2000-word maritime essay the first documentary letter of credit and ocean bill of lading
At present, most of the international commodity trade is settled by letter of credit. The payment method of letter of credit mainly depends on reviewing various documents, so documents become the key to the transaction. Among all kinds of documents used under the mode of payment by letter of credit, ocean bill of lading represents the real right of goods, so it has become the core document in the whole set of foreign exchange settlement documents, and has also become the focus of attention of buyers and sellers, shippers, banks and other parties.
Keywords: letter of credit; Ocean bill of lading; danger
China Library Classification Number: F7 Document Identification Number: A
In international trade, there will be a lot of logistics and capital flow. Exporters carry out logistics through maritime carriers, mainly by land and sea; The capital flow is completed by the importer through the intermediary of the bank, mostly by letter of credit.
To successfully complete the trading system of letters of credit, the most crucial thing is the interaction between logistics and capital flow. To ensure interaction, the most important link is the document, that is, the ocean bill of lading issued by the carrier. The original clean bill of lading issued by the carrier shows that the exporter has fulfilled the delivery obligation, and then he can get the payment from the negotiating bank or the issuing bank.
First, the origin of the letter of credit business
International trade is thousands of miles apart, and the currencies are different, so it is impossible to settle accounts as conveniently as domestic trade. There is a period of several months between the exporter loading the goods and the importer receiving them. During this period, one party must provide credit to the other party, either the importer pays or the exporter sells the goods on credit. However, it also brings risks. Importers are afraid that they will not receive the goods after payment, and exporters are afraid that they will not receive the money after delivery. This kind of international trade will be difficult to carry out smoothly. At this time, the bank participates in international trade, as an intermediary between importers and exporters, and opens letters of credit. On the one hand, it assures exporters that as long as the goods are exported, the bank guarantees payment, and at the same time, it assures importers that as long as they pay on time, they can pick up the goods at the receiving port.
The tool used by banks in this activity is a letter of credit, which is a certificate used by banks to ensure that buyers or importers have the ability to pay. A letter of credit is a conditional guarantee payment document issued by the bank to the beneficiary (seller) at the request of the applicant (buyer) who issues the letter of credit.
Second, the risk of bill of lading
In international trade, the people who have the right to issue bills of lading are the carrier and its agent, the captain and his agent, the shipowner and his agent. The certificate signed by these people on the bill of lading is the first mate's receipt, and the date of issuing the bill of lading should be the date when the first mate issues the receipt after the goods are loaded. There are many kinds of bills of lading issued, not only M bill of lading issued by the carrier, but also H bill of lading issued by the freight forwarder. There are clean bills of lading and unclean bills of lading; Backdated and pre-borrowed bills of lading; There are also instructions and bearer bills of lading. , and the method to distinguish these bills of lading can only be distinguished by detailed comparison with the transaction contract. Although there are many classifications, they are all expressed in one document. It is the diversity of issuers and types of bills of lading that makes bills of lading have certain risks.
(1) Risk of non-conformity of bill of lading with goods. The risks of discrepancy between the bill of lading and the goods are mainly manifested in the following aspects:
The first case is an empty document. Explain that there is nothing wrong with the bill of lading itself, but the contents recorded are different from the real situation of the goods, and there may even be no goods at all. The fundamental reason for this situation is that the Uniform Customs and Practice for Documentary Credits 500 stipulates that the paying bank is not obliged to check the validity of the documents submitted by the beneficiary. What the paying bank needs to check is whether the document information is consistent with the requirements of the letter of credit, such as the date of shipment, packaging, port of discharge, etc. If it is inconsistent, it will be rejected. In addition, the authenticity of the file itself cannot be verified at all. It should be pointed out that in practice, it is unrealistic to ask banks to verify the authenticity of each set of documents. It is impossible for the bank to inspect the goods under each set of documents on the spot. Banks simply don't have the ability and energy, so there are still some risks for buyers. Therefore, it is this exemption clause that forms a risk loophole. Under the L/C settlement method of cash against documents, the seller only needs to obtain a blank bill of lading from the shipping company, marked "Yes"? Clean? 、? Has it been delivered? 、? The shipment date is earlier than the contract delivery date? Plus a fake signature. In addition, invoices and insurance policies that prove transactions are also easy to forge. Only this kind of regulation allows swindlers to apply for letters of credit smoothly and disappear after receiving the money.
In the second case, the clean bill of lading will be updated with the letter of guarantee. When the package of the goods delivered by the shipper is defective, such as rags and rust spots, the ship will add bad comments on the bill of lading, that is, unclean comments. Note that this only refers to the packaging of the goods, not the goods themselves, because there is no requirement to inspect the goods during transportation on board.
An unclean comment is a discrepancy, and the attached bank will refuse to pay. Therefore, in order to eliminate discrepancies and settle foreign exchange smoothly, exporters will require the ship to issue clean notes different from the actual situation, but at the same time, they must also issue a letter of guarantee to ensure that if the ship suffers losses due to this letter of guarantee, it can compensate the ship for the losses. In this way, after paying for the goods, importers can only apply for compensation if they find that the items are not in conformity, and will suffer huge economic losses if they encounter malicious fraud.
(2) The risk of transportation delay. Under the letter of credit, the seller has strict time limit for shipment, and the seller cannot ship the goods later than this time. This rule is because in international trade, the purpose of the transaction is very complicated, some buyers buy and sell in reverse, some supply for other enterprises, some purchase for other enterprises, and so on. If the goods are delayed, it will affect the next transaction. Moreover, in international business, the price of goods changes greatly, and if the buyer can't pick up the goods on time, he may suffer huge losses caused by price fluctuations. Therefore, under the letter of credit, if the shipment is later than the specified time, banks often refuse to attach the letter of credit.
In order to settle foreign exchange smoothly, the seller will ask the ship to countersign the bill of lading so that the date of the bill of lading is earlier than the latest shipment date stipulated in the letter of credit. This is a way for the seller to transfer the risk to the buyer. If it is not found in time, it may cause the buyer to suffer losses. The way to put an end to this risk is that when the buyer finds that the goods are late, he should check the log book in time and investigate the exact shipment date of the goods. If it is really a reverse bill of lading, the responsibilities of the seller and the ship should be investigated in time.
(3) maritime transport risks beyond the carrier's responsibility. Mainly refers to the transshipment bill of lading risk and manifest bill of lading risk. When there is no direct connection between the port of shipment and the port of destination, and the goods need to be transshipped, as far as ordinary ocean bills of lading are concerned, the issuer of the first and second voyage bills of lading only bears the transportation responsibility within its own transportation scope, and the importer actually bears the transshipment risk. At this time, it is necessary to actively insure and reduce risks.
Without the protection in the cabin on deck, the possibility of all kinds of damage is much greater. At this time, containers and other loading tools can be used for transportation to reduce the possibility of loss.
Three. Prevention of bill of lading risk under letter of credit
(1) Choose a trading partner with good reputation. In international trade, we should first fully understand the credit status of customers. If you can't make a deal with acquaintances casually, it is often easy to have an accident. The so-called good credit status includes two aspects: first, good assets, considerable assets, good operating conditions and ability to perform contracts; Second, it can perform the contract in good faith and will not tear it up at will.
(two) choose a reliable shipping company to carry goods. If you choose a reliable shipping company, the ship will be more cautious in issuing letters of guarantee and loading, and strive to find problems early and solve them in time. Supporters should also be cautious about the issuance and acceptance of the letter of guarantee, so that it is easy to solve the losses under the letter of guarantee through consultation. Letter of guarantee has the nature of supporting both parties to defraud the third party consignee in partnership, so great attention should be paid to choosing a reliable carrier to carry the goods.
(3) Carefully examine the contents of the bill of lading. The letter of credit business is a pure document transaction, and the only condition for the bank to bear its payment responsibility is that the beneficiary submits documents that meet the terms of the letter of credit, as long as the documents meet the requirements on the surface? Just consistent, consistent documents? Conditions, the bank will bear the responsibility for payment, regardless of whether the document is true or not. If there are discrepancies in the documents, the exporter will lose the bank guarantee of safe and timely receipt of foreign exchange. It will also cause different degrees of losses to importers. Therefore, the paying bank and importer should carefully check the contents of the bill of lading before payment. Under CIF and CFR conditions, it is best to ask the other party to submit a liner bill of lading, which must indicate the freight prepaid; Check whether the number of copies of the original bill of lading is consistent with the number of copies recorded in the bill of lading; The bill of lading must be clean on board. Is there a comment attached? , but there can be no bad reviews; Do not accept the manifest bill of lading; When the contract amount is large, it is best to adopt FOB clause in the contract, and the importer will arrange the transportation by himself to prevent the risk of fraud.
(Author: Shaanxi Vocational and Technical College of Finance and Economics)
Main references:
[1] Yang's foreign trade and maritime fraud. Dalian Maritime College Press, 2004.
[2] China National Committee of the International Chamber of Commerce. Compilation of international practices of letters of credit [M]. Beijing: China Civil Law Press, 2004.
[3] Guo Yu. Research on the legal system of bill of lading [M]. Beijing: Peking University Publishing House, 1997.
[4] Kim. Analysis of typical maritime cases in China. Law Press, 2005.
On risk prevention and treatment of marine bill of lading
Abstract: The main risks of ocean bill of lading lie in the forgery of bill of lading and the different interpretations of the nature of bill of lading in various countries, which leads to international trade frictions and disputes. This paper introduces several fraudulent acts of bill of lading, such as short bill of lading, bill of lading and reverse bill of lading, and based on this, advances some main methods for preventing such risks.
Keywords: ocean bill of lading; Short bill of lading; Bill of lading; risk prevention
China Library Classification Number: F74 Document Identification Number: A Document Number:1673-291x (201) 22-0163-02.
Article 7 1 of China Maritime Code stipulates? A bill of lading refers to a document that proves that the contract of carriage of goods by sea and the goods have been received or loaded by the carrier, and the evidence of delivery of the goods is kept by the carrier? . Therefore, the carrier is obliged to submit the goods contained in the bill of lading. For importers, in most cases, the original bill of lading must be used to pick up the goods. At the same time, under the letter of credit settlement method, the bill of lading is also one of the documents that exporters must provide when settling foreign exchange. Therefore, the bill of lading is related to whether the consignee can receive the goods purchased in the sales contract, whether the shipper can get the payment smoothly, and whether the carrier bears additional risks because of the shipper.
I. Empty bills of lading
A short bill of lading means that the surface record of the bill of lading strictly conforms to the letter of credit, but it is seriously inconsistent with the actual quantity or quality of the goods, and may even have no goods at all. Because the principle of independence of letter of credit stipulates that letter of credit and basic contract are independent of each other. In addition, article 4 of UCP600 stipulates? The bank is not responsible for the form, completeness, accuracy, authenticity, forgery or legal effect of any document, nor for the general and/or special conditions stipulated or attached to the document; We are also not responsible for the description, quantity, weight, quality, condition, packaging, delivery, price or existence of the goods represented by the documents, or for any honesty or behavior and/or negligence, solvency and reputation of the consignor, carrier or insurer of the goods or any other person. In other words, as long as the exporter provides a series of documents that meet the requirements of the letter of credit, the issuing bank will pay for the goods. Therefore, exporters with bad reputation can get the payment as long as they produce documents that strictly meet the requirements of the letter of credit.
It is not difficult to avoid the risk of this bill of lading. Most of these cases are developing countries and are not familiar with international trade rules. In order to avoid being fooled, first, carefully examine the qualifications of suppliers before trading. Be careful when choosing suppliers, don't blindly covet low prices, fraudsters often set traps at low prices; At the same time, you can ask the other party to provide samples during the transaction negotiation. If the other party provides samples for too long, it may be a leather bag company; If possible, check the qualifications of enterprises through national government agencies. Second, choose the appropriate terms of trade and mode of transportation. If it is the first cooperation, try to choose FOB trade terms, and ask the other party to board the vessel designated by him to keep abreast of the movement of the carrying vessel. If the trade term of the seller's handling of transportation insurance is adopted, it is best to ask the other party to choose a carrier with good reputation and standardized large-scale management system. Third, it is more difficult to forge documents. In the negotiation conditions of credit, plus the quality certificate and quantity certificate issued by government agencies or authoritative inspection and appraisal companies, it is difficult for the other party to falsify.
Two. Counterbill of lading and advance bill of lading
(A) the hazards of counter-signing and pre-borrowing of bills of lading
The so-called countersigned bill of lading generally refers to the bill of lading whose issuance date is earlier than the shipment date of the goods. UCP600 stipulates that if the date of obtaining the bill of lading is later than the presentation date stipulated in the letter of credit, the bank has the right to refuse the negotiation. If the actual shipment date of the goods is later than the shipment date stipulated in the letter of credit, in order to settle foreign exchange smoothly, the shipper often requires the carrier to change the date of bill of lading and advance the date of issuance of bill of lading. Countersigning the bill of lading is a forged document, which belongs to the fraudulent behavior of the shipper and the shipping company conspiring to deceive the consignee.
1. Countersign the bill of lading because the shipment date is later than the date agreed in the contract, which will inevitably lead to the delayed arrival of the goods. Therefore, for this kind of bill of lading, the main risks faced by the consignee are: (1) cargo damage and cargo difference; (2) For goods with strong seasonality, missing the peak sales season will cause the buyer's local market price to fall; (3) the raw material supply of the factory of the production enterprise is not timely, which leads to the shutdown of the factory; (4) Importer's compensation for chain default. Importers often sign sales contracts with domestic buyers when importing goods. Once importers fail to deliver the goods in time, they will be liable for compensation to domestic buyers.
2. The so-called advance bill of lading refers to the clean on-board bill of lading issued by the carrier in advance at the request of the shipper when the sea cargo has not been loaded or has not been loaded at all. The main hazards of prepaid bills of lading are as follows: (1) For the applicant, it makes him lose the ownership of the goods. Because the advance bill of lading is a clean on-board bill of lading issued before the goods are shipped, it is more harmful than the reverse bill of lading. Whether the seller will submit the goods with the quality and quantity listed in the bill of lading after obtaining the bill of lading that meets the requirements of the letter of credit depends entirely on the seller's commercial credit. (2) For the carrier, its hazards are: 1) It is very likely to increase the carrier's liability for compensation. After the goods are loaded, the carrier will count the quantity and outer packaging of the goods loaded. When the shipping company or its agent issues the bill of lading, if they find some bad comments on the condition of the goods on the receipt, they should truthfully transfer these comments to the bill of lading as proof of exempting the liability for damage to the goods in the future. However, in the case of issuing an advance bill of lading, the carrier has issued a clean bill of lading before the goods are shipped, so once the goods submitted by the carrier are poorly packaged or in short supply, the carrier needs to bear the responsibility. 2) Even if the shipper asks the carrier to issue an advance bill of lading in good faith, once the goods are damaged during storage at the dock, the liability for compensation will naturally be passed on to the carrier.
(2) The legal nature of countersigned bills of lading and advance bills of lading.
At present, there are three views on the legal nature of reverse-signed advance bills of lading: liability for breach of contract, liability for tort and liability for concurrence.
1. Liability for breach of contract for countersigning bill of lading and advance bill of lading. Countersigning bill of lading and borrowing bill of lading in advance violate the obligations stipulated in the sales contract and bill of lading contract. As a party to the contract of carriage, the carrier shall issue the bill of lading according to the actual date of shipment of the goods. The carrier conceals the facts and falsely endorses the date of the bill of lading, which obviously constitutes a breach of contract.
2. Tort liability of countersigned bill of lading and advance bill of lading. (1) The bill of lading was countersigned and lent in advance, which caused damage to the consignee. The bill of lading concealed the fact that the goods were delivered late. The late delivery of the goods will either lead to the buyer's delayed use or miss the peak sales season, which will eventually lead to the buyer's economic losses. (2) It is illegal to countersign and advance the bill of lading. This is a fraudulent act of the carrier and the shipper against the holder of the bona fide bill of lading. (3) There is a direct causal relationship between the buyer's loss and the countersigned bill of lading. (4) Countersigning the bill of lading is the carrier's subjective and intentional behavior. When the carrier issues a reverse bill of lading, he clearly knows the illegality of this act and the possible adverse consequences.
3. Liability concurrence of countersigned bill of lading and advance bill of lading. Countersigning and advance borrowing of the bill of lading are both breach of contract, which infringes on the legitimate rights and interests of the consignee. No matter which kind of bill of lading is mentioned above, its harm to international trade is obvious. China courts usually apply this principle when dealing with cases of counter-signed bills of lading? Maritime fraud? The concept of.
(3) Preventive measures
In addition to choosing reliable suppliers and carriers when conducting transactions, we should also pay attention to the formulation of transportation terms when opening letters of credit.
1. Avoid setting the time interval between the shipment date and the latest delivery date too close. In this way, even if the loading is completed before the latest shipment date, the shipper will have enough time to submit the negotiation documents.
2. If the latest delivery date is near and the goods have not been shipped, the exporter should communicate with the buyer in time and ask for the amendment of the letter of credit, and should not take any chances.
3. For the consignee, if it is suspected that the seller has failed to deliver the goods in time, and the carrier is required to issue a counter-signed or pre-borrowed bill of lading, it shall obtain evidence in time. You can consult the logbook or the port operation record and ask the bank to stop the negotiation. If the seller has obtained the payment, he should bring a lawsuit to the court in time. After applying for litigation preservation, the maritime court will seal up or freeze the ownership of the fraudster or the fraudulent subject matter in time to ensure the actual judicial judgment of fraud cases in the future.
Third, delivery without bill of lading.
Delivery of goods without bill of lading means that in the maritime transport of goods related to international trade, the carrier delivers the goods to the party requesting delivery without showing the original bill of lading.
1. Causes and hazards of delivery without bill of lading. (1) With the development of the transportation industry, the unloading port of the ship often appears in the near-ocean trade, and the consignee has not received the original bill of lading. In order to avoid port congestion and speed up the transportation of imported goods, carriers will basically accept delivery by means of a copy of the bill of lading and a letter of guarantee. In practice, the consignee produces a copy of the bill of lading and provides a letter of guarantee with good reputation, which is accepted by most carriers. However, the validity of the letter of guarantee is limited to the consignee, guarantor and carrier, and the carrier still has the obligation to release the goods against the original bill of lading. (2) The carrier conspires with a third party other than the consignee to deliver the goods without the bill of lading. (3) The single goods are not synchronized, and the buyer refuses to exchange the single goods. Under the collection settlement mode, after the buyer obtained the goods because the carrier delivered the goods without the bill of lading, the buyer refused to honor the bill of lading and the bank returned the bill of lading. The exporter loses both money and goods. Under the letter of credit settlement method, the buyer refused to cash the bill. Because the issuing bank not only examines the bill of lading, but also examines some documents such as commercial invoices, packing lists and insurance policies, and because of different languages, it is not difficult for the issuing bank to find out discrepancies, so the whole set of documents may be sent back to the seller.
2. Countermeasures for delivery without bill of lading. At present, the relevant laws of most countries in the world believe that the carrier has violated the security interests of the holder of the bill of lading and should bear the liability for breach of contract. However, at present, the United States Law on the Carriage of Goods by Sea 1936 stipulates that the carrier under the straight bill of lading can place the goods without the original bill of lading as long as the consignee provides relevant documents to prove its legal identity. Therefore, the goods shipped to the United States are not suitable for making a straight bill of lading. If the other party requests the use of a registered bill of lading, it should be indicated on the bill of lading that this bill of lading is applicable to the maritime law of China. Restrict the carrier from delivering goods against the original bill of lading. Use other types of bills of lading. In addition to the original ocean bill of lading, you can also use electronic bill of lading or electronic bill of lading to avoid delivery without bill of lading.
4. Clean bill of lading exchanged by letter of guarantee
The clean bill of lading exchanged by letter of guarantee is very similar to the risks faced by the consignee with counter-signed and pre-borrowed bills of lading. Countersigning the bill of lading is the case that the carrier conceals the actual loading time of the goods, and the letter of guarantee is exchanged for a clean bill of lading. It is an agreement between the carrier and the shipper (sometimes known to the consignee) to modify the outer packaging status of the goods when they are loaded. However, as long as the cargo bill of lading is not a malicious collusion between the shipper and the carrier, the harm to the consignee is not great.
In a word, the use of bill of lading is risky, and the shipper should be careful when concluding the contract and reviewing the letter of credit to avoid burying hidden dangers. When issuing the bill of lading, the carrier should abide by the legal norms when performing its obligations, so as to avoid the shipper or consignee transferring the risks to himself. For the consignee, it is necessary to choose reputable suppliers and carriers in order to grasp the status of the consigned goods in real time. All parties concerned should strictly grasp and nip in the bud.
References:
[1] Si Yuzhuo. Monographs on Maritime Law [M]. Beijing: Renmin University of China Press, 2007.
[2] Guo Yu. Law on carriage of goods by sea [M]. Beijing People's Court Press, 2000.
[3] Yang Daming. On the potential danger of delivery without bill of lading [J]. China Maritime Law Annual, 2000.
[4] He Xu Hong. Solution to the problem of delivery of goods without bill of lading in international trade [J]. Economic Theory Issues, 2007, (4). [Editor An You]