International Trade and Carriage of Goods 1st Edition by Baris Soyer , Andrew Tettenborn ISBN 0367736977 978-0367736972

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ISBN 10: 0367736977 
ISBN 13: 978-0367736972
Author: Baris Soyer , Andrew Tettenborn 

This book consists of edited versions of the papers delivered at the Institute of International Shipping and Trade Law’s 11th International Colloquium, held at Swansea Law School in September 2015. Featuring a team of contributors at the top of their profession, both in practice and academia, these papers have been carefully co-ordinated so as to ensure to give the reader a first class insight into the issues surrounding international sale and carriage contracts.

The book is set out in three parts:

• Part I offers a detailed and critical analysis on emerging issues and unresolved questions in international sales and the carriage contracts affected to facilitate such sales.
• Part II critically and thoroughly analyses the legal issues that often arise in the context of security over goods, letters of credit and similar documents.
• Part III is dedicated to a critical and up-to-date discussion on matters concerning cargo insurance in this context.

With its breadth of coverage and high-quality analysis, this book is vital reading for both professional and academic readers with an interest in international trade and carriage of goods.

International Trade and Carriage of Goods 1st Table of contents:

Part 1 Contemporary Issues in International Sale Contracts

Chapter 1 What is a reasonable contract of carriage for CIF/CIP purposes? – section 32(2) of the Sale of Goods Act 1979

1.1 Introduction

1.2 The statutory framework

1.3 The legislative history of the provision

1.4 The reasonableness test

1.4.1 Contract on usual terms

1.4.2 Contract must be appropriate to grant sufficient protection to the goods while in transit

1.4.3 Contract must give the buyer protective rights against the carrier

1.5 Examples of contracts found to be unreasonable

1.6 An alternative route to s. 32(2)?

1.7 Circumstances where s. 32(2) of the Act might successfully be used

1.8 What are the buyer’s remedies if the contract of carriage is unreasonable?

1.9 Authorising an unreasonable contract42

1.9.1 Express agreement

1.9.2 Course of dealing between the parties

1.9.3 Such usage as binds both parties to the contract

1.10 Incoterms

1.10.1 CIF

1.10.2 CIP

1.11 Conclusions

Chapter 2 Slow steaming clauses and international sales contracts A successful marriage?

2.1 Introduction – setting the scene

2.2 ‘Reasonable contract of carriage’ and slow steaming

2.3 Bills of lading allowing for slow steaming: a good tender?

2.4 Slow steaming and time of shipment/laycan

2.4.1 CIF contracts

2.4.2 FOB contracts

2.5 Contractual solutions allowing for flexibility

2.6 Conclusions

Chapter 3 Laytime and demurrage in CIF and FOB contracts

3.1 Loss of time: the default position in CIF and FOB contracts

3.2 Self-contained compensation regimes for delay in sale contracts

3.3 Compensation regimes incorporated from charterparties

3.3.1 Which charter is incorporated?

3.3.2 Which charter terms are incorporated?

3.3.3 Free-standing obligation or indemnity?

3.3.4 Interpreting incorporated laytime and demurrage provisions in a sale contract

3.3.5 Cancellation clauses and sale contracts

3.3.6 “Readiness” and presentation within the delivery period

3.4 Conclusion

Part 2 Carriage and Sales

Chapter 4 ‘Who’s doing what and for whom?’: recent developments on delegated contractual performance

4.1 Introduction: delegated performance

4.2 The starting point: the ‘delegate’ principle

4.2.1 The Mediolanum and The Goodpal

4.2.2 The Adelfa and The Andra

4.2.3 Conclusions on the ‘delegate’ principle

4.3 Overriding contractual ‘definitions’ in pursuit of the ‘delegate’ principle

4.3.1 The facts of The Crudesky – padlocks and dastardly acts

4.3.2 The legal arguments

4.3.3 The pre-Crudesky authorities

4.3.4 The Court of Appeal’s decision in The Crudesky

4.3.5 Conclusions on The Crudesky

4.4 Does it actually matter what the ‘delegate’ is doing?

4.4.1 The facts of The Global Santosh – unloader problems and mistaken arrests

4.4.2 The LMAA tribunal’s award

4.4.3 Field J’s judgment

4.4.4 The Court of Appeal’s decision

4.4.5 The ‘whose side of the line is it?’ approach

4.4.6 The Supreme Court’s review

4.5 Conclusions

Chapter 5 Consignees’ rights under the Rotterdam Rules

5.1 Introduction

5.2 Background

5.3 The rights of consignees as “consignees”

5.3.1 The right to take delivery of the goods

5.3.2 The right to rely on the contract particulars

5.3.3 The right to rely on the Rotterdam Rules

5.4 The rights of consignees as “holders”

5.5 The rights of consignees as “controlling parties”

5.5.1 Becoming the controlling party

5.5.2 The consignee’s rights as controlling party

5.5.3 The importance of recognizing the consignee’s rights as controlling party

5.6 Conclusion

Chapter 6 Consignees’ rights in European legal systems

6.1 Introduction

6.2 The holder entitled to delivery

6.2.1 The formal test: the proper holder

6.2.2 The material test: the lawful holder

6.3 The right to claim damages

6.4 The real party in interest

Chapter 7 Discrepant declarations about containerised goods ‘… in the middle of a chain reaction’

7.1 Declarations and the burden of the customs debt

7.1.1 The duty to fill in customs documents

7.1.2 The moment when the customs debt is incurred

7.1.3 The identification of debtors

7.2 Declarations and the burden of liability

7.2.1 Declarations in respect of dangerous goods

7.2.2 Declarations on the condition and quantity of goods

7.3 Declarations and the burden of the financial risk

7.3.1 Declarations and the burden of risk on banks

7.3.2 Declarations and the burden of risk on insurers

7.4 Conclusion

Chapter 8 Letters of indemnity for delivery without a bill of lading

8.1 General principles

8.2 The law relating to the delivery of cargo without surrender of original bills of lading

8.3 The role of letters of indemnity in relation to the delivery of cargo without surrender of original bills of lading

8.4 Are carriers obliged to accept a letter of indemnity if one is offered to them?

8.5 The impact of charter party clauses

8.6 Practical issues that affect the effectiveness of letters of indemnity

8.6.1 The legal enforceability of the letter of indemnity

8.6.2 The creditworthiness of the entity issuing the letter of indemnity

8.6.3 The legal capacity of the entity issuing the letter of indemnity

8.6.4 The beneficiary of the letter of indemnity

8.6.5 The importance of the terms of the letter of indemnity

8.6.6 The law and jurisdiction provisions of the letter of indemnity

8.7 For how long should a letter of indemnity be kept in force?

8.7.1 Do the provisions of the Rules (whether Hague or Hague-Visby) apply to all cases of misdelivery?

8.7.2 Which version of the Rules applies in the particular case since the time limit provisions of the Hague and Hague-Visby Rules are not necessarily the same?

8.8 The need for cargo claimants to become holders of the original bills of lading even after delivery has been effected against provision of a letter of indemnity

8.9 Conclusion

Chapter 9 The rising tide of paperless trade Analysing the legal implications

9.1 Introduction

9.2 Significant recent developments

9.2.1 Incoterms 2010

9.2.2 The BIMCO Electronic Bills of Lading clause for charterparties

9.2.3 The ICC Uniform Rules on Bank Payment Obligations (URBPO)

9.3 The gap-filling process: contractual parties

9.4 The gap-filling process: adjudicators

9.4.1 The options

9.4.2 Filling in gaps: before or after?

9.5 Conclusion

Part 3 Payment and Security

Chapter 10 Economic sanctions and letters of credit in international transactions

10.1 Introduction

10.2 Letters of credit – an overview

10.3 Autonomy of the credit

10.4 Exceptions to the autonomy of the credit

10.4.1 The common law doctrine of illegality

10.4.2 Illegality under the place of performance of the contract

10.5 Sanctions clauses in letters of credit

Chapter 11 Islamic letters of credit – square peg in a round hole

11.1 Introduction

11.1.1 Nature of Islamic letters of credit

11.2 Shari’a-compliant transactions using a letter of credit

11.2.1 Letter of credit al-murabahah

11.2.2 The letter of credit al-wakalah

11.2.3 The letter of credit al-musharakah

11.3 UCP 600 compliance

11.3.1 The scope of application of the UCP 600 and Islamic letters of credit

11.3.2 Principle of autonomy

11.3.3 Recognising unlawfulness in Shari’a

11.3.4 Autonomy and the bank as legal buyer

11.3.5 Principle of strict compliance

11.3.6 The interest ban

11.4 Conclusion

Chapter 12 Do I want my documents back? A documentary credit dilemma

12.1 Introduction

12.2 The facts of The Erin Schulte

12.3 A word on the use of letters of indemnity in respect of discharge of cargoes without presentation of bills of lading

12.4 The issues arising out of The Erin Schulte judgment

12.4.1 Completion of indorsement by delivery

12.4.2 Payment under the ‘settlement’

12.4.3 Whether to claim in debt or not, that is the question

12.4.4 Do I want my documents back? – a documentary credit dilemma

Chapter 13 Lending on waybills and other documents – banker’s dream or financier’s nightmare?

13.1 The traditional position

13.2 The traditional view: a closer look

13.2.1 Claims against the carrier

13.2.2 The consignor’s right to divert

13.2.3 The lack of any requirement for surrender

13.2.4 The fact that sea waybills do not represent the goods and are not documents of title

13.3 Other carriage documents: air waybills, CMR consignment notes and the like

13.4 An addendum: the possibility of non-possessory security

Part 4 Contemporary Issues in Cargo Insurance

Chapter 14 Cargo insurance and open covers

14.1 Introduction

14.2 The nature and types of open cover

14.2.1 Terminology: ‘open covers’ and ‘floating policies’

14.2.2 Floating policies under the Marine Insurance Act 1906

14.3 Nature of open covers generally

14.4 The function and nature of declarations

14.4.1 The function of a declaration under a floating policy

14.4.2 The function of the declaration under a non-fully obligatory open cover

14.4.3 Timing of the declaration

14.4.4 Forms of declaration

14.5 Utmost good faith and fair presentation of the risk

14.6 Insurable interest and open covers

14.7 Conclusion

Chapter 15 The ICC transit clause – developments and fault lines

15.1 Introduction

15.2 Commencement of risk

15.3 The ‘ordinary course of transit’

15.4 Completion of transit

15.5 Conclusions

Chapter 16 Insuring cargoes in the new era – impact of the Insurance Act 2015 on standard cargo clauses/wordings

16.1 Introduction

16.2 The potential impact of sections 10 and 11 of the Insurance Act 2015 on common warranties in cargo policies

16.2.1 Cargo warranties – instances where no significant change is expected

16.2.2 Cargo warranties where a different outcome could be expected

16.2.3 Cargo warranties – position unclear

16.3 The potential impact of sections 10 and 11 of the Insurance Act 2015 on implied voyage conditions

16.4 Contracting out

16.5 Conclusions

Appendix 1 – UCP 600 – Uniform customs and practice for documentary credits (2007 revision)

Uniform customs and practice for documentary credits (2007 revision)

Article 1 Application of UCP

Article 2 Definitions

Article 3 Interpretations

Article 4 Credits v. Contracts

Article 5 Documents v. goods, services or performance

Article 6 Availability, expiry date and place for presentation

Article 7 Issuing bank undertaking

Article 8 Confirming bank undertaking

Article 9 Advising of credits and amendments

Article 10 Amendments

Article 11 Teletransmitted and pre-advised credits and amendments

Article 12 Nomination

Article 13 Bank-to-bank reimbursement arrangements

Article 14 Standard for examination of documents

Article 15 Complying presentation

Article 16 Discrepant documents, waiver and notice

Article 17 Original documents and copies

Article 18 Commercial invoice

Article 19 Transport document covering at least two different modes of transport

Article 20 Bill of lading

Article 21 Non-negotiable sea waybill

Article 22 Charter party bill of lading

Article 23 Air transport document

Article 24 Road, rail or inland waterway transport documents

Article 25 Courier receipt, post receipt or certificate of posting

Article 26 “On deck”, “shipper’s load and count”, “said by shipper to contain” and charges additional to freight

Article 27 Clean transport document

Article 28 Insurance document and coverage

Article 29 Extension of expiry date or last day for presentation

Article 30 Tolerance in credit amount, quantity and unit prices

Article 31 Partial drawings or shipments

Article 32 Instalment drawings or shipments

Article 33 Hours of presentation

Article 34 Disclaimer on effectiveness of documents

Article 35 Disclaimer on transmission and translation

Article 36 Force majeure

Article 37 Disclaimer for acts of an instructed party

Article 38 Transferable credits

Article 39 Assignment of proceeds

Supplement to the uniform customs and practice for documentary credits for electronic presentation

Article e1 scope of the eUCP

Article e 2 relationship of the eUCP to the UCP

Article e3 definitions

Article e4 format

Article e 5 presentation

Article e6 examination

Article e7 notice of refusal

Article e8 originals and copies

Article e9 date of issuance

Article e10 transport

Article e11 corruption of an electronic record after presentation

Article e12 additional disclaimer of liability for presentation of electronic records under eUCP

Appendix 2 United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea

Appendix 3 The Hague-Visby Rules – The Hague Rules as Amended by the Brussels Protocol 1968

The Hague-Visby Rules – The Hague Rules as Amended by the Brussels Protocol 1968

Article I

Article II

Article III

Article IV

Article IV bis

Article V

Article VI

Article VII

Article VIII

Article IX

Article X

Appendix 4 Carriage of Goods by Sea Act 1992

1992 Chapter 50

Appendix 5 Insurance Act 2015

2015 Chapter 4

Part 1: Insurance contracts: main definitions

1 Insurance contracts: main definitions

Part 2: The duty of fair presentation

2 Application and interpretation

3 The duty of fair presentation

4 Knowledge of insured

5 Knowledge of insurer

6 Knowledge: general

7 Supplementary

8 Remedies for breach

Part 3: Warranties and other terms

9 Warranties and representations

10 Breach of warranty

11 Terms not relevant to the actual loss

Part 4: Fraudulent claims

12 Remedies for fraudulent claims

13 Remedies for fraudulent claims: group insurance

Part 5: Good faith and contracting out

Good faith

Contracting out

Part 6: Amendment of the Third Parties (Rights against Insurers) Act 2010

19 Power to change meaning of “relevant person” for purposes of 2010 Act

20 Other amendments

Part 7: General

21 Provision consequential on Part 2

22 Application etc of Parts 2 to 5

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