• Journal of Korea Trade
• /
• 제25권1호
• /
• pp.203-219
• /
• 2021

Purpose - The purpose of this study is to review and analyzes the contract of carriage and delivery/transport document in light of the major changes made to the Incoterms^® 2020 rules forced into effect on January 1st, 2020. Design/methodology - This study analyzed responsibility for the loading and unloading of goods under the contract of carriage in Incoterms 2020^® rules forced into effect by the ICC from January 1, 2020, and what document must be presented as evidence of delivery by the seller. Findings - A review revealed that in Rule C, the costs of unloading at the place of destination are determined by the terms of the contract of carriage, and in the DAP and DDP rules, if the seller bears the unloading costs, such unloading costs cannot be recovered from the buyer. To settle this issue, the seller needs to make a contract of carriage by sea with the carrier on FI terms. Furthermore, in the case of containerized goods that the FCA should be used, FOB was misused because the seller could not present an on-board bill of lading in the L/C transaction. However, it was confirmed that in FCA, the parties can use an optional mechanism to issue an on-board bill of lading. Originality/value - Incoterms 2020^® rules are still widely used in international trade by parties to contract sales around the world, just like Incoterms 2010^® rules. This study attempts to reduce or eliminate disputes that may arise from interpretative misunderstandings between the parties in the contract of sales concluded by the seller and the buyer.

• 무역상무연구
• /
• 제75권
• /
• pp.49-69
• /
• 2017

Making a international contract of sale is not a simple work. International Trade parties(seller and buyer) may choose trade terms such as FOB or CIF to simplify their contracts and avoid misunderstanding of international commercial practice. Incoterms is the international rules for the interpretation of the trade terms, and firstly regulated by the ICC in 1936. The latest version is Incoterms 2010. Incoterms 2010 governs certain responsibilities between the seller and the buyer under the international contract of sale. Moreover, Incoterms 2010 provides the standard of division of costs relating to contract of carriage. But we should note that Incoterms 2010 is not the part of contract of carriage. The writer points out that there is no consistence principle in distributing the special costs under the contract of carriage like unloading cost from the transport vehicle. To avoid the dispute between the parties, it is more safe for international traders to fully and completely understand on the customs and practice of carriage of goods. Incoterms 2010 provides more detailed method of delivery of goods than CISG and RAFTD. Concerning the method of delivery of goods, CISG and RAFTD simply provide that the seller shall place the goods at the discharge of buyers. The writer suggests the basic principles to allocate the special costs of delivery of goods according to the trade terms under Incoterms 2010.

• 무역상무연구
• /
• 제41권
• /
• pp.3-21
• /
• 2009

To understand the procedure of international commercial transaction clearly and logically, this author would like to emphasize the contractual approach in this paper. The main contract in the transaction is the contract of sale; to perform this contract, the three subordinate or supporting contracts(including the contract of carriage, the contracts of insurance and the contract of payment) should be followed and performed. In the contract of sale, besides the express Terms, the trade Terms have very comprehensive meanings. Each trade term in Incoterms(2000) deals with the matters relating to the rights and obligations of the parties to the contract of sale with respect to the delivery of the goods sold. It also provides for the duties of seller or buyer relating to the contract of carriage, the contract of insurance and the payment in the process of the delivery of goods. Especially, it does not provide the methods of payment concretely, but it imposes the seller to hand over the documents evidencing the conformity of the contract of sale, and the delivery which includes the documents of carriage and/or insurance. Thus although the trade Terms deal with the obligations of the seller or buyer directly, they are very closely related with the contract of carriage and the contract of insurance indirectly, and also with contract of payment using the documentary draft. For the Arbitration or the litigation in the case of the breach of contract, the trade Terms play very significant roles. When an arbitrator or a judge decides the case, they should understand each obligation clearly, in which case, the trade terms give answers about who is wrong or who is right. Therefore, the contractual approach focusing on the trade terms would give very fruitful advantages to the students or teachers in understanding the procedure of the international commercial transaction systematicly and comprehensively.

• 무역상무연구
• /
• 제12권
• /
• pp.377-401
• /
• 1999

This study is focused on the privity of the contract of carriage of goods by sea, so to speak, privity between B/L holder and carrier by transfer of bill of lading, privity by attornment to delivery order and conflict between bills of lading and charterparty terms. Under a CIF contract, possession of the bill of lading is equivalent to possession of the goods, and delivery of the bill of lading to the buyer or to a third party may be effective to pass the property in the goods to such person. The bill of lading is a document of title enabling the holder to obtain credit from banks before the arrival of the goods, for the transfer of the bill of lading can operate as a pledge of the goods themselves. In addition, it is by virtue of the bill of lading that the buyer or his assignee can obtain redress against the carrier for any breach of its terms and of the contract of carriage that it evidences. In other words the bill of lading creates a privity between its holder and the carrier as if the contract was made between them. The use of delivery orders in overseas sales is commen where bulk cargoes are split into more parcels than there are bills of lading, and this practice gives rise to considerable difficulties. For example, where the holder of a bill of lading transferred one of the delivery orders to the buyer who presented it to the carrier and paid the freight of the goods to which the order related, it was held that there was a contract between the buyer and the carrier under which the carrier could be made liable in repect of damage to the goods. The contract was on the same terms as that evidenced by, or contained in, the bill of lading, which was expressly incorporated by reference in the delivery order. If the transferee of the delivery order presents it and claims the goods, he may also be taken to have offered to enter into an implied contract incorporating some of the terms of the contract of carriage ; and he will, on the carrier's acceptance of that offer, not only acquire rights, but also incur liabilities under that contract. Where the terms of the charterparties conflict with those of the bills of lading, it is interpreted as below. First, goods may be shipped in a ship chartered by the shipper directly from the shipowner. In that case any bill of lading issued by the shipowner operates, as between shipowner and charterer, as a mere receipt. But if the bill of lading has been indorsed to a third party, between that third party and carrier, the bill of lading will normally be the contract of carriage. Secondly, goods may be shipped by a seller on a ship chartered by the buyer for taking delivery of the goods under the contract of sale. If the seller takes a bill of lading in his own name and to his own order, the terms of that bill of lading would govern the contractual relations between seller and carrier. Thirdly, a ship may be chartered by her owner to a charterer and then subchartered by the chaterer to a shipper, to whom a bill of lading may later be issued by the shipowner. In such a case, the bill of lading is regarded as evidencing a contract of carriage between the shipowner and cargo-owners.

• 무역상무연구
• /
• 제18권
• /
• pp.137-157
• /
• 2002

The clauses of bill of lading(B/L) consist of the terms of contract for the carriage of goods by sea because of clauses of B/L by the mutual agreement of contracting parties. There are some exempted cause of deviation clause in B/L for specific reasons. Then deviation clauses are influenced by Rules of international carriage of goods by sea, because the international rules become the governing law of contract for the carriage of goods by sea. The problem of deviation clauses in B/L is stipulated as follows. "It shall be prerequisite to the Merchant' claim for damages on account of deviation that the merchant's insurance shall first have been cancelled on account of alleged deviation. No deviation shall oust the right to limit liability or damages, and the Carrier shall always be entitled to the full benefit of all privileges, rights and immunities contained in this Bill of Lading and incorporated tariffs." This stipulation should be adjusted according to the confirmed cases, otherwise it will be invalid according to the Hague Rules and Hamburg rules. The sphere of a reasonable deviation in the deviation clause should be interpreted in the connection with the designed voyage and the commercial object of contract for the carriage of goods by sea and the deviation become valid unless the policy, the general object of international rules or the true intention of contracting parties has violated.

• 항공우주정책ㆍ법학회지
• /
• 제1권
• /
• pp.193-222
• /
• 1989

The purpose of this study is to review the rights and duties of cargo owners, the party to the contract of international carriage of goods by air under the Warsaw Convention System and the IATA conditions. It is generally known that air freight is the most-cost mode of transportation. However, should there be considerations of total distribution cost, the use of air freight leads exporters to be advantageous in physical distribution. The Warsaw Convention System defined and limited the rights and duties of cargo owners and air carriers paticipating in the international carriage of goods, but it does not regulate every aspect of air transportation. Therefore, the unregulated parts are governed by national laws and by individual contracts of carriage. The International Air Transport Association(lATA), a worldwide organization of airlines, has formulated model conditions of contract for the carriage of cargo. These models are not uniformly followed but they serve as a basis for many of the individual standard form of contracts prepared by air carriers. The contract of air carriage of goods is a contract of adhesion, 'the consignor recognizing and accepting the conditions laid down by the carrier'. There are consignors and carriers as the parties to the contract of international carriage of goods. In addition to his basic right, implied in Warsaw Convention Article 18 and 19, to require devery of the goods in good condition and at the date agreed upon, the consignor has the right to dispose the goods in the course of the journey up to the moment when the consignee is entitled to require delivery. If it is impossible to carry out the orders of the consignor, the carrier must so inform him forthwith. The right conferred on the consignor ceases at the moment when that of the consignee begins in accordance with Warsaw Convention Article 13. Nevertheless, if the consignee declines to accept the air waybill or the goods, or if he cannot be communicated with, the consignor resumes his right of disposition. Unless it is otherwise agreed, it is the duty of the carrier to give notice to the consignee as soon as the goods arrive. The consignee is entitled, on arrival of the goods at the place of destination, to require the carrier to hand over to him the air waybill and to deliver the goods to him, on payment of the charges due and on complying with the conditions of carriage set out in the air waybill. The air waybill is supposed to be made out by the consignor. If the carrier makes it out, he is deemed, subject to proof to the contrary, to have done so on behalf of the consignor, whether there is one air waybill or several, each must be made out in three original parts. The first is for the carrier, the second is for the consignee, and the the third is handed to the consignor when the shipment has been accepted. The consignor is responsible for the correctness of the particulars and statement concerning the cargo appearing in the air waybill. Each of the original parts of the air waybill has evidential value and possession of his part is a condition for the exercise by the consignor or consignee of his rights under the contract of carriage. Hague Protocol set forth in Article 9 that nothing in this. Convention prevents the issue of a negotiable air waybill, but Montreal Additional Protocol No. 4 deleted this article. All charges applicable to a shipment are payable in cash at the time of acceptance thereof by the carrier in case of a prepaid shipment or at the time of delivery thereof by the carrier in case of a collect shipment. The carrier shall have lien the cargo for unpaid charges and, in the event of non-payment thereof, shall have the right to dispose of the cargo at public or private sale and pay itself out of the proceeds of such sale any and all such amounts. In conclusion, the Warsaw Convention System has the character of ambiguity in various respects, not only in the part of the forms of documents but also in conditions of contract. Accordingly, the following propositions might be considered: (1) If the carrier does not obey the orders of the consignor for the disposition of the goods without proper reasons, he will be liable strictly for any damage which may be caused thereby to the cargo owner. The special agreement and carrier's conditions of carriage which limit unreasonably the consignor's right of disposition of the goods will be nullified. (2) The instrument of the Warsaw Convention System which is not yet in force(Montreal Additional Protocol No. 4) would considerably simplfy the processing and keeping of computerized records of the carriage. Until this instrument enters into force, the airlines will be faced with practical problems preventing them to substitute computerized data processing techniques for the formal issuance of the documents. Accordingly, Montreal Additional Protocol No. 4 should become effective as soon as posisble. From a practical point of view in the international trade, the issuance of negotiable air waybill should be permitted for the security of the bank.

• 무역상무연구
• /
• 제49권
• /
• pp.325-358
• /
• 2011

The purpose of this study aims to analyse the implications of volume contract clause with Rotterdam Rules. The Hague-Visby Rules have been in force this jurisdiction for over 30 years. In those three decades they have performed valiant service, both for the development of maritime law in this country and for the countless parties from around the world who have chosen courts and arbitral tribunals in London for the resolution of disputes arising under bills of lading or under charterparties incorporating the Hague-Visby Rules. While the Hague-Visby Rules apply only to bills of lading or any other similar documents of title and hence all other contracts of carriage are not subject to the current regime, this is not the case for the Rotterdam Rules which, broadly speaking, apply to contracts of carriage whether or not a shipping document or electronic transport record is issued. To preserve freedom of contract where necessary, however, a number of significant concessions were made and Article 80 represents one of the most controversial: that of volume contracts. However, the provision lends itself to abuse under each one of the elements as there is no minimum quantity, period of time or frequency and the minimum number of shipments is clearly just two. This means that important contracts of affreighment concluded pursuant to, for example, oil supply agreements have the same right to be excluded from the scope of application of the Rotterdam Rules. The fact that a volume contract may incorporate by reference the carrier's public schedule of services and the transport document or other similar documents as terms of the contract would make a carefully drafted booking note for consecutive shipments a potential volume contract as well.

• 한국항해항만학회지
• /
• 제32권1호
• /
• pp.97-102
• /
• 2008

선박의 대형화 및 해상사업의 기업화 등에 따라 해상운송에 있어 화물의 하역, 보관 등의 전문적인 부분을 담당하고 있는 항만하역업자, 항만터미널운영자, 창고업자 등 독립계약자의 역할은 점점 증대되어 가고 있는 추세이다. 하지만 국제해상운송은 해상운송인과 화주를 중심으로 체결한 운송계약을 중심으로 이루어져 왔으므로, 영국 보통법상의 직접계약관계의 원칙에 의해 계약당사자가 아닌 자는 계약상의 이익을 원용할 수 없다는 입장을 유지하여 왔다. 이에 대해 이를 완화하고자 하는 다양한 방안이 적용되고 있으며, '히말라야약관'도 그러한 방안중의 하나이다. 본 논문은 최근 대법원판결을 통해 우리나라 법원의 히말라야약관의 유효성 인정에 대한 내용을 재검토하고 독립계약자, 특히 항만터미널운영자의 운송계약상 제3자의 권리인정에 관한 문제에 대한 각국의 경향에 대해 살펴본다.

• 한국항해학회지
• /
• 제19권4호
• /
• pp.41-61
• /
• 1995

The international trade is basically founded on the contract of international sale of goods and backed up by the contract of international carriage of goods and the contract of insurance in the goods carried. For the efficient development of international trade, it is essential to incorporate the above three fields closely together. Economic growth has developed international trade which has accelerated the development of international carriage of goods. As a result of rapid expansion of international carriage of goods, rationalization of transport was required, which has brought about the International Multimodal Transport System(herein after referred to as 'IMT') through containerization. International multimodal transport system has affected international trade a lot, especially the field of insurance a great deal. The aim of this paper is to analyze contents of Multimodal Transport Operator's(MTO's) liability system in the UN Convention on International Multimodal Transport of Goods, 1980 and FIATA Bill of Lading(FBL) as one of current Multimodal Transport Documents. The analysis of MTO's liability system will be a good introductory concept for the further study of insurance problems for the development of IMT.

• 무역상무연구
• /
• 제51권
• /
• pp.317-358
• /
• 2011

The purpose of this study aims to analyse the key differences of the sea waybill and electronic B/L in the international transport documents. Sea waybills look remarkably like ordinary bills of lading. Indeed, in two important ways, they are just like bills of lading: the front of the document will near a description of the quantity and apparent condition of the goods; and the back of the document provides evidence of the terms of the contract of carriage. They differ from bills of lading in that, far from indicating that the goods described are deliverable to the order of the shipper or of the consignee, they will make it explicit that the goods are deliverable only to the consignee. Again, different carries will do thai in a variety of ways. For example, the document may call itself non-negotiable, omitting the word order from the consignee box on the front of the document, and stating explicitly that the goods will be deliverable to the consignee or his authorised representative on proper proof of identity and authorisation. The Hague-Visby Rules and Hamburg Rules give no guidance as to any right to instruct the carrier in respect of goods while they are in transit. However, in applying Article 50 of the Rotterdam Rules, in particular when applying it in the context of seawaybills, straight bills of lading or ship's delivery orders, regard would need to be had to preserve the shipper's rights under any of those three documents even after the buyer of goods covered by them has acquired rights of its own. And, the right of control is defined at Article 1.12 of the Rotterdam Rules. The right to give instruction is further limited by the terms of Article 50.1 to three particular types of instruction in respect of the goods, relating broadly to the goods, their delivery en route, and the identity of the consignee. And, the CMI formulated the CMI Uniform Rules for Sea Waybills for voluntary incorporation into any contract of carriage covered by such a document. Recognising that neither the Hague nor the Hague-Visby Rules are applicable to sea waybills, the CMI Rules provide that a contract of carriage covered by a waybill shall be governed by whichever international or national law, if any, would have been compulsorily applicable if the contract had in fact been covered by a bill of lading or similar document of title.