国际贸易中信用证，货物海运及海事保险法律相关性初探
国际贸易中信用证，货物海运及海事保险法律相关性初探
吴戈
【摘要】Relevence between letters of credit, carriage of goods by sea and marine insurance in international trade
【全文】
Examine the Relevance of the law relating to Letters of Credit, Carriage of Goods by Sea and Marine Insurance, to International Trade
Author: Wu Ge
Content
I. Introduction
II. Letters of credit
1. Introduction
2. The proper law of the letter of credit
3. Types of Letters of Credit
4. Some Attributes of Letters of Credit
III. Carriage of Goods by Sea
1. General Observations
2. The Charterparty
3. Bills of Lading
4. General Average
IV. Marine Insurance
1. Insurable Interest
2. Uberrimae Fide
3. Policy of Insurance
4. Warranties
5. Assignment of a Policy
6. Proximate Cause
7. Categories of Losses
8. Indemnity
9. Suing and Labouring Clause
10. Subrogation
11. Contribution
V. The Relevance between Sale of Goods, Carriage of Goods by Sea, Marine Insurance and Letter of Credit
V. Conclusion
I. Introduction
In international trade, the buyer and the seller located in two different countries play the key role on the base of the contractual agreement of sale of goods between them. Following that the goods are carried and delivered from the seller to the buyer, the carriage of goods system, insurance system and payment system have been set up to regulate the rights and obligations on different players in relation to different business transaction stages. The most common carriage method is carriage of goods by sea in international transaction. This involves a highly specialised contract of carriage called “the contract of affreightment”. To reduce the adventure of goods in transaction, the law of marine insurance governs the scope of the obligations assumed by the assured and the insurer by way of a contract of insurance. And the letter of credit is designed to provide the secure payment in favour of the buyer and the seller. Each of the aforementioned areas have been built on highly detailed and specialised rules which govern all kinds of contracts in different jurisdiction according to the private international law. This paper will examine the relevance of the law relating to the aforementioned areas to international trade in order to touch the elaborate trade system.
II. Letters of Credit
1. Introduction
In international trade, paying for goods presents special problems for both buyer and seller. It is the duty of the seller to deliver the goods and the duty for the buyer to pay for them. The problem always faced by the buyer is that the buyer has to pay for the goods before they have actually arrived and have been inspected. And the problem of the seller is that the goods are out of the seller’s control before payment has been received 1. The use of the letter of credit provides secure method of payment to fill the gap by allaying both these concerns.
There is a contractual engagement in all letters of credit. In United City Merchants v Royal Bank of Canada 2, a whole operation of letter of credit can be seen. The buyer shall appoint a confirming bank at the seller’s domain. This confirming bank shall be directed to pay the seller against the tender of the specified documents to the confirming bank. These specified documents are specified in an express statement contained in the contract of sale or are implied by the use of specific trading terms such as cif or fob in the contract of sale. So the seller has the payment of his price assured by the confirming bank. Before the confirming bank allows the seller to draw for the price, it will receive the documents and will thus be able to hold the documents as security pending payment by the issuing bank, the buyer’s own bank at the buyer’s country. The issuing bank, in turn, will have the documents as security for payment by its own customer, the buyer. The documents will be sent by the confirming bank to the issuing bank after the payment is made. Against the documents, the issuing bank must reimburse the confirming bank, and then collect the purchase price subject to a collection fee by way of commission from the buyer.
