国际经济法精品教学（华南师范大学）transportation.ppt

1、Transportation,A.INLAND CARRIAGE B.CARRIAGE OF GOODS BY SEA C.CHARTER PARTIES D.MARITIME INSURANCE E.CARRIAGE OF GOODS BY AIR,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 l

2、atter to arrange and oversee the shipment of the goods abroad.,A. INLAND CARRIAGE,2.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 o

3、ne of which is a signatory of the convention. c.The convention requires a carrier to issue a “consignment note”, which 1) is not a negotiable instrument; 2) 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

4、 the consignee the right to: 1)demand delivery of the goods in exchange for a receipt. 2)sue the carrier in the carriers 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 rig

5、ht 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 transac

6、tion. 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

7、 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 liabilit

8、y 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 Conve

9、ntion Concerning International Carriage by Rail (COTIF Convention) a.Most provisions are the same as the CMR. b.The carriers liability for losses is 17 Special Drawing Rights per kilogram.,1.Common Carriage a.Defined: The owner or operator of a vessel carries goods for more than one person. The vess

10、el 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:,B.CARRIAGE OF GOODS BY SEA,2.The Bill of Lading a.Governing law: 1)International Convention for the Unification of C

11、ertain 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 thes

12、e 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 : An instrument issued by an ocean carrier to a shipper with whom the carrier has en

13、tered into a contract for the carriage of goods. 1)A bill of lading serves three purposes: a)It is a carriers receipt for goods. b)It is evidence of a contract of carriage. c)It is a document of title. The person rightfully in possession of the bill is entitled to possess, use, and dispose of the go

14、ods 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 l

15、oaded 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

16、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 norm

17、ally 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.”,d.Contract of Carriage. 1)A bill of lading is evidence of the contract of carria

18、ge 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 st

19、raight 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 hold

20、er 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) Significa

21、nce of negotiability: The person named on the bill is able to transfer the goods while a ship is in transit.,3.The Carriers Duties under a Bill of Lading a.A carrier transporting goods under a bill of lading is required to exercise “due diligence” in: 1)Making the ship seaworthy. 2)Properly manning,

22、 equipping, and supplying the ship. 3)Making 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. 4)Properly and carefully loading, handling, stowing, carrying, keeping, caring for, and d

23、ischarging the goods carried. b.This obligation is strictly enforced by most courts.,4.The Carriers Immunities a.Carriers who issue a proper bill of lading are exempt from liability from damages that arise from any: 1)Act, neglect, or default of the master, mariner, pilot, or the servants of the car

24、rier in the navigation or in the management of the ship; 2)Fire, unless caused by the actual fault or privity of the carrier; 3)Perils, dangers and accidents of the sea or other navigable water; 4)Act of God; 5)Act of war; 6)Act of public enemies; 7)Arrest or restraint of princes, rulers, or people,

25、 or seizure under legal process; 8)Quarantine restrictions; 9)Act or omission of the shipper or owner of the goods, or his agent or representative;,10) Strikes or lockouts or stoppage or restraint of labor from whatever cause, whether partial or general: Provided, that nothing herein contained shall

26、 be construed to relieve a carrier from responsibility for the carriers own acts; 11) Riots and civil commotions; 12) Saving or attempting to save life or property at sea; 13) Wastage in bulk or weight or any other loss or damage arising from inherent defect, quality, or vice of the goods; 14) Insuf

27、ficiency of packing; 15) Insufficiency or inadequacy of marks; 16) Latent defects not discoverable by due diligence; and,甲国A公司（买方）与乙国B公司（卖方）签订一进口水果合同，价格条件为CFR，装运港的检验证书作为议付货款的依据，但约定买方在目的港有复验权。货物在装运港检验合格后交由C公司运输。由于乙国当时发生疫情，船舶到达甲国目的港外时，甲国有关当局对船舶进行了熏蒸消毒，该工作进行了数天。之后，A公司在目的港复验时发现该批水果已全部腐烂。依据海牙规则及有关国际公约，下列

28、哪一选项是正确的？A. C公司可以免责B. A公司应向B公司提出索赔，因为其提供的货物与合同不符C. A公司应向C公司提出索赔，因为其没有尽到保管货物的责任D. A公司应向B公司提出索赔，因为其没有履行适当安排保险的义务,中国某公司向欧洲出口啤酒花一批，价格条件是每公吨CIF安特卫普欧元。货物由中国人民保险公司承保，由“罗尔西”轮承运，船方在收货后签发了清洁提单。货到目的港后发现啤酒花变质，颜色变成深棕色。经在目的港进行的联合检验，发现货物外包装完整，无受潮受损迹象。经分析认为该批货物是在尚未充分干燥或温度过高的情况下进行的包装，以致在运输中发酵造成变质。据此，下列表述何者为正确?A.收货人应

29、向承运人索赔，因为其签发了清洁提单B.收货人应向发货人索赔，因为该批货物在装船前就有品质问题C.承运人对变质可以不承担责任，因为承运人对于货物的固有缺陷可以免责D.承运人对变质应承担责任，因为承运人在运输中有谨慎管理货物的义务,17)Any other cause arising without the actual fault and privity of the carrier and without the fault or negligence of the agents or servants of the carrier, but the burden of proof shall

30、 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. b.These immunities are strictly construed. A carrier will be responsible in an

31、y event if it failed to exercise due diligence in carrying out its fundamental duties.,5.Liability Limits a.The limits. 1)Limits set by the Hague Rules of 1924 are: a)$500 per package, or b)$500 per unit when shipped in “customary freight units.” 2)Limits set by the Hague-Visby Rules are the higher

32、of: a)10,000 gold francs per package or unit, b)30 gold francs per kilo of the gross weight of the goods lost or damaged, whichever is the higher. b.The limits do not apply: 1)If the parties agree to higher amounts. 2)If the carrier acted either: a)With intent to cause damage, or b)Recklessly and wi

33、th knowledge that damage would probably result.,6.Time Limitations: a claim for loss or damages must be instituted within one year after the goods were or should have been delivered 7.Third Party Rights (Himalaya Clauses) a.The Hague and Hague-Visby Rules (and the liability limits they establish) on

34、ly apply to the carrier and the party or parties shipping goods under a bill of lading. 1)Third parties who help in the transport of the goods, but who are not parties to the carriage of goods contract contained in the bill of lading, have no contractual right to claim the liability limits establish

35、ed by the conventions. b.Carriers add Himalaya Clauses to their bills of lading to extend the protection of the Hague or the Hague-Visby Rules to third parties. 1) The clauses are valid in the United States. 2) The clauses are generally unenforceable in the United Kingdom and most other countries.,A

36、nti-dated B/L（倒签提单） Advanced B/L（预借提单） Anti-dated B/L and Advanced B/L are common kinds of fraud in todays maritime shipping trade,中国甲公司进口一批日产空调，合同规定以信用证支付。甲公司开出的信用证规定装船期限为1996 年7 月10 日至7 月20 日，由承运人所属的“SALA”号货轮承运上述货物。“SALA”号在装货港外锚地因遇大风与另外一艘在锚地待泊的油轮相撞，使“SALA”号不能如期装货。“SALA”号最后于8 月15 日完成装货，船长在接受了托运人出具的

37、保函的情况下签发了与信用证一致的提单，并办理了结汇。由于船舶延迟到港错过了空调的销售季节，给甲公司造成了很大损失。甲公司为此向承运人提出了索赔要求，下列关于承运人责任的选项哪个是正确的？() A.延迟装货是因为不可抗力，因此承运人对延迟不负责任 B.承运人的行为是倒签提单，承运人应对此承担责任C.承运人倒签提单是应托运人的要求，因此不应承担任何责任 D.承运人的行为是预借提单，承运人应对此承担责任,1.Defined: A contract for the hire of an entire ship for a particular voyage or a set period of tim

38、e 2.Governing laws: No international conventions apply. a. The Hague and Hague-Visby Rules only apply if a bill of lading issued by the ship owner comes into the hands of a third party. b. The charterer and the owner are free to set the terms of their contract. 1) Standardized contracts drafted at v

39、arious conferences are commonly used. Examples: a)The Baltime. b) The Gencon. 2) Forum selection clauses and choice-of-law clauses are common provisions.,C.CHARTER PARTIES,3.Voyage Charterparties a.Defined: The charterer employs a ship and its crew for the carriage of goods from one place to another

40、. 1)Common terms: a)The owner agrees to provide the ship at a named port at a specified time and to carry the goods to the contract destination. b)The charterer agrees to provide a full cargo and to arrange for its loading at an agreed upon time.,4.Time Charterparties a.Defined: The charterer engage

41、s the use of a vessel for a stated period of time. 1)Common terms: a) The charterer is to pay “hire” monthly. b) The charterer has the right to direct the ship to proceed to wherever it is needed. 1 Limitations on this right is the charters promise to: a Engage only in lawful trades. b To carry only

42、 lawful goods. c To only direct the vessel to safe ports.,5.Charterparties and Bills of Lading a.Between the ship owner and the charterer a bill of lading is only a receipt for goods and a document of title. b.Bills of lading held by third party: 1)The Hague or Hague-Visby Rules will apply. 2)Except

43、ion: If the bill of lading incorporates the terms of the charterparty, the endorsee will be governed by its terms.,1.Kinds of Policies a. Special cargo policy: Provides coverage for a single sale. b. Open cargo policy: Is an open-ended contract that insures all the cargo of an exporter during a part

44、icular time period. 2.Perils: The perils covered by special and open cargo policies commonly include the following a. Loss or damage from the sea (e.g., weather, collision, stranding, sinking).,D.MARITIME INSURANCE,b. Fire. c. Jettison (i.e., the dumping of cargo in order to protect other property).

45、 d. Forcible taking of the ship. e.Barratry (i.e., the fraudulent, criminal, or wrongful conduct of the captain or crew). f.Explosion. g.Fumigation damage. h.Damage from loading, discharging, or transhipping cargo.,3.Coverage for Total and Partial Loss. a.Total losses: Governed by “constructive loss

46、 clauses.” 1)This usually includes either: a)Losses exceeding one-half the value of the cargo. b)Losses where the cost of recovery exceeds the cargos value. b.Partial losses: Known in the marine insurance industry as a “particular average.” 1)“Free from Particular Average” (FPA) policies provide the most limited recovery for partial losses they usually only covers losses from: a)Fire. b)Stranding. c)Sinking. d)Collision of the vessel. 2)“With Average” (WA) policies provide more protection.,c.