Internatioal Trade Cases

1．A Chinese exporter signed a CFR contract with an importer in American on canned meat for an amount of US$50000with payment by D/P at sightOn the morning of May 52006the goods were all loaded onto the named vesselThe Chinese salesperson in charge of this contract was so busy that he forgot to send the buyer the shipping advice until the next morningUnexpectedlywhen the American importer went to the local insurance company to insure the goodsthe insurance company had already learned that the ship suffered a wreck on May 6 and refused to insure the shipm entThe American importer immediately sent a fax to the Chinese exporter saying "owing to your delayed shipping advicewe are unable to insure the goodsSince the vessel has been destroyed in a wreckthe loss of goods should be for your accountAt the same timeyou should compensate our profit and expense losses which amount to US$50000"Soon all the shipping documents sent through the collecting bank were returned to the Chinese exporter for the reason that the importer refused to take up the shipping documents Who should be responsible for the loss and why
2。

A Chinese international trade company exported a batch of walnut to England on the basis of CIF LondonAs it was a seasonal commodityit was stipulated in the contract that the covering L/C should reach the seller before the end of SeptemberThe seller guaranteed that the vessel would reach the port of destination not latter than December 2If the vessel reached the port of destination later than that daythe buyer was entitled to cancel the contractIn case the payment had been madethe seller should return the payment to the buyer Thenwhere do you think the crux lies in this case
3、某合同出售一级大米300吨，按FOB条件成交。

装船时，货物经合同约定的检验机构检验符合合同规定的品质条件，卖方在装船后及时发出装船通知，但航行途中，由于海浪过大，大米被海水浸泡，品质受到影响。

货物到达目的港后，只能按三级大米的价格出售，因而买方要求卖方赔偿差价损失。

试问，在上述情况下，卖方对该项损失是否应负责？为什么？
4、我某出口公司按CIF条件，凭不可撤销议付信用证支付方式向某外商出售货物一批。

该商按合同规定开来的信用证经我方审核无误。

我出口公司在信用证规定的装运期限内在装运港将货物装上开往目的港的海轮，并在装运前向保险公司办理了货物运输保险。

但装船完毕不久，海轮起火爆炸沉没，该批货物全部灭失。

外商闻讯后来电表示拒绝付款。

你认为我出口公司应如何处理？并说明理由。

Case 2 Damage caused by a fire accident in EXW contract
In April 1997,an export company in Shantou(hereafter called companyB)signed a contract with an importer in Hong Kong(here after called company A)selling 3,000 dozens of nylon upper garments,US$15/dozen EXW Shantou,packing in cartons,five dozens per carton,shipment before June 15,paymenent by T/T after company A's examing the goods.这里EXW是工厂交货，指货物没出厂时只要一经买方点收即应向买方交待货物所有权已转移，这笔交易也就结束，此时，卖方应全额收取货款，以免发生意外，造成经济损失。

Case 3 Buyer's delaying to send vessel under FOB
Company A in China signed acontract on FOB terms to export wheat to Company B in Africa.It was contracted that shipment should be made in four lots.The shipping clause ran as follows:'the vessel
nominated by the buyer should reach the port of shipment within eight days before the dat of shipment.Otherwise, any of the seller's loss or damage thus incurred shall be bore buy the buyer.' The contract also specified that ' the buyer must give the seller a notice of vessel name and the estimated date of arrival by telecommunication five days before the vessel arrives at the port of shipment'.采用FOB术语签订合同，买方须按时派船接货。

在《2000年国际贸易术语解释通则》中关于FOB有如下条款：B3.a.买方必须自付费用订立从指定的装运港运输货物的合同。

B7通知卖方：买方必须给予卖方充分说明并通知船只名称、装货地点和交货需要的时间。

因此，如果买方指定的船只没按时到达，或没能接受货物，或比规定时间提前停止装货，则自规定的交货日期或期限届满之日起，买方完全承担由此造成的货物灭失和损坏的一切风险。

Case 4 CFR&shipping notice
An import and export company in China signed an export contract on CFR with an importer in Marseilles, France on drawnwork tablecloth for an amount of US$80,000 , payment by D/P at sight. Under Incoterms 2000,Cost and Freight(CFR) term, all the risks,duties and expenses after go ods' passing ship's rail are normally borne by the buyer as its definition states:"Cost and Freight" means that the seller delivers when the goods pass the ship's rail in the port of shipment. The seller must pay the costs and freight necessary to bring the goods to the named port of destination.But the risk of loss of or damage to the goods, as well as any additional costs due to events occurring after the time of delivery, are transferred from the seller to the buyer.
Incoterms 2000 also provides that "the seller must give the buyer sufficient notice." CFR A7 has provisions for the seller's duty in this regard.
A7.Notice to the buyer: The seller must give the buyer sufficient notice that the goods have been delivered in accordance with A4 as well as any other notice required in order to allow the buyer to take measures which are normally necessary to enable him to take the goods.
Here the word "sufficient" refers to both "sufficient" content and "sufficient" time. The latter means the seller must give the shipping notice in a timely manner so as to allow sufficient time for the buyer to effect insurance of the goods. The later the seller sends the shipping notice, the less sufficient time the buyer has to insure the goods. It can be seen how important it is to send the shipping advice to the buyer in time under CFR terms.That is why shipping advice is often refered to as "insurance notice" in trade practices.
When CFR terms or FOB terms are used in combination with payment by collection,the seller may cover the goods against"seller's interest risk" before exporting the goods to counteract the buyer's failure to effect insurance or the buyer's refusal to retire the documents.
Case 5 CFR&goods quality
A French company imported a batch of wheat on CFR basis. The contract provided that the landing quality of the goods should be taken as final. However,when the goods arrived at the destination, the import quarantine bureau detained the goods as they found that the goods contained agreat deal of bacteria forbidden to enter the country. Unfortunately, the goods were consumed by a fire while in detainment. A Dispute broke out between the buyer and the seller.
Under CFR terms, the buyer should bear all the risks after the goods have passed the ship's rail and been loaded on board. But should the seller be held liable for any default before that point?
In this case, it was the seller who should bear the damage to the goods. The reason is that although this was a CFR contract, the seller breached it by delivering the goods which failed to meet the
quality standard provided in the contract.It was this fundamental default that has caused the detainment and then the loss of the goods. Therefore,while the risks had been transferred to the buyer, the seller's default returned the risks to the seller himself.
Of course, under CFR contract, when the seller's default is not fundamental, the buyer should bear all the risks for any loss of goods at the port of destination. Meanwhile,the seller should make due compensation to the buyer as per the contract and relevant laws.
Case 6 CIF or not?
In 2002, a Chinese exporter exported 500M/T walnut to a Canadian importer on the basis of US$4,800 per M/T CIF Quebec. As it was a seasonal commodity, the importer required and both parties agreed to stipulate the following in the contract.
L/C Issuing Date: to be issued by the end of September.
Shipment: not later than Oct.31, partial shipment and transshipment prohibited.
Arrival Date:not later than Nov.30. Otherwise, the buyer is entitled to refuse the goods.
Terms of payment: Draft at 90 T/D under L/C.
Due to the bad weather,the liner arrived at Quebec on Dec.5. Consequently, the importer refused to take the delivery of the cargo unless 20% discount of the total value of the goods was made for the loss incurred to the importer. After painful negotiations,the transaction came to an end with the exporter's loss of US$360,000 by the discount of 15% of the total value of the goods.
Then,what is the crux of this case?
The crux of the case lies in the stipulation of the "arrival date". The fatal error made by the exporter was that he agreed on this contract clause out of his ignorance.
Although the contract was concluded on CIF basis,it was not a genuine CIF contract. This case indicates the significance of CIF term's sphere of application. The two special clauses in the original contract not only contradicted with the nature of CIF term, but also disagreed with the practices of international justice and arbitration.
Under Incoterms 2000, CIF means that the seller delivers when the goods pass the ship's rail in the porrt of shipment.
The seller must pay the costs and freight necessary to bring the goods to the named port of destination. But the risk of loss of or damage to the goods, as well as any additional costs due to events occurring after the time of delivery, are transferred from the seller to the buyer.
Obviously,CIF does specify that the seller has completed its delivery obligations when the goods have "passed the ship's rail" at the port of shipment. However, the original contract not only set a limit to the date of arrival, but also stipulated that the buyer was entitled to cancel the contract or demand back the payment that had already been made. Evidently, the restrictive date of arrival serve d not as the date of payment, but as a condition of payment. Therefore, legally the contract was not a genuine CIF contract as it made physical delivery a condition of payment.
Under CIF terms, the risk of loss of or damage to the goods passes from the seller to the buyer when the goods have passed the ship's rail at the port of shipment. A contract that expands the buyer's risk from the port of shipment to the port of destination is not a CIF contract. According to the provision in the original contract, the Chinese exporter was obligated to refund the payment in case of natural calamities or accidents during the course of delivering the goods, which evidenced that the seller assumed all the risks during the transport.
And article9.3 under Incoterms 2000 does stress buyer's obligation with respect to the arrival of the
goods at the port of destination.
9.3:In particular, the seller should not--and indeed could not, without changing the very nature of the "C"--terms--undertake any obligations with respect to the arrival of the goods at destination,since the risk of any delay during the carriage is borne by the buyer.
So,under CIF terms, the buyer must make payment against documents rather than against the arrival of the goods at the port of destination, provided that the seller has fulfilled his delivery obligations and presented the required documents. According to the original contract, whether the Chinese exporter could receive the payment for goods or not depended on buyer's receiving the goods on schedule. Although the seller might receive the payment by means of L/C, the payment would be taken back by the buyer if the goods could not duly arrive at the port of destination. Besides, the Chinese exporter could not take advantage of relevant L/C clauses which need to be in accordance with those in the original contract and deny the payment to seller. The Chinese exporter could hardly make a claim for his rights under a normal CIF contract since this contract was signed only "in name" but could not be fulfilled in reality.
10．国内某出口公司与阿根廷商人签订了FOB合同货值580万美元付款为D/P即期发货后委托银行托收货款后银行通知出口公司进口商拒付发电给进口商进口商说该国外汇短缺暂停售汇而进口商又来电声称船舶在途中遇到大风大浪海水进仓致使90％的货物被水浸泡在传真中称等待我出口公司指示如何处置货物。

请问如何处理？应从此例中吸取什么教训？
进口商的资信要有充分的了解--建议对欧洲、美国进口商你可以考虑采用D/P对非洲和亚洲的顾客尽量不用D/P 。

应对进口商指定的运输公司和运输代理进行必要的资信调查对其签发的运输单据的真伪性进行必要的鉴别避免不法商人以假运输单据骗取出口商的货物
11．1998年2月我国某公司与巴西签订了一份进口玉米的合同合同规定商品品质要求玉米不得生虫或霉变价格为CFR上海每公吨250美元商品数量为5000公吨5-6月装运3000公吨7-8月装运2000公吨结算方式为不可撤销得即期跟单信用证但同年6月份鉴于市场变化双方在上海对合同进行了修改把后2000公吨的价格降低5美元但并没有修改信用证当货物装运后对方备齐单据向我方提示付款银行以单证不符拒绝付款后我方电告对方可以用80％的货款赎单但要求取消另外得2000公吨玉米对方拒绝后在货物到达上海港时对货物进行检验发现有生虫和霉变于是我方向对方提出索赔并拒付剩余20％货款和取消2000公吨玉米对方认为双方签订的是CFR合同索赔和付款应分开进行要求我方先付清20％货款和利息赔偿2000公吨玉米合同得损失双方为此争论不休后诉诸于法院。

请问你认为法院会如何处理此问题理由何在？
12．3月15日A公司向新加坡客户G公司发盘报童装兔毛衫200打货号CMO34每打CIF新加坡100美元8月份装运即期信用证付款25日复到有效3月22日收到G公司答复你15日发盘收到你方报价过高若降至每打90美元可接受A公司次日复电我方报价已是最低价降价之事歉难考虑3月26日G公司又要求航寄一份样品以供参考29日A公司寄出样品并函告对方4月8日前复到有效4月3日G公司回函表示接受发盘的全部内容4月10日送达A公司经办人员视其为逾期接受故未作任何表示7月6日A公司收到G公司开来的信用证并请求尽可能早的航班出运此时因原料价格上涨公司已将价格调整至每打110美元故于7月8日回复称我公司与你方此前未达成任何协议你方虽曾对我方发盘表示接受但我方4月10日才收到此乃逾期接受无效请恕我方不能发货信用证已请银行退回如你方有意成交我方重新报价每打CIF新加坡110美元9月份交货其他条件不变7月12日G公司来电我方曾于4月3日接受你发盘虽然如你方所言4月10日才送达你方但因你我两地之邮程需三天时间尽管我方接受在传递
过程中出现了失误你我两国均为联合国国际货物销售合同公约的缔约国按公约第21条第2款规定你方在收到我方逾期接受后未作任何表示这就意味着合同已经成立请确认你方将履行合同否则一切后果将由你方承担A公司收电后仔细研究了以前的来往函电及公约的有关规定只得于7月14日去电请速开信用证以便我方按时交货被迫承担了货物差价的损失。

问题
1、公约对逾期接受如何规定的？
2、如不想认可逾期接受A公司应如何操作？
3、A公司的失误在哪里？
The 13 INCOTERMS
Origin Terms
EXW - Ex-Works, named place where shipment is available to the buyer, not loaded.
The seller will no t co ntract fo r any transportatio n.
International Carriage NOT Paid by Seller
FCA - Free Carrier, unloaded at the seller's dock OR a named place where shipment is available to th e international carrier or agent, not loaded.
This term can be used fo r any mode of transport.
FAS - Free Alongside Ship, named ocean po rt of shipment.
Ocean shipments that are NOT containerized.
FOB - Free On Bo ard vessel, named ocean port of shipment.
This term is used fo r ocean shipments o nly where it is impo rtant that the goods pass the ship's rail. International Carriage Paid by the Seller
CFR - Cost and Freight, Named ocean po rt of destinatio n.
This term is used fo r ocean shipments that are no t co ntainerized.
CIF - Cost, Insurance and Freight, named ocean port of destination.
This term is used fo r ocean shipments that are no t co ntainerized.
CPT - Carriage Paid To, named place or port of destination.
This term is used fo r air or o cean co ntainerized and roll-on roll-off shipments.
CIP - Carriage and Insurance Paid To, named place or po rt of destinatio n.
This term is used fo r air or o cean co ntainerized and roll-on roll-off shipments.
Arrival At Stated Destination
DAF - Delivered At Fro ntier, named place of destination, by land, not unloaded.
This term is used fo r any mode of transpo rtation but must be delivered by land.
DES - Delivered Ex-Ship, named po rt of destinatio n, no t unloaded.
This term is used fo r ocean shipments o nly.
DEQ - Delivered Ex-Quay, named po rt of destinatio n, unlo aded, not cleared.
This term is used fo r ocean shipments o nly.
DDU - Delivered Duty Unpaid, named place of destination, not unloaded, not cleared.
This term is used fo r any mode of transpo rtation.
DDP - Delivered Duty Paid, named place of destinatio n, no t unlo aded, cleared.
This term is used fo r any mode of transpo rtation.
CASE STUDY I.
NORBIO is a Norwegian biotechnology company that produces ENZYNOR on which it has worldwide patents. ENZYNOR is an enzyme that can be used in a wide range of processes within the food manufacturing, and pharmaceutical industries. Small amounts of ENZYNOR are required for the
CASE STUDY II.
You are called in to advise NorFiskEksport A/S (NFE) a large Norwegian fish export company on the following problems with regard to the export of salmon: NFE contracted the sale to Bovin of 100 tonnes of salmon CIP Bologne (France) INCOTERMS 2000 for the price of NOK 3.200.000. Payment by letter of credit (UCP500), drawn on a French bank, the documents required were the commercial invoice, insurance policy, a marine bill of lading, and a certificate of quality given by a company accredited by the Norwegian Standards Organisation (NSO), stating that the salmon exported is Superior quality with a fat content of 12% or below and between 14 and 15 on the Roche scale. The Norwegian bank, acting as an advisor informs that the documentary credit has fallen through because the certificate of quality states:
“Salmon Cut NS9401 sample –fat content 12%; colour card 15.
Analysis NS9402 compliant.“
The rejection is based on the mention of NS9401 of which the bank knows nothing, and reference to the colour card 15, which does not specify the Roche scale. These references are considered by the bank to be outside their mandate. The documents were presented directly to the buyer for payment who insists first on examining the salmon upon their arrival, stating that the agreement did not specify any special cut, NS9401 or otherwise. He is not a very experienced salmon importer and usually deals with Scottish salmon, this being his first dealing with Norwegian exporters. Norwegian salmon is if anything better known than Scottish salmon on the French market. There is no dispute over the Norwegian firm that issued the certificate of quality being one approved by the NSO. On their arrival he announced that according to his tests, the fat content is 14% and that he rejects this consignment and will accept substitute goods, but claims damages for loss of profit of NOK 800.000 for missing the high demand and consequently high prices, of the Christmas season. Meanwhile the goods are deteriorating due to inadequate packaging and improper storage.
Use of the Roche colour is standard in Norway and France. Use of NS9401 and NS9402 are standards used in the Norwegian salmon industry and widely known in the salmon industry. The Roche scale is a standard colour scale used in the salmon industry to measure the pinkness of salmon. E.g. 11 is very light pink 18 very dark pink, 14 – 15 is the normally preferred range for Norwegian salmon. NS9401 is the standard Norwegian quality cut of salmon developed by the salmon industry for the (standard) assessment of fat content and colour. NS9402 refers to the way in which the colour and fat analysis should be carried out.
Disputes are to be settled by a single arbitrator by ad hoc arbitration Cyprus,
which has been agreed because it applies the UNCITRAL Model Law.
1) Advice NFE on the question of what the outcome of an eventual arbitration award in the dispute between NFE and the buyer will be.
2) How could the relevant risks in this transaction have been managed contractually? What could have been done differently while formulating the contract?
CASE STUDY III.
Your client NOR-BIO AS of Tromsø, Norway, a producer of biotechnology food processing systems and RUSSIAN CAVIAR (RC) of Moskow, Russia, a producer of caviar enter into a contract for the sale of a large scale biotechnology food processing plant (for the enzymatic de-skinning of fish row) DDU INCOTERMS 2000 Petersbourg, Russia, NOK 1.750.000 by April 1. Payment to be by letter of credit confirmed with Kreditbanken AS of Oslo against presentation of an invoice, a certificate of inspection issued by an inspection company CERT Ltd., the bill of lading and an arrival note issued by the carrier after the off-loading the equipment at the port, evidencing the goods arrival at their destination. The choice of law is CISG. The contract has the following arbitration clause:
“Art. 18 Arbitration
All disputes arising out of or in connection with the present contract
shall be finally settled under the Rules of Arbitration of the International
Chamber of Commerce by one or more arbitrators appointed in
accordance with the said rules.”
RC have informed your client that the time of delivery is important as it is at that time that personnel will be available to do the necessary installation, and they hope to have the unit in production to supply caviar for certain celebrations in Europe, mid April, which they expect to be particularly lucrative. Your client takes out insurance on their own behalf with a Norwegian insurance company on terms identical to the Standard Institute Cargo Clause A policy, with the exception of the choice of law clause which selects Norwegian law.
The goods are aboard the SS Harald which is caught in a storm as a result o f which she incurs some damage necessitating a stop for repairs at Stockholm, as a result of which SS Harald arrives in Petersbourg 5 days later than scheduled, this being on April 3rd.
The letter of credit opened by RC stipulates that the document evidencing arrival of the goods should show that they did so on or before April 1. Your client was in touch with RC to inform them of the ship’s delay, and to request that they together with the bank alter the terms of the credit. RC refuses. Your client presents the documents, including the CERT Ltd. certificate of inspection to the banks who both likewise refuse to pay - because of the date of arrival of the goods. Your client then presented the documents directly to RC for payment together with an offer to send people capable of doing the necessary installation. RC refused to take delivery of the goods or documents, and to pay for the goods. RC claim your client to be in breach of contract and to avoid the contract. RC further claim damages - informing your client that they now prefer and will be buying a rival product costing NOK 100.000 more, which will take another 12 days to arrive. RC claim the difference in price, plus 14 days lost production costs NOK 75.000 and loss of profit NOK 100.000. RC insist that the information they provided as to the importance of the date of arrival, together with the contractual term specifying the date by which goods should be delivered, and choice that payment be by letter of credit against strictly conforming documents all indicate that time was of the essence and that they were entitled to avoid the contract.
Your client is of the opinion that the circumstances do not entitle RC to avoid the contract, and that payment was due on their presentation of the documents to RC. As regards payment by letter of credit your client mention that this method of payment was in fact insisted upon by themselves for their benefit, so to ensure that they received payment on delivery.
There is no general market for the food processing plant within Russia, the equipment in question being specialized. In any event, your client does not think they can get the appropriate import licences for the goods. RC have put the goods in temporary storage in a bonded warehouse (awaiting import clearance or their re-export) on behalf of your client, who have had to re-insure the equipment, (and do so on the same terms as before), and arrange for their reshipment to Tromsø. Costs of warehousing, insurance and reshipment totaling NOK 75.000. The equipment was custom made for RC and much refitting is necessary for it to be possible to sell the machinery elsewhere, estimated cost NOK 500.000.
1) Discuss the legal issues that arise from the sequence of events and that are relevant for the decision by your client on whether or not to present the dispute for arbitration.
2) How could the relevant risks in this transaction have been managed contractually? What could have been done differently while formulating the contract?
1．<国际结算>教学网站：
（1）国际：
（2）国内：搜索“国际结算”。