V - Transportation 货物运输

A. TRADE TERMS （贸易术语） B. INLAND CARRIAGE（内陆运输） C. CARRIAGE OF GOODS BY SEA（海上货物运输）

D. CHARTER PARTIES（租船运输） E. MARITIME LIENS（海上留置权） F. MARITIME INSURANCE（海上保险） G. CARRIAGE OF GOODS BY AIR（航空货物运输）

1. Use of Trade Terms: Sales contracts involving transportation customarily contain abbreviated terms to describe —

a. Time when the buyer is to take delivery. b. Place where the buyer is to take delivery. c. Additionally: 1) Place of payment. 2) The price. 3) The time when the risk of loss shifts from

the seller to the buyer. 4) The costs of freight and insurance.

A. TRADE TERMS

• 2. Trade Terms are not Consistently Used

• a. Many domestic laws define trade terms for both domestic and export sales.

• b. Almost all domestic laws allow the parties to define the terms themselves. The United Nations’ Convention on Contracts for the International Sale of Goods similarly allows parties to incorporate trade terms of their choosing.

• This may be done by incorporating definitions from:

• a) Foreign legislation.

• b) Private rules.

• 1] The most widely used private trade terms are those published by the International Chamber of Commerce called Incoterms.

• First published in 1936.

The current version was published in 2000.

• Trade councils, courts, and international lawyers encourage their use in international sales.

• 2]Incoterms 2000 has thirteen terms:

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 latter to arrange and oversee the shipment of the goods abroad

2. There are no Universal Conventions a. In Europe: 1) Road transport is regulated by: Convention for the

International Carriage of Goods by Road (the CMR Convention).

2) Rail transport is governed by: Convention Concerning International Carriage by Rail (the COTIF Convention).

b. Similar agreements exist in other parts of the world.

B. INLAND CARRIAGE

• 3. 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 one 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 the consignee the right to:

1) demand delivery of the goods in exchange for a receipt.

2) sue the carrier in the carrier’s 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 right 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 transaction.

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 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 liability 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 Convention Concerning International Carriage by Rail (COTIF Convention)

• a. Most provisions are the same as the CMR.

• b. The carrier’s 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 vessel 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: 1) A conference line is an association of sea-going

carriers who have joined together to offer common freight rates over scheduled routes.

2) An independent line is a carrier with its own rate schedule over scheduled routes.

3) A tramp vessel has its own rate schedule, but it does not operate on established routes.

C. CARRIAGE OF GOODS BY SEA

• d. In most countries the tariffs of ocean carriers are not regulated, and both conference and independent lines will commonly offer regular shippers substantial rebates.

1) In the United States:

a) Ocean carriers have to file their tariffs with the Federal Maritime Commission.

b) Rebates are forbidden by American law.

• 2. The Bill of Lading http://www.comitemaritime.org/

• a. Governing law:• 1)

International Convention for the Unification of Certain 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 these conv

entions 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 entered into a contract for the carriage of goods.

1) A bill of lading serves three purposes:

a) It is a carrier’s 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 goods 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 loaded 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 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 normally 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 carriage 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 straight 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 holder 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) Significance of negotiability: The person named on the bill is able to transfer the goods while a ship is in transit.

• 3. The Carrier’s 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, 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 discharging the goods carried.

• b. This obligation is strictly enforced by most courts.

• 4. The Carrier’s Immunities• a. Carriers who issue a proper bill of lading are exem

pt from liability from damages that arise from any:1)Act, neglect, or default of the master, mariner, pilot, or th

e servants of the carrier 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, 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 be construed to relieve a carrier from responsibility for the carrier’s 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) Insufficiency of packing; 15) Insufficiency or inadequacy of marks; 16) Latent defects not discoverable by due

diligence; and

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 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 any 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 freig

ht units.” 2) Limits set by the Hague-Visby Rules are the high

er 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 with knowledge that damage wo

uld 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) only 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 established 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.

1. Defined: A contract for the hire of an entire ship for a particular voyage or a set period of time

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 various conferences are commonly used. Examples:

a) The Baltime. b) The Gencon. 2) Forum selection clauses and choice-of-law clauses are c

ommon provisions.

D. 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.

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 engages 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 charter’s promise to: a] Engage only in lawful trades.

b] To carry only 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) Exception: If the bill of lading incorporates the terms of the charterparty, the endorsee will be governed by its terms.

1. Definitions: a. Lien: A charge or claim against property th

at exists to satisfy some debt or obligation. b. Maritime lien: A charge or claim against a

vessel or its cargo. 1) Main purpose: To insure that a vessel can adequately

obtain credit to properly outfit itself for a voyage. 2) Other purposes: To provide compensation to injured p

arties for: a) The shipowner’s breach of contract. b) The crew’s negligence. c) Damages caused without the shipowner’s or c

rew’s fault (e.g., as is the case where port regulations require the ship to use a pilot and the pilot causes the injury.

E. MARITIME LIENS

• 2. Enforcement of Liens• a. In common law countries: A vessel is regarded

as a juridical person separate and apart from its owner. 1) Effect: The ship itself may be liable.

• b. In civil law countries a maritime lien (or “privilege”) is a right in property, but the property is not independent of the owner. 1) Effect: The lien exists against the owner as a debtor.

• 3. Nature of Maritime Liens• a. A maritime lien attaches to the res (i.e., the

vessel or cargo) and travels with it.• b. A maritime lien is secret: If a vessel is sold, the

lien “goes with the ship,” even if the new owner is unaware of its existence.

• 4. Foreclosing on a Maritime Lien• a. In common law countries: 1) The res is seized (if it is a vessel, it is

“arrested”) without prior notice to the owner. 2) An admiralty court takes custody, and a suit

proceeds against the res. 3) If the lien-holder’s claim succeeds, the res is

sold, the proceeds are distributed among the various lien-holders, and the title to the property is transferred to the purchaser of the res free of all claims.

•b. In civil law countries:

1) A foreclosure suit is initiated against the owner. 2) The res is seized only as a way to compel the

owner to appear and furnish security before the res can be released.

• 5. Effect of Multiple Lien-holders: The various claims must be ranked

• a. Ranking provided by the 1926 International Convention for the Unification of Certain Rules Relating to Maritime Liens and Mortgages (known as the Brussels Convention):

1) Judicial costs and other expenses.

2) Seaman’s wages.

3) Salvage and general average.

4) Tort claims.

5) Repairs, supplies, and necessaries.

6) Ship mortgages.• b. Although the Convention has not been widely

adopted, its ranking of liens is representative of most municipal schemes.

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 particular 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).

F. MARITIME INSURANCE

b. Fire. c. Jettison (i.e., the dumping of cargo in ord

er to protect other property). 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 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

cargo’s 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. General Average.• 1) Situation to which it applies: In order to

avoid some threat to the whole venture, some expense has to be incurred, or some loss or damage is deliberately inflicted, in order to save the ship and its cargo.

• 2) Rule: Because everyone having an interest in the ship and its various cargoes will have benefited, each must then contribute, in proportion to the value of their interest, to restoring the party who suffered the loss or damage or who incurred the expense.

a) Marine insurance will cover each shipper’s contribution.

b) If insurance is not purchased, or should a policy not cover general average, then the shipper or the shipper’s consignee must pay the contribution before the ship’s crew will release the goods.

1] The carrier will have a lien claim against the goods and, if the contribution is not paid, it may foreclose on the goods, sell them, and retain that portion of the sale price it receives to cover the cost of the contribution.

• 3) A person seeking to claim a general average contribution from other parties must show:

a) That the loss was incurred to benefit everyone. b) That the person making the claim was not responsi

ble for causing the danger.

1. Governing Law: The 1929 Convention for the Unification of Certain Rules Relating to International Carriage by Air

a. Commonly called the Warsaw Convention.

b. Two amendments to the Convention have been adopted and are in force:

1)The Hague Protocol of 1955.

2) Montreal Protocol No. 4 of 1975.

G. CARRIAGE OF GOODS BY AIR

• 2. Documents Used in Air Carriage are not documents of title

• a. Consignment notes.• b. Air waybills. 1) As defined by the Warsaw Convention and the

1955 Protocol, an air waybill must describe: a) The nature of the goods being shipped. b) The method of packing and any marks or

numbers. c) The weight, quantity, volume, or dimensions of

the goods. d) The apparent condition of the goods and their

packaging. e) A statement that the carriage is subject to the

Convention’s rules.

• 2) As defined by Montreal Protocol No. 4 (which encourages carriers to use electronic records), an air waybill must describe:

a) The places of departure and destination.

b) Any intermediate stopping point in a different state (if the places of departure and destination are in the same state).

c)The weight of the consignment.• 3) Liability of carriers using Warsaw Conventi

on air waybills is limited to 17 Special Drawing Rights (SDRs) per kilogram.

• 4) The shipper does not have to prove that the carrier caused the injury to any lost, damaged, or delayed goods.

a) A claim has to be made: 1] Within 7 days when the bills are govern

ed by the Warsaw Convention. 2] With 14 days if they are covered by the

Amended Convention. b) The burden is then on the carrier to

prove that it took “all necessary measures” to avoid the loss, damage, or delay.

• 3. The Warsaw Convention and its Amendments also Regulate the Carriage of Passengers

a. The carrier liability is limited so long as the airline ticket contains a notice of the applicability of one of the Conventions.

• 4。Montreal Convention