国际经济法(双语)课程Chapter-11-Tranportation课件.ppt

1、11-1CHAPTER 11 TRANSPORTATION11-2CHAPTER 11TRANSPORTATIONTopics for this chapter:lTrade TermslTransportationlInland Carriage lCarriage of Goods by SealCharterpartieslMaritime LienslMaritime InsurancelCarriage of Goods by Air11-3Trade TermsTrade terms are standardized terms used in sales contracts th

2、at describe the time,place,and manner of the transfer of goods from the seller to the buyer.Incoterms are the most widely used trade terms published by the International Chamber of Commerce.Port Santos,Brazil during offloading of containers.The risk of loss for these goods depends upon the trade ter

3、ms used.Photo:Lic Public domain http:/commons.wikimedia.org/wiki/Image:Port_Santos.jpgCase 11-1:ST.Paul Guardian Insurance Company v.Neuromed Medical Systems&Support,GmbH Shared Imaging,a U.S.corporation,and Neuromed,a German corporation,entered into a contract of sale for an MRI.The MRI was deliver

4、ed to the shipping vessel by the German company undamaged and in good working order.When MRI reached its US destination,it proved to have been damaged and in need of extensive repair.The delivery terms of the contract stated that the equipment was to be shipped“CIF New York Seaport”.Issue:When did t

5、he risk of loss pass to Shared Imaging?The US plaintiff brought suit in US court seeking to recover for the damaged goods.It claimed that the risk of loss remained with the seller until the goods were delivered at their port of destination in the US because,inter alia,the title to the goods would no

6、t pass to buyer until final payment for the goods had been made.The German defendant objected that,pursuant to the INCOTERMS definition of CIF,the risk of loss passed to the buyer at the port of shipment.The US plaintiff argued that the INCOTERMS definition was inapplicable as it had not been explic

7、itly incorporated into contract.The Court rejected plaintiffs argument that in the absence of an explicit reference to the INCOTERMS the definition of CIF therein contained was inapplicable to the contract.According to the Court the INCOTERMS are widely known and observed in international trade as s

8、tandard definitions for delivery terms so that the reference to CIF was to be interpreted in accordance with the INCOTERMS.The Court also held that under CISG the risk passes without taking into account who owns the goods.This interpretation is confirmed by Art.67(1)CISG which states the sellers ret

9、ention of documents controlling the disposition of the goods does not affect the passage of risk,thereby implying that passage of risk and transfer of title need not occur at the same time.Case 11-2:Phillips Puerto Rico Core,Inc.v.Tradax Petroleum,Ltd.Phillips contracted to buy naphtha from Tradax f

10、or shipment from Algeria to Puerto Rico on C&F terms.The agreement incorporated the INCOTERMS and a force majeure clause.On September 16,Tradax shipped on the Oxy Trader.While en route,the Oxy Trader was detained by maritime authorities at Gibraltar,deemed unsafe,and not allowed to proceed.Tradax in

11、formed Phillips,which telexed back on October 1 that October 15 was the last acceptable delivery date.On October 7,its cargo had to be offloaded in Portugal for shipment on another vessel.On October 13,Phillips refused payment of the documents due to the delay.In November,the cargo was sold by Trada

12、x to a third party at a loss.Phillips brought this action in the United States.Tradax claimed that it had ceased to bear responsibility for the goods when it transferred the goods to the carrier for shipment.Phillips maintained that it was excused from performance because the ships delay constituted

13、 force majeure.Issue:who will assume the risk of loss under C&F delivery term?The court held that the buyer had assumed the risk of loss when the goods“passed the rail”under the INCOTERMS and,when the shipping documents were properly presented,was responsible to pay the contract price.11-13Transport

14、ationHandling of goods from seller to buyer:Inland carrier picks up goods at sellers place of businessDelivery to warehouse or port depository for customs examinationStevedore company or ships crew loads goods and bill of lading issued to shipper.Buyer produces bill of lading and crew unloads ship o

15、nto dock.Stevedore delivers goods to customhouse or bonded warehouse.Taxes or duties paid and goods released to inland carrier for transport to buyer.11-14Freight ForwardersA freight forwarder is a firm that makes or assists in the making of shipping arrangements.A full-service freight forwarder can

16、 help with:Obtaining quotations on CIF and C&F contractsDetermining the availability of ships and facilitiesEstimating cost based on weight,cubic feet,valueBooking space(on ships or in warehouses)Procuring export licenseReviewing letter of credit termsPrepare documents and authenticate invoicesObtai

17、n insurance and certificates of originPresent drafts for payment11-15Inland Carriage It is common for the seller to arrange inland carriage.The carrier will then transfer the goods to a freight forwarder at a seaport or airport.Several regional agreements regulate transport by road and rail.In Europ

18、e,road transport is regulated by the 1956 Convention on the Contract for the International Carriage of Goods by Road.Rail governed by 1980 Convention Concerning International Carriage by Rail.11-16Carriage of Goods by SeaA common carrier is a ship that carries goods for all persons who choose to emp

19、loy it so long as there is room.Common carriers are subject to extensive municipal legislation and international conventions.The three types of common carriers are:Conference line association of seagoing common carriers operating on established routesIndependent line carrier operating over establish

20、ed route with a standard rate scheduleTramp vessel standard rates but no established routes11-17The Bill of LadingA bill of lading is an instrument issued by an ocean carrier to a shipper that serves as a receipt for goods shipped,as evidence of the contract of carriage,and as a document of title fo

21、r the goods.View from bridge of container ship.Photo Public domain http:/www.pho tolib.noaa.gov/htmls/ship2053.htm10-18Bill of LadingThe treaty governing bills of lading is:1921 Hague Rules International Convention for the Unification of Certain Rules Relating to Bills of Lading).1968 Hague-Visby Ru

22、les Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading)1978 Hamburg RulesUnited Nations Convention on the Carriage of Goods by Sea,Convention entered into force on 1 November 1992.10-18Bill of LadingBill of lading serves three purpo

23、ses:1.It is a carriers receipt for goods.2.It is evidence of a contract for carriage.3.It is a document of title.Containers awaiting loading at Port Santos,Brazil.Photo:Public domain http:/commons.wikimedia.org/wiki/Image:Port_Santos2.jpg11-19Bill of Lading:Receipt for GoodsBill of lading:Describes

24、the goods put on board a carrierStates the quantityDescribes their conditionBills certifying that the goods have been properly loaded are known as on board bills of lading or clean bills of lading.If the carrier notes a discrepancy,a notation may be added to the bill of lading only at the time of lo

25、ading.This is a claused bill of lading.11-20Example of Bill of Lading11-21Example of Commercial Invoice11-22Example of Packing List11-23Example of Dock Receipt11-24Case 11-3:M.Golodetz&Co.,Inc.v.Czarnikow-Rionda Co.,Inc.The parties were well known in the world trade of sugar and both were based in N

26、ew York.Sellers contracted to sell buyers between 12,000 and 13,200 tons of sugar,C&F Bandarshapur,Iran to be shipped from India.200 tons lost during fire while loading.Two bills of lading issued.One was for the 200 tons with typewritten notation stating that the cargo had been discharged due to dam

27、age.Issue:Did sellers present clean bill of lading that buyers should have accepted?11-25Case 11-3:M.Golodetz&Co.,Inc.v.Czarnikow-Rionda Co.,Inc.Held:The goods were shipped in good order and condition and the fact that 200 tons were destroyed after shipment does not relieve the buyer from his/her ob

28、ligation to pay.The notation on the second bill of lading did not note a problem “at the time of shipping.”11-26Bill of Lading:Contract of Carriage and Document of Title The bill of lading is evidence of the contract of carriage.The bill becomes conclusive evidence of the terms of the contract of ca

29、rriage once it is negotiated to a good-faith third party.A straight bill of lading is issued to a named consignee and is not negotiable.An order bill of lading is negotiable and conveys greater rights in that the holder has a claim to title and to delivery of the goods.The person named on the bill c

30、an transfer the goods while a ship is in transit.11-27Carriers DutiesUnder a Billof LadingA carrier transporting goods under a bill of lading is required to exercise“due diligence”in:a)Making the ship seaworthy(适航)b)Properly manning,equipping,and supplying the ship.c)Making sections of ship safe for

31、 reception,carriage,and preservation of the goods.d)Properly and carefully loading,handling,and stowing the goods carried.(管货)Container ship Sealand Commitment at the pier.Photo:Public domain NOAA Photo Library http:/www.photolib.noaa.gov/htmls/ship2054.htm11-28Carriers Immunities(partial list)The H

32、ague and Hague-Visby Rules exempt the carrier from liability from damages that arise from:a)Act,neglect,or default of the master,pilot,or the carriers servants in navigation or management;b)Fire,unless the fault of the carrier;c)Perils of the sea;d)Act of God;e)Act of war;f)Quarantine restrictions;g

33、)Strikes or lockouts;h)Saving or attempting to save life at sea;andi)Wastage in bulk or weight due to inherent defect.11-29Case 11-4:Great China Metal Industries Co.Ltd.V.Malaysian International Shipping Corp.Aluminum can body stock in coils were cosigned from Sydney to Keelung,Taiwan.The cases of a

34、luminum were packed in containers by shipper.During heavy seas,the coils were damaged.Bad weather had been anticipated.Storm in the Pacific.Photo public domain:NASA Goddard Space Flight Center(NASA-GFSC)http:/nix.larc.nasa.gov/info?id=GL-2002-002431&orgid=611-30Case 11-4:Great China Metal Industries

35、 Co.Ltd.V.Malaysian International Shipping Corp.Issue:Can anticipated bad weather still be a peril of the sea?Held:The goods had been properly loaded and stowed and the rough voyage was a peril of the sea,giving the carrier immunity for the damage.11-31Liability Limits The Hague Rules of 1921 set mo

36、netary limits on carrier liability at rates that are very low by todays standards.The limits were raised in the Hague-Visby Rules.The limits do not apply if the parties agree to higher amounts.They also do not apply if the carrier acted either:1.With intent to cause damage or2.Recklessly and with kn

37、owledge that the damage would probably result.11-32Case 11-5:Croft&Scully Co.v.M/V Skulptor Vuchetich et al.Croft&Scully contracted to ship 1755 cases of soft drinks to Kuwait on board M/V Skulptor Vuchetich.A stevedore dropped the container and damaged the cans of soft drink.The court limited the d

38、amages to only$500,saying the container constituted a package under the Hague Rules.Issue:Is a container supplied by the carrier a package under COGSA,which implements the Hague Rules?11-33Case 11-5:Croft&Scully Co.v.M/V Skulptor Vuchetich et al.Held:Matter reversed and remanded to determine if a ca

39、se of soda is a customary freight unit or if the only customary freight unit was the container for which Croft&Scully paid a flat rate.11-34Time Limitations and Third-Party Rights(Himalaya Clause)A claim for loss must be instituted within one year after the goods were or should have been delivered.T

40、he Hague and Hague-Visby Rules apply only to the carrier and the party shipping under a bill of lading.To extend liability limits to their employees,agents,and independent contractors carriers have added a clause to the bill of lading known as a Himalaya Clause.11-35CharterpartiesCharterpatyA charte

41、rparty is a contract to hire an entire ship for a particular voyage or for a particular period of time.Oil,sugar,grain,and other bulk commodities are usually shipped under such contracts.voyage charterpartyA voyage charterparty is a contract to hire an entire ship for a particular voyage.If there is

42、 less than a full load,a dead freight charge may be imposed on the charterer.The charterparty describes the number of lay days that the ship is idle during loading.Demurrage is charged for excess idle days.11-36Time Charterpartiestime charterpartyA time charterparty is a contract to hire an entire s

43、hip for a period of time.The charterer directs the carrier to proceed to wherever the ship is needed.A bill of lading serves only as a receipt and document of title between the charterer and shipowner.If the bill of lading is passed to a third-party endorsee,the Hague and Hague-Visby Rules will then

44、 apply.11-37Maritime Liens(船舶优先权）A maritime lien is a charge or claim against a vessel,its freight,or its cargo.Ship is juridical person in common law countries.Maritime liens attach to the res(i.e.,the vessel,freight,cargo)and travel with it.They are secret and go with the vessel when sold.Foreclos

45、ure of a maritime lien involves arrest of the res and sale of the res.Claims must be ranked when there are multiple lienholders:1)judicial costs 2)seamans wages 3)salvage 4)tort claims 5)repairs,supplies,and necessaries 6)ship mortgages 11-38Case 11-6:The Chinese Seamens Foreign Technical Services C

46、o.v.Soto Grande Shipping Corp.,SAThe shipowner had contracted for a crew of 25 seamen for a one-year period.Wages were not paid.The ship was seized and sold to satisfy the wage claim and other claims.The court had to rank the claims,including a second claim for wages,judicial costs,harbor usage,ship

47、s stores,mortgage,and repair costs.Claims were paid based upon priority until the funds were exhausted.11-39Maritime InsuranceCargo is usually covered by an open cargo policy.It insures all the cargo of an exporter during a particular time period.All shipments are covered,whether by truck,rail,air,o

48、r vessel.Parties involved in an isolated sale can purchase a special cargo policy,but will usually be covered by the open cargo policy of a freight forwarder.11-39PerilsLoss or damage from the seaFire JettisonForcible taking of the shipBarratryExplosionFumigation damageDamage from loading,dischargin

49、g,or transshipping cargo11-40Case 11-7:Western Assurance Co.of Toronto v.Shaw The barge Holly was loaded with three boilers which were to be taken from Chester,Pennsylvania to Norfolk,Virginia.While moored,she listed to starboard and sank.The swell of a passing steamer washed her deck as she was lis

50、ting,causing the final plunge.Issue:Was the sinking due to peril of the sea,for which the cargo was insured,or to lack of ordinary care and skill in loading the cargo?11-41Case 11-7:Western Assurance Co.of Toronto v.Shaw Held:The boilers had not been properly loaded and stowed to keep them from roll