Study On Legal Issues Of The International Air Freight Collect

As the freight forwarder has been widely involved in the international air cargobusiness, there are new characteristics arising out of disputes of international air cargocontract, in which the freight forwarder has become one party taking the place of theairline company, and the dispute of international air freight collect is the very onestanding out therein. In the international air freight business, the consignee oftendefaults or refuses to pay the freight for some reason. As a result, the freightforwarder will usually turn to the shipper for the freight when it failed to dun theconsignee. In order to properly settle such disputes, there are two issues to be solved:first, the issue about the legal status of the freight forwarder in the international airfreight collect business; second, the issue of the legal status of the consignee in theinternational air cargo contract.With reference to the former issue, courts tend to identify the freight forwarderas the agent of the shipper when hearing such disputes, thus determining their natureas disputes of freight forwarder contract, and finding that the freight collect is anagreement on the performance of a third person. Accordingly, the shipper still bearsthe obligation to pay the freight when the consignee does not pay the freight. However,the freight forwarder engaging in the international air freight collect business entirelymatches the characteristics of the contracting carrier, and current Chinese legislationalso does not forbid the freight forwarder to take part in the non-aircraft operating common carrier business. Therefore, the legal status of the freight forwarder shall beidentified as the carrier of international air cargo contract, and the nature of suchdisputes should be determined as disputes of international air cargo contract.Regarding the latter issue, the current theory and practice mainly consider thatthe international air cargo contract is a contract for the benefit of a third party and thefreight collect is an agreement on the performance of a third party. However, neitherspecial legal provisions in the field of international air cargo are taken into account,nor can the rights and obligations amongst the parties be balanced, so it isinappropriate to take the opinion as the theoretical basis for dealing with such disputes.The theory of assignment of contract suggests that the international air cargo contractshall be a contract with an offer to transfer part of rights and obligations from theshipper to the consignee, thus once the consignee sign the air waybill or collect thedelivery, it has accepted the obligation to pay the freight, and has also joined in theinternational air cargo contract as a party. Therefore, as the carrier of international aircargo contract, the freight forwarder shall only charge the consignee for the freight inprinciple, unless the consignee neither sign the air waybill, nor collect the delivery, orthere are other special engagements.