E论文英文参考资料 有关提单欺诈的法律问题

THE INTRODUCTION TO “B/L”Wei XiongInternational trade attaches so great importance to shipping documents that, to a certain degree, it can be called trade of documents, or …symbolic‟trade. This is because shipping documents represent the title to the goods. The most important shipping document is the Bill of Lading (B/L or lading). It is a document given by a shipping company, representing both a receipt for the goods shipped and a contract for shipment between the shipping company and the shipper. It is also a document of title to the goods, giving the holder or the assignee the right to possession of the goods.The Bill of Lading is, firstly, a contract between the shipper and the shipping company; secondly, a receipt for the consignment; and thirdly, a document of title. A Bill of Lading does not only contain a full description of the consignment—numbers and weights and marks of packages—but a lot of other information as well. It quotes the name of the shipper and the carrying vessel, the ports of shipment and destination, the freight rate, the name of the consignee (unless the B/L is …to order”, like a check), and the date of shipment, which is very important from a contractual point of view.It may also contain a number of other clauses. Some Bills of Lading are marked “freight paid”, when a shipper is selling CIF or CFR, others may allow transshipment, which means that the cargo may be transferred from one ship to another at some intermediate port. It is often important to a shipper that his Bill of Lading should be “clean” rather than “dirty”, that is, that the shipping company should not have made any qualifications about the quantity or condition of the cargo actually shipped. This is because the shipper‟s letter of credit may insist on clean bills, just as it may insist on “on board”as opposed to “alongside”Bladings. Sometimes a mate‟s receipt is given to the shipper in advance of the B/L, which takes time to issue.The Bill of Lading has three important functions. It is a receipt for goods signed by the shipping company and given to the shippers. It is also evidence of a contract of carriage between the shipping company and shippers. In addition, it is a document of title because the legal owner of the Bill of Lading is the owner of the goods.For this reason the Bill of Lading can be used to transfer the goods from one owner to another. When the exporters complete it, they can write the buyer‟s name in the space, “consignee”. This means the consignee is the legal owner of the goods, as named on Bill of Lading. Otherwise the exporters can write “to other”in the consignee space. Underneath “to order” they write the name and address of the agent. Then the agent in the importing country can endorse the bill to the buyer. In this way the importers can transfer the consignment to their customers. This means that there has to be a separate Bill of Lading for each consignee and several consignments can not be consolidated on to one bill.The Bill of Lading is the central document of a sea export transaction. The form, provided by the shipping company, is filled in by the shippers as soon as they have all the details of the goods. Then it is sent to the ship where an officer of the shipping company checks that the goods are “in good order and condition”and sign the billwhen the goods are loaded over the ship‟s rails. The bill must be in the hands of the shipping company or their agents by the time the consignment is ready to be loaded.When a consignment is loaded, an officer or agent of the shipping company signs the Bill of Lading that the goods have been “received in apparent good order and condition”. In other words, the consignment must be exactly as written on the bill and not different. The cased should be undamaged and sacks, if any, should not be torn or stained. Drums of liquid should not be dented or leaking. The number and kind of packages should be the same as on the bill.If there is any difference between what it says on the bill and the actual condition of the consignment, the shipping company has to write a clause on the bill giving the damage or loss. In this case it is no longer a clean Bill of Lading and the bank representing the importer may not accept it. So the exporters‟ bank may not be able to get payment for the goods. For this reason, “foul” or “claused” Bill of Lading must be avoided at all costs and exporters must make sure their goods arrive at the docks in good order and condition.Sometimes certain defects of the goods are unavoidable. For instance, timber often has “split ends”. Chemicals cause discoloration on packing. In such cases the exporters must get the agreement of the importers to certain clauses on the Bill of Lading. These clauses must be agreed before the export contract is agreed and the importers should tell their bank, about the agreed clauses.The Bill of Lading is usually made out in sets of three or four originals. The shipper may ask for several extra copies for his files. One copy of the bill is kept for the ship. The other copies are sent to the exporters or directly to their bank. These negotiable bills of lading are used for payment. They pass to the buyers or their agents in the importing country.Then the bills and the other shipping documents are presented to shipping company when the ship arrives. The shipping company can then compare the negotiable bills with their copy on the ship. In this way the importers can show their legal right to the goods and obtain them from the ship.In recent years, a considerable simplification of documentary practices has been achieved. Bills of lading are frequently replaced by non—negotiable documents similar to those which are used for other modes of transport than carriage by sea. These documents are called “sea waybills”, “liner waybills”, “freight receipts”, or variants of such expressions.After signing, with the exporter, a contract agreeing to make payment by L/C, the importer requests his bank to issue a letter of credit in favor of the exporter. If it accepts the importer‟s application, the opening bank issues a letter of credit and then informs its foreign branch or correspondent to advise the beneficiary (the exporter), who then examines the letter of credit. If it does not conform to the condition set in the sales contract, the exporter may request an amendment. If it is an irrevocable letter of credit, and they usually are, it cannot be changed unless all parties agree to amend.After confirming the letter of credit, the exporter delivers the goods to the shipper who then issues a Bill of Lading. Other documents, such as invoices and insurance documents, are prepared by the exporter. The next step occurs when the exporterdraws a draft on the opening bank and presents it, with the letter of credit plus documents to his or her own bank. Usually this bank will investigate the documents and, if they are in order, it will pay the draft. The letter of credit and documents are sent to the opening bank. It is the bank‟s responsibility to examine the documents in relation to the letter of credit issued.（quoted by “English for International Trade Practices”, Wu Han university press, 2001）。