But not until August 18, 5Safety ship to Zhangjiagang, the buyer to go to the pickup procedures found that there is no goods under the contract on board, and after a number of ways to find out, only to find that the goods under the contract has been in July 20 by another ship arrived in Zhangjiagang. As a result, the buyer was late in declaring and taking delivery of the goods, and was charged a late payment fee of RMB 16,000 by the customs. The buyer then filed a claim against the seller.
Case (1)
One year, China's Company A (the buyer and Australia's Company B (the seller) on March 20, entered into a contract for the purchase and sale of 5 units of second-hand equipment import agent, the unit price of 50,000 U.S. dollars / unit CFR Zhangjiagang, specifications for the model T54FNF, letter of credit payment, shipment for the June of the year, the date of the issuance of certificates for the year in May. After the contract was signed, A company opened a letter of credit on May 31, July 9, the seller sent a fax to the buyer that the goods have been loaded on the ship, but to be transferred to the ship in Hong Kong, Hong Kong's ship name is Safety, is expected to arrive in Zhangjiagang on August 10th.
But not until August 18, 5Safety ship to Zhangjiagang, the buyer to go to the pickup procedures found that there is no goods under the contract on board, and after a number of ways to find out, only to find that the goods under the contract has been in July 20 by another ship arrived in Zhangjiagang. As a result, the buyer was late in declaring and taking delivery of the goods, and was charged a late payment fee of RMB 16,000 by the customs. The buyer then filed a claim against the seller.
Case (2)
In August of a year, China's A Import and Export Company (referred to as Party A), a new salesman and Canada's B commercial organizations (referred to as Party B) signed a contract for the purchase and sale of imported 5 units of old equipment import agent. The contract provides: specifications for the highest 20% moisture, impurities up to 1%, to the China Commodity Inspection Bureau of the inspection certificate as the final basis, the unit price of X X dollars per ton FOB Quebec, sacks, each bag net weight X X kg, shipment in December.
After the contract was signed, the salesman of party A contacted many ships and found that there was no ship to Quebec in December. So party A did not send a ship to pick up the goods as scheduled, and delayed sending a ship to pick up the goods until April of the next year. When the four sets of old equipment to the destination, party B found that the equipment has been serious rust, so commissioned the China Commodity Inspection Bureau for inspection, commodity inspection agency issued a certificate of the external environment caused by the serious rust of the equipment, according to which party A to party B proposed to reduce the price of 20%. Accordingly, Party A claimed a 20% price reduction from Party B. Party A claimed damages from Party B. When party B received party A's claim, not only refused to pay, but also require party A to pay for the delay in receiving the goods caused by party B to pay for the old equipment import customs clearance delays in warehousing and storage fees and other costs, so the two sides dispute.
Analysis
The issues involved in the above case are analyzed as follows.
1. The terms of delivery of the shipment of goods
The terms of delivery of the shipment of goods to generally include four aspects of the content.
(1) the time of shipment, that is, the seller to fulfill the delivery obligation of time or period. In the contract to be contracted for shipment in a certain month or a year across the month of shipment, or a quarter of a year for shipment, or across the year, across the quarter, across the month of shipment, or the receipt of a letter of credit in a number of days or a number of months for shipment. The length of the shipment period should be appropriate, not only to consider the actual situation of the source of goods and ship sources, but also should take into account the port of shipment, port of destination conditions and special circumstances, the shipment period and the date of issuance of the letter of articulation.
(2) port (place) of shipment and port (place) of destination. In the provisions of the port of shipment (place) and the port of destination (place), to take into account the port conditions; as far as possible from the supply, end-users closer; such as the business needs to consider more than two "port of pickup and drop-off"; such as the fear of renaming, the port name should be followed by the indication of the country.
(3) whether batch shipment and transshipment. Batch shipment refers to a transaction of goods into a number of shipments; transshipment refers to the goods in the port of shipment, after shipment, in the middle of other ships to the destination port. It should be clearly stated in the contract whether it is allowed or not. If the contract and the letter of credit do not stipulate whether or not to allow split shipment, according to the "Uniform Customs and Practice for Documentary Credits (2007 Revision)" (hereinafter referred to as "UCP 600") interpretation should be regarded as permitted to split the shipment; if there is a word in the letter of credit that does not allow split shipment, according to the provision of Article 21(b) of "UPC 600": "indicates that several sets of goods transported by the same means of transportation and by the same voyage are being transported by the same means of transport". When several sets of transport documents showing transportation by the same means of transport and by the same voyage are presented on the same occasion, they will not be regarded as partial shipments provided that they show the same destination, even if the transport documents indicate different dates of shipment or different ports of loading and unloading, places of taking over, or places of dispatch. If the delivery consists of several sets of transport documents, the latest of these will be considered as the date of shipment." "A consignment note containing one or more sets of transport documents which indicate that they are being transported by several means of transport under the same mode of transport will be regarded as a partial shipment even if the means of transport departed on the same day for the same place of destination." At the same time. In the same paragraph, it is stated that "A delivery order containing more than one courier receipt, postal receipt or proof of postal delivery will not be considered as a partial shipment if the documents appear to have been stamped or signed by the same place or postal authority at the same place and on the same date, and if they indicate the same place of destination."
(4) Notice of shipment. In order to facilitate the connection between shipment and cargo, and to smooth the execution of the contract, the buyer and seller should communicate with each other in a timely manner in the process of preparing and loading the ship, so the issue of "notice" should also be written in the contract.
2. "Notice of shipment" notes
(1) time. In accordance with the general practice of international trade, to FOB terms, the contract should be specified in the seller in the pre-delivery of a number of days [30 or 45 days] will be ready to inform the buyer of the goods or not, so that the buyer to send a ship to receive the goods. Upon receipt of the seller's notification of the readiness of the goods, the buyer shall proceed with the chartering of the vessel and inform the seller by telegram of the name of the vessel, the ship's registry, the deadweight tonnage, the draught depth, the expected date of arrival at the port of loading, etc., so as to facilitate the seller's taking over the vessel and loading of the goods. The seller shall immediately inform the buyer by telegram (within 24 hours in customary practice) after the completion of loading of the vessel so that the buyer can take out insurance and receive the goods.
(2) Liability. CFR conditions, the seller must be loaded on board the ship in a timely manner after the goods to the buyer to send notice of loading, so that the buyer for insurance procedures. This is not only a matter of cooperation between the two sides, the seller's service attitude, but also involves the legal responsibility of the loss. Because different countries have different interpretations of the law, such as the United Kingdom's "Sale of Goods Act," the seller did not issue a notice of loading so that the buyer omitted to insure, if the goods in the sea voyage into the loss of loss or destruction, the seller to bear the liability, the seller can not be risk in the port of shipment ship transfer for the reason of exemption from liability. Visible, in CFR only conditions, the seller after loading the ship to send a notice of loading has a very important significance.
In addition, to FOB conditions, if the buyer did not give the seller about the name of the ship, the ship loading point and the request for delivery of sufficient notice, or its designated ship did not arrive on time, or did not accept the goods, or than the notification of the delivery of time earlier than the cessation of loading, the buyer to bear the loss of the goods or damage to the goods of the agreed date of delivery or the date of the delivery period, the buyer of the goods of the loss or damage to the risk of all the day of the date of expiration of the delivery period; if the buyer assigned the vessel arrived at the port of shipment on time, the seller can not exempt from liability on the grounds of risk transfer in the port of shipment. If the vessel appointed by the buyer arrives at the port of shipment on time and the seller fails to prepare the goods, the seller shall be liable for the costs and damages incurred by the seller, such as empty space and demurrage. If the buyer, who has the right to determine the time of shipment and ^ or the port of destination, fails to notify the seller of such information in time, the buyer shall bear all risks of loss of or damage to the goods from the date of expiration of the agreed delivery date or delivery period. Provided that the goods have been clearly identified as the goods of the contract.
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