Research On Stoppage In Transit By Sea

Stoppage in transit by sea is the right of protecting sellers’ benefit on the goods,when they are not paid. It is exercised before the goods are controlled by buyers orthe bill of lading which is on behalf of the real right of goods are negotiated to thethird person who pay for it, and after the sellers has delivered the goods to the carrierwhose purpose is completing the transportation of goods to the buyer. The conditionof this right is that the buyers are insolvency so that the seller not be paid. And itexercised by informing the carrier who following the instructions from sellers. Thisright is derived from long-term marine business practices, it has been formed in acase of British Court of Chancery in1743, and British Court of King’s Benchestablishes it in the case of Lickbarrow V. Mason in1787. The Sales of Goods Act1893and1979of British have clear rules on it. However, there are scholars whothinks that the right may be derived from the civil law, because it is similar with theunsafe right of defense of civil law. The scholars compare stoppage in transit by seawith unsafe right of defense, and it is concluded that they have many common. Infact, the root of this view is from the book of Benjamin ’s sale of goods, but in thebook the writer only writes that this right may result from civil law, and does notfurther explain it. Many scholars still support the view which the right is derivedfrom marine business practice instead of civil law, it involves the relationshipbetween maritime law and civil law problems. Maritime law as a purely commerciallaw has important meanings for the development of the civil law, and even somescholars believe that it is the parent law of civil law, so for the view which stoppagein transit by sea is from the civil law is questionable.Stoppage in transit by sea is a right to protect sellers who are not paid in thecommon law, but there is not rule of legal character on this right. If we want to let itinto the civil law system, we should confirm its legal character. On the legalcharacter of the right, scholars have the following several views: right of creditorclaims said, right of special lien, right of defense and right of formation. When exercising this right, it is not based on the principle of privity of contract, so it is notright of creditor claims; When exercising this right, the seller has lost possession, soit is not a special lien; When exercising this right, it need the cooperating from thecarrier, and it is different from right of formation on conditions and effect of right, soit is not right of formation; When exercising this right, the rights subject is only theseller who is not paid, but the right subject may be buyers or sellers in the defenseright of simultaneous performance, so it is not the defense right of simultaneousperformance; This right is similar a kind of defense, which is from sellers, becausethe seller performs its obligations under a sales contract and the buyer fails toperform. Although it has different from the unsafe right of defense, it should be seenwith the legal character of unsafe right of defense.Both of the Sales of Goods Act1979of Britain and the Uniform CommercialCode of America are set the terms of stoppage in transit by sea from the aspects ofrights subject, the conditions, exercise period, the way of realizing and the loss ofrights of stoppage in transit by sea. And the rule of them are similar but not identical.The Sales of Goods Act of British has more details than the Uniform CommercialCode of America, but effect is not very better under the practical application.Stoppage in transit by sea in the Uniform Commercial Code of America can alsoplay a role in protecting the interests of the seller for the goods, but obviously itsrange is narrowed than the Sales of Goods Act of Britain. Especially under thecondition of document transportation, there is a clear distinction between of them,which mainly reflect the different choose between right stoppage in transit by seaand documents.The CISG is set the terms of suspending its performance,which on the basis ofstoppage in transit by sea of the Britain and America, and combined with the unsaferight of defense of the civil law system. The rule of suspending its performance inthe convention is not exactly same with stoppage in transit by sea. The difference ismainly reflected in two aspects which are the conditions and loss of right, and thesetwo aspects is similar with the unsafe right of defense. In2008the Rotterdam rules isset the terms of right of control the goods, which part of the foundation is derivedfrom stoppage in transit by sea. Although, they respectively belong to the sales contract and transportation contract, but both of them have the situation which is notbased on the principle of privity of contract. Its performance is the right of the salescontract is implemented by noticing the carrier of the contract of carriage to realizethe instructions. But, there is conflict between of them, which mainly displays whoseright is complied by carrier between the one who has the right of stoppage in transitby sea and the one who has the right of control goods under the condition ofdocuments transportation.Stoppage in transit by sea has an important meaning for the protection of sellerswho are not been paid, especially China, who is a export trade country, uses FOB forthe main terms of the deal. The protection of sellers’ benefit is important forlong-term development of export trade. The Chinese Contract Law has the rule ofsuspend the carriage which is similar with the stoppage in transit by sea, but they arenot exactly the same. The Chinese Maritime Law does not have this concept, and theCISG which the China joins in, has the rule of suspend its performance,but it isfuzzy when contrasts with stoppage in transit by sea. So Chinese law is basically ablank in the aspects of stoppage in transit by sea. I think the way of the introductionof stoppage in transit by sea is legislation in the Contract Law through writing thisright, and the Maritime Law increases the right of consignor who delivers the goodsin accordance with the terms of the corresponding change in the Contract Law.