国际商法 案例分析

Grade:Title :Cases Study of International Trade PracticesCourse title：International TradePracticesAdviser: Pro. GaoSchool : The School of AppliedEnglishStudent: Zhao Xinyu ( 赵欣宇)Class: 2011 Class 2Student Number: 110440228Date: 2014/6/7Title :Cases Study of International Trade Practices CASE ONEBackground:St.Paul Guardian Insurance Company V. Neuromed Medical Systems ＆Support, GmbHShared Imaging, an American corporation, and Neuromed, a German corporation, entered into a contract of sale for a Siemens Harmony 1.0 Tesla mobile MRI. Therefore, both parties engaged various entities to transport, insure, and provide customs entry service for the MRI. Plaintiff originally named those entities as defendants, but the action has been discontinued against them by agreement of the parties. Neuromed is the sole remaining defendant.According to the complaint, the MRI was loaded aboard the vessel Atlantic Carrier undamaged and in good working order. When it reached its destination of Calmut, City, Illinois, it had been damaged and was in need of extensive repair, which led plaintiffs to conclude that the MRI had been damaged in transit.The one page contract of sale contains nine headings, including: Product, Delivery Terms, Payment Terms, Disclaimer, and Applicable Law. Under product the contract provides, “the system will be delivered cold and fully functional.”Under Delivery Terms it provides, “CIF New York Seaport, the buyer will arrange and pay for customs clearance as well as transport to Calmut City.”Under Payment Terms it states, “by money transfer to one of our accounts, with following payment terms: U.S. ＄93,000---downpayment to secure the system; U.S. ＄744,000---prior to shipping; U.S.＄93,000---upon acceptance by Siemens of the MRI system within three business days after arrival in Calmut City.”In addition, under Disclaimer it states, “system including all accessories and options remain the property of Neuromed till complete payment has been received.”Preceding this clause is a handwritten note, allegedly initialed by Raymond Stachowiak of Shared Imaging, stating, “Acceptance subject to Inspection.”Plaintiff St.Paul Guardian Insurance Company and Travelers Property Casualty Insurance Company have brought this action as subrogees of Shared Imaging, Inc, to recover ＄285,000 they paid to Shared Imaging for damage to a mobile magnetic resonance imaging system purchased by Shared Imaging from defendant Neuromed Medical Systems ＆Support, GmbH.The crux of Neuromed’s argument is that it had no further obligations regarding the risk of loss once it delivered the MRI to the vessel at the port of shipment due to aCIF clause included in the underlying contract. Plaintiff respond that the generally understood definition of the CIF term as defined by the International Chamber of Commerce’s publication, INCOTERMS 1990, is inapplicable here. Moreover, plaintiffs suggest that other provisions of the contract are inconsistent with the “CIF”term because Neuromed, pursuant to the contract, retained title subsequent to delivery to the vessel at the port of shipment and thus, Neuromed manifestly reatained the risk of loss.美国的Shared Imaging公司（以下用SI代替）和德国的Neuromed公司（N 代替）签订了货物销售合同，销售MRI（磁共振成像系统，以下用MRI代替）。

在MRI的运输，保险，清关手续方面双方都涉及多家公司。

起初，原告方统称这些公司为被告，后经多方协商一致，认为，N是剩下的唯一的被告方。

在原告的申述中，MRI在装入Atlantic Carrier货船之时，货品良好，无货损现象。

当货品运达目的港：伊利诺伊Calmut, City时，货品已受损并且需要大面积补修。

被告因此断定MRI 是在货运途中受损的。

当事方所签署的销售合同包含9个标题，有：产品，交货条件，付款条件，免责声明和适用法律条款。

在产品条款中，合同声明“系统将置于冷藏条件下送达并且系统运作良好。

”在交货条件条款中，合同声明“适用CIF术语（成本加保险费、运费）运抵纽约港New York Seaport，买方有义务提前安排清关手续并支付至Calmut City的运费。

在付款条款中，合同声明“货款转入我们的一个账户中，付款条件如下：首付93000美元安全系统；装运前，交付744000美元；待MRI到达Calmut City 后的三个工作日之内在收到MRI之后交付93000美元。

在免责声明中，该合同还声明“N公司保留对系统包含所有附件和选择的所有权直到货款全部缴清为止”。

在此项条款之前，是SI公司的RS的手写的笔记，写明“验收接受检查。

”原告代理人St.Paul Guardian Insurance Company和Travelers Property Casualty Insurance Company因此向SI 追索285000美元, 包括原告支付给N公司的货款，和对SI公司从N公司所购的已受损的货物进行补偿。

N公司以按本合同中的CIF术语，一旦卖方将货物运抵目的港，卖方对事后出现的一切损失概不负责进行辩护。

原告方则回应国际商会出版物，国际贸易术语中规定的通常意义上的CIF术语在此适用。

此外，原告方表明本合同的一些其他条款与CIF 术语规定不相一致，因为N 公司按合同，承运船到达目的港后，N公司仍保留货物所有权，因此N 公司同样对风险负有责任。

ANALYSIS:There are some points together with some questions that should be taken into consideration in this case.1.Which law or regulation is applicable to the sale contract in this case?2.What are the related obligations and rights of the seller and buyer underCIF?3.What is the division of risks between buyer and seller?4.Does passage of risk mean transfer of title?Let’s do the analysis of this case by figuring out these questions one by one.First, Which law or regulation is applicable to the sale contract in this case?Since the United States and Germany are both contracting members of the UN convention on Contracts for the International Sale of Good (CISG), they both governed by CISG. Because neither party chose to opt out of the application of the CISG, CISG goes into effect automatically on this regard. Thus, CISG is applicable to the sale contract between American Shared Imaging and German Neuromed.CIF is defined by INCOTERMS, which are also incorporated into the CISG. Therefore, CIF is practicable in this case, which means the one complaint that the plaintiff proposed that CIF is inapplicable here is denied.Second, what are the obligations and rights of the seller and buyer under CIF?Third, what is the division of risks between buyer and seller?CIF stands for “cost, insurance and freight”, which is a commercial trade term and commonly used practice. It’s defined by the International Chamber of Commerce(“ICC”). "International Incoterms" compiled by ICC in 1936 is the most widely used one. Its application is limited to contract and related delivery conditions of tangible goods ( intangible goods are not included, such as computer software, power, etc.). After six amendments, “2000 International Incoterms" is of the current use.INCOTERMS are formed in international trade practices, which indicate the division of transaction costs, responsibilities and risks under different conditions. They are optional and they don’t require mandatory use. In the "2000 International Incoterms" CIF is commonly chosen one, by buyers and sellers in the international trade of goods.The term is used only for sea and inland waterway transport, the sea transportation from German to America is covered here. INCOTERMS define “CIF”(named port of destination) to mean that the seller delivers when the goods pass “ the ship’s rail in the port of shipment”. The seller is responsible for paying the cost, freight, and insurance coverage necessary to bring the goods to the named port of destination, but the risk of loss or damage to the goods passes from seller to buyer upon delivery to the port of shipment. Further, “CIF”requires the seller to obtain insurance only on minimum cover.Under CIF, although the seller arrange and pay for freight and cargo insurance, the seller does not assumed the obligation of ensuring the goods are delivered to the agreed port of destination. Because CIF covers unloading and shipment in the port of loading but not in the port of destination. CIF is not "DES." Under CIF, the delivery is complete as soon as the contracted goods are loaded on the carrier’s ship.The explanations above show that the plaintiff, the buyer is under no position to claim further compensation of the contracted goods damaged in transit form the defendant, the seller, under CIF when goods are delivered to the port of destination and seller made no violation to the sales contract.Forth, does passage of risk mean transfer of title?Under the CISG, the passage of risk is independent of the transfer of title.In Article 67(1) of CISG,If the contract of sale involves carriage of the goods and sellers is notbound to hand them over to the buyer when the goods are handed over tothe first carrier for transmissions to the buyer in accordance with thecontract of sale. If the seller is bound to hand the goods over to a carrierat a particular place, the risk does not pass to the buyer until the good arehanded over to the carrier at that place.Moreover, INTOTERMS only address passage of risk, not transfer of title. Who should be bound to the risks is not determined by which party possess the title of the goods. What’s more, the transfer of risks and passage of title are not require to occur simultaneously. That means, the plaintiff proclaimed that the defendant should bear the risks and be responsible to the damage of the goods for he remain the title of the goods is invalid. Hence, the loss must fall upon the buyer eventually. Suggestions:It’s more than important to clarify the obligations and rights of different parties involved and to make sure the division of the risk when INCOTERMS are employed in the sales contract. When the sales is done with overseas party, to make it clear which laws and conventions are applicable.CASE TWOBackground:Sztejn V. J. Henry Schroeder Banking Corp.Transea Traders in India contracted to sell hog bristles to Sztejn the plaintiff. A the request of Sztejn, the J.Henry Schroeder Banking Corp. (Schroeder), the defendant, issued an irrevocable letter of credit in favor of Transea covering the shipment of the hog bristles and payable upon presentation of certain documents, including a maritime bill of lading. Transea allegedly filled 50 cases with cow hair and other rubbish and delivered these to the carrier in order to obtain the required bill of lading. This bill, along with the other required documents, and a draft payable to Transea, were presented to Schroeder by the Chartered Bank of India, acting as an agent for Transea. Before Schroeder could pay on the credit Sztejn brought this action against Schroeder to enjoin it from doing so. Schroeder asked the court to dismiss the case. Schroeder also appealed to the court to dismiss the plaintiff’s motion. In the end, the defendant’s motion to dismiss the case is denied.卖方印度Transea Traders公司（以下简称TT）与卖方，也是本案的原告Sztejn 公司（以下简称S），双方签订食用猪的销售合同。