国际商法billoflading实用教案

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1、1. definition A bill of lading is an instrument issued by an ocean carrier to a shipper with whom the carrier has entered into a contract for the carriage of goods It states that certain goods have been shipped on a particular ship or; have been received for shipment It sets out terms on which those

2、 goods have been delivered to and; received by the ship owner On being signed by or on behalf of the carrier, it is handed to the shipper.第1页/共50页第一页，共51页。2. classification of bill of lading straight B/L 记名(jmng)提单 bearer B/L, blank B/L, open B/L不记名(jmng)提单 order B/L 指示提单第2页/共50页第二页，共51页。2. classifi

3、cation of bill of ladingstraight bill of lading states: the goods are consigned to a specified person it is not negotiable. 第3页/共50页第三页，共51页。2. classification of bill of ladingbearer bill of lading states: that delivery shall be made to whoever holds the bill. It can be negotiated without endorsemen

4、t. Although it can be negotiated freely and easily, it may bring about risks to both the seller and buyer because of missing and stealing.第4页/共50页第四页，共51页。Notes EndorsementThe placing of a signiture,sometimes with additional notation, on the back of a negotiable instrument to transfer of gurantee th

5、e instrument or to acknowledge payment第5页/共50页第五页，共51页。2. classification of bill of ladingorder bill of lading states the goods are consigned to the order of the person named in the bill (shipper, a named bank) a negotiable bill of lading with endorsement If the order bill of lading is not endorsed,

6、 the person who make the order retain the ownership to the goods or it is him who has the right to take delivery.第6页/共50页第六页，共51页。2. classification of bill of lading clean bill of lading (clean B/L) unclean bill of lading (unclean B/L, dirty B/L, foul B/L) 第7页/共50页第七页，共51页。2. classification of bill

7、of ladingclean bill of lading (clean B/L) a bill of lading issued by a carrier declaring that the goods have been received in an appropriate condition, without the presence of defects about packaging or the quantity第8页/共50页第八页，共51页。2. classification of bill of ladingunclean bill of lading (unclean B

8、/L) is a bill issued by the carrier when the goods received is damaged or does not meet with specification: e.g. the goods received for shipping (or their packaging) looks wets, damaged in doubtful condition not in correct quantity 第9页/共50页第九页，共51页。2. classification of bill of lading If the containe

9、r received by the carrier was damaged, the carrier makes a notation that expressly declares the defective condition of the container. Ultimately, it is the exporter who will be responsible financially because of the damaged container and /or package. Normally importers and their banks do not accept

10、an unclean bill of lading for payment under a letter of credit.第10页/共50页第十页，共51页。2. classification of bill of lading shipped bill of lading , on board bill of lading (已装船(zhun chun)提单) received for shipment bill of lading （收货待运提单）第11页/共50页第十一页，共51页。2. classification of bill of ladingshipped bill of

11、lading , on board bill of lading certifies the specified good have been received in apparent good order and condition from the named shipper (consignor), and have been taken aboard the named ship (vessel) on the stated date. Banks require this type of bill of lading so as to pay第12页/共50页第十二页，共51页。2.

12、 classification of bill of ladingreceived for shipment bill of lading indicates the good have merely been received by the carrier, but they have not yet been loaded on the ship. It is used in the case where the goods arrive at the port of departure before the vessel does. This type of bill of lading

13、 is not considered as a complete bill of lading, and should be replaced by a shipped bill of lading when the goods do go on board.第13页/共50页第十三页，共51页。3 Function of Bill of Ladingas the receipt of goods received A bill of lading will be receipt that the carrier gives the shipper acknowledging that he

14、has shipped the goods in a named ship or acknowledging that he has received the goods for shipment.第14页/共50页第十四页，共51页。3 Function of Bill of LadingIn common law, the bill of lading acts as a receipt for three thing: quantity of goodsif the quantity of goods on the ship was not asdescribed in the bill

15、 of lading, the carrier or his agent shall be liable for it leading mark goods usually have shipping marksthe shipping marks are also put on the bill of lading 第15页/共50页第十五页，共51页。notesFront side of standard bill of lading Name of goods quantity Number/weight/volume of goods Specification of dangerou

16、s goods Name of carrier and his place of business Name of vessel (ship) Name of shipper Name of consignee Port of shipment/received date Discharge port Place of delivery (taking delivery) Date/place/number of the bill of lading issued Payment of freight Signature of carrier of his agent第16页/共50页第十六页

17、，共51页。notesBack side of a standard bill of lading Rights and obligations of shipper and carrier第17页/共50页第十七页，共51页。3 Function of Bill of Lading apparent good order and condition apparent goods order and condition create an estoppel that a carrier is bound by the statement. The shipmaster has the auth

18、ority to note only as to the apparent good order and condition not the inner condition and quality of goods the bill of lading only relates to the apparent good order and condition of the goods when they are put on board, but does not cover any subsequent damage of the goods on the voyage第18页/共50页第十

19、八页，共51页。3 Function of Bill of Ladingas evidence of the contract of carriageThe contract of carriage by sea is normally concluded before the carrier issues the bill of lading. The contract is made when the goods are accepted by agents of the carrier for loading or even earlier when shipping spaced is

20、 reserved. 第19页/共50页第十九页，共51页。3 Function of Bill of LadingIn the relationship between the shipper and carrier The bill of lading is issued only when the ship leaves port. But the bill of lading normally contains the terms of the contract of carriage between the shipper and the carrier . But it is no

21、t the contract itself. It is the prima-facie evidence of those terms and it can be rebutted第20页/共50页第二十页，共51页。The ArdennesKings Bench 1951 1 KB 55. Facts: A seller contracted for oranges to be sent from Spain to England. Before the contract of carriage was concluded the ship owner promised the shipp

22、er orally that they would arrive in London by 30th November 1947, but they did not actually arrive until December 5th . The arrival date was important to the shipper not merely because the orange might deteriorate, but also because import duty was imposed from December 1st. However, the bill of ladi

23、ng also had a printed liberty clause allowing the carrier to stop on the way. The carrier did stop on the way and thus did not get to London until 5th December. The seller sued the carrier for deviating from the route and the carrier relied on the written liberty clause.第21页/共50页第二十一页，共51页。3 Functio

24、n of Bill of Lading Issue: What were the actual terms of the contract? -were they those in the bill of lading or the oral agreements that were made? Holding: The carrier could not rely on the deviation clause in the bill of lading. It was the oral promise, rather than the bill of lading terms, which

25、 were incorporated into the carriage contract.第22页/共50页第二十二页，共51页。Reasoning: Bill of lading is only evidence of contract of carriage, it is not the contract itself contract of carriage came into existence before bill of lading is signed bill of lading is prepared, issued and signed by one party (sta

26、ndard form) it is possible that the bill of lading contains different terms that the shipper is not content, and does not contain some terms for which he has stipulated. in this case, the bill of lading contains the written liberty clause (different term) oral agreement should be incorporated in the

27、 contract of carriage (arrival time: 30th November 1947) the carrier arrived in London on 5th December, 1947, which means that the carrier was in breach of contract of carriage. the carrier should be liable for late arrival第23页/共50页第二十三页，共51页。3 Function of Bill of Lading In the relationship between

28、the carrier and the buyer (the third party) If the bill passed to the third party, the carrier is bound by the terms set out in the bill of lading as it is presumed that the third party accepts it on those terms and does not know any other terms between the carrier and the shipper. So to the buyer,

29、the bill of lading becomes the conclusive evidence 第24页/共50页第二十四页，共51页。Case: Leduc v. Ward (1888) Oral agreement before the contract of carriage between the shipper and the carrier that the carrier could deviate contract of carriage: if the carrier deviate from the route as defined by the contract o

30、f carriage, he will be unable to exempt him from liability for perils of sea on the excepted peril clause. In a voyage the ship deviated to Glasgow and sank with cargo. In lawsuit, the carrier attempted to rely on excepted peril clause to exempt him from liability for the loss of the goods, claiming

31、 that the shipper knew, before the carriage contract was concluded, that it was intended to sail to Glasgow, and the deviation was permitted by the oral agreement. The court held the pre-contract agreement could not bind the endorsee (the third party), who rely on bill of lading terms. The terms in

32、the bill of lading do not permit that deviation, and because of deviating the carrier lost the benefit of the excepted perils clause.第25页/共50页第二十五页，共51页。第26页/共50页第二十六页，共51页。3 Function of Bill of Lading as a document of title to goods The carrier need deliver the goods to the party who holds the bill

33、 of lading or who present the bill of lading to him. Anyone who possess the bill of lading is entitled to claim and possess the goods. If on arrival of the vessel there is nobody to present and an original bill of lading, the master would be entitled to unload the goods into a warehouse and to sail

34、away.第27页/共50页第二十七页，共51页。4 Carriers duties under a bill of lading the seaworthiness of the shipAn obligation of carrier required by Hague Rules Hague-Visby Rules Hamburg Rules第28页/共50页第二十八页，共51页。4 Carriers duties under a bill of ladingThe carrier is required to exercise due diligence to the ship sea

35、worthiness before and at the beginning of voyage.a. Seaworthiness generally means that the ship is fit to undertake the particular voyage and to carry the particular cargoIn particular, the ship is reasonably fit to encounter the “peril of the sea”:第29页/共50页第二十九页，共51页。case : an Chinese import and ex

36、port company import 2000 tons of bean oil from USA conclude contract of carriage with a carrier charter party: a Greek ship named AH when the ship sailed into the China sea , the ship ran into a heavy storm, and a serious sea peril happened-the hold of the ship split up large amount of the bean oil

37、flowed out the ship began to leaned to one side after salvaging, the ship got out of danger第30页/共50页第三十页，共51页。 the Chinese import and export company claimed compensation from the carrier the carrier claimed that the ship was seaworthy by producing the ships certificate of seaworthiness claimed that

38、the loss and damage to the goods resulted from storm asked for compensation from the insurance company the insurance company applied for an examination of the ship. The ship was examined The conclusion of examination was the ship was unseaworthy because the ship had been sailing on the sea for over

39、20 years the ship was lack of maintainance, repairing arbitration: the ship owner compensated 80% of the total loss insurance company compensate 20% of the total loss 第31页/共50页第三十一页，共51页。4 Carriers duties under a bill of ladingb. The carrier shall properly man, equip and supply the ship with suffici

40、ent fuel, fresh water and foods to guaranteed the ship to bring its goods to the destinationc. the carrier shall make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are fit and safe for their reception, carriage, and preservation第32页/共50页第三十二页，共51页。4 Carri

41、ers duties under a bill of lading the management of goodsAnother fundamental obligationThe carrier shall exercise due diligence to properly and carefully load handle stow carry keep care for discharge the goods carried第33页/共50页第三十三页，共51页。4 Carriers duties under a bill of lading commencement of voyag

42、e The ship shall be ready to load the cargo and commence the voyage agreed on without delay and shall also complete the voyage with all reasonable dispatch第34页/共50页第三十四页，共51页。4 Carriers duties under a bill of lading non-deviation of voyage If the ship does not carry out the voyage by the prescribed

43、or usual route in the customary manner, the contract becomes void from the beginning of the voyage, no matter when and where the deviation from the usual route takes place.第35页/共50页第三十五页，共51页。4 Carriers duties under a bill of lading dangerous goods not to be shipped If the shipper ships dangerous go

44、ods and the charterer suffers any damage, the charterer can recover from the shipper.第36页/共50页第三十六页，共51页。5. Carriers immunities Under the Hague Rules and Hague-Visby Rules, the carrier shall not be responsible for the loss or damage resulting from act, neglect, or default of master, mariner, pilot o

45、r the servants of the carrier in the navigation or in the management of the ship fire, unless caused by the actual fault or privity of the carrier第37页/共50页第三十七页，共51页。5. Carriers immunities perils, danger and accidents of the sea or other navigable water act of god act of war act of public enemy arre

46、st or restrain of princes, rulers or people, or seizure under legal process quarantine restriction第38页/共50页第三十八页，共51页。5. Carriers immunities act of omission of the shipper or owner of the goods, or his agent or representative; strikes or lockouts or stoppage or restraint of labor from whatever cause

47、, whether partial or general riots or civil commotion saving or attempting to save life or property at sea第39页/共50页第三十九页，共51页。5. Carriers immunities wastage in bulk or weight or any other loss or damage arising from inherent defect, quality or vice of the goods insufficiency of packing insufficiency

48、 or inadequacy of marks latent defects not discoverable by due diligence第40页/共50页第四十页，共51页。5. Carriers immunities any other causes arising without the actual fault or privity of the carrier, or without the actual fault or neglect of the agents or servants of the carrier, but the burden of proof shal

49、l be on the person claiming the benefit of this exception to that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contribute to the loss or damage.第41页/共50页第四十一页，共51页。6 Conventions relating to bills of lading As goods move across t

50、he high sea on sailing ships, they are under the exclusive control of the ships captain for months at a time. Once damages or loss happens to the cargo, shippers have no way of proving that the goods are lost or destroyed as a result of a natural disaster, the pilferage of theft. So in history, the

51、maritime law of both England and the United States held carriers to be absolutely liable for all loss or damage to cargo in their possession. 第42页/共50页第四十二页，共51页。6 Conventions relating to bills of lading With the growth of trade and the advent of steamships, carriers became more economic powerful. T

52、hey began to include provisions in their bill of lading that would limit their liability. These limitation-of-liability clauses attempted to free the carrier from all responsibility, including liability for it own negligence or even for providing an unfit vessel, which resulted in a period of great

53、uncertainty over the liability of ocean carrier.第43页/共50页第四十三页，共51页。6 Conventions relating to bills of lading the Hague Rules the Hague- Visby Rules the Hamburg Rules第44页/共50页第四十四页，共51页。6 Conventions relating to bills of lading the Harter Act Date: 1892 Legislature: the U.S. Congress, federal law Pu

54、rpose: remove the uncertainty over the liability of ocean carrier Content: set out the liability of a carrier for the care of its cargo impose restrictions on the use of exculpatory clauses in bill of lading result: subsequent development in the law resulted in limited application today, applicable

55、to contract for the carriage of goods only from one U.S. port to another U.S. port第45页/共50页第四十五页，共51页。 the Hague Rules Full name: the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading Date: originally proposed by the International Law Association at the

56、 meeting at Hague in 1921-1921 Hague Rules recommended for adoption at a diplomatic conference held in Brussels in 1924-the Brussels Convention of 1924 came into force in 1932 purpose: establish a uniform set of rules relating to the bills of lading develop the similar rules as of removing the uncer

57、tainty over the liability of ocean carrier reconcile the interests of the ship owners, cargo owner and insurers第46页/共50页第四十六页，共51页。 content: lay down the minimum responsibilities and liabilities of a carrier of goods by sea under a bill of lading provide the maximum amount of liability that a carrie

58、r would assume for loss or damage to a shippers cargo would be 100 per package result: near universal acceptance第47页/共50页第四十七页，共51页。 the Hague- Visby Rules Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading Date: adopted in 1968 Cam

59、e into force in 1977 Reason: amendment to Hague Rules Correct the shortcomings of the Hague Rules Content: increase the maximum liability of the carrier for the loss or damage to a shipper s cargo Result: many shippers and developing countries consider that the rules still tend to protect the rights

60、 of the carriers mainly because carriers have too much protections from liability under Hague Rules and Hague-Visby Rules 第48页/共50页第四十八页，共51页。the Hamburg Rules Name: Convention on the Carriage of Goods by Sea Date: adopted in 1978 Came into force in 1992 Reason: many shippers and cargo owners still

61、complain the Hague-Visby Rules about its partiality to the interests of carrier Purpose: serve the interests of cargo owners and shippers in developing countries that do not have large carrier fleets Content: imposes far greater liability on the carrier not relieve the carriers for errors in navigat

62、ion or in the management of the ship. Ocean carriers should be liable for losses resulting from negligence Make it easier for cargo owners to win their cases against carrier Result: ignored by all major maritime states Adopted by only developing countries第49页/共50页第四十九页，共51页。感谢您的观看(gunkn)！第50页/共50页第五十页，共51页。NoImage内容(nirng)总结1. definition。order B/L 指示(zhsh)提单。5. Carriers immunities。感谢您的观看第五十一页，共51页。