| Because of the special nature of the FOB terms("FREE ON BOARD"),the seller who does not sign contract of carriage should not be directly defined as the shipper.In order to protect the seller’s interests,Article 42 of Maritime Law defines two types of shipper,confers the seller the status of Actual Shipper under a special trade model,and confers a standing presumed independent from the Contractual Shipper by law.This undoubtedly benefits from protecting the seller’s legitimate interests under FOB terms.However,in the Maritime Law of China,there is only Article 42 on the definition of the Actual Shipper,and there is no clear and systematic provision on his rights,obligations and responsibilities,so it is difficult to achieve the legislative purpose of protecting the interests of the seller,balancing the interests of both parties on the ship and cargo,and maintaining the fairness and safety of trade.In order to solve problems,through the legal analysis,case analysis and comparative analysis,study Actual Shipper related subject of legal relationship,analysis of the definition,rights,obligations and responsibilities of Actual Shipper under FOB terms.Suggestions are made to address the legal issues of Actual Shippers under FOB terms.The paper is divided into four parts.The first part of this paper introduces the basic connotation of the Actual Shipper under the FOB terms,clarifies its definition and legal status,introduces the legal relations of the relevant subjects involved in trade activities and development of this system.Secondly,it focuses on the current situation of the Actual Shipper and through the analysis of the current situation of legislation and justice,lays the legislative and practical foundation for the following questions.The second part discusses the problems existing in the operation of the Actual Shipper from the perspectives of legal theory analysis and case analysis,including the identification problem of the Actual Shipper,the unclear provisions of rights,risks and obligations.The third part analyzes and uses for reference the relevant systems similar to the Actual Shipper outside the territory,including the maritime legislation of the countries outside the territory and the shipper system of the international convention on the carriage of goods by sea,which provides the direction for the revision of the Actual Shipper in China.The fourth part is the way to modify the definition of the Actual Shipper in the Maritime Law of China,adding and clarifying the terms of rights,obligations and responsibilities.Actual shipper has the priority documents issued,retains control over goods and has litigation right of the carrier.Improve the distribution of two kinds of obligations of the shipper,the provisions of the Actual Shipper does not assume the obligation to pay the freight,and clear two jointly and severally liable to the carrier,the shipper further narrowed the applicable scope of strict liability.Protect the legitimate rights and interests of the Actual Shipper under FOB terms. |
