国际商法billoflading.ppt

B.Bills of Lading,1.Definition2.classification of bill of lading3.Function of Bill of Lading4.Carriers duties under a bill of lading5.Carriers immunities6 Conventions relating to bills of lading,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 goodsIt states that certain goods have been shipped on a particular ship or;have been received for shipmentIt sets out terms on which those goods have been delivered to and;received by the ship ownerOn being signed by or on behalf of the carrier,it is handed to the shipper.,2.classification of bill of lading,straight B/L 记名提单 bearer B/L,blank B/L,open B/L不记名提单 order B/L 指示提单,2.classification of bill of lading,straight bill of lading states:the goods are consigned to a specified person it is not negotiable.,2.classification of bill of lading,bearer bill of lading states:that delivery shall be made to whoever holds the bill.It can be negotiated without endorsement.Although it can be negotiated freely and easily,it may bring about risks to both the seller and buyer because of missing and stealing.,Notes,EndorsementThe placing of a signiture,sometimes with additional notation,on the back of a negotiable instrument to transfer of gurantee the instrument or to acknowledge payment,2.classification of bill of lading,order bill of lading statesthe goods are consigned to the order of the person named in the bill(shipper,a named bank)a negotiable bill of lading with endorsementIf the order bill of lading is not endorsed,the person who make the order retain the ownership to the goods or it is him who has the right to take delivery.,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),2.classification of bill of lading,clean 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,2.classification of bill of lading,unclean bill of lading(unclean B/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 conditionnot in correct quantity,2.classification of bill of lading,If the container 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 an unclean bill of lading for payment under a letter of credit.,2.classification of bill of lading,shipped bill of lading,on board bill of lading(已装船提单)received for shipment bill of lading（收货待运提单）,2.classification of bill of lading,shipped bill of 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,2.classification of bill of lading,received 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 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.,3 Function of Bill of Lading,as the receipt of goods received A bill of lading will be receipt that the carrier gives the shipper acknowledging that he has shipped the goods in a named ship or acknowledging that he has received the goods for shipment.,3 Function of Bill of Lading,In 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 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,notes,Front side of standard bill of lading Name of goodsquantityNumber/weight/volume of goodsSpecification of dangerous goodsName of carrier and his place of businessName of vessel(ship)Name of shipperName of consigneePort of shipment/received dateDischarge port Place of delivery(taking delivery)Date/place/number of the bill of lading issuedPayment of freightSignature of carrier of his agent,notes,Back side of a standard bill of ladingRights and obligations of shipper and carrier,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 authority 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,3 Function of Bill of Lading,as 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 reserved.,3 Function of Bill of Lading,In the relationship between the shipper and carrierThe 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 not the contract itself.It is the prima-facie evidence of those terms and it can be rebutted,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 shipper 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 lading 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.,3 Function 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 were incorporated into the carriage contract.,Reasoning:Bill of lading is only evidence of contract of carriage,it is not the contract itselfcontract of carriage came into existence before bill of lading is signedbill of lading is prepared,issued and signed by one party(standard 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 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,3 Function of Bill of Lading,In the relationship between 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,the bill of lading becomes the conclusive evidence,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 of 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 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 the bill of lading do not permit that deviation,and because of deviating the carrier lost the benefit of the excepted perils clause.,3 Function of Bill of Lading,as a document of title to goodsThe carrier need deliver the goods to the party who holds the bill 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 away.,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,4 Carriers duties under a bill of lading,The carrier is required to exercise due diligence to the ship seaworthiness 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”:,case:an Chinese import and export company import 2000 tons of bean oil from USA conclude contract of carriage with a carrier charter party:a Greek ship named AHwhen 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 flowed out the ship began to leaned to one sideafter salvaging,the ship got out of danger,the Chinese import and export company claimed compensation from the carrierthe carrier claimed that the ship was seaworthy by producing the ships certificate of seaworthinessclaimed that the loss and damage to the goods resulted from storm asked for compensation from the insurance companythe 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 20 years the ship was lack of maintainance,repairingarbitration:the ship owner compensated 80%of the total lossinsurance company compensate 20%of the total loss,4 Carriers duties under a bill of lading,b.The carrier shall properly man,equip and supply the ship with sufficient 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,4 Carriers duties under a bill of lading,the management of goodsAnother fundamental obligationThe carrier shall exercise due diligence to properly and carefullyloadhandlestowcarrykeepcare fordischarge the goods carried,4 Carriers duties under a bill of lading,commencement of voyageThe 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,4 Carriers duties under a bill of lading,non-deviation of voyage If the ship does not carry out the voyage by the prescribed 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.,4 Carriers duties under a bill of lading,dangerous goods not to be shipped If the shipper ships dangerous goods and the charterer suffers any damage,the charterer can recover from the shipper.,5.Carriers immunities,Under the Hague Rules and Hague-Visby Rules,the carrier shall not be responsible for the loss or damage resulting fromact,neglect,or default of master,mariner,pilot or 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,5.Carriers immunities,perils,danger and accidents of the sea or other navigable wateract of godact of waract of public enemyarrest or restrain of princes,rulers or people,or seizure under legal process quarantine restriction,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,whether partial or generalriots or civil commotionsaving or attempting to save life or property at sea,5.Carriers immunities,wastage in bulk or weight or any other loss or damage arising from inherent defect,quality or vice of the goodsinsufficiency of packing insufficiency or inadequacy of markslatent defects not discoverable by due diligence,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 shall 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.,6 Conventions relating to bills of lading,As goods move across the 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 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.,6 Conventions relating to bills of lading,With the growth of trade and the advent of steamships,carriers became more economic powerful.They 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 uncertainty over the liability of ocean carrier.,6 Conventions relating to bills of lading,the Hague Rulesthe Hague-Visby Rulesthe Hamburg Rules,6 Conventions relating to bills of lading,the Harter ActDate:1892Legislatu