英国国际货物买卖：提单规则

Word count: 1981 wordsIntroduction (1)1. Byers may reject the bills of lading (1)2. Byers may reject the goods and ask the bills of lading corrected (2)3. Byers may claim damages against Sellars, the carrier or the insurer or bear the losses him self (3)IntroductionBill of lading, as a document invented by European merchants, now has been the foundation of international trade and transportation through hundreds years of practice, custom and improvement. The most common model adopted in international trade is CIF(Cost, Insurance and Freight) or CFR(Cost and Freight). International sale of goods is often called "sale of instruments" , herein instruments mainly refer to bills of lading.A bill of lading is a document issued by a carrier to a seller. A bill of lading has mainly three characteristics: it performs the functions as a receipt of goods, as a title of ownership and as the proof of carriage contract. A bill of lading must be clean and describe goods and its quality and quantity precisely to make sure the trade proceeds smoothly. The seller must use every efforts to deliver the bills of lading to the buyer to perform his obligations.Aggie and the carrier altered the bills of lading and named Sellars as the shipper, which had breached his obligations of recording the bills of lading correctly.1. Byers may reject the bills of ladingIn order to proceed international trade more effectively, people made some fixed terms for use. The most important terms are CIF and FOB. Both terms are only used in the circumstances of delivery by sea or inner rivers. People simply use these terms without reaching other agreements to set out their duties.CIF and FOB are the terms of INCOTERMS. CIF is short for "Cost, Insurance and Freight(named port of destination)", in which stipulates that the seller must pay transport fees and relevant costs to deliver the goods to the named port, but after handing over the goods risks pass to the buyer. Besides, under CIF the seller must sign contract of insurance for the goods and pay insurance fees. The seller is bound to clear the goods from export customs. Accordingly the buyer must undertake risks after the goods are handed over to him and make payment. FOB is short for "Free On Board(named port of shipment port)". Under the term the buyer is responsible for the transportation and insurance of the goods, risks pass to the buyer when the goods are over the boundary of the ship. Compare with CIF, the buyer must undertake more liabilities and risks under FOB.In the captioned case, parties use the term of "CIF" which means the seller is responsible fortransportation and insurance and undertake risks until the goods arrive the destination port. Sellars sold the goods CIF to Byers while the goods were still en route from Tony. As Byers mentioned that he will refuse the goods which had ever had anything to to with Tony, Aggie, the agent of Sellars, without Sellars's acknowledge arranged with the carrier to alter the bills of lading to name Sellars as the shipper. A bill of lading must record everything on it compling with the fact and correctly and the seller and the carrier shall not intentionally forge a bill of lading. Byers is entitled to the whole 3 bills of lading. It is held in Sanders Bros v McLean 1883 that the seller must use every efforts to deliver the whole set of bills of lading to the buyer. After the case, buyers and banks began to require whole set of the bills of lading must be received.Aggie offered only one of bills of lading to Byers. Therefore the conclusion is that Byers can reject the bill of lading because incomplete bills of lading may lead him fails to possess the goods.2. Byers may reject the goods and ask the bills of lading correctedSince Byers decided to accept the bill of lading and paid the price of the goods before he found the wrong record on the bill of lading. The bill of lading incorrectly named Sellars as the shipper while it also stated that the goods were received from Tony.In the captioned case, Tony is the seller to Sellars and Sellars is the seller to Byers. The title had been transferred to Sellars since he had obtained the bill of lading, besides, according to s17 of Sale of Goods Act 1995, property passes when the seller intended to pass it in the goods, therefore Sellars had obtain the ownership of the goods and he may sell them to anyone he likes. There is no legal problem for him to sell the goods if he had made full payment to Tony.Byers had told Aggie that he would refuse any goods in any relations to Tony. So Aggie arranged the alteration with the carrier. It is held in Mendala III Transport v Total Transport Corp 1993 that before the bills of lading are altered or added new items, consent of each party shall be obtained. The bill of lading must record on it as what the fact is. In case SIAT v Tradax it is held that "The buyers did not have to accept the amended Bills of Lading which was added "V enezia" as a discharged port. Possible buyers would not accept Bills of Lading, which had been altered unless (possibly) the changes were only minor. It did not matter that the amended Bills accurately stated the terms on which the contract of carriage had been agreed." Byers was deceived and therefore he shall be indemnified. Byers did not have to accept the bill of lading due to that the alteration was not agreed, but since he decided to accept the bill of lading, "bona fide" as the principle of civil law will apply, he shall not again reject the bill of lading.But acceptance of bill of lading does not prevent him from rejecting the goods. Rejection of goods and bill of lading are 2 separated rights. Although Byers accepted the bill of lading and paid, he is entitled to reject the goods. He may reject the goods until the incorrect item is corrected. At this time he is not bound to return the goods according to s36 of Sale of Goods Act 1995:" Unless otherwise agreed, where goods are delivered to the buyer, and he refuses to accept them, having the right to do so, he is not bound to return them to the seller, but it is sufficient if he intimates to the seller that he refuses to accept them."As an agent, Aggie must exercise his power within the scope defined by the principal. Any actions beyond the power attorney shall not be implemented unless the principal's consent has beenobtained. In the captioned case, it is the agent and the carrier jointly forged the bills of lading and Sellars should not be responsible for their behaviour since he did not know it. Sellars may refuse to commit the legal effect of action by Aggie and the action will not bind on him. Therefore it is Aggie, the agent, who shall be responsible for the infringement.Although at the meeting with Aggie Byers had not noticed the contradictory, he is entitled to notify the contradictory to Aggie, the carrier within a reasonable period. He may notify the seller to reject the goods within a reasonable time.CIF, as mentioned above, under which the buyer has no right to ask the goods must be delivered from a special shipper. As the case mentioned, the goods were en route to Cape Town when the buyer mentioned that he would never dealt any transaction in relation to Tony. The requirement is unreasonable. 1. Under CIF term Byers has no right to make such requirement; 2. This is not stipulated in the sale contract; 3. Such requirement shall be made before the goods are loaded so the buyer can change the shipper to meet the requirement.Besides, the buyer suffered no financial losses resulted from the alteration. So he has no right to claim damages at this aspect.The conclusions are as follows:(1)Byers is entitled to reject the goods from Tony. He may notify Aggie and the carrier the unconformity and ask them to produce a true and precise bill of lading.(2)Byers is not entitled to reject the bill of lading since he had accepted them.(3)Byers suffers no financial losses so he has not right to claim such damages.3. Byers may claim damages against Sellars, the carrier or the insurer or bear losses himselfAs mentioned above, under the term of CIF, it is the seller who shall be responsible for the transportation and insurance for the goods. In the captioned case, Byers suffered a lack of goods. Lack of quantity of the goods may be caused by various reasons.The seller is bound to provide a quantity of goods specified in the sale contract. If the seller provided goods with a quantity less than specified in the contract, then the seller must be responsible for its fault. According to Article 25 of CISG, which stipulates that: "A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result." The captioned circumstance has constituted a fundamental breach of contract and therefore Byers is entitled to repudiate the contract and claim damages caused by the breach.S30 of Sale of Goods Act 1995 provides the solution for when delivery of wrong quantity. The buyer may reject all of the goods had been delivered, but if he has accepted the goods he shall pay for them at the price specified in the contract.The carrier must take reasonable care of the goods according to the contract of carriage between the carrier and the seller. If the lack of goods is caused by the carrier's fault, then he shall be responsible to compensate losses of the buyer under the contract of carriage. A lawful holder of the bill of lading is entitled to sue the carrier to claim damages for his fault.Lack of goods may be caused by storm, fire and other insured accidents. In this situation the insurer company shall undertake relevant liabilities under insurance policies or contracts.The goods may be of satisfactory quality and comply with the contract, but lack of goods may be caused by the buyer it self, such as he had ordered a wrong quantity of goods, then the buyer shall bear the losses itself.The conclusions are as follows:(1)Byers is entitled to require the buyer to make up the lack goods and compensate his relevant losses; he may also reject the goods, but if he has accepted them he must pay for them at the contract price; if the seller refuses to deliver the lack goods, then Byers may require to deduct the contract price of the goods; Byers shall not reject the goods if he had accepted;(2)Byers is entitled to repudiate the contract with Sellars and claim damages, in this circumstance he is entitled to ask his payment repaid back to him;(3)Byers may sue the carrier to claim damages for his fault in taking care of the goods according to the contract of carriage, although he is not a party thereto;(4)Byers may sue the insurer to claim damages if there happened an insured accident which reduced the goods, although he is not a party to the insurance policies;(5)If the lack of goods is caused by Byers itself, he shall bear relevant lossess himself.ReferencesSanders Bros v McLean 1883The case SIAT v TradaxS17, s36, s30, the Sale of Goods Act 1995Mendala III Transport v Total Transport Corp 1993RULES FOR ANY MODE OR MODES OF TRANSPORT（INCOTERMS2010）Article 25, United Nations Convention on Contracts for the International Sale of Goods (CISG)。