(1), ②, ④ and ⑤ are general average, ① and ③ are general average. .. 5 points
(2) *** General average refers to some special sacrifices or some extra expenses made by the ship consciously and reasonably taking measures to eliminate the threat, maintain the safety of the ship and the goods or enable the voyage to continue when the ship carrying the goods encounters disasters or accidents at sea. While general average refers to the accidental loss other than general average, that is, part of the loss of the ship or cargo directly caused by the risks within the insurance scope is borne by only one injured person. .. 10 point
In 2003, an American exporter signed a CFR contract with a Korean exporter, which stipulated that the seller would sell 2000 metric tons of wheat to the buyer. Wheat was mixed when it was loaded at the loading port, and * * * shipped 5000 metric tons. After the ship arrives in Hong Kong, the seller is prepared to distribute 2000 metric tons to the buyer by the shipping company. However, the cargo ship encountered hot weather on the way, and the wheat deteriorated, resulting in a loss of 2,500 metric tons, and the remaining 2,500 metric tons arrived in Hong Kong safely. After the ship arrived at the port of destination, the seller claimed that all the 2000 metric tons of wheat sold to the buyer had been lost in transit, and believed that according to the CFR contract, the risk of the goods had been transferred to the buyer when the port of shipment crossed the ship's rail, so the seller did not have to bear the loss of 2000 metric tons of wheat. The buyer asked the seller to fulfill the contract and deliver 2000 metric tons of wheat. The two sides were at loggerheads, so they asked for arbitration according to the arbitration clause in the contract. After obtaining evidence, the arbitration institution finally ruled that the seller should not shirk its responsibility and the loss of the goods on the way could not be passed on to the buyer.
case analysis
This case is a typical case of risk transfer in international goods sale. The two sides signed a CFR contract. According to Incoterms, the risk transfer boundary between the two parties under CFR contract is the ship at the port of shipment. The goods in this case are the risks suffered in transit, which on the surface seems to be borne by the buyer. However, the particularity of this case is that the seller mixed 5000 metric tons of wheat at the time of shipment, and the buyer's 2000 metric tons of goods were not allocated from the buyer's other goods when sailing at sea (that is, the goods were not specified), so there is no prerequisite for risk transfer, even though the goods have crossed the ship's rail at the port of shipment, the wind is blowing.
The risk will not be transferred, and the risk loss in transit will still be borne by the seller.
As can be seen from this case, when there is a dispute over the transfer of goods risk in the international sale of goods, the parties must comprehensively consider various factors and analyze the specific problems, and cannot mechanically copy the relevant provisions. In this case, because the seller did not specify (distribute) the goods under the contract, there is no premise of general CFR contract risk transfer. In this case, there is no legal theoretical basis for the seller to invoke the clause on risk transfer in CFR contract for defense.
Case 2: Our company imported 65,438+00 metric tons of chemical fertilizer according to CIP terms, which was transported by sea first, and then transferred to railway after arriving at the destination port. After we received the goods, the seller asked us to pay for the goods and the railway freight. Q: Is the seller's request reasonable?
Comment: The seller's request is unreasonable. Reason: According to CIP terms, the seller should bear the freight and insurance premium of the goods to the destination, not just the ocean transportation, but the whole transportation cost.
Case 3
One of my companies exported a batch of clothes according to CPT terms, and the company delivered the goods to the designated carrier on schedule. However, due to the weather, the transportation was delayed for one month and the sales season was missed. The buyer filed a claim with the company. Q: Who is responsible for this small matter?
Comment: This small matter should be borne by the buyer. The reason is that when a transaction is concluded under CPT, the risk transfer is bounded by the delivery of the goods to the carrier, that is, the seller delivers the goods to the designated carrier and the risk is transferred from the seller to the buyer.
Case 4
Company A exports 500 trucks to a certain country on FAS terms. Of these 500 vehicles, 40 were sold to Company A and Company B in a certain country, and the carrier was responsible for the delivery after the goods arrived at the port of destination. During the voyage, 50 trucks were washed into the sea due to bad weather. Afterwards, Company A announced that all 40 trucks sold to Company B were lost in transit, and because these losses occurred in transit, Company A did not assume responsibility, while Company B thought that Company A failed to fulfill its delivery obligations and demanded compensation for the losses. Q: Should Company A bear the losses?
Comment: Company A should not bear the loss. Reason: Under the conditions of FAS trade, the division of risks is based on the ship at the port of shipment, that is, before the goods are delivered to the ship at the port of shipment designated by the buyer, the seller bears the expenses and risks, and the buyer bears the risks thereafter. The seller can distinguish the goods at the time of delivery, while the carrier is designated by the buyer, so the goods can be designated at the time of shipment. Therefore, the loss of the goods shall be borne by Party B or Party B and another buyer.
Case 5 The importance of flexible choice of appropriate trade terms
The facts of a legal case
In February, 2000, an inland export company in China exported 30 tons of hay cream to Japan, 40 boxes per ton *** 1200 boxes, at the price of $0/800 per ton/kloc-0, and the FOB price of Xingang was $54,000. The goods must be loaded into the container before February 25th. should