V - Transportation 货物运输
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A. TRADE TERMS （贸易术语）
B. INLAND CARRIAGE（内陆运输）
C. CARRIAGE OF GOODS BY SEA（海上货
物运输）
D. CHARTER PARTIES（租船运输）
E. MARITIME LIENS（海上留置权）
F. MARITIME INSURANCE（海上保险）
G. CARRIAGE OF GOODS BY AIR（航空货
物运输）
A.
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TRADE TERMS
1. Use of Trade Terms: Sales contracts involving
transportation customarily contain abbreviated
terms to describe —
 a. Time when the buyer is to take delivery.
 b. Place where the buyer is to take delivery.
 c. Additionally:
1)
Place of payment.
2)
The price.
3)
The time when the risk of loss shifts from
the seller to the buyer.
4)
The costs of freight and insurance.
• 2. Trade Terms are not Consistently Used
• a. Many domestic laws define trade terms for
both domestic and export sales.
• b. Almost all domestic laws allow the parties to
define the terms themselves. The United
Nations’ Convention on Contracts for the
International Sale of Goods similarly allows
parties to incorporate trade terms of their
choosing.
• This may be done by incorporating definitions
from:
• a) Foreign legislation.
• b) Private rules.
• 1] The most widely used private trade terms are
those published by the International Chamber
of Commerce called Incoterms.
• First published in 1936.
The current version was published in 2000.
• Trade councils, courts, and international
lawyers encourage their use in international
sales.
• 2]Incoterms 2000 has thirteen terms:
B.
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INLAND CARRIAGE
1. It is Common Practice for the Seller to Arrange
for Inland Carriage, with the inland carrier
transferring the goods to a freight forwarder at a
seaport or airport for the latter to arrange and
oversee the shipment of the goods abroad
2. There are no Universal Conventions
a. In Europe:
 1) Road transport is regulated by: Convention for the
International Carriage of Goods by Road (the CMR
Convention).
 2) Rail transport is governed by: Convention Concerning
International Carriage by Rail (the COTIF Convention).
 b.
Similar agreements exist in other parts of the world.
• 3. The Convention for the International Carriage of
Goods by Road (the CMR Convention)
a. Representative of the conventions governing road
transport.
b. Applies whenever goods are shipped between two
countries, at least one of which is a signatory of the
convention.
c. The convention requires a carrier to issue a
“consignment note”, which
1) is not a negotiable instrument;
2) is prima facie evidence of:
a)
the making of a transport contract.
b)
the receipt of goods.
c)
the condition of the goods.
• d. The Convention grants the consignee the
right to:
1)
demand delivery of the goods in
exchange for a receipt.
2)
sue the carrier in the carrier’s own
name for any loss, damage, or delay for which
the carrier is responsible.
• e. Until the time that the goods are turned over
to the consignee, the shipper (consignor) has
the right to order the carrier to stop them in
transit, to change the place for delivery, or to
order them delivered to a different consignee.
• f. If a road carriage contract involves multiple
carriers:
1)
each carrier is treated as a party to the
contract.
2)
each carrier is responsible for the entire
transaction.
3)
suits can be brought against:
a)
the first carrier,
b)
the last carrier, or
c)the carrier in possession at the time of the
loss.
• g. Carriers are liable for loss, damage, or delay
up to the liability limit set by the Convention, so
long as the consignment note states that
carriage is governed by the CMR.
1)
The liability limit is 8.33 Special
Drawing Rights per kilogram, unless the
consignor declares a higher value and pays a
surcharge.
2)
If the consignment note fails to include
a reference to the CMR, the carrier will be liable
for any resulting injury.
• h. Carriers are excused from liability if they can
prove that the loss, damage or delay was
caused by:
1)
the consignor, or
2)
the consignee.
i.A consignee has to notify the carrier:
1)
Within 7 days of delivery to assert a
claim for loss or damages.
2)
Within 21 days of delivery to make a
claim for losses resulting from delay.
• 4. The Convention Concerning International
Carriage by Rail (COTIF Convention)
• a. Most provisions are the same as the CMR.
• b. The carrier’s liability for losses is 17 Special
Drawing Rights per kilogram.
C.
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CARRIAGE OF GOODS BY SEA
1. Common Carriage
a. Defined: The owner or operator of a vessel carries
goods for more than one person. The vessel is known as a
general ship, or common carrier.
 b.
Common carriers are the subject of extensive municipal
legislation and international conventions.
 c.
Three types of common carriers:
1)
A conference line is an association of sea-going
carriers who have joined together to offer common freight
rates over scheduled routes.
2)
An independent line is a carrier with its own rate
schedule over scheduled routes.
3)
A tramp vessel has its own rate schedule, but it
does not operate on established routes.
• d. In most countries the tariffs of ocean
carriers are not regulated, and both
conference and independent lines will
commonly offer regular shippers
substantial rebates.
1) In the United States:
a) Ocean carriers have to file their
tariffs with the Federal Maritime
Commission.
b) Rebates are forbidden by
American law.
• 2. The Bill of Lading
http://www.comitemaritime.org/
• a. Governing law:
• 1) International Convention for the Unification of
Certain Rules of Law Relating to Bills of Lading.
a)Originally adopted in 1924 and commonly known
as the Hague Rules.
b) Extensively amended in 1968: The amended 1968
version is known as the Hague-Visby Rules.
c) Most countries are parties to the 1924 Rules.
• 2) The domestic legislation implementing these
conventions is typically called Carriage of Goods by
Sea Acts (COGSAs).
a) Many states have supplementary legislation that
also governs bills of lading in both municipal and
international settings.
• b. Bill of Lading : An instrument issued by an
ocean carrier to a shipper with whom the carrier
has entered into a contract for the carriage of
goods.
1) A bill of lading serves three purposes:
a)
It is a carrier’s receipt for goods.
b)It is evidence of a contract of carriage.
c)
It is a document of title. The
person rightfully in possession of the bill is
entitled to possess, use, and dispose of the
goods that the bill represents.
• c. Receipt for goods.
• 1) A bill of lading: a) describes the goods; b) states
their quantity; c) states their condition.
• 2) The form itself is normally filled out in advance by
the shipper and completed by the carrier.
a) Bills certifying that the goods have been
properly loaded on board are known as “on board bills
of lading.”
b) If there is a discrepancy, the statement on the
bill is considered prima facie evidence that the goods
were received in the condition shown in any dispute
between the shipper and the carrier. 1] As long as the
bill has not been negotiated to a third party the carrier
can introduce proof to rebut this evidence. a] The
carrier is barred from introducing evidence to
• 3) If a discrepancy is noted on the face
of the bill, it is called a “claused” bill of
lading.
a) Claused bills are normally
unacceptable to third parties.
b) Note: a notation as to a discrepancy
may only be made on the bill at the time
the goods are loaded.
1] Later notations have no effect, the
bill will be treated as if it were “clean.”
• d. Contract of Carriage.
1)
A bill of lading is evidence of the
contract of carriage between the shipper and
the carrier.
a)
As long as the bill has not been
negotiated to a third party either the shipper or
the carrier can introduce proof to rebut this
evidence.
• e. Document of Title.
• 1) Straight bill of lading: Issued to a named
consignee and non-negotiable. a) The transfer of a
straight bill gives the transferee no greater rights than
those of his transferor.
• 2) Order bill of lading: Issued to a named consignee
and negotiable.
a) The holder has a claim to title. 1] The holder
must have received the bill in good faith through due
negotiation. 2] By surrendering the bill the holder is
entitled to delivery of the goods.
b) Form of order bills - may be made out:
1] “To bearer.” a] Bearer instruments are
transferred by delivery. b] Seldom used.
2] “To the order” of a named party. a] Order
instruments are transferred by negotiation, that is, by
endorsement and delivery.
c) Significance of negotiability: The person named
• 3. The Carrier’s Duties under a Bill of Lading
• a. A carrier transporting goods under a bill of lading is
required to exercise “due diligence” in:
1)Making the ship seaworthy.
2)Properly manning, equipping, and supplying the
ship.
3) 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.
4)Properly and carefully loading, handling, stowing,
carrying, keeping, caring for, and discharging the
goods carried.
• b. This obligation is strictly enforced by most courts.
• 4. The Carrier’s Immunities
• a. Carriers who issue a proper bill of lading are exempt
from liability from damages that arise from any:
1) Act, neglect, or default of the master, mariner, pilot, or
the servants of the carrier in the navigation or in the
management of the ship;
2) Fire, unless caused by the actual fault or privity of the
carrier;
3) Perils, dangers and accidents of the sea or other
navigable water;
4) Act of God;
5) Act of war;
6) Act of public enemies;
7) Arrest or restraint of princes, rulers, or people, or seizure
under legal process;
8) Quarantine restrictions;
9) Act or omission of the shipper or owner of the goods, or
his agent or representative;
10) Strikes or lockouts or stoppage or restraint of
labor from whatever cause, whether partial or general:
Provided, that nothing herein contained shall be
construed to relieve a carrier from responsibility for the
carrier’s own acts;
11) Riots and civil commotions;
12) Saving or attempting to save life or property at
sea;
13) Wastage in bulk or weight or any other loss or
damage arising from inherent defect, quality, or vice of
the goods;
14) Insufficiency of packing;
15) Insufficiency or inadequacy of marks;
16) Latent defects not discoverable by due
diligence; and
17)Any other cause arising without the actual fault
and privity of the carrier and without the fault or
negligence 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 show that neither the actual
fault or privity of the carrier nor the fault or neglect of
the agents or servants of the carrier contributed to the
loss or damage.
• b. These immunities are strictly construed. A carrier
will be responsible in any event if it failed to exercise
due diligence in carrying out its fundamental duties.
• 5. Liability Limits
• a. The limits.
1)Limits set by the Hague Rules of 1924 are:
a)$500 per package, or
b)$500 per unit when shipped in “customary
freight units.”
2)Limits set by the Hague-Visby Rules are the higher
of:
a)10,000 gold francs per package or unit,
b)30 gold francs per kilo of the gross weight of the
goods lost or damaged, whichever is the higher.
• b. The limits do not apply:
1)If the parties agree to higher amounts.
2)If the carrier acted either:
a)With intent to cause damage, or
b)Recklessly and with knowledge that damage
would probably result.
• 6. Time Limitations: a claim for loss or damages must
be instituted within one year after the goods were or
should have been delivered
• 7. Third Party Rights (Himalaya Clauses)
• a. The Hague and Hague-Visby Rules (and the liability
limits they establish) only apply to the carrier and the party
or parties shipping goods under a bill of lading. 1)Third
parties who help in the transport of the goods, but who are
not parties to the carriage of goods contract contained in
the bill of lading, have no contractual right to claim the
liability limits established by the conventions.
• b. Carriers add Himalaya Clauses to their bills of lading
to extend the protection of the Hague or the Hague-Visby
Rules to third parties.
1) The clauses are valid in the United States.
2) The clauses are generally unenforceable in the
United Kingdom and most other countries.
D.
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CHARTER PARTIES
1. Defined: A contract for the hire of an entire ship
for a particular voyage or a set period of time
2. Governing laws: No international conventions
apply.
a. The Hague and Hague-Visby Rules only apply if a bill of
lading issued by the ship owner comes into the hands of a third
party.
b. The charterer and the owner are free to set the terms of
their contract.
1) Standardized contracts drafted at various conferences
are commonly used. Examples:
a) The Baltime.
b) The Gencon.
2) Forum selection clauses and choice-of-law clauses are
common provisions.
• 3. Voyage Charterparties
• a.Defined: The charterer employs a ship and
its crew for the carriage of goods from one
place to another.
1)
Common terms:
a)
The owner agrees to provide the ship
at a named port at a specified time and to carry
the goods to the contract destination.
b)
The charterer agrees to provide a full
cargo and to arrange for its loading at an
agreed upon time.
• 4. Time Charterparties
• a. Defined: The charterer engages the use of a
vessel for a stated period of time.
1)
Common terms:
a) The charterer is to pay “hire” monthly.
b) The charterer has the right to direct the
ship to proceed to wherever it is needed.
1] Limitations on this right is the charter’s
promise to: a] Engage only in lawful trades.
b] To carry only lawful goods.
c] To only direct the vessel to safe
ports.
• 5. Charterparties and Bills of Lading
• a. Between the ship owner and the charterer
a bill of lading is only a receipt for goods and a
document of title.
• b. Bills of lading held by third party:
1)
The Hague or Hague-Visby Rules will
apply.
2)
Exception: If the bill of lading
incorporates the terms of the charterparty, the
endorsee will be governed by its terms.
E.
MARITIME LIENS
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1. Definitions:
 a. Lien: A charge or claim against property that
exists to satisfy some debt or obligation.
 b. Maritime lien: A charge or claim against a
vessel or its cargo.
1) Main purpose: To insure that a vessel can adequately
obtain credit to properly outfit itself for a voyage.
2) Other purposes: To provide compensation to injured
parties for: a) The shipowner’s breach of contract.
b) The crew’s negligence.
c) Damages caused without the shipowner’s or
crew’s fault (e.g., as is the case where port regulations
require the ship to use a pilot and the pilot causes the injury.
• 2. Enforcement of Liens
• a. In common law countries: A vessel is regarded
as a juridical person separate and apart from its
owner.
1) Effect: The ship itself may be
liable.
• b. In civil law countries a maritime lien (or “privilege”)
is a right in property, but the property is not
independent of the owner. 1) Effect: The lien
exists against the owner as a debtor.
• 3. Nature of Maritime Liens
• a. A maritime lien attaches to the res (i.e., the
vessel or cargo) and travels with it.
• b. A maritime lien is secret: If a vessel is sold, the
lien “goes with the ship,” even if the new owner is
unaware of its existence.
• 4. Foreclosing on a Maritime Lien
• a. In common law countries:
1)The res is seized (if it is a vessel, it is “arrested”)
without prior notice to the owner.
2)An admiralty court takes custody, and a suit
proceeds against the res.
3)If the lien-holder’s claim succeeds, the res is sold,
the proceeds are distributed among the various lienholders, and the title to the property is transferred to
the purchaser of the res free of all claims.
•
b. In civil law countries:
1) A foreclosure suit is initiated against the owner.
2) The res is seized only as a way to compel the
owner to appear and furnish security before the res
can be released.
• 5. Effect of Multiple Lien-holders: The various
claims must be ranked
• a. Ranking provided by the 1926 International
Convention for the Unification of Certain Rules
Relating to Maritime Liens and Mortgages (known as
the Brussels Convention):
1)Judicial costs and other expenses.
2)Seaman’s wages.
3)Salvage and general average.
4)Tort claims.
5)Repairs, supplies, and necessaries.
6)Ship mortgages.
• b. Although the Convention has not been widely
adopted, its ranking of liens is representative of most
F.
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MARITIME INSURANCE
1. Kinds of Policies
a. Special cargo policy: Provides coverage for a
single sale.
b. Open cargo policy: Is an open-ended contract
that insures all the cargo of an exporter during a
particular time period.
2. Perils: The perils covered by special and
open cargo policies commonly include the
following a. Loss or damage from the sea (e.g., weather,
collision, stranding, sinking).
b. Fire.
c. Jettison (i.e., the dumping of cargo in
order to protect other property).
d. Forcible taking of the ship.
e. Barratry (i.e., the fraudulent, criminal,
or wrongful conduct of the captain or crew).
f. Explosion.
g. Fumigation damage.
h. Damage from loading, discharging, or
transhipping cargo.
• 3. Coverage for Total and Partial Loss.
• a. Total losses: Governed by “constructive loss clauses.”
1) This usually includes either:
a)
Losses exceeding one-half the value of the
cargo.
b)
Losses where the cost of recovery exceeds the
cargo’s value.
• b. Partial losses: Known in the marine insurance industry
as a “particular average.”
1) “Free from Particular Average” (FPA) policies provide
the most limited recovery for partial losses — they usually
only covers losses from:
a)
Fire.
b)
Stranding.
c)
Sinking.
d)
Collision of the vessel.
2) “With Average” (WA) policies provide more protection.
• c. General Average.
• 1) Situation to which it applies: In order to avoid
some threat to the whole venture, some expense
has to be incurred, or some loss or damage is
deliberately inflicted, in order to save the ship and
its cargo.
• 2) Rule: Because everyone having an interest in
the ship and its various cargoes will have
benefited, each must then contribute, in
proportion to the value of their interest, to
restoring the party who suffered the loss or
damage or who incurred the expense.
a) Marine insurance will cover each shipper’s
contribution.
b) If insurance is not purchased, or should a policy not
cover general average, then the shipper or the shipper’s
consignee must pay the contribution before the ship’s
crew will release the goods.
1] The carrier will have a lien claim against the
goods and, if the contribution is not paid, it may foreclose
on the goods, sell them, and retain that portion of the
sale price it receives to cover the cost of the contribution.
• 3) A person seeking to claim a general average
contribution from other parties must show:
a) That the loss was incurred to benefit everyone.
b) That the person making the claim was not
responsible for causing the danger.
G.
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CARRIAGE OF GOODS BY AIR
1. Governing Law: The 1929 Convention for
the Unification of Certain Rules Relating to
International Carriage by Air
a.Commonly called the Warsaw Convention.
b. Two amendments to the Convention have
been adopted and are in force:
1)The Hague Protocol of 1955.
2) Montreal Protocol No. 4 of 1975.
• 2. Documents Used in Air Carriage are not
documents of title
• a. Consignment notes.
• b. Air waybills.
1)As defined by the Warsaw Convention and the
1955 Protocol, an air waybill must describe:
a) The nature of the goods being shipped.
b) The method of packing and any marks or
numbers.
c) The weight, quantity, volume, or dimensions of
the goods.
d) The apparent condition of the goods and their
packaging.
e) A statement that the carriage is subject to the
Convention’s rules.
• 2) As defined by Montreal Protocol No. 4
(which encourages carriers to use electronic
records), an air waybill must describe:
a) The places of departure and
destination.
b) Any intermediate stopping point in a
different state (if the places of departure and
destination are in the same state).
c) The weight of the consignment.
• 3) Liability of carriers using Warsaw
Convention air waybills is limited to 17 Special
Drawing Rights (SDRs) per kilogram.
• 4) The shipper does not have to prove that the
carrier caused the injury to any lost, damaged,
or delayed goods.
a) A claim has to be made:
1] Within 7 days when the bills are
governed by the Warsaw Convention.
2] With 14 days if they are covered by the
Amended Convention.
b) The burden is then on the carrier to
prove that it took “all necessary measures” to
avoid the loss, damage, or delay.
• 3. The Warsaw Convention and
its Amendments also Regulate
the Carriage of Passengers
a.
The carrier liability is
limited so long as the airline ticket
contains a notice of the
applicability of one of the
Conventions.
• 4。Montreal Convention