国际商法 案例分析.doc

Grade:Title :Cases Study of International Trade PracticesCourse title：International Trade PracticesAdviser: Pro. GaoSchool : The School of Applied EnglishStudent: Zhao Xinyu ( 赵欣宇 )Class: 2011 Class 2 Student Number: 110440228Date: 2014/6/7Title :Cases Study of International Trade PracticesCASE ONEBackground:St.Paul Guardian Insurance Company V. Neuromed Medical Systems Support, GmbH Shared Imaging, an American corporation, and Neuromed, a German corporation, entered into a contract of sale for a Siemens Harmony 1.0 Tesla mobile MRI. Therefore, both parties engaged various entities to transport, insure, and provide customs entry service for the MRI. Plaintiff originally named those entities as defendants, but the action has been discontinued against them by agreement of the parties. Neuromed is the sole remaining defendant. According to the complaint, the MRI was loaded aboard the vessel Atlantic Carrier undamaged and in good working order. When it reached its destination of Calmut, City, Illinois, it had been damaged and was in need of extensive repair, which led plaintiffs to conclude that the MRI had been damaged in transit. The one page contract of sale contains nine headings, including: Product, Delivery Terms, Payment Terms, Disclaimer, and Applicable Law. Under product the contract provides, “the system will be delivered cold and fully functional.” Under Delivery Terms it provides, “CIF New York Seaport, the buyer will arrange and pay for customs clearance as well as transport to Calmut City.” Under Payment Terms it states, “by money transfer to one of our accounts, with following payment terms: U.S. 93,000-downpayment to secure the system; U.S. 744,000-prior to shipping; U.S.93,000-upon acceptance by Siemens of the MRI system within three business days after arrival in Calmut City.” In addition, under Disclaimer it states, “system including all accessories and options remain the property of Neuromed till complete payment has been received.” Preceding this clause is a handwritten note, allegedly initialed by Raymond Stachowiak of Shared Imaging, stating, “Acceptance subject to Inspection.” Plaintiff St.Paul Guardian Insurance Company and Travelers Property Casualty Insurance Company have brought this action as subrogees of Shared Imaging, Inc, to recover 285,000 they paid to Shared Imaging for damage to a mobile magnetic resonance imaging system purchased by Shared Imaging from defendant Neuromed Medical Systems Support, GmbH. The crux of Neuromeds argument is that it had no further obligations regarding the risk of loss once it delivered the MRI to the vessel at the port of shipment due to a CIF clause included in the underlying contract. Plaintiff respond that the generally understood definition of the CIF term as defined by the International Chamber of Commerces publication, INCOTERMS 1990, is inapplicable here. Moreover, plaintiffs suggest that other provisions of the contract are inconsistent with the “CIF” term because Neuromed, pursuant to the contract, retained title subsequent to delivery to the vessel at the port of shipment and thus, Neuromed manifestly reatained the risk of loss. 美国的Shared Imaging公司（以下用SI代替）和德国的Neuromed公司（N代替）签订了货物销售合同，销售MRI（磁共振成像系统，以下用MRI代替）。在MRI的运输，保险，清关手续方面双方都涉及多家公司。起初，原告方统称这些公司为被告，后经多方协商一致，认为，N是剩下的唯一的被告方。 在原告的申述中，MRI在装入Atlantic Carrier货船之时，货品良好，无货损现象。当货品运达目的港：伊利诺伊Calmut, City时，货品已受损并且需要大面积补修。被告因此断定MRI 是在货运途中受损的。 当事方所签署的销售合同包含9个标题，有：产品，交货条件，付款条件，免责声明和适用法律条款。在产品条款中，合同声明“系统将置于冷藏条件下送达并且系统运作良好。”在交货条件条款中，合同声明“适用CIF术语（成本加保险费、运费）运抵纽约港New York Seaport，买方有义务提前安排清关手续并支付至Calmut City的运费。 在付款条款中，合同声明“货款转入我们的一个账户中，付款条件如下：首付93000美元安全系统；装运前，交付744000美元；待MRI到达Calmut City 后的三个工作日之内在收到MRI之后交付93000美元。在免责声明中，该合同还声明 “N公司保留对系统包含所有附件和选择的所有权直到货款全部缴清为止”。在此项条款之前，是SI公司 的RS的手写的笔记，写明“验收接受检查。” 原告代理人St.Paul Guardian Insurance Company和Travelers Property Casualty Insurance Company因此向SI 追索285000美元, 包括原告支付给N公司的货款，和对SI公司从N公司所购的已受损的货物进行补偿。 N公司以按本合同中的CIF术语，一旦卖方将货物运抵目的港，卖方对事后出现的一切损失概不负责进行辩护。原告方则回应国际商会出版物，国际贸易术语中规定的通常意义上的CIF术语在此适用。此外，原告方表明本合同的一些其他条款与CIF 术语规定不相一致，因为N 公司按合同，承运船到达目的港后，N公司仍保留货物所有权，因此N 公司同样对风险负有责任。ANALYSIS: There are some points together with some questions that should be taken into consideration in this case.1. Which law or regulation is applicable to the sale contract in this case?2. What are the related obligations and rights of the seller and buyer under CIF?3. What is the division of risks between buyer and seller?4. Does passage of risk mean transfer of title? Lets do the analysis of this case by figuring out these questions one by one. First, Which law or regulation is applicable to the sale contract in this case? Since the United States and Germany are both contracting members of the UN convention on Contracts for the International Sale of Good (CISG), they both governed by CISG. Because neither party chose to opt out of the application of the CISG, CISG goes into effect automatically on this regard. Thus, CISG is applicable to the sale contract between American Shared Imaging and German Neuromed. CIF is defined by INCOTERMS, which are also incorporated into the CISG. Therefore, CIF is practicable in this case, which means the one complaint that the plaintiff proposed that CIF is inapplicable here is denied. Second, what are the obligations and rights of the seller and buyer under CIF? Third, what is the division of risks between buyer and seller? CIF stands for “cost, insurance and freight”, which is a commercial trade term and commonly used practice. Its defined by the International Chamber of Commerce(“ICC”). International Incoterms compiled by ICC in 1936 is the most widely used one. Its application is limited to contract and related delivery conditions of tangible goods ( intangible goods are not included, such as computer software, power, etc.). After six amendments, “2000 International Incoterms is of the current use. INCOTERMS are formed in international trade practices, which indicate the division of transaction costs, responsibilities and risks under different conditions. They are optional and they dont require mandatory use. In the 2000 International Incoterms CIF is commonly chosen one, by buyers and sellers in the international trade of goods.The term is used only for sea and inland waterway transport, the sea transportation from German to America is covered here. INCOTERMS define “CIF” (named port of destination) to mean that the seller delivers when the goods pass “ the ships rail in the port of shipment”. The seller is responsible for paying the cost, freight, and insurance coverage necessary to bring the goods to the named port of destination, but the risk of loss or damage to the goods passes from seller to buyer upon delivery to the port of shipment. Further, “CIF” requires the seller to obtain insurance only on minimum cover.Under CIF, although the seller arrange and pay for freight and cargo insurance, the seller does not assumed the obligation of ensuring the goods are delivered to the agreed port of destination. Because CIF covers unloading and shipment in the port of loading but not in the port of destination. CIF is not DES. Under CIF, the delivery is complete as soon as the contracted goods are loaded on the carriers ship.The explanations above show that the plaintiff, the buyer is under no position to claim further compensation of the contracted goods damaged in transit form the defendant, the seller, under CIF when goods are delivered to the port of destination and seller made no violation to the sales contract.Forth, does passage of risk mean transfer of title?Under the CISG, the passage of risk is independent of the transfer of title. In Article 67(1) of CISG,If the contract of sale involves carriage of the goods and sellers is not bound to hand them over to the buyer when the goods are handed over to the first carrier for transmissions to the buyer in accordance with the contract of sale. If the seller is bound to hand the goods over to a carrier at a particular place, the risk does not pass to the buyer until the good are handed over to the carrier at that place.Moreover, INTOTERMS only address passage of risk, not transfer of title. Who should be bound to the risks is not determined by which party possess the title of the goods. Whats more, the transfer of risks and passage of title are not require to occur simultaneously. That means, the plaintiff proclaimed that the defendant should bear the risks and be responsible to the damage of the goods for he remain the title of the goods is invalid. Hence, the loss must fall upon the buyer eventually.Suggestions: Its more than important to clarify the obligations and rights of different parties involved and to make sure the division of the risk when INCOTERMS are employed in the sales contract. When the sales is done with overseas party, to make it clear which laws and conventions are applicable.CASE TWOBackground:Sztejn V. J. Henry Schroeder Banking Corp. Transea Traders in India contracted to sell hog bristles to Sztejn the plaintiff. A the request of Sztejn, the J.Henry Schroeder Banking Corp. (Schroeder), the defendant, issued an irrevocable letter of credit in favor of Transea covering the shipment of the hog bristles and payable upon presentation of certain documents, including a maritime bill of lading. Transea allegedly filled 50 cases with cow hair and other rubbish and delivered these to the carrier in order to obtain the required bill of lading. This bill, along with the other required documents, and a draft payable to Transea, were presented to Schroeder by the Chartered Bank of India, acting as an agent for Transea. Before Schroeder could pay on the credit Sztejn brought this action against Schroeder to enjoin it from doing so. Schroeder asked the court to dismiss the case. Schroeder also appealed to the court to dismiss the plaintiffs motion. In the end, the defendants motion to dismiss the case is denied.卖方印度Transea Traders公司（以下简称TT）与卖方，也是本案的原告Sztejn公司（以下简称S），双方签订食用猪的销售合同。应原告S公司的申请， J.Henry Schroeder Banking Corp. (Schroeder)银行，即被告方（以下简称SBC），开立以TT为受益人的不可撤销信用证，其中涵盖了食用猪的运输条款，并且提示银行见该信用证及相关单据，包括海运提单应付款至卖方。TT公司有意用牛毛和其他垃圾装了50箱货，并且将货运至承运人来获取海运提单。卖方即TT公司因此取得了本提单和其他银行要求的单据，然后来到印度的渣打银行，即卖方的代理人处，开立汇票。在SBC 银行见单据准备付款之前，S公司向法院申诉，要求禁止银行付款。并且，S公司向法院提出申诉，撤销本次销售。SBC银行向法院驳回原告诉求。最后，SBC银行，即原告的诉求被法院驳回。ANALYSIS: This is a case between the account party, the plaintiff the buyer, and its issuing bank, the defendant. Its an extremely rare case. Normally, letter of credit is a pure documentary transaction. It is used by a seller to obtain prompt payment for his merchandises according to the original contract signed by both of the seller and the buyer. Letter of credit is also a self-sufficient instrument, which is independent from primary sales contract. So, there is only a circumstance in which the issuing bank refuses to pay upon the presentation of letter of credit and all required documents. That is, the documents are either forged or fraudulent. So, that makes up of two ways of sellers fraud:1.The documents that sellers presented are forged or fraudulent.2.The goods delivered by the seller are not in conformity with the contract. But the issuing bank is obliged to refuse to pay only under the circumstance that the documents are forged or fraudulent. The issuing bank will not really care whether the seller delivers the goods on time and at the right place or not, nor the goods delivered are in conformity with the primary sales contract. The breach of warranty is not the interest of the bank. But this case is not merely a breach of warranty, regarding the quality of the merchandise. To begin with, its unclear whether the document that the seller presented are false or illegal. So that makes sense the issuing pay would honor the letter of credit if it was presented. But before the moment that the issuing bank is about to pay for the letter of credit, the buyer enjoins it from doing so because the buyer has already sensed theres something wrong with the goods delivered. The buyer immediately informed the issuing bank that the seller has engaged in deliberate fraud. Since the buyer is the customer of the issuing bank, he is obliged to enjoin the issuing bank from the honoring the letter of credit. Moreover, it is the bank the obligation to take primary liabilities for payment, which means the payment is done relying on banks credit. Thats why the proposal of the issuing bank about the case is eventually denied.Suggestions: Even though the primary factor in the issuance of the letter of credit is the credit standing of the buyer, the security afforded by the merchandise should also be take into account.personal credit business process management, and development of business processes, clear the loan object and scope, establish loan operation of assessment and accountability mechanisms. Diversity management principles the Banks strict separation between business and consumer use of personal credit, then according to the different varieties of business to establish the appropriate access standard, post-