（推荐）国际商法第六章

1、Chapter Six International Cargo Transportation and Insurance I. Introduction II. Law of International Cargo Transportation III. Bills of Lading IV. Law of International Cargo Insurance Key Terms Charter party: 租船契约 Voyage charter: 行次租船/定程租船 Time charter: 定期租船 Bareboat charter: 光船租船 Bills of lading:

2、提单 Straight bills of lading: 记名提单 Bearer bills of lading: 不记名提单 Order bills of lading: 指示提单 Antedated bills of lading: 倒签提单 Advanced bills of lading: 预借提单 Through bills of lading: 联运提单 I. Introduction II. Law of International Cargo Transportation 1. Law of International Carriage of Goods by Sea Adva

3、ntages and Disadvantages of Carriage of Goods by Sea Advantages: large freight volume and lower cost. Disadvantages: influenced by the natural conditions and has great risks in transportation; slower comparing with the other transportations. (1) Types of Contract of Shipment There are two types of c

4、ontract of shipment. One is the form of a charter party, the other is a bill of lading. (2) Charter Party (3) Classifications of Charter Party 1) Voyage charter(定程租船/航次租船). The charterer hires the vessel for a single voyage. 2) Time charter(定期租船). The vessel is hired for a specific amount of time. 3

5、) Demise or bareboat charter(光船租船). The charterer takes full control of the vessel along with the legal and financial responsibility for it. (4) Law of International Carriage of Goods by Sea 1) International conventions. The Hague Rules The Hague-Visby Rules The Hamburg Rules 2) National provisions

6、in the U.K. and USA In the UK, In 1924, the Carriage of Goods by Sea Act. In 1971, the Carriage of Goods by Sea Act (COGSA), which made the Hague- Visby Rules statutory. In 1992, the Carriage of Goods by Sea to replace the Bill of Lading Act 1855. In United States, The Federal Bill of Lading Act, go

7、verns the transfer of all bills of lading covering both the international and interstate shipments and all shipments. In 1893 the United States enacted the Harter Act, In 1936 enacted the Carriage of Goods by Sea Act. In 1999 the United States re-enacted the Carriage of Goods by Sea Act. 2. Law of I

8、nternational Carriage of Goods by Railroad and Air (1) Law of International Carriage of Goods by Railroad The important agreement about carriage of goods by railroad is the Agreement Concerning International Carriage of Goods by Rail(国际货协). (2) Law of International Carriage of Goods by Air There are

9、 six conventions for the carriage of goods by air: the Warsaw Convention(华沙公约) the Hague Protocol (海牙议定书) the Guadalajara Convention(瓜达拉哈拉公 约) the Guatemala City Protocol(危地马拉市公 约） the Montreal Protocols (蒙特利尔议定书) the Montreal Convention(蒙特利尔公约) III. Bills of Lading 1. Bills of Lading (1) Definition

10、 Under the Hamburg Rules, a bill of lading means a document which evidences a contract of carriage by sea and the taking over or loading of the goods by the carrier, and by which the carrier undertakes to deliver the goods against surrender of the document. Items should be written in the B/L Descrip

11、tion of Commodity Weight/Measurement Number of Packages Marks 提单2针 对火灾前装的损坏的货物，船长加批注说： “cargo covered by this Bill of Lading has been discharged Kandla view damaged by fire and/or water used to extinguish fire for which General Average declared.” 在通过信用证付款(UCP600)的情况下，银行是否 有权拒绝接受这两份提单？ (4) Problems R

12、elating to the Bill of Lading 1) Problems relating to the date. In respect of the date prior to or subsequent we can classify it into advanced B/L and antedated B/L. 2) Problems of incorrect description of cargo. 3) Problems of misdelivery of goods. 2. The Carriers Obligations (1) The Seaworthiness（

13、适航性） of the Ship Seaworthiness means the ship is fit to under take the particular voyage and to carry the particular cargo. On the one hand, the ship is reasonably fit to encounter the “perils of the sea”(海险). On the other hand, the carrier should properly man, equip and supply the ship and make the

14、 holds(货仓) and all other parts of the ship in which goods are carried, fit and safe for their reception. 关于船舶是否适航的典型案例 1953年5月17日，“Muncaster Castle”号轮运载原告 150箱牛舌罐头由澳大利亚前往英国。1953年7月16日， 即在伦敦卸货后的第四天，原告发现其中113箱牛舌罐 头被海水浸湿。双方约定采用海牙规则处理其争端。 法庭查明，该轮在出航澳洲前，曾入坞进行特别检查， 以及例行载重线年检。检验完毕后，由于该坞一名有经 验的钳工未将第五舱防浪阀螺丝拧

15、紧，所以在从澳洲到 英国的航程中海水进入船舱，致使原告货物受损。 法院认为，第五舱防浪阀螺丝松动的情况发生在开航前， 使货舱、不适宜并安全地收受、运送和保管货物，属于 典型的货舱不适航。113箱牛舌罐头被海水浸湿的原因 是由于货舱不适航所引起，货舱的不适航与货物损坏之 间存在因果关系，根据海牙规则第4.1条，承运人 应赔偿因不适航所造成的损失。 (2) The Management of the Goods The carrier should exercise due diligence to properly and carefully load, handle, stow, carry,

16、 keep, care for, and discharge the goods carried. 案例 2000年2月20日，我国甲公司向日本乙公司发出要约:愿 以每台400美元的价格按照CIF天津价格条件购买电冰 箱3000台，总价值120万美元。2000年2月22日，日本 乙公司接到我国甲公司发出的要约，2月23日，日本乙 公司将3000台电冰箱交给日本环球货运公司装船运输， 但日本环球货运公司发现其中有500台电冰箱包装破损， 准备签发不清洁提单。但日本乙公司为从日本环球货运 公司处拿到清洁提单，在其签发提单前，向日本环球货 运公司出具了承担赔偿责任的保函，承运人日本环球货 运公司遂给

17、乙公司签发了清洁提单。乙公司持清洁提单 按信用证结汇，中国甲公司于2001年3月1日收到货物， 发现500台电冰箱有严重质量问题，于是向承运人日本 环球货运公司索赔。问题： （1）承运人应否承担责任？ （2）如果甲公司向乙公司索赔，你认为索赔能否成立？ (3) Commencement of Voyage (4) Non-deviation of Voyage (5) Dangerous Goods not to be Shipped 3. International Conventions Comparison (1) Scope of Application The Hague Rules

18、 and the Hague-Visby Rules provide the provisions shall apply to all bills of lading issued in any of the contracting states. The Hamburger Rules further extends the application. It provides the provisions are applicable to all contracts of carriage by sea between two different states, if: 1) the po

19、rt of loading as provided for in the contract of carriage by sea is located in a contracting state; 2) the port of discharge as provided for in the contract of carriage by sea is located in a contracting state; 3) one of the optional ports of discharge provided for in the contract of carriage by sea

20、 is the actual port of discharge and such port is located in a contracting state; 4) the bill of lading or other document evidencing the contract of carriage by sea is issued in a contracting state; 5) the bill of lading or other document evidencing the contract of carriage by sea provides that the

21、provisions of this Convention or the legislation of any state giving effect to them are to govern the contract. (2) Period of Responsibility In respect to the Hague Rules and the Hague-Visby Rules, “Carriage of goods” covers the period from the time when the goods are located on to the time they are

22、 discharged from the ship. Under the Hamburger Rules the responsibility of the carrier for the goods covers the period during which the carrier is in charge of the goods at the port of loading, during the carriage and at the port of discharge. (3) Basis of Liability Under the Hague Rules and the Hag

23、ue-Visby Rules neither the carrier nor the shipper shall be liable for loss or damage arising or resulting from unseaworthiness. In respect to the Hamburg Rules, the carrier is liable for loss resulting from loss of or damage to the goods, as well as from delay in delivery, if the occurrence which c

24、aused the loss, damage or delay took place while the goods were in his charge. (4) Goods Under the Hague Rules and the Hague-Visby Rules, “Goods” includes goods, wares, merchandise and articles of every kind whatsoever except live animals and cargo which by the contract of carriage in stated as bein

25、g carried on deck and is so carried. In respect to the Hamburg Rules, “Goods” includes live animals; where the goods are consolidated in a container, pallet or similar article of transport or where they are packed, goods includes such article of transport or packaging if supplied by the shipper. (5)

26、 The limit of Indemnity(赔偿的限额) Under the Hague Rules the carrier shall be liable for any loss or damage to or in connection with goods in an amount exceeding 100 pounds sterling per package or unit, or the equivalent of that sum in other currency unless the nature and value of such goods have been d

27、eclared by the shipper before shipment and inserted in the bill of lading. The Hague-Visby Rules increased the maximum liability amount of the carrier for loss or damage to 666.67 SDRs per package or 2 SDRs per kilo of gross weight of the goods loss or damaged. The limit of liability for carriers un

28、der the Hamburg Rules was raised to 835 SDRs per package or 2.5 SDRs per kilo of gross weight of goods lost or damaged, whichever is greater. There was a 25% elevation in it comparison with the Hague- Visby Rules. (6) Guarantees by the Shipper Guarantees are not mentioned clearly under the Hague Rul

29、es and the Hague- Visby Rules. Under the Hamburg Rules article 17, a letter of guarantee or agreement may be valid. The shipper is deemed to have guaranteed to the carrier the accuracy of particulars relating to the general nature of the goods, their marks, number, weight and quantity as furnished b

30、y him for insertion in the bill of lading. The letter of guarantee or agreement without a reservation relating to particulars furnished by the shipper for insertion in the bill of lading, or to the apparent condition of the goods, is void and of no effect as against any third party, including a cons

31、ignee, to whom the bill of lading has been transferred. (7) Notice of Loss, Damage or Delay and Limitation of Actions Under the Hague Rules notice of loss or damage is given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the cus

32、tody of the person entitled to delivery under the contract of carriage, or if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading. Under the Hague-Visby Rules the carrier shal

33、l be discharged from all liability if the suit is not brought within one year of their delivery or of the date when they should have been delivered. Under the Hamburg Rules the time is prolonged. The convention requires the notice of loss or damage is given in writing by the consignee to the carrier

34、 not later than the working day after the day when the goods were handed over to the consignee. Where the loss or damage is not apparent, the notice in writing is given within 15 consecutive days after the day when the goods were handed over to the consignee. (8) Carriers Immunities(豁免权) (9) Jurisdi

35、ction(管辖权) The Hague Rules and the Hague-Visby Rules provide nothing relating to the jurisdiction. Under the Hamburg Rules the competent courts within jurisdiction is situated one of the following places: 1) The principal place of business or, in the absence thereof, the habitual residence of the de

36、fendant; or 2) The place where the contract was made, provided that the defendant has there a place of business, branch or agency through which the contract was made; or 3) The port of loading or the port of discharge; or 4) Any additional place designated for that purpose in the contract of carriag

37、e by sea. 4. Waybill(运货单，乘客名单) A waybill is a document issued by a carrier giving details and instructions relating to the shipment of goods. Unlike a bill of lading, a waybill is not a document of title. The waybill is a receipt and not negotiable. It has the virtue of convenience, lower cost and i

38、t avoids some frauds. IV. Law of International Cargo Insurance 1. Introduction (1) Definition of Insurance A policy of insurance is a contract under which one party (the insurer) agrees, in return for a consideration, to indemnify another (the insured) for loss suffered as a result of the occurrence

39、 of a specified event. (2) Related Terms 1) Applicant/Policy holder 投保人 2) Insurer（保险人） 3) Assured（被保险人） 4) Insurable interest（保险利益） 5)Premium （保险费） 6)Beneficiary 受益人 7）Insurance agent 保险代理人 8）Insurance broker 保险经纪人 (3) Conventions and Customs 1) Agreement on Establishing the Asian Reinsurance Corpo

40、ration. 2) Convention on Limitation of Liability for Marine Claims 1976. 3) Institute Marine Cargo Clauses. 4) York-Antwerp Rules 2004. 2. Insurance Contract (1) Definition A contract is which an insurer agrees, in consideration of money paid to the insurer by the assured, to indemnity the latter ag

41、ainst loss resulting from the happening of specified events. (2) Insurance Policy（保险单，保险契约）. 1) Valued policy（定值保险）. Valued policy means that the insurer pays a specified amount irrespective of the extent of loss and without making any allowance for appreciation or depreciation. 2) Voyage policy（航程保

42、险） and time policy（期限/定期保险）. Voyage policy covers risks that arise during an entire transit period irrespective of how long it takes. Time policy covers risks arising during a specified period. 3) Floating policy（流动保险）. Insurance cover for situations where the total insurable amount can be reasonabl

43、y estimated but cannot be determined accurately-enough for computing correct premium, until the insurance policy comes to an end. 4) Open policy（开口保险/预约保险）. Open policy is a marine cargo insurance policy in which the insurer agrees to cover any voyage undertaken by the policyholders vessel(s) or any

44、 cargo shipped by a particular shipper. 3. Basic Concept Underlying Cargo Insurance Law (1) Insurable interest A person has an insurable interest in something when loss or damage to it would cause that person to suffer a financial loss or certain other kinds of losses. A basic requirement for all ty

45、pes of insurance is that the person who buys a policy must have an insurable interest in the subject of the insurance. (2) The Principle of Indemnity（赔偿原则） /Principle of Subrogation(代位求偿原则) The value of the interest of the damaged subject matter determines the amount of the indemnity recoverable. Th

46、e value is usually the market value, and the insured is not entitled to profit from the loss. (3) Principle of Utmost Good Faith（诚实信用原则） The doctrine of disclosure is the most important consequence of the principle of utmost good faith. During the negotiations for a contract of insurance both partie

47、s are under a duty to disclose all facts of which they are aware and which are material to the proposed insurance. An insurer is to disclose its knowledge. Warranty is an important content of this principle. It means the assured guaranteed to do or not to something. (4) The Principle of Proximate Ca

48、use(近因原则) Proximate cause is the primary cause of an injury. It is not necessarily the closest cause in time or space or the first event. It is approximate to the effect and exerts a deciding and dominates function leading to an injury. It is also known as legal cause. The determination of principle

49、 of proximate cause turned from time standard to effect standard. Determination of the principle of proximate cause 案情介绍：在“一战”期间，一艘名为Ikaria的船被德 国潜水艇的鱼雷击中，致使船体受损而进水，但该船在 拖轮的协助下进了法国的勒阿弗尔港，并停泊在该港的 码头边上。可是，该港的港务局担心该船会沉没从而阻 碍这个码头的使用，因此，港务局就命令该船到港外抢 滩或移泊到防波堤外。最终，该船选择停靠在防波堤外。 但是，由于停靠处的风浪较大和Ikaria号被鱼雷击中后 头重

50、脚轻的共同作用，致使该船随退潮而搁浅，随涨潮 又起伏，直至最终沉没。在该案中，Ikaria号投保的是 “海上危险”，“敌对行为和类似战争行为的一切后果” 是除外责任。 问题：保险人是否应对Ikaria号的损失负赔偿责任？ 4. Risks and Losses (1) Perils of the Sea（海上风险） It includes natural calamities and fortuitous accidents. (2) Extraneous Risks（外来风险） (3) Losses (4) Total Loss It means that destruction of an

51、 asset or property is to the extent that nothing of value is left, and the item cannot be repaired or rebuilt to its pre-destruction state. Act loss includes Actual Total Loss （实际全损） (ATL) and Constructive Total Loss（推定全损） (CTL). (5) Partial Loss In maritime law, losses or damages, less than total,

52、to maritime property are caused by the perils of the sea. 1) Particular average(单独海损). Its one that is borne by the owner(s) of the lost or damaged property and not all of the cargo owners. 2) General average(共同海损). General average requires a general average act when, and only when, any extraordinar

53、y sacrifice or expenditure is intentionally and reasonably made or incurred for the common safety for the purpose of preserving from peril the property involved in a common maritime adventure. General average requires all cargo owners to contribute to compensate the losses caused to those whose carg

54、o has been lost or damaged. General average is in use when: (a) A general average loss is a loss caused by or directly consequential on a general average act. (b) There is a general average act where any extraordinary sacrifice or expenditure is voluntarily and reasonably made or incurred in time of

55、 peril for the purpose of preserving the property imperiled in the common adventure. (c) Where there is a general average loss, the party on whom it falls is entitled, subject to the conditions imposed by maritime law, to a ratable contribution from the other parties interested, and such contributio

56、n is called a general average contribution. (6) Expenses 1) Sue and labor expense（施救费用）. Sue and labor expenses are made by the insured or his agent to prevent them from suffering further losses. 2) Salvage charges（救助费）. Salvage charges are made to those other than the insured, the carrier and the i

57、nsurer who come to the salvage of the ship and the consignment. 5. China Insurance Clauses (C.I.C.) (1) China Insurance Clauses (C.I.C.) Under C.I.C., basic risks coverage falls into three groups: Free from Particular Average (F.P.A.) (平 安险), With (Particular) Average (W.A. or W.P.A.)(水渍险) and All R

58、isks(一切险). (2) FPA (Free from Particular Average) A clause which exempts the company insuring cargo from partial losses, usually limited to apply only if the amount is less than an agreed sum, or if some other described condition exists. (3) WPA (With Particular Average) WPA also covers partial loss

59、es of the insured goods caused by heavy weather, lightning, tsunami, earthquake and/ or flood. (4) All Risks All Risks provide the broadest form of insurance cover, generally excludes losses due to bad packaging, delay, inherent vice(固有缺陷), loss of market, etc. (5) Additional Risks(附加险) Under C.I.C.

60、 additional risks fall into general additional risks(一般附加险) and special additional risks(特别附加险). General additional risks are covered by All Risks in basic insurance coverage and fall into 11 types. (6) Exclusions 1) Loss or damage caused by the intentional act or fault of the insured. 2) Loss or da