[指南]国际商业法之运输保险

[ 指南 验证指南下载验证指南下载验证指南下载星度指南下载审查指南PDF ]国际商业法之运输保险 Chapter 6 Transportation & Marine Insurance 一 1.The 1921 Hague Rules (The Brussels Convention of 1924)-the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading • Brussels August 25th 1924 • Effect: 2nd June 1931 二PROTOCOL TO AMEND THE INTERNATIONAL CONVENTION FOR THE UNIFICATION OF CERTAIN RULES OF LAW RELATING TO BILLS OF LADING SIGNED IN BRUSSELS ON 25 AUGUST 1924 ("VISBY RULES") • Brussels, 23 February 1968 • Come into force , 23th June 1977 • Member states:29, including the main states concerning shiping 三1978 - United Nations Convention on the Carriage of Goods by Sea - the "Hamburg Rules" • Adopted :on 31 March 1978 • entered into force on 1 November 1992 • be prepared at the request of developing countries 四1. The Bill of Lading(P617页) 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, as a document of title for the goods. • a bill of lading showing among other things: • (a) The leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage. • (b) Either the number of packages or pieces, or the quantity, or weight, as the case may be, as furnished in writing by the shipper. • (c) The apparent order and condition of the goods. • Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraph 3(a), (b) and (c). (Hague Rule) • "However, proof to the contrary shall not be admissible when the Bill of Lading has • been transferred to a third party acting in good faith“ (Visby Rule) • The shipper shall be deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks, number, quantity and weight, as furnished by him, and the shipper shall indemnity the carrier against all loss, damages and expenses arising or resulting from inaccuracies in such particulars. The right of the carrier to such indemnity shall in no way limit his responsibility and liability under the contract of carriage to any person other than the shipper. 五Different Kinds of Bill of Lading • Straight bill of lading • Order bill of lading • 。。。。。。。。。。。。。。。。。。 • Direct Bill of Lading • Transshipment Bill Of Lading • Through Bill Of Lading • 。。。。。。。。。。。。。。。。 • Clean Bill of Lading 。。。。。。。。。。。。。。。。。。。。。。。。。。。。。 • Clause bill of lading 备注:There are two basic types of bill of lading, the straight bill and the order bill. 1. A straight bill of lading is a non-negotiable document, made out to a specifically named consignee, from which the steamship company acknowledges receipt of the freight and agrees to move it to its destination. Unlike an order bill, the straight bill does not have to be surrendered to the carrier in order for the importer to obtain possession of the goods. 2. An Order bill of lading is a document that is made out to the order of the foreign importer or its bank, or the order of the export firm, its bank, or another designated party. Title to goods being shipped is given by possession of the bill of lading that bears the exporter's endorsement. Often, this endorsement is in blank, thus giving ownership of the goods to the person possessing the bill, and therefore making the bill highly negotiable. The order bill of lading is handed over only when the foreign importer has paid for the goods or made acceptable credit arrangements. Customs regulations of most countries specify the number of copies, either negotiable or non-negotiable, of the bill of lading that must be supplied for customs purposes. Some Latin American countries prohibit or otherwise discourage the use of order bills of lading. Therefore the export firm should first check as to the type of bill that is acceptable in the country to which it is planning to ship its goods. For each shipment, two or three negotiable or signed bills of lading are usually issued, plus as many more non-negotiable copies as may be required. The latter are clearly marked non-negotiable. Where these bills have to be presented in duplicate or triplicate at the Customs of the foreign country, it is usual to supply one negotiable copy with each set of documents, plus as many non-negotiable copies of the bill of lading as are required. The foreign importer will require a negotiable bill of lading and related documents to clear the goods through Customs. Therefore, the exporter, or its bank, should either forward them on the same ship that carries the goods or send them in advance by airmail. If the necessary papers for clearance are not available or arrive late, severe penalties or excessive storage charges may be incurred. Bill of lading may possibly be lost in transit, it is customary to send two complete sets of documents, each with a negotiable bill of lading, in successive mail to the foreign importer or to the bank or agent which is to hold this document for collection. The third negotiable bill of lading is usually kept by the exporter or its bank in case of emergency. If the exporter wishes to have its bank collect payment from the foreign importer, then it should hand over all the negotiable copies of the bill of lading to its bank so that it has complete control of the export shipment. Order bills usually carry instructions to the shipping company to notify the consignee (the foreign importer) as soon as the goods arrive at the port of discharge. Another feature of a bill of lading is that it may be a direct one or a through one. Straight bill of lading: a bill of lading issued to a named consignee that is not negotiable. Order bill of lading: A bill of lading that is negotiable. There are two basic types of bills of lading. A straight bill of lading is one in which the goods are consigned to a designated party. An order bill is one in which the goods are consigned to the order of a named party. This distinction is important in determining whether a bill of lading is negotiable (capable of transferring title to the goods covered under it by its delivery or endorsement). If its terms provide that the freight is to be delivered to the bearer (or possessor) of the bill, to the order of a named party, or, as recognized in overseas trade, to a named person or assigns, a bill, as a document of title, is negotiable. In contrast, a straight bill is not negotiable. State laws, which often include provisions from the Uniform Commercial Code, regulate the duties and liabilities imposed by bills of lading covering goods shipped within state boundaries. Federal law, embodied in the Interstate Commerce Act (49 U.S.C. [1976 Ed.] ? 1 et seq.) apply to bills of lading covering goods traveling in interstate commerce. 六Carrier’s Duties Under a Bill of Lading(P626页) • A) making the ship seaworthy • B) Properly manning equipping and supplying the ship • C)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 • D) properly and carefully loading, handing, stowing, carrying, keeping, caring for and discharging the goods carried • Article 3(hague rule) • 1. The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to: • (a) Make the ship seaworthy. • (b) Properly man, equip and supply the ship. • (c) Make 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. • 2. Subject to the provisions of Article 4, the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried. • 3. After receiving the goods into his charge the carrier or the master or agent of the carrier shall, on demand of the shipper, issue to the shipper 七 Carrier’s Immunities(P626页) 承运人的免责 , 承运人的免责，即是承运人责任的免除。《海牙规则》第4条第2款列举了承运人享 有的17免责事项: , 1. 船长、船员、引航员或承运人的受雇人员在驾驶或管理船舶上的行为过失或不履 行职责。 , 2.火灾,但由于承运人实际过失或知情所引起的除外。 , 3 .海上或其他通航水域的灾难、危险和意外事故。 , 4 . 天灾(Act of God) , 5 .战争行为 , 6 .公敌行为 , 7 .君主、当权者或人民的扣留或拘禁，或依法扣押(arrests or restrains of Princes ,Rulers and People , or seizure under legal process ) , 8 .检疫限制(quarantine restrictions) , 9 .托运人、货主或其代理人或代表的行为或不行为(act or omission of the shipper or owner of the goods , his agent or representative) , 10 .不论由于任何原因所引起的局部或全面罢工、关厂、停工或劳动力受到限制。 , 11 .暴动(riots)和骚乱(civil commotions) , 12 .救助或企图救助海上人命或财产 , 13 .由于货物的固有瑕疵、性质或潜在缺陷所造成的容积或重量的亏损或其他灭失或 损害 , 14 .包装不固 , 15 .标志不清或不当 , 16 .恪尽职责也不能发现的潜在缺陷 , 17 .承运人没有实际过失或私谋的其他任何原因 八Liability Limits(P631页) • The Hague Rules of 1921 limit a carrier’s liability to (a) UK ?100 per package or (b) UK?100 per unit when shipped in “customary freight units” 承运人的赔偿责任限制 海牙规则 每件或每单位100英镑 海牙—维斯比规则 每件或每单位1万金法郎，或每公斤30金法郎，以 高者为准，集装箱货以提单记载为准 汉堡规则 每件或每单位835个SDR，或每公斤2.5个SDR ， 以高者为准，集装箱货以提单记载为准.货主的集装 箱视为1件，迟延交付为运费2.5倍。 中华人民共和国海商法 每件或每单位666.67个SDR ，或每公斤2个SDR ， 以高者为准，集装箱货以提单记载为准，货主的集装 箱视为1件，迟延交付为运费2倍。 九Time Limitation(P633页) • A claim for loss or damages must be instituted within 1year after the goods were or should have been delivered (Art 3.6 of Hague Rule) • This period may, however, be extended if the parties so agree after the cause of action has arisen(Art 1.2 of Visby Rule) • Duration of carrier 海牙规则 钩至钩、舷至舷 海牙——维斯比规则 钩至钩、舷至舷 汉堡规则 港至港 中华人民共和国海商法 集装箱货:港至港 非集装箱货:钩至钩.舷至舷 钩至钩: 使用吊杆装卸货物时，自货物挂上船舶吊杆的吊钩时起至脱离吊钩时止。 杆至杆: 使用吊杆或起重机装卸，则货物越过船舷为界。 港至港: 集装箱运输的承运人,自承运人在装货港集装箱库场接管货物时起,到在卸货港集装箱货场交付货物时为止 十Liability Limits • The limits do not apply : • if the parties agree to higher amounts • If the carrier acted either a) with intent to cause damage b) recklessly and with knowledge that damage would probably result 十一Himalaya Clause(P632页) • A term in a bill of lading that purports to extend to third parties the carrier’s liability limits established by the Hague and Hague-Visby Rules 十二Charterparties(P634页) • Voyage charterparties • Time charterparties • Charterparties and Bill of lading 十三Maritime Liens(P635页) • A charge or claim against a vessel, its freight, or its cargo. • Ranks of claims: A) Judicial cost and other expenses B) Seaman’s wages C) Salvage and general average D) Tort claims E) Repairs,supplies, and necessaries F) Ship mortgages 十四III. Maritime Insurance(P638页) 1. Peril: • 1 ).loss or damage from the sea • 2).fire • 3).Jettison • 4).forcible taking of the ship • 5).Barratry • 6).explosion • 7).fumigation damage • 8).damage from loading, discharging, or transshipping cargo 十五Average Clause(P640页) • Total loss • --Constructive loss clause • Partial loss • particular average • general average