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1、International Trade Law,By ChenkeForeign Language Department of Changsha University,Part three:Laws concerning Goods Delivery,Legislation of marine carriage of goodsThe Hague Rules(海牙规则)The Hague-Visby Rules(维斯比规则)The Hamburg Rules(汉堡规则)Maritime Code of the Peoples Republic of China(中国海商法),The Hague
2、 Rules(海牙规则),In 1924,the Hague Rules(the International Convention for the Unification of Certain Rules of Law Relating to Bills of lading)统一提单的若干法律规则的国际公约 was signed in Brussels(布鲁塞尔)as an international convention on bills of lading.This is an international regulation which aimed at reconciling the
3、interests of the shipowners,cargo owners and insurers.It is a very important convention for the international trade because nearly all the countries of the world have referred the Hague Rules to make the related laws.,The Hague-Visby Rules(维斯比规则),Ever since the Hague Rules came into force,many shipp
4、ers especially smaller shippers from developing countries began to complain the Hague Rules about its excessive limitations to carriers liability.This resulted extensive revision on the Hague Rules in 1968,known as the Hague-Visby Rules.Many countries have adopted this convention,such as Britain,Can
5、ada,Japan,Hongkong,Singapore and most of western European countries.,The Hamburg Rules(汉堡规则),Chiefly because many shippers and cargo owners still complain the Hague-Visby Rules about its partiality to the interests of carriers,the United Nations in 1978 completed drafting a new Convention on the Car
6、riage of Goods by Sea,know as the Hamburg Rules.These rules are different from the Hague Rules.They do not relieve the carrier for errors in navigation or in the management of the ship,and they make ocean carriers liable for losses resulting from negligence.They also make it easier for cargo owners
7、to win their cases against carriers.More than 22 countries most of which are developing countries have passed this convention.,Maritime Code of the Peoples Republic of China(中国海商法),China Maritime Code,after more 40 years of revisions and modifications,came into force in 1997.China maritime code has
8、transplanted into it a number of important international conventions,so it is one of the best maritime laws in the world.,Bill of Lading,DefinitionBill of lading is a document signed and issued by a carrier,or his or her agent,to a shipper,or his or her agent,to acknowledge the receipt of goods by t
9、he carrier or his or her agent in the condition stated and to set out the terms under which the goods are carried.It represents or evidences the existence of a contract of carriage between the carrier and the shipper.It often forms the basis for,or exists as,a contract of carriage.However,it is not
10、necessarily the same as a contract of carriage:in a carriage of goods by sea,a contract of carriage and a bill of lading may co-exist.,Carriers liabilities,The general duty of due diligence-to make the ship seaworthy;-to staff,equip and supply the ship properly;-to make the holds,refrigerating and c
11、ool chambers,and all other parts of the ship in which goods are carried,fit for their reception,carriage and preservation.,Case:A sent the goods to C who stated that the goods were refrigerated in the bill of lading.a.But in fact the refrigerating chamber had something wrong.As a result,the goods go
12、t rotted;b.Before the sailing,the captain had checked the refrigerating chamber with due diligence,but later it could not operate normally,which resulted the damages.Should C bear the liability of the damages?,The duty of properly and carefully dealing with goods-the carrier shall properly and caref
13、ully load,handle,stow,carry,keep,care for,and discharge the goods carried.,A carrier is obliged to issue a bill of lading,on demand of the shipper,after the carrier has taken over the goods.-The carrier is obliged to record the true condition,marks,labels,quantity or weight of the goods shipped but
14、is exempted from restating the information supplied by the shipper if the carrier has reasonable grounds for suspecting the accuracy of the information and has no reasonable means of verifying it.,Carrier liability to deliver the goods-Failure to deliver the goods to the holder of the bill of lading
15、 constitutes a fundamental breach of the contract of carriage.,Exceptions,An act,neglect or default of the master,mariner,pilot or the servants of the carrier in the navigation or management of the ship,Case:a.Having checked the goods in the sailing,the seaman forgot closing the water-proof lid of t
16、he hold,which permitted the water into the hold and the goods(cement)were damaged.b.During the sailing,the fuel in the fuel chamber had frozen because of cold weather.In order to keep the combustion of the fuel,the sailor heated the fuel chamber but forgot to cease,which led to the beans going bad.W
17、ould the carrier bear the loss?,Fire which is not caused by the carriers fault;Perils,dangers and accidents of sea or other navigable waters;An act of God;An act of war;An act of public enemies;Arrest or restraint of governments or people,or seizure under legal process;Quarantine restrictions;An act
18、 or omission of the shipper or owner of the goods,his or her agent or representative;A strike,lock-out,stoppage or restraint of labor;,Riots and civil commotion;Saving or attempting to save life or property at sea;Loss or damage arising from inherent defect,quality,or vice of the goods;Insufficiency
19、 of packing;Insufficiency or inadequacy of marks;Latent defects;andAny other causes arising without the actual fault or privity of the carrier or without the fault or neglect of the agents or servants of the carrier.,Carriers duty and necessary or reasonable deviation,Deviation normally means that t
20、he ship departs from the route of voyage as agreed in the contract of carriage.The shipper and carrier often agree on the route for the purpose of defining and dividing responsibilities between them,The shipper undertakes the risk of perils at sea within the agreed route,but the carrier is liable fo
21、r perils at sea if the ship deviates from the agreed or reasonable route,because he or she breaches the contract of carriage by making the deviation.The carrier is exempted from any liability arising from the breach if the deviation is necessary for saving life and property at sea.The carrier is als
22、o allowed to deviate from the agreed or normal route if he or she can prove that the deviation is reasonable and necessary.The burden of proof lies on the carrier.,Limits of carriers financial liability,A carrier is not liable for any loss or damage to or in connection with goods in an amount exceed
23、ing 666.67 units of account per package or unit,or two units of account per kilogram of gross weight of the goods,whichever is the higher.The maximum limit of compensation can be increased if the nature and value of the goods have been declared before the shipment and inserted in the bill of lading.
24、A carrier is not allowed to fix a maximum amount for compensation which is lower than the sum of 666.67 units of account per package,or two units of account per kilogram of gross weight of the goods.,Carriers right of indemnity,A shipper has an obligation to indemnify the carrier for his or her loss
25、es arising from the use of inaccurate information provided by the shipper.The shipper is required to disclose to the carrier the nature of the goods,in particular,goods of inflammable,explosive and dangerous nature.The shipper is liable to indemnify the carrier for consequential or incidental costs
26、arising from his or her failure to comply with this requirement.,Laws concerning payment in international trade,Discussion:describe the process of sale.1.negotiation2.conclusion of a contract3.carriage of goods4.insurance of goods5.payment of the price of the contract in exchange for documents for d
27、elivery6.delivery of goods7.dispute settlement,There are two basic means of payment,-direct payment between the seller and buyer-payment through banks,Payment of documentary credit,LegislationUCP600 Uniform Customs and Practice for Documentary Credits,The operation of documentary credit,Buyer(applic
28、ant),Issuing bank,Advising,confirming or negotiating bank,Seller(beneficiary),Carrier of the goods,open a credit,present docs and receive reimbursement,issue the credit and authorise an advising bank,deliver the goods to the buyer upon presentation of shipping docs,deliver the goods to a carrier in
29、accordance with the contract of sale before negotiating the credit,deliver commercial docs when receiving payment,advise and negotiate the credit,present docs and receive reimbursement,Contracts and documentary credit,Contracts are the foundation of the operation of a documentary credit.The mechanis
30、m of documentary credit is based on the following contractual arrangementsthere is a contract of sale between the seller and buyer,under which the parties stipulate documentary credit as the method of payment and undertake to perform certain obligations for the purpose of effecting the documentary c
31、redit.,there is a contract of reimbursement or similar agreement between the applicant(buyer)and issuing bank,under which the issuing bank agrees to provide a documentary credit in pursuance of the instructions of the buyer,and the applicant undertakes to reimburse the bank on performance of its obl
32、igations as agreed and compensate its loss if necessary.there is a contractual undertaking between the beneficiary(seller)and the issuing bank,under which the issuing bank promises or guarantees the payment to the beneficiary provided that the or she has complied with the terms of credit.,When the i
33、ssuing bank does not deal with the beneficiary directly,there would be an agent-principal arrangement between the issuing bank and a nominated bank,under which the issuing bank undertakes to reimburse an compensate the nominated bank for its services and the nominated bank undertakes to act as instr
34、ucted by the issuing bank.If the credit is confirmed by a nominated bank,there would be a contractual undertaking between the confirming bank and the beneficiary,under which the confirming bank guarantees the payment of the credit provided that the beneficiary performs the terms of the credit.,Dutie
35、s of banks,Banks duties to the beneficiaryBanks duties to the applicantDuty between the banks,Banks duties to the beneficiary,The banks concerned here are the issuing bank and advising bank.An issuing bank undertakes an obligation to pay the sum stipulated in an irrevocable credit under the conditio
36、n that the beneficiary has fulfilled his or her obligations pursuant to the terms of the credit.An advising bank which has not confirmed the credit does not have an obligation to pay unless it has accepted the compliant documents from the seller.,The Bank of Montreal acted as the advising bank on be
37、half of a Dutch Bank.Michael Doyle,which sold frozen herring fillets to a Dutch buyer,was the beneficiary under a letter of credit.The fillets were shipped in four installments.After the acceptance of the draft(which was payable 45 days after shipment)and commercial documents for the third delivery,
38、the buyer became dissatisfied with the quality of the fillets and asked the issuing bank to seek a ground to stop the payment under the credit.The Dutch bank discovered that the health certificate for the third delivery did not comply with the requirement.The seller resubmitted a health certificate,
39、but the certificate was ultimately rejected by the Dutch bank for late submission.The Dutch bank refused to pay for the third installment.The Bank of Montreal refused to make payment to MICHAEL Doyle,despite the draft and documents(including the nonconforming one)having been accepted by it.Do you th
40、ink the Bank of Montreal had done right?,Decision,The Bank of Montreal undertook a liability to pay the draft after the acceptance.An advising bank is obliged to pay after“acceptance”.,Banks duty to the applicant,The banks must examine all documents stipulated in the credit with reasonable care,to a
41、scertain whether or not they appear,on their face,to be in compliance with the terms and conditions of the credit.(UCP 600)The banks responsibility is limited to the ostensible conformity of the documents.If the documents accepted by an advising bank do not appear to be consistent with the terms of
42、credit,the advising bank is liable to the issuing bank,although the advising bank is not directly accountable to the applicant(buyer).,Doctrine of strict compliance,It means that the documents presented by a beneficiary(seller)must on their face strictly comply with the terms of credit.It also impos
43、es a duty upon the advising bank and issuing bank to ensure the conformity of the documents with the terms of credit.However,it must be emphasized that the doctrine of strict compliance requires a bank to ensure only that the documents appear to be consistent with the terms of the credit,and thus gi
44、ve rise neither to a duty to ascertain the conformity of the goods,nor an obligation to investigate an alleged fraud.,Tender of non-conforming documents is an exception to the strict compliance doctrine.The doctrine of strict compliance may cause difficulties when both the seller and buyer know or a
45、gree that the differences between the documents and the terms of credit are immaterial or that the different descriptions mean the same thing.In order to facilitate international trade,an advising bank may accept non-conforming documents under the condition that the beneficiary(seller)undertakes to
46、indemnify the advising bank if the issuing bank or the applicant(buyer)refuses to accept the documents for non-conformity.Indemnifying the advising bank in fact means that the beneficiary refunds the money received under the documentary credit and compensates the bank for the cost incurred in transf
47、erring the non-conforming documents.In order to secure compensation,an advising bank often requires the beneficiarys bank to provide a guarantee to indemnify its possible loss.,Case study,The beneficiary tendered documents under an irrevocable letter of credit.The advising bank discovered discrepanc
48、ies between the documents and the terms of the credit.The beneficiary disagreed with the bank on the alleged discrepancies.The parties then agreed that the bank would make a payment under reserve to the beneficiary(The bank had reserved the right to have the money back when making the payment under
49、reserve).The documents were ultimately rejected by the issuing bank.The advising bank sought reimbursement from the beneficiary,who,however,refused to reimburse the bank.Will you agree with the advising bank?,Decision,The bank had reserved the right to have the money back when making the payment und
50、er reserve.The acceptance of the documents was conditional,depending on whether the issuing bank or the buyer would ultimately accept the disputed documents.,Duty between the banks,The issuing banks duty towards the advising bankThe advising banks duty towards the issuing bank,The issuing bank has a
