第一次作业

一、概述The forwarder: Principal or Agent? The approach of the American Courtsby Peter Jones (PMLAW)A shipper attempted to hold a forwarder (Lep Transport) liable for damage to equipment during carriage from California to Ireland. The forwarder arranged for carriage in accordance a Shipper's Letter of Instructions (SLI). Lep received the equipment from the shipper in good order and condition and had turned it over to a trucker for carriage to the port of loading. The trucker delivered the equipment to a warehouse operated by Atlas Consolidated Container, an NVOCC, engaged by Lep to transport the equipment from there to Ireland. The NVOCC consolidated the equipment into a container with other cargo.The NVOCC booked the container with an ocean carrier, and arranged for local delivery to the pier used by the ocean carrier, where it was loaded on a carrying vessel. The NVOCC issued the shipper a bill of lading. The container was transhipped at Antwerp, and eventually delivered to the forwarder's correspondent in Ireland, who arranged for the deconsolidation of the container, and arranged for its carriage to the shipper's premises. On arrival the shipper disclosed that the equipment was damaged.The forwarder charged freight to the shipper at a rate set by the NVOCC, based on the size of the cargo, as provided by its rates filed with the Federal Maritime Commission.The Court noted that the shipment was governed by two written agreements:(1) the SLI, which the Ninth Circuit held to be a bill of lading, and(2) the NVOCC's bill of lading.The definition of a "carrier" in the SLI included the forwarder. However, the SLI also referred to the forwarder as "Forwarding Agent." On the NVOCC bill of lading, the forwarder was listed as the "forwarding agent," and the NVOCC as the carrier.The court recited certain principles of law. A "common carrier", including a "freight forwarder" subject to common carrier liability is held to a strict liability standard. A "freight forwarder" or "forwarding agent" can be held liable only for its own negligence. The leading case in the United States is Chicago, Milwaukee, St. Paul Pacific R.R. Co. v. Acme Fast Freight, 336 U.S. 465, 69 S.Ct. 692, 93 L.Ed. 817 (1949).Referring to the Acme Fast Freight case, the Court stated:In Acme, the Court explained that the term "freight forwarder" was originally applied to persons who arranged for the transportation by common carriers of shippers' goods. Id. at 701. The forwarder's duties went no farther than procuring transportation by the carrier and handling thedetails of shipment. See J.C. Penney Co., Inc. v. American Express Co., et al., 102 F.Supp. 742, 74647 (S.D.N.Y.1951). After the forwarder arranged for transportation, the shipper would pay the forwarder a fee for its services, in addition to which the shipper would pay the freight charges of the carrier who actually transported the goods. Acme, 69 S.Ct. at 701. This type of freight forwarder is what the Court refers to as a "forwarding agent," liable only for its own negligence.Acme also discusses another class of freight forwarder, subject to liability as a common carrier. This type of forwarder picks up a less than carload shipment at the shipper's place of business and is engaged to deliver it to its ultimate destination. After pickup, the forwarder combines the shipment with others in carload quantities. In addition, the forwarder in this type of arrangement sets the rates himself. Acme, 69 S.Ct. at 701. This group of freight forwarders is subject to liability regardless of whether it or an underlying carrier was at fault for any loss or damage.Because it is apparent that the forwarder merely arranges for transportation of goods by contracting with other companies to carry the goods, containerize them, and warehouse them, the Court held that the shipper failed to show that the forwarder was either a common carrier or a freight forwarder subject to common carrier liability.In the Ninth Circuit, bills of lading are strictly construed against the carrier. Cart, Ltd. v. Hong Kong Islands Line America, S.A., 940 F.2d 530, 532 (9th Cir.1991) (citations omitted). Here, however, the two documents governing the shipment of goods refer to Lep alternatively as a carrier, a freight forwarder, and a forwarding agent. Therefore, the Court finds this evidence insufficient to meet Amdahl's burden of proving that Lep is a common carrier.So the Court decided that the forwarder acted only as a forwarding agent subject to liability only for its own negligence. As no negligence was proved, the forwarder was exonerated from liability.二、英翻中(I)Where the Company contracts on behalf of the Customer1.1Where the Company acts as agent, the Company is entitled to enter into a contract onbehalf of the Customer in the name of the Customer or in its own name with any thirdparty. The contract thus concluded shall have direct binding effect on the Customerand the third party.1.2Where the Company acts as agent, the Company shall not be liable for the loss of theCustomer unless and except to the extent that the loss is caused by the negligence ofthe Company.1.3Where the Company acts as agent, the Company shall not be liable for the loss causedby the acts or omissions of the third party including but not limited to the carriers,warehousemen, stevedores, railway bureau and truckmen, unless the Company has notacted diligently in selecting, instructing and supervising the third party.(II)Where the Company contracts as principal1.4The Company acts as principal when undertaking carriage with its own means oftransport or concluding agreement and issuing transport document in the name of carrier. The responsibility period of the Company as the multimodal transport operator with respect to the goods under multimodal transport contract covers the period from the time of taking the goods in its charge to the time of their delivery. The responsibility of the Company shall be determined by the principle of “network liability”, subject to the laws and regulations governing a specific section of the multimodal transport. Where the Customers accepts the transport document issued by persons other than the Company and fails within a reasonable time to demand the Company to bear the responsibility as the principal, the Company shall no longer bear the responsibility as the principal.1.5Where the Company contracts as principal it shall be responsible for the acts andomissions of the third party employed by the Company in undertaking the carriage contract or other services as if such acts and omissions are done by the Company itself.。