Home >

Bill Of Lading: An Important Part Of Maritime Cargo Pport

2014/3/13 20:59:00 32

??? 日本語 Fran?ais English 中文

bill of lading is essentially a legal choice agreement mode. Only when the parties correctly judge the applicable law of the maritime contract can we accurately grasp the relationship and effectiveness of the relevant legal choice < a href= "http://www.91se91.com/news/index_c.asp" > clause < /a >.

This is an important link to ensure the carriage of goods by sea, as well as the effectiveness of the bill of lading as a document of title.

case introduction .

October 2002, the plaintiff A company delivered a container's < a href= "http://www.91se91.com/news/index_c.asp" > textile > /a > to the defendant C company from Shanghai.

The defendant C company issued the original bill of lading, payable to the defendant C company, the shipper as the plaintiff, and the consignee as the outsider D company, the port of loading is Shanghai port of China, and the destination is Laredo Tx port of the United States.

The total value of the goods involved is 110 thousand US dollars, and the settlement method is telegraphic pfer. The mode of paction is FOB.

There is an agency agreement between defendant B and defendant C company, and there is a business agency relationship.

The bill of lading is the NVOCC bill of lading which the two defendants have reported separately in the Ministry of communications and communications of China, and is announced by the Ministry of pport website for a long time.

After "P", the goods involved were not delivered separately at the port of destination, and the plaintiff A filed a complaint to the court.

According to the record of the bill of lading on the back of the bill of lading, the defendant B company advocated the application of the American law and provided the court with the United States' law of carriage of goods by sea and the bill of lading law provided by the lawyers of the US law firm certified by the US notarial institution and the Consulate General of the Chinese Consulate General in New York.

The thirty-third clause of the bill of lading on the back of the bill of lading is the regional clause, of which 33.6 is the US regional clause.

The clause stipulates that the liability of the carrier (if it exists) must be determined in accordance with the provisions of the U.S. carriage of goods by sea act 1936, whether or not the pport starts from the United States or to the United States.

The thirty-sixth clause of the back of bill of lading is the application of law and the provisions of jurisdiction.

Article 36.1 provides that the contract of carriage should be interpreted in accordance with the law of the Hongkong.

P Plaintiff alleged that the plaintiff delivered a consignment of goods to two defendants from Shanghai.

The defendant issued a freight forwarding bill of lading with the plaintiff as the shipper.

The Plaintiff still holds the original bill of lading because the buyer of the plaintiff's international trade contract has not paid the bill.

The plaintiff held that the defendant used the bill of lading to illegally deprive the plaintiff of the control of the goods, which constituted a bill of lading fraud and seriously infringed the plaintiff's legal rights.

For this reason, the plaintiff asked for the two defendants to jointly compensate the goods for the loss of US $110 thousand, and the interest losses calculated on the basis of the loan interest rate of the people's Bank of China from the date of the prosecution.

In the trial, the plaintiff confirmed that the two defendant was liable for breach of contract on the grounds of breach of contract.

defendant B company argues that the plaintiff has no evidence to prove that there is a relationship between the defendant and the defendant, that is, a href= "http://www.91se91.com/news/index_c.asp" > the contract of carriage < /a >, the defendant has no responsibility in this case, the plaintiff's appeal is lacking in facts, and the prosecution should be refunded.

defendant C company argued that this case should be governed by the United States carriage of goods by sea act of 1936. The straight bill of lading is not a document of title. The defendant delivered the goods without error, and the plaintiff had no right to sue. The plaintiff also did not provide evidence of the defendant's no delivery of the goods. He could not support the claim for delivery of the goods without a single bill, and requested to dismiss the plaintiff's petition.

the verdict .

The maritime courts in accordance with the forty-sixth and seventy-first articles of the People's Republic of China maritime law, the 107th articles of the People's Republic of China contract law, the 142nd articles first and 145th of the general principles of the people's Republic of China, the sixty-fourth first paragraphs of the Civil Procedure Law of the people's Republic of China, and the provisions of the second paragraphs of the Supreme People's Court on civil procedural evidence, make the following judgments: (1) the defendant B company shall pay the plaintiff A company's compensation for the loss of goods in the 10 days from the date of the effective date of the judgment; the defendant C company shall compensate the plaintiff A company for the interest loss of the above payment within the date of the commencement of the judgment; (b) it will not support the plaintiff's A company's other claims. < p

After P judgment, the defendant C company refused to appeal.

The people's Court of second instance concluded that the bill of lading was issued by the carrier at the request of the shipper, and should be deemed as a voluntary choice by both parties.

According to the regional provisions in the bill of lading, the liability of the carrier in this case shall be determined according to the provisions of the "carriage of goods by sea act 1936".

However, because of the provisions of the bill of lading of the United States of America on the liability for the delivery of goods without bills of lading, which violates the mandatory provisions of the forty-fourth article of the People's Republic of China maritime code, the validity of the provisions in the area is not confirmed.

The determination of the carrier's liability should be carried out in accordance with the People's Republic of China maritime law.

The original judgment was clear and the Chinese law was applied and the result was correct. Then the appeal was dismissed and the original judgment was upheld.

case analysis .

violating the mandatory provisions of Chinese law, the bill of lading is invalid.

the forty-fourth chapter of the fourth chapter of the "People's Republic of China maritime law" stipulates: "the contract of carriage of goods by sea and the terms of a bill of lading or other pport document as a contract voucher are contrary to the provisions of this chapter.

The invalidity of such provisions does not affect the validity of other terms and conditions of the contract and bill of lading or other pport documents.

The pfer of the insurable interest of the goods to the carrier's terms or similar provisions shall be void. "

in this case, the American law directed by the party involved in the bill of lading allows the carrier to deliver the goods to the named consignee without delivery.

The carrier has reason to deliver the goods to the consignee registered on the straight bill of lading, and when the goods are delivered to the registered consignee, the carrier does not have the obligation to require a famous person to produce or submit a straight bill of lading.

however, according to the seventy-first provision of the Maritime Code of the People's Republic of China, "bill of lading" means a document to prove that the contract of carriage of goods by sea and the goods have been received or shipped by the carrier, and that the carrier guarantees the delivery of the goods.

The bill of lading specifies the delivery of the goods to the famous person, or the delivery of the goods in accordance with the instructions of the instrucer, or the delivery of the goods to the holder of the bill of lading, which constitutes a guarantee for the delivery of the goods by the carrier. "

in accordance with the above provisions, the carrier must deliver the goods by bill of lading, not by a straight bill of lading or by an unnamed bill of lading, nor by allowing the delivery of the original bill of lading on the condition of a straight bill of lading.

The forty-fourth article of the Maritime Code of the People's Republic of China clearly stipulates that the contract of carriage of goods by sea and the terms of a bill of lading or other pport document as a contract voucher are in violation of the provisions of the fourth chapter.

The United States law, which refers to the bill of lading involved in the case, allows the carrier to deliver goods to the registered consignee without violating the mandatory provisions of the Chinese law, so the validity of the law is not confirmed.

legal embodiment of the principle of autonomy of the parties in this case

the principle of autonomy of the parties is the first principle in the choice of contract applicable law in the field of contract, and it can not be excluded in the contract of carriage of goods by sea.

According to the relevant provisions of the maritime law of the People's Republic of China, the parties to a foreign contract may choose to apply the law to deal with disputes arising from the contract, except otherwise provided by law.

as a proof of the contract of carriage of goods by sea, the legal choice clause in the bill of lading shall be deemed to mean the agreement between the parties concerned.

Its contents generally include: the applicable law clause, the first clause and the regional clause.

The provisions of the law applicable to the bill of lading indicate that the bill of lading is applicable when the dispute arises.

Among them, the law of a selected country is the applicable law of bill of lading.

The term "first clause" refers to the clause in the bill of lading that specifies that the bill of lading is restricted by "a specific rule" of "an international convention" or "a national law".

The terms of the area are specified in the bill of lading according to the mandatory provisions applicable to the domestic legislation of some countries, and the provisions of the domestic laws must be applied when goods are pported to or shipped out of the port.

The area clause is the special provision made by the parties to the application of the law to the carrier's liability. When the goods involved in pportation involve the port in the area, the regional provisions should be applied first.

the back clause of the bill of lading only contains "no matter whether the pportation starts from the United States or to the United States, the liability of the carrier must be based on the contents of the" carriage of goods by sea act of the 1936 ". The United States' carriage of goods by sea act of 1936 does not make a legal definition of the delivery of goods without bills of lading.

In addition, the defendant C company failed to prove that the bill of lading was voluntarily chosen by the plaintiff, and the applicable provisions of the bill of lading were the true meaning of the parties. Therefore, the court did not support the defendant's C company's application for US law.

according to the principle of the most significant relationship, the issuance of the bill of lading and the shipment of goods are in the territory of People's Republic of China, and the parties to the contract are also Chinese legal persons.

Therefore, the law of People's Republic of China should be applied to the case, which is the legal embodiment of the principle of autonomy of the parties.

the legal liability of the defendant to issue the freight forwarding bill of lading .

the plaintiff delivered the goods to the defendant from Shanghai, and the defendant issued the freight forwarding bill of lading with the plaintiff as the shipper.

The freight forwarder is the freight forwarder, who represents the shipper and the carrier in the carriage of goods by sea, arranges the pportation, loading and unloading, pfer and other matters, handles pport document documents, engages in the business activities related to the shipment of goods, and collects the corresponding agency fees.

Freight forwarders must act within the authorized scope of the principal.

If the freight forwarder is not authorized by the commission or personally engaged in matters other than the scope of the agency's rights, he shall be liable for damages to the maritime contract party.

the defendant C company accepted the plaintiff's entrustment to deliver the goods and issued the bill of lading, and was obliged to ship the goods safely and delivered the original bill of lading at the port of destination.

There is an agency agreement between defendant C company and defendant B company, and there is a business agency relationship.

As the defendant C company is the NVOCC of this case, the defendant B company is the agent of B company for the NVOCC. The defendant B company should compensate the plaintiff for the loss of the goods; the defendant C company shall bear the liability for damages for the delivery of the goods without the original bill of lading, and compensate the plaintiff for the interest loss of the above goods.

The basic application of law in is Chinese law and related judicial interpretation.

The choice of law by the parties shall not violate China's public order or the basic principles of the law.

The parties to circumvent the compulsory or prohibitive legal norms of China, do not apply the effect of foreign laws, which is not only the international practice, but also respect for the autonomy of the parties.

The defendant's case involved in the bill of lading refers to the United States law, which allows the carrier to deliver goods to the registered consignee without violation of the mandatory provisions of the Chinese law, and the defendant shall be liable for damages without delivery of the goods.