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Study On The Legal Issues Of Actual Shippers Under FOB Conditions

Posted on:2020-06-15Degree:MasterType:Thesis
Country:ChinaCandidate:S C LinFull Text:PDF
GTID:2416330623953839Subject:Law
Abstract/Summary:PDF Full Text Request
The formulation of international trade terminology has facilitated international cargo transportation and promoted the development of international trade.Among the many trade terms,FOB is the trade condition of the most pro-seller and is the trade term commonly used in import and export international trade.FOB is a general rule of interpretation of international trade terms.FOB means that when the seller delivers the goods to the buyer at his or her location or at another designated place,the delivery is completed,representing the seller's minimum obligation.Under the FOB condition,the seller shall handle the customs declaration responsibility and expenses.The buyer shall be responsible for signing the transportation contract and paying the freight,insurance liability and expenses,import declaration responsibility and expenses,and the risk shall be transferred when the goods are delivered to the ship.The FOB terminology facilitates the procedure provided by the seller for the sale of the goods,and also brings the seller's cargo risk.In practice,it is mainly reflected in the risk of no delivery.The buyer submits a harvest request to the carrier without holding the original bill of lading.The carrier is also able to deliver the goods to the buyer based on the contract of carriage of goods with the buyer in order to fulfill the obligation of the contract of carriage of the goods.At this point,the seller lost theactual control of the goods after the goods were delivered to the carrier.If the seller was not recorded in the bill of lading,the seller's right to appeal after the damage was not guaranteed.So far,international treaties or domestic laws have a considerable system and scale for guaranteeing the rights of contracting shippers,but the actual protection of the rights of the shipper is flawed,causing the seller to deliver the goods outside the contract of carriage of goods and lose it.The right to protect goods and goods.The actual shipper's development started relatively late.From the "Hamburg Rules",there was an independent definition of the shipper,but the shipper's rights and obligations did not provide supporting regulations,which led to the protection of the "Hamburg Rules" in practice.insufficient.Until,in the "Rotterdam Rules",the definition of shippers was carried out with the concept of "documentary shipper",and the protection of shippers has been further developed in international regulations.The “documentary shipper” in the Rotterdam Rules was established at the beginning to protect the legitimate rights and interests of the buyer under FOB conditions,but because the Rotterdam Rules are generally biased towards the carrier's rules,the realization of “documentary shipper” needs The shipper's consent is also the FOB buyer's agreement,which means that the“documentary shipper” is not an independent actual shipper,but a right attached to the contracting shipper,and the protection of rights is not practical.There are different solutions to protect the rights of actual shippers under FOB conditions.The first is to determine how to protect the FOB seller in the contract by the buyer and the seller.If the contract is agreed in the contract for the sale of goods,the buyer agrees that the carrier will issue the bill of lading to the seller.This protects the actual shipper while avoiding the actual shipper.Undertake the obligations under the contract of carriage.However,on the one hand,the validity of the contractual agreement still needs to be agreed by both parties,which inevitably increases the bargaining pressure of the seller and does not fix the particularity of the actual shipper in the bill of lading.The second way is to place the actual shipper's rights under the transport law,provided that the contractual relativity principle is followed and the right to the bill of lading isobtained in accordance with the bill of lading claim stipulated by law.This practice also requires the buyer's consent as the premise that the “documentary shipper” in the Rotterdam Rules has the right to have a bill of lading.Therefore,the actual shipper is still in a passive position and the protection is not complete.The third option is to break through the principle of contractual relativity and set a registered position in the bill of lading similar to the “consignor” of the actual shipper status,that is,the actual shipper gives the shipper status when performing the shipper's obligation to deliver the goods.,have the right to obtain the bill of lading and other rights,and bear the corresponding obligations.No matter which kind of choice,there are both reasonable and inconvenient,and it needs to be analyzed to explore the legislative perfection for FOB shippers.In contrast,the "Marine Law" of our country,the provisions of which are also based on the provisions of the "Hamburg Rules",the protection of the actual shipper is still insufficient.First of all,the shipper's definition does not distinguish between the actual shipper's general shipper's relationship in the Maritime Law,and the two are confused,which makes it impossible to clarify which shipper's claim is owned by the shipper.When two shippers appear,is it One party has the right to request a priority document.Since the above problems are not clarified,the actual shipper's status and rights protection are in an uncertain state.Many opinions on the legal issues of sellers under the FOB terminology suggest that the FOB terminology itself is a trade model with a tendency to protect the interests of the buyer.Therefore,in solving the problem of FOB seller legal issues,most people will choose to recommend the exporter to avoid using FOB terminology..This approach is not advisable because FOB terminology does have a solid foundation in practice and is of great significance for the development of international trade in goods.Therefore,the premise of the seller's legal problem under the FOB condition is to recognize the necessity of FOB terminology.Therefore,we must first recognize the necessity and rationality of FOB terminology in practice.On this basis,determine to seek a better protection program.This article is the first to affirm the rationality and necessity of FOB terminology.First of all,the problem of FOB terminology is mainly that it can't protect the four rights of the actual shipper: the actual shipper's claim right,the control of the goods,the right of settlement and the right to sue against the carrier.The actual shipper's main rights and interests are reflected in the right to claim the documents,the control over the goods,the right to settle the documents,and the right to remedy the right to appeal to the carrier.The above four rights are the core to protect the interests of the actual shipper.The lack of these four rights protection will damage the rights of the actual shipper.To complete the protection of the actual shipper's rights and interests,it is first necessary to break the principle of contractual relativity.According to the FOB,the seller delivers the goods to the carrier,that is,the legal obligation,it is possible to draft a new cargo between the carrier and the actual shipper.Transport relationship and juxtaposed with the contract of carriage of goods between the buyer and the carrier.Recognizing the independent status of the actual shipper can guarantee the uniqueness of the FOB trade term and also protect the actual shipper's initiative in the transaction of goods.To protect the four rights of the actual shipper,it is necessary to rely on the four functions of the bill of lading,namely,the existence of the contract for the proof of the goods;the certificate that proves the delivery of the goods by the shipper;the certificate that the carrier accepts the goods;the document of the title of the goods.The bill of lading has a stable position that is unshakable in international cargo transportation.The actual status of the shipper is fixed on the bill of lading to effectively protect its rights and interests.Based on the status of the bill of lading in the carriage of goods by sea,the protection of the actual shipper should also be linked to the bill of lading in order to effectively protect the rights of the actual shipper.The actual embodiment of the shipper in the bill of lading is one of the focuses of this article.According to the trend of the Rotterdam Rules,and drawing on the domestic law provisions of the Nordic countries and analyzing the protection trend of actual shippers,it is necessary to establish the actual status of the actual shipper.To ensure that the actual shipper has a position in the bill of lading that conforms to the FOB trade terminology,it is to set an identity for the actual shipper that meetsthe actual shipper's traits.Professor Si Yuzhen calls it a "shipper." This will not only protect the simplicity of the FOB trade term,but also further protect the rights of the actual shipper without prejudice to the buyer's rights.Under the FOB condition,the actual shipper's positioning needs to exist independently.It is a bold attempt to choose the "actual shipper" status to protect the actual shipper's rights under the FOB condition,although it can solve the actual shipper's basic in the existing environment.The protection of rights and interests also requires the corresponding laws and regulations to make more reasonable provisions on the rights and obligations of the“actual shipper” in order to ensure the effective operation of this system.The formulation of international trade terminology has facilitated international cargo transportation and promoted the development of international trade.Among the many trade terms,FOB is the trade condition of the most pro-seller and is the trade term commonly used in import and export international trade.FOB is a general rule of interpretation of international trade terms.FOB means that when the seller delivers the goods to the buyer at his or her location or at another designated place,the delivery is completed,representing the seller's minimum obligation.Under the FOB condition,the seller shall handle the customs declaration responsibility and expenses.The buyer shall be responsible for signing the transportation contract and paying the freight,insurance liability and expenses,import declaration responsibility and expenses,and the risk shall be transferred when the goods are delivered to the ship.The FOB terminology facilitates the procedure provided by the seller for the sale of the goods,and also brings the seller's cargo risk.In practice,it is mainly reflected in the risk of no delivery.The buyer submits a harvest request to the carrier without holding the original bill of lading.The carrier is also able to deliver the goods to the buyer based on the contract of carriage of goods with the buyer in order to fulfill the obligation of the contract of carriage of the goods.At this point,the seller lost the actual control of the goods after the goods were delivered to the carrier.If the seller was not recorded in the bill of lading,the seller's right to appeal after the damage was not guaranteed.So far,international treaties or domestic laws have a considerable system andscale for guaranteeing the rights of contracting shippers,but the actual protection of the rights of the shipper is flawed,causing the seller to deliver the goods outside the contract of carriage of goods and lose it.The right to protect goods and goods.The actual shipper's development started relatively late.From the "Hamburg Rules",there was an independent definition of the shipper,but the shipper's rights and obligations did not provide supporting regulations,which led to the protection of the "Hamburg Rules" in practice.insufficient.Until,in the "Rotterdam Rules",the definition of shippers was carried out with the concept of "documentary shipper",and the protection of shippers has been further developed in international regulations.The “documentary shipper” in the Rotterdam Rules was established at the beginning to protect the legitimate rights and interests of the buyer under FOB conditions,but because the Rotterdam Rules are generally biased towards the carrier's rules,the realization of “documentary shipper” needs The shipper's consent is also the FOB buyer's agreement,which means that the“documentary shipper” is not an independent actual shipper,but a right attached to the contracting shipper,and the protection of rights is not practical.There are different solutions to protect the rights of actual shippers under FOB conditions.The first is to determine how to protect the FOB seller in the contract by the buyer and the seller.If the contract is agreed in the contract for the sale of goods,the buyer agrees that the carrier will issue the bill of lading to the seller.This protects the actual shipper while avoiding the actual shipper.Undertake the obligations under the contract of carriage.However,on the one hand,the validity of the contractual agreement still needs to be agreed by both parties,which inevitably increases the bargaining pressure of the seller and does not fix the particularity of the actual shipper in the bill of lading.The second way is to place the actual shipper's rights under the transport law,provided that the contractual relativity principle is followed and the right to the bill of lading is obtained in accordance with the bill of lading claim stipulated by law.This practice also requires the buyer's consent as the premise that the “documentary shipper” in the Rotterdam Rules has the right to have a bill of lading.Therefore,the actual shipper is still in a passive position and the protection is not complete.The third option is tobreak through the principle of contractual relativity and set a registered position in the bill of lading similar to the “consignor” of the actual shipper status,that is,the actual shipper gives the shipper status when performing the shipper's obligation to deliver the goods.,have the right to obtain the bill of lading and other rights,and bear the corresponding obligations.No matter which kind of choice,there are both reasonable and inconvenient,and it needs to be analyzed to explore the legislative perfection for FOB shippers.In contrast,the "Marine Law" of our country,the provisions of which are also based on the provisions of the "Hamburg Rules",the protection of the actual shipper is still insufficient.First of all,the shipper's definition does not distinguish between the actual shipper's general shipper's relationship in the Maritime Law,and the two are confused,which makes it impossible to clarify which shipper's claim is owned by the shipper.When two shippers appear,is it One party has the right to request a priority document.Since the above problems are not clarified,the actual shipper's status and rights protection are in an uncertain state.Many opinions on the legal issues of sellers under the FOB terminology suggest that the FOB terminology itself is a trade model with a tendency to protect the interests of the buyer.Therefore,in solving the problem of FOB seller legal issues,most people will choose to recommend the exporter to avoid using FOB terminology..This approach is not advisable because FOB terminology does have a solid foundation in practice and is of great significance for the development of international trade in goods.Therefore,the premise of the seller's legal problem under the FOB condition is to recognize the necessity of FOB terminology.Therefore,we must first recognize the necessity and rationality of FOB terminology in practice.On this basis,determine to seek a better protection program.This article is the first to affirm the rationality and necessity of FOB terminology.First of all,the problem of FOB terminology is mainly that it can't protect the four rights of the actual shipper: the actual shipper's claim right,the control of the goods,the right of settlement and the right to sue against the carrier.The actual shipper's main rights and interests are reflected in the right to claim the documents,the controlover the goods,the right to settle the documents,and the right to remedy the right to appeal to the carrier.The above four rights are the core to protect the interests of the actual shipper.The lack of these four rights protection will damage the rights of the actual shipper.To complete the protection of the actual shipper's rights and interests,it is first necessary to break the principle of contractual relativity.According to the FOB,the seller delivers the goods to the carrier,that is,the legal obligation,it is possible to draft a new cargo between the carrier and the actual shipper.Transport relationship and juxtaposed with the contract of carriage of goods between the buyer and the carrier.Recognizing the independent status of the actual shipper can guarantee the uniqueness of the FOB trade term and also protect the actual shipper's initiative in the transaction of goods.To protect the four rights of the actual shipper,it is necessary to rely on the four functions of the bill of lading,namely,the existence of the contract for the proof of the goods;the certificate that proves the delivery of the goods by the shipper;the certificate that the carrier accepts the goods;the document of the title of the goods.The bill of lading has a stable position that is unshakable in international cargo transportation.The actual status of the shipper is fixed on the bill of lading to effectively protect its rights and interests.Based on the status of the bill of lading in the carriage of goods by sea,the protection of the actual shipper should also be linked to the bill of lading in order to effectively protect the rights of the actual shipper.The actual embodiment of the shipper in the bill of lading is one of the focuses of this article.According to the trend of the Rotterdam Rules,and drawing on the domestic law provisions of the Nordic countries and analyzing the protection trend of actual shippers,it is necessary to establish the actual status of the actual shipper.To ensure that the actual shipper has a position in the bill of lading that conforms to the FOB trade terminology,it is to set an identity for the actual shipper that meets the actual shipper's traits.Professor Si Yuzhen calls it a "shipper." This will not only protect the simplicity of the FOB trade term,but also further protect the rights of the actual shipper without prejudice to the buyer's rights.Under the FOB condition,the actual shipper's positioning needs to exist independently.It is a bold attempt to choosethe "actual shipper" status to protect the actual shipper's rights under the FOB condition,although it can solve the actual shipper's basic in the existing environment.The protection of rights and interests also requires the corresponding laws and regulations to make more reasonable provisions on the rights and obligations of the“actual shipper” in order to ensure the effective operation of this system.
Keywords/Search Tags:FOB trade term, Actual shipper, Protection on rights of bill of lading, Shipper concept
PDF Full Text Request
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