The case of trade disputes ---- strong demand

My company exported a batch of frozen chickens on FOB terms, and received a call from the buyer after the signing of the contract, saying that it was more difficult to rent a ship, and entrusted us to rent a ship on behalf of the buyer, and the relevant costs were borne by the buyer. In order to facilitate the fulfillment of the contract, we accepted the request of the other party, but the time has come to the shipment period, we can not rent a suitable ship in the specified port of shipment, and the buyer does not agree to change the port of shipment, so to the full face of the shipment period, the goods are still not loaded. As the sale was about to end, the buyer wrote to cancel the contract on the ground that we had not chartered a ship to fulfill our obligation to deliver the goods on time.

Q: What should we do?

Standard answer:

1. We should reject the unreasonable request to cancel the contract.

2. This security involves FOB terminology always according to the FOB terminology, the buyer is responsible for chartering and booking, losing transportation, and paying freight. In order to seller to load the ship delivery convenience, the seller can also accept the buyer's commission, on behalf of the chartering booking, but the costs and risks should be borne by the buyer, the seller does not bear the responsibility of the ship can not be rented.

3. Combined with the case, because the seller on behalf of the buyer to charter a ship did not rent, the buyer did not agree to change the port of shipment, so the seller does not bear the responsibility for the delay in shipment due to their own failure to rent a ship. The buyer could not avoid the contract as a result.

Answer:

1. We can reject the buyer's proposal to withdraw from the contract and ask the buyer to compensate for the relevant losses.

2, this case involves FOB terminology, in FOB terminology conditions, unless the contract parties have a clear agreement, according to international practice, the seller is only responsible for the delivery of goods, the buyer is responsible for sending the ship to receive the goods, that is to say, even if the seller accepts the buyer's commission is responsible for the chartering of the ship booking shipment, are of the nature of the agent, the risks and costs should still be borne by the buyer.

3, in the above example, we as the seller only accepted the buyer's commission, responsible for the buyer's chartering matters, according to the Showa practice is not to bear the risk of chartering. During the shipment period of the goods, we were unable to charter a suitable ship in the specified port of shipment, and timely notified the buyer, but the buyer did not make a positive response, unwilling to change the port of shipment to a port where the ship could be chartered or to change the mode of transportation, which led to the expiration of the shipment period when the goods could not be shipped out, which should be borne by the buyer to bear all the consequences. The buyer had no right to withdraw from the contract on the ground of "failure to fulfill the obligation of delivery by chartering the ship on time". Moreover, if we deliver the goods to the port of shipment as stipulated in the contract, no matter how the contract is finally resolved, we can retain the right to pursue the buyer for not sending a ship to take over the goods on time, resulting in the loss of storage and other costs of our goods. Therefore, we can reject the seller's unjustified revocation of the contract, and may ask the buyer to compensate for the relevant losses.

Example two:

There is a sale of 300 tons of rice contract, according to the FOB conditions of the transaction, loading by the Princess inspection, in line with the quality of the contract conditions, the seller has been issued in a timely manner after loading notice, but the voyage, due to the sea waves are too large, the rice was seawater immersion, the quality of the impact when the goods arrive at the port of destination, can only be the price of the rice by the third level! When the goods arrived at the port of destination, they could only be sold at the price of third-grade rice, and the buyer asked the seller to compensate for the loss.

Question: Is the seller liable for the loss under the above circumstances?

Standard answer:

1. The seller is not liable for the loss under the above circumstances.

2. This case involves FOB terminology. According to the FOB terminology buyer and seller of the risk of the border point in the port of shipment of the ship, the goods in the port of shipment over the ship's side before the risk of the seller, over the ship's side of the risk of the buyer, the seller in this case, the seller has fully fulfilled its obligations, the goods will be loaded in the port of shipment in time to issue a notice of shipment.

3. Combine this case. This batch of first-class rice in the port of shipment has been notary public inspection of quality, that the seller delivery, the quality of the goods is good. The reason why the rice changed, is entirely due to the transportation of seawater soaked results, and this risk has crossed the port of shipment of the ship's side, should be borne by the buyer, the seller is not responsible for the loss.

Example 3:

There is a CIF contract, the Japanese company sold 450 metric tons of onions to the Australian company, onions in the Japanese port when loading the ship, by the notary public inspection: fully in line with the quality of the commercial marketing, and issued a certificate of conformity. However, when the goods arrived in Australia, the onions had all rotted and deteriorated and were unfit for human consumption. The buyer therefore refused to take delivery of the goods and demanded that the seller return the money paid for the goods.

Q: In these circumstances, does the buyer have the right to refuse to accept the goods and to request the seller to return the payment?

Answer:

1. The buyer does not have the right to reject the goods and demand the seller to return the payment in the above situation.

2, this case involves the CIF term, CIF term conditions when the transaction, the buyer and seller of the risk of the boundary point in the port of shipment ship, the goods in the port of shipment before crossing the ship's side of the risk borne by the seller, the goods cross the ship's side of the risk borne by the buyer; CIF contract typical symbolic delivery, that is, the seller with the delivery of the bill, the buyer with the bill of payment, as long as the seller's submission of the documents are complete, Correct, even if the goods are lost in transit, the buyer is still required to pay, shall not refuse to pay.

3, combined with the case, this batch of onions in the port of shipment when loading, the notary public verification in line with the quality of commercial sales, it is clear that the onions of the rot and deterioration of the goods completely in the transportation of shipment, and the risk has crossed the port of shipment ship side, should be borne by the buyer, this is one; Second, the CIF contract for the symbolic delivery of the Japanese side of the documents provided by the buyer to pay for the documents are complete and correct. Therefore, the buyer has no right to reject the goods and require the seller to return the right of payment.

Example 4:

Our company exported a batch of porcelain in CFR term, we loaded the ship at the port of shipment on schedule, and then we will send the relevant transaction to the buyer, and asked the buyer to pay for the goods. After that, the salesman realized that he forgot to send the shipment notice to the buyer. By this time, the buyer has written to us to file a claim because the goods were damaged in transit due to maritime risks.

Q: Can we reject the buyer's claim on the ground that the risk of transportation of the goods is borne by the buyer?

Standard answer:

1. We cannot reject the buyer's claim on the ground that the risk boundary point is at the ship's rail at the port of shipment.

2, this case involves the CFR terminology, according to the CFR terminology, the buyer and seller's risk boundary point in the port of shipment ship side, the goods in the port of shipment before crossing the ship's side of the risk borne by the seller, the goods crossed the ship's side after the risk borne by the buyer. In view of this, the seller in order to ensure that their own risk can be reduced when the loss, you can apply to the insurance company for cargo insurance procedures to transfer the risk to the insurance company, but the buyer can handle the insurance in a timely manner depends on the seller in the port of shipment after loading the ship whether the immediate notice of loading to the buyer, according to the CFR terminology, the seller in the goods loaded in a timely manner after loading the notice of loading is an important obligation to the buyer, if the seller fails to issue timely notice of loading to the buyer. According to CFR terminology, it is the seller's important obligation to give notice of shipment to the buyer in time after shipment of the goods, if the seller fails to give notice of shipment to the buyer in time and the buyer fails to go through the insurance procedures in time, the seller will bear the loss caused by this.

3. In this case, it is obvious that the seller did not give notice of shipment to the buyer in time, and as a result, the buyer did not take out insurance for the goods, but the goods were destroyed due to the risk of the sea, so we should be responsible for the loss of the goods, and could not reject the seller's claim on the ground that the risk had been transferred to the buyer.

Example 5:

A company exported a batch of canned goods on CIF terms.1 After the contract was signed, we received a letter from the buyer claiming that there were frequent riots in the port of destination as stipulated in the contract, and requesting us to take out war insurance when applying for insurance. What should we do about this? 2. After the goods arrived at the port of destination, we received a notice of payment from the buyer stating that the additional freight cost due to the goods avoiding storms during transportation had already been paid to the shipping company on behalf of our company, and therefore this cost had already been deducted from the price paid for the goods. What should we do about this?

Trial Answer 1:

1. We may agree to the buyer's request for war risk insurance, but the buyer will have to pay for the premium or agree otherwise.

2, this case involves the CIF terms of the insurance problem, in the CIF terms of the conditions of the transaction, in accordance with the general international practice, in the signing of the contract for the sale of the contract, in the contract of the insurance terms, clearly stipulate the insurance coverage, insurance amount and so on, so that the seller will be in accordance with the provisions of the contract on the goods to be insured. However, if the contract fails to make specific provisions on insurance coverage, etc., then according to international practice to deal with, that is: the seller only need to insure the lowest level of insurance, and the buyer to bear the cost, but in the buyer's request, can be in the buyer to bear the cost of the case, plus the war risk.

3. In the above security, due to the special situation of the port of destination, the buyer asked for additional war risk insurance after the signing of the contract between the two parties, that is to say, the contract did not stipulate the need for additional war risk insurance, and the buyer asked for it afterwards. According to the practice of the General Conditions, the buyer has to pay the premium for the additional war insurance, therefore, we can handle the buyer's request for the additional war insurance, but we have the right to ask the buyer to pay the corresponding premium.

Standard version of the answer:

1, we should reply to the buyer, stating that the cost of war insurance is paid by the buyer and under the condition that we can agree to the buyer's request, otherwise we can refuse the buyer's request.

2, according to the interpretation of the 2002 "General Rules", CIF terms, the seller is responsible for insurance and payment of insurance premiums, but this insurance has the nature of the agency, the insurance of the insurance, the amount of both sides of the negotiation, to determine the written in the contract, that is to say: the seller is only required to insure the contractual provisions of the insurance, there is no obligation to insure the war risk unless the buyer's request and the buyer to bear the cost, then the seller can The seller is not obliged to take out war risk insurance unless the buyer requests it and the buyer bears the cost.

3. In the above case, because the buyer in view of the port of destination often riots, and asked the buyer to add war insurance, obviously after the signing of the contract, that is to say, the two sides did not specify in the contract to add war insurance, so the seller needs to add war insurance must pay the corresponding premium.

Standard version of the answer to the second:

1, we should reject the buyer in the ship to avoid storms and increased costs deducted from the purchase price, should be recovered from the buyer.

2. According to the interpretation of the 2000 General Conditions, when the transaction is concluded under CIF conditions, the seller is responsible for chartering and booking, and paying the freight charges, but the freight charges paid by the seller are the normal freight charges from the port of shipment to the port of destination, and the increase in the freight charges due to the risks during transportation is to be borne by the buyer in accordance with the provisions of the Risk Boundary Point Demarcation Line (RBPDL).

Example 6:

I exported a batch of rice, the price condition is FOBS Guangzhou, when the goods loaded onto the buyer's designated ship, found that a considerable part of the goods due to the cabin is not clean and serious damage, for this reason, the customer filed a claim for compensation to us.

Question: Is the customer's claim reasonable and why?

Standard version of the answer:

The customer's request is not reasonable, the country for us to export rice price conditions are FOBS Guangzhou, that is, FOB delivery on board and warehousing, the buyer bears the obligation to rent a ship and booking, the seller rented the ship should be seaworthy, suitable for cargo, our responsibility is to load the rice on board and cabin, there is no responsibility to clean the cabin. Therefore, the responsibility for the damage of the goods due to the uncleanness of the ship's hold does not lie with us, but with the buyer.

Example 7:

There is a CIF contract, the goods have been loaded in the specified period and the port of shipment, but the loaded ship in the harbor 4 hours after the sinking because of the reef. The next day, when the seller demanded payment from the buyer on the basis of the bill of lading, insurance policy, invoice and other documents, the buyer refused to accept the documents and payment on the ground that the goods had been completely lost.

Question: In the above case, does the seller have the right to demand payment from the buyer on the basis of the prescribed documents?

Standard answer:

1. The seller has the right to demand payment from the buyer on the basis of the stipulated documents.

2, this case involves the CIF term, CIF term conditions of the transaction, the buyer and seller of the risk of the boundary point is the port of shipment shipboard, the goods at the port of shipment before the risk of crossing the shipboard by the seller, the goods after the risk of crossing the shipboard by the buyer. In addition, the CIF contract typical symbolic delivery, that is, the seller with a single delivery, the buyer with a single payment, as long as the documents submitted by the seller is complete, correct, even if the goods are lost in transit, the buyer is still required to pay, shall not refuse to pay.

3, combined with the case, the seller has completely fulfilled their contractual obligations, the loss of goods is in the port of 4 hours, the risk has been transferred to the buyer, coupled with the CIF terms of delivery of symbolic characteristics, so even though the goods have been completely lost in transit, the buyer still need to pay. The seller has the right to request the buyer to pay with the prescribed documents.

Example eight:

A company exported a batch of steel according to the FCA conditions, the contract provides for shipment in April, but to April 30, there is still no buyer on the name of the carrier and related matters of notice. In the meantime, the goods destined for export were destroyed by fire.

Q: Who is liable for this damage?

Standard answer:

1. The seller is responsible for this damage.

2, this case involves FCA terminology, according to the 2000 General Rules, under the conditions of FCA terminology, the buyer and seller of the risk of the boundary point in the designated place of delivery of goods to the control of the carrier, the seller bears the risk of the goods to the control of the carrier before the buyer bears the risk of the goods to the control of the carrier after the risk of the goods to the control of the buyer. The goods were not placed at the disposal of the carrier at the end of the contractual shipment period due to the buyer's delay in entering into a transportation contract designating the carrier, and the risk had not yet been transferred to the buyer.

3. Combined with the case, under the FCA conditions, the 2000 General Conditions had provided that if the buyer fails to notify the seller of the carrier and other matters in a timely manner, the buyer shall bear the risks and losses arising therefrom, which occurred after the expiration of the agreed date or period of time for delivery of the goods as stipulated in the contract, rather than after expiration of the shipment period, so the buyer should not be responsible for the loss of this cargo, which shall be borne by the seller itself. The seller shall bear the loss.

Example Nine:

A company imported a batch of chemical raw materials according to the FCA conditions, and the contract stipulated that the seller would handle the transportation matters on behalf of the company. As a result, at the expiration of the shipment period, the foreign seller wrote a letter informing that the ship could not be chartered and could not be delivered on time. Therefore, my company paid 100,000 yuan to the domestic manufacturer of liquidated damages, Q: my company's loss of this 100,000 yuan, can we claim compensation from the foreign seller?

Standard version of the answer:

1, our 100,000 yuan delayed delivery of liquidated damages, can not be claimed from the foreign company, should be borne by their own.

2, this case involves FCA terminology, the buyer is responsible for the conclusion of the contract of carriage, the designated carrier to the place of shipment to pick up the goods, the buyer can be entrusted to the seller on behalf of the transportation matters, but the risks and costs of this activity are borne by the buyer.

3. Combined with the case, FCA terms should be responsible for chartering and booking by our company, but our company in their own risk of responsibility by the seller on behalf of the transportation, so the seller can not rent a ship, booking the risk should be borne by our company, which led to the loss of default on the domestic enterprises should also be borne by our company.

Case 10:

My company imported a batch of timber in accordance with the FAS conditions, after the completion of the shipment, the seller outside the car called to request us to pay the purchase price, and demanded to pay the barge fee for loading the ship, the seller's request for us to deal with how?

Standard answer:

1. We can reject the seller's request for payment of the barge fees at the time of shipment.

2. According to the interpretation of the 2000 General Conditions, when the transaction is concluded by using FAS terminology, the risks and expenses borne by both the seller and the buyer are bounded by the ship's side, i.e., the ship's side of the buyer's assigned ship, and in the case that the buyer's assigned ship can not be docked, the seller shall be responsible for the transportation of the goods to the ship's side by barge, and barge expenses are incurred before the transfer of risks and expenses, and they should be borne by the seller.

3. Therefore, in this case, the foreign seller's request for us to bear the cost of the barge is unreasonable, and we have the right to refuse.

Case 11:

A company imported a batch of flour on CFR terms, and the foreign seller chartered a ship on schedule to send the goods to our port of destination. After the goods to the port of destination, found that the batch of flour serious mold, after investigation, the reason is that the ship is a ship overage service ship, equipment aging, slow navigation speed, and the ship and soliciting goods along the way, resulting in the extension of the voyage period of more than a month, due to high temperature and humidity season, a long time in the cabin of the flour and therefore the mold. Who should we claim for this loss?

Standard answer:

1. We should claim for this loss from the seller.

2. This case involves CFR terminology,

Case 12:

A company exported a batch of cables according to EXW terms, but at the time of delivery, the buyer refused to take delivery of the cables and pay for them on the grounds that the packaging was not suitable for export transportation, Q: Is the buyer's behavior reasonable?

Reference Answer:

1. The buyer's behavior is unreasonable and we should reject it.

2, the case involves the EXW terms of delivery, according to the Incoterms 2000: in the EXW terms, unless the contract to the contrary, the seller is generally not obliged to provide export packaging, if the contract has been clear that the goods are for export, and the requirements of the packaging requirements, the seller should be in accordance with the provisions of the export needs of the packaging.

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3, combined with the case, the seller at the time of delivery of the cable packaging is not suitable for export transportation on the grounds of refusing to pick up the goods and payment, and did not say that does not comply with the provisions of the contract, which shows that there is no provisions in the contract on the packaging of the goods, according to the customary practice, so that the buyer on this pretext refused to pay the purchase price and pick up the goods is not sufficient reason.

"International Trade Practice" case study

My export company on February 1 to the U.S. commercial telegraph exports of agricultural products, in addition to the necessary conditions set out in the offer, but also said "Packing in Sound-bags". Within the validity period of the offer, the U.S. commercial telegram said: "Refer to your telex first accepted, Packing in new bags." We received the above telegram, that is, to begin to prepare for the goods, a few days after the agricultural products of the international market prices fell sharply, the U.S. commercial telegram said: "We made changes to the packaging conditions, you did not confirm, the contract was not established." My export company insists that the contract has been established, so the two sides dispute. How should this case be handled?

1) According to the interpretation of the Convention, the addition or change of the conditions of the offer means "the price of the goods, payment, quality and quantity, place and time of delivery, the scope of liability of a party to the other party or dispute settlement, etc., are regarded as a substantial change in the conditions of the offer". Additions or variations other than these would be non-substantive. The Convention also provides that "an acceptance of an offer which contains additions or variations shall constitute an acceptance if it contains additions or variations that do not materially alter the terms of the offer, unless the offeror objects to the variations by notice, either orally or in writing, within a period of time that is not unreasonably prolonged." This means that whether a non-substantive addition or variation can constitute a valid acceptance depends on whether the offeror objects to it or not. If the offeror objects orally or in writing, the acceptance is invalid and the contract is not formed; if the offeror does not object, the acceptance is valid and the contract is formed.

2) the case of the U.S. packaging changes are non-substantive changes, but still constitutes a valid acceptance, so that the contract can be established, and the terms of the contract to the terms of the offer and the acceptance of the changes contained in the conditions shall prevail, that is, in addition to the terms of the contract packaging changed to the terms of the IN NEW BAGS other than the terms of my export company in the offer to be set out in the terms of the two sides should be in accordance with the obligations of the contract and the responsibility. Both parties shall assume obligations and responsibilities according to this contract.