Keywords: freight forwarder; legal status
First, the concept of international freight forwarding
An international freight forwarder refers to a person who carries goods according to the instructions of customers for the benefit of customers. Although the international freight forwarder itself is not a carrier, its legal responsibility is often controversial in maritime practice because of its vague legal status. This paper will discuss how to judge the legal status of international freight forwarders.
Second, the legal nature of international freight forwarding
According to the different scale and business scope, international freight forwarding is usually divided into two forms: one is the shipper's agent; The other is the multimodal transport operator. The extended legal nature of international freight forwarding mainly includes two theories: "agent" and "NVOCC". People who hold the theory of "agency" believe that international freight forwarding refers to accepting the entrustment of the principal and handling the transportation of goods in the name of the principal within the scope of the authorization of the principal, and the agency relationship is the core relationship, similar to the provisions on agency in the General Principles of Civil Law. Therefore, the responsibility of freight forwarders should be based on the relevant provisions of the General Principles of Civil Law, and the legal consequences should be borne by the principal. On the other hand, the theory of "non-vessel operating carrier" holds that many freight forwarders sign multimodal transport contracts with shippers on the one hand, and separate transport contracts with actual carriers in each section on the other. When they appear as such "non-vessel operating carriers", they should be regarded as having the legal status of carriers.
Three. Criteria for judging the legal status of international freight forwarders
As an agent or the subject of a contract, freight forwarders often try to evade their responsibilities through agency. This often leads to confusion. In theory and shipping practice, the legal status of international freight forwarders or agency enterprises is mainly determined according to the following four standards.
(a) According to the agreement between the two parties
That is, according to the transportation contract signed by both parties and how the freight forwarder describes himself in the contract or related documents. As a product of the autonomy of the parties, as long as both parties agree on the legal status of freight forwarders in the contract, there is no dispute about its legal nature and status. However, if there is no agreement in the freight contract or the agreement is unclear, according to the principle of contract interpretation and the usual practice in shipping practice, an explanation will generally be made in favor of the shipper. In recent years, with the growth of the strength of freight forwarding enterprises, domestic courts tend to make this explanation. As for the specific description in the contract, if the forwarder describes himself as an agent, representative or agent, and this description is added after his signature, then he is considered as an agent at this time.
(2) Issuing transport documents according to law.
According to the relevant provisions of FLATA Standard Rules, once a freight forwarder issues his own transport documents, it is deemed that he has expressly or implicitly promised to undertake the responsibilities as a carrier. For example, issue a bill of lading in your own name and announce the freight rate. There is a similar provision in the standard clauses of NSAB: "In the following cases, the freight forwarder shall be regarded as the carrier: issuing transport documents in its own name …".
(3) according to the way of getting paid
In practice, one-time fee and commission are two main forms for international freight forwarders to get paid. Among them, the commission is well understood, which is the fee obtained by the freight forwarder as an intermediary to introduce the business. Although there is no such name in the field of international logistics, in order to facilitate transactions, freight forwarders have been collecting lump sum fees for a long time, and it has become an industry practice. One-time fee is a one-time fee paid by the owner to the freight forwarder. Different from the sea freight, the lump sum fee also includes customs declaration fee, port fee and other tolls. Generally speaking, the fact of charging a lump sum fee is usually considered that a freight forwarder has the legal status of a carrier. If a commission is charged, it is usually considered as an agent. In the dispute between Taicang Daxing Canning Company and Jiangsu COSCO Company, the buyer and the seller signed a contract for the transportation of goods, and the payment method agreed in the price terms was lump sum payment, but it was not clear whether the freight agent in this transaction was an agent or a carrier. The court finally found that the freight forwarder performed the contract as an agent, that is, he did not become a carrier because of the lump sum fee. Because in the court's view, the lump sum fee is the fee paid by the agent first, and they have already assumed certain market risks.
(four) the relevant provisions of the law
According to the relevant provisions of the Supreme People's Court 2012 65438+27 February 27th, the people's court should first determine whether the contractual relationship of maritime freight forwarding is established according to the rights and obligations stipulated in the written contract, combined with the name and method of the freight forwarding enterprise's remuneration, the types of invoices and charging items, the trading habits between the parties and other actual performance of the contract. The provisions of 20 12 regulate the determination of the contractual relationship of freight forwarders. It can be seen that the agreement of rights and obligations in the contract is the first factor to be considered.
Fourth, summary.
Based on the above analysis, we can find that the determination of the legal status of international freight forwarders is a very complicated issue. Especially in practice, a large part of contracts are concluded orally, which will make it difficult to identify the legal status of freight forwarding enterprises. Here, I think it is very important to determine the legal status of freight forwarders according to other conditions of actual contract performance, such as the freight forwarders' actual participation in transportation. In the process of modern international transportation, in order to reduce transportation costs, the integration of storage and transportation is changing to an integrated logistics service enterprise. Therefore, international freight forwarders are likely to bear the responsibility of the carrier during the storage and transportation of goods or the use of means of transport. In addition, the way of obtaining freight forwarders' remuneration, the types of invoices issued and the trading habits of both parties should be considered comprehensively.
References:
Guo Ping. Analysis of the meaning and legal status of international freight forwarding [J]. China Maritime Law Annual, 200 1.
[2] Meng Yuqun, Chen Zhenying. International Freight Forwarding Law and Case Analysis [M]. Beijing: university of international business and economics Publishing House, 2000.