch of chemical raw materials on CIF. Insurance had been effected against FPA for 110% of the invoice value. After the goods being loaded at the beginning of May, the vessel departed. On May 10, the vessel was again stranded and another part of the goods were damaged. The losses were: 1) Losses caused by heavy weather: US30,000. 2) Losses caused by stranding: US20,000. Could the insured claim for all the losses? Why? r2. The insured could claim for all the losses because in the light of provisions of the Ocean Marine Cargo Clause of the PICC, FPA covers: 1) Total loss or partial loss caused by fortuitous accidents such as stranding, striking upon the rocks, icebergs or other objects, collision, fire and explosion. Thus the US 20,000 loss caused by stranding was within the scope of insurance; 2) Partial loss of the insured goods attributable to heavy weather, lighting and/or tsunami, where the conveyance has been grounded, stranded, sunk or burnt irrespective of whether the event or events took place or after such accidents. Thus the US 30,000 loss caused by heavy weather was also within the scope of insurance.171. A telexed an offer to B on March 20, stating that payment was to be made by irrevocable letter of credit at sight and the offer was subject to Bs reply reaching A before March 25. B replied on March 23 requesting the payment be made by D/P at sight rather than L/C at sight. The next day when A was considering Bs counteroffer, it received an acceptance from B. Was the contract concluded? Why?1. The contract was not concluded because B made a counteroffer to As offer on March 23 (within the term of validity of the offer), which means As offer was terminated. Thus Bs telex of the next day was not an effective acceptance. 2. Chinese company A made an offer to a foreign client B stating “The offer is subject to your reply reaching here August 15.” Bs acceptance reached A on the morning of August 17. Immediately after receiving the reply, A informed B that the late acceptance was still effective. But since the market was declining, B refused to acknowledge the formation of the contract. In the light of the CISG, was the contract concluded? Why? 2. According to the CISG, the contract was concluded. CISG Article 21 states that “ A late acceptance is nevertheless effective as an acceptance if without delay the offeror orally so informs the offeree or dispatches a notice to that effect.” In this case, immediately after receiving the reply, A informed B that the late acceptance was still effective. Therefore, the contract was concluded.3.On the morning of July 1, a French firm A visited a Chinese foreign trading company B and made an enquiry with B for Good X. B made an oral offer to A who did not give a reply then and there. On the afternoon of the same day, A made an acceptance to Bs offer. But at this time, B learned that the market price of Good X was about to rise. What would you do if you were B? Why? 3. CISG Article 18(2) states that “an offer must be accepted immediately unless the circumstances indicate otherwise”. In this case, As offer was made orally and no term of validity was indicated in it. So Bs acceptance was effective if it was made immediately. But B failed to do so. In other words, Bs acceptance made in the afternoon was ineffective. No contract was concluded between A and B. If I were A, I would tell B that my offer was terminated and his acceptance was ineffective.4.A intended to resell an imported primary product. So he made an offer to B. B accepted the offer, but required A to provide a certificate of origin. Two weeks later, A received an L/C from B. And when A was just about to ship the goods according to the L/C, he was notified by the commodity inspection authority of his country that the certificate of origin could not be issued because the goods were not domestically made. A then requested B to cancel the clause in the L/C concerning the requirement of certificate of origin, but B refused. Dispute thus arose between A and B. A argued that he never agreed to the requirement of providing the certificate of origin and therefore he had no obligation to do so. B insisted that A did have this obligation. Give your views on the disputes in the light of the CISG.4. A had the obligation to provide a certificate of origin because in Bs reply to As offer, B required A to provide a certificate of origin, in the light of CISG thus was not a material alteration and the reply which contains minor alteration constitutes an acceptance, unless the offeror, without undue delay, object orally to the discrepancy or dispatches a notice to that effect. In this case, A neither objected Bs requirement (made in Bs reply to his offer) nor asked for amendment when he received the L/C. Therefore the contract was concluded which contained the terms that A was liable to provide the certificate of origin. But A failed to provide the certificate of origin, so he breached the contract and should hold the corresponding liability.181. An irrevocable credit was issued covering “37,500 1bs of 1/5.5 mm mohair yarn HKD23.98/1bDelivery instruction: 20,000 1bs to be delivered latest August 22,1994;17,000 1bs to be delivered latest August 27,1994” and stipulating that “L/C amount & quantity 5% or more or less acceptable. The delivery was effected as follows: 1) First partial delivery: 20,000 1bs on August 19,1994(first drawing: HK$ 479,600.00); 2) Second partial delivery: 18,000 1bs on August 24,1994(second drawing: HK$ 431,640.00). The issuing bank rejected the documents quoting as sole discrepancy “over shipped ”.Was the issuing banks rejection justified ? Why? 1. The banks rejection of the documents was justified because the credit stated that the delivery of the goods was to be effected in two lots, 20,000 1bs and 17,000 1bs for the first and second lot respectively and allowing 5% more or less. This provision means that 5% more or less is applicable to each lot. In this case, the quantity of the second lot the seller delivered was 18,000 1bs, greater than the maximum quantity 17000*(1+5%) =17850 1bs allowed. The second amount was accordingly overdrawn. In other words, the quantity in the documents did not conform to the credit requirements. In such case, the opening banks rejection of documents was justified.2. Chinese Company A exported good X on CIF and L/C. After the goods were loaded on board the ship, A made payment of all the freight and got a full set of clean on board B/L issued by the shipping company. But the words “Freight Prepaid were left out on the B/L. At that time the market was declining. After consulting with the applicant, the opening bank refused to make payment on the grounds that the documents were not in compliance with the L/C. Was the opening banks rejection justified ? Why? 2. In carrying out CIF and L/C transactions, the quality of documents is vital for the seller to get the payment from the opening bank. One of the requirements the documents should meet is completeness which means all detailed requirements for documents such as types of documents, numbers of originals and copies, items for each document, etc. In this case, the words “Freight Prepaid” were left out causing discrepancy between the B/L and the L/C. As such, the opening banks rejection of making payment was justified.161. Company A in Lanzhou (an inland city in China) entrusted Company B, a foreign trading company in Tianjin (a coastal city in China) to import a set of equipment. The purchase contract stipulated that any claim by the Buyer regarding the goods shipped should be made within 30 days after the arrival of equipment. As soon as the equipment arrived at the port of Xingang, Tianjin, it