-
Grade:
Title :Cases Study of International
Trade Practices
Course
title
：
International Trade
Practices
Adviser: Pro. Gao
School : The School of Applied English
Student: Zhao Xinyu (
赵欣宇
)
Class: 2011 Class 2
Student Number: 110440228
Date: 2014/6/7
Title :Cases Study of International
Trade Practices
CASE ONE
Background:
Guardian
Insurance Company V
. Neuromed Medical
Systems
＆
Support, GmbH
Shared Imaging, an American
corporation, and Neuromed, a German corporation,
entered
into
a
contract
of
sale
for
a
Siemens
Harmony
1.0
Tesla
mobile
MRI.
Therefore,
both
parties
engaged
various
entities
to
transport,
insure,
and
provide
customs
entry
service
for
the
MRI.
Plaintiff
originally
named
those
entities
as
defendants,
but
the
action
has
been
discontinued
against
them
by
agreement
of
the
parties. Neuromed is the sole remaining
defendant.
According
to
the
complaint,
the
MRI
was
loaded
aboard
the
vessel
Atlantic
Carrier
undamaged
and
in
good
working
order.
When
it
reached
its
destination
of
Calmut, City, Illinois, it had been
damaged and was in need of extensive repair, which
led plaintiffs to conclude that the MRI
had been damaged in transit.
The one page contract of
sale contains nine headings, including: Product,
Delivery
Terms, Payment Terms,
Disclaimer, and Applicable Law. Under product the
contract
provides,
“
the
system
will
be
delivered
cold
and
fully
functional.
”
Under
Delivery
Terms
it
provides,
“
CIF
New
York
Seaport,
the
buyer
will
arrange
and
pay
for
customs clearance as
well as transport to Calmut
City.
”
Under Payment
Terms it states,
“
by money
transfer to one of our accounts, with
following payment terms: U.S.
＄
93,000---downpayment to
secure the system; U.S.
＄
744,000---prior
to
shipping;
U.S.
＄
93,000---
upon
acceptance
by
Siemens
of
the
MRI
system
within
three
business
days
after
arrival
in
Calmut
City.
”
In
addition,
under Disclaimer it states,
“
system
including
all
accessories and options remain the
property
of
Neuromed
till
complete
payment
has
been
received.
”
Preceding
this
clause
is
a
handwritten
note,
allegedly
initialed
by
Raymond
Stachowiak
of
Shared
Imaging, stating,
“
Acceptance subject to
Inspection.
”
Plaintiff
Guardian
Insurance
Company
and
Travelers
Property
Casualty
Insurance Company
have brought this action as subrogees of Shared
Imaging, Inc, to
recover
＄
285,000
they
paid
to
Shared
Imaging
for
damage
to
a
mobile
magnetic
resonance imaging system
purchased by Shared
Imaging
from
defendant Neuromed
Medical Systems
＆
Support, GmbH.
The crux of
Neuromed
’
s argument is that
it had no further obligations regarding the
risk of loss once it delivered the MRI
to the vessel at the port of shipment due to a
CIF
clause
included
in
the
underlying
contract.
Plaintiff
respond
that
the
generally
understood
definition
of
the
CIF
term
as
defined
by
the
International
Chamber
of
Commerce
’
s
publication,
INCOTERMS
1990,
is
inapplicable
here.
Moreover,
plaintiffs suggest
that other provisions of the contract are
inconsistent with the
“
CIF
”
term because Neuromed, pursuant to the
contract, retained title subsequent to delivery
to the vessel at the port of shipment
and thus, Neuromed manifestly reatained the risk
of loss.
美国的
Shared
Imaging
公司（以下用
SI
< br>代替）和德国的
Neuromed
公司（
N
代替）签订了货物销售合同，销售
MRI
（磁共振成像系统，以下用
MRI
代替）
。
在
MRI
的运输，保
险，清关手续方面双方都涉及多家公司。起初，原告方统称
这些公司为被告，后经多方协
商一致，认为，
N
是剩下的唯一的被告方。
在原告的申述中，
MRI
在装入
Atl
antic
Carrier
货船之时，货品良好，无货损
现象。当货品运达目的港：伊利诺伊
Calmut, City
时，货品已受损并且需要大面
积补修。被告因此断定
MRI
是在货运途中受损的。
当事方
所签署的销售合同包含
9
个标题，有：产品，交货条件，付款条
件，
免责声明和适用法律条款。
在产品条款中，
合同声明
“系统将置于冷藏条件下送
达并且系统运作良
好。
”在交货条件条款中，合同声明“适用
CIF
术语（成本加
保险费、运费）运抵纽约港
New
York Seaport
，买方有义务提前安排清关手续并
支
付至
Calmut City
的运费。
在付款
条款中，合同声明“货款转入我们的一个账户中，付款条件如下：首
付
< br>93000
美元安全系统；装运前，交付
744000<
/p>
美元；待
MRI
到达
Calmut
City
后的三个工作日之内在收到
MRI
之后交付
93000
美元。在免责声明中，该合同
还声明
“
N
公司保留对系统包含所有附件和选择的所有权直到
货款全部缴清为
止”
。在此项条款之前，是
SI
公司
的
RS
的手写的笔记，写明“
验收接受检查
< br>。
”
原告代理人
Guardian Insurance
Company
和
Travelers Property
Casualty
Insurance
Company
因此向
SI
追索
285000
美元
,
包括原告支付给
N
公司的货款，
和
对
SI
公司从
N
公司所购的已受损的货物进行补偿。
N
公司以
按本合同中的
CIF
术语，一旦卖方将货物运抵目的港，卖方对
事后
出现的一切损失概不负责进行辩护。
原告方则回应国际商会
出版物，
国际贸易术
语中规定的通常意义上的
< br>CIF
术语在此适用。
此外，
原
告方表明本合同的一些其
他条款与
CIF
术语规定不相一致，因为
N
公司按合
同，承运船到达目的港后，
N
公司仍保留货物所有权，因此
N
公司同样对风险负有责任。
ANALYSIS:
There
are
some
points
together
with
some
questions
that
should
be
taken
into consideration in this case.
1.
Which law or
regulation is applicable to the sale contract in
this case?
2.
What
are
the
related
obligations
and
rights
of
the
seller
and
buyer
under
CIF?
3.
What is the
division of risks between buyer and seller?
4.
Does passage
of risk mean transfer of title?
Let
’
s do the
analysis of this case by figuring out these
questions one by one.
First, Which law or
regulation is applicable to the sale contract in
this case?
Since
the
United
States
and
Germany
are
both
contracting
members
of
the
UN
convention
on
Contracts
for
the
International
Sale
of
Good
(CISG),
they
both
governed by CISG
. Because
neither party chose to
opt
out
of the application of
the
CISG
, CISG goes
into effect automatically on this regard. Thus,
CISG is applicable to
the sale contract
between American Shared Imaging and German
Neuromed.
CIF
is
defined
by
INCOTERMS,
which
are
also
incorporated
into
the
CISG
.
Therefore,
CIF
is
practicable
in
this
case,
which
means
the
one
complaint
that
the
plaintiff proposed that
CIF is inapplicable here is denied.
Second, what are the obligations and
rights of the seller and buyer under CIF?
Third, what is the division of risks
between buyer and seller?
CIF stands for
“
cost, insurance and
freight
”
, which is a
commercial trade term and
commonly
used
practice.
It
’
s
defined
by
the
International
Chamber
of
Commerce(
“
ICC
”
).
Incoterms
compiled
by
ICC
in
1936
is
the
most
widely used one. Its
application is limited to contract and related
delivery conditions
of
tangible
goods
(
intangible
goods
are
not
included,
such
as
computer
software,
power, etc.).
After six amendments,
“
2000 International
Incoterms
use.
INCOTERMS
are
formed
in
international
trade
practices,
which
indicate
the
division
of
transaction
costs,
responsibilities
and
risks
under
different
conditions.
They
are
optional
and
they
don
’
t
require
mandatory
use.
In
the
International
Incoterms
CIF
is
commonly
chosen
one,
by
buyers
and
sellers
in
the
international
trade of term is used only for sea and
inland waterway transport, the sea
transportation from German to America
is covered here. INCOTERMS define
“
CIF
”
(named port of destination) to mean
that the seller delivers when the goods pass
“
the
ship
’
s
rail
in
the
port
of
shipment
”
.
The
seller
is
responsible
for
paying
the
cost,
freight,
and
insurance
coverage
necessary
to
bring
the
goods
to
the
named
port
of
destination, but
the risk of
loss or damage to
the goods passes from
seller to
buyer
upon
delivery
to
the
port
of
shipment.
Further,
“
CIF
”
requires
the
seller
to
obtain
insurance only on minimum cover.
Under CIF, although the seller arrange
and pay for freight and cargo insurance,
the seller does not assumed the
obligation of ensuring the goods are delivered to
the
agreed port of destination. Because
CIF covers unloading and shipment in the port of
loading but not in the port of
destination. CIF is not
complete as
soon as the contracted goods are loaded on the
carrier’s ship.
The
explanations above show that the plaintiff, the
buyer is under no position to
claim
further
compensation
of
the
contracted
goods
damaged
in
transit
form
the
defendant, the seller, under CIF when
goods are delivered to the port of destination
and seller made no violation to the
sales contract.
Forth, does passage of
risk mean transfer of title?
Under the
CISG
, the passage of risk is
independent of the transfer of title.
In Article 67(1) of CISG
,
If the contract
of
sale involves carriage of
the goods and sellers
is
not
bound to hand them over
to the buyer when the goods are handed over to
the
first
carrier
for
transmissions
to
the
buyer
in
accordance
with
the
contract
of sale. If the seller is bound to hand the goods
over to a carrier
at a particular
place, the risk does not pass to the buyer until
the good are
handed over to the carrier
at that place.
Moreover, INTOTERMS only
address passage of risk, not transfer of title.
Who
should be bound to the risks is not
determined by which party possess the title of the
goods. What
’
s
more, the transfer of risks and passage of title
are not require to occur
simultaneously.
That
means,
the
plaintiff
proclaimed
that
the
defendant
should
bear
the risks and be
responsible to the damage of the goods for he
remain the title of the
goods is
invalid. Hence, the loss must fall upon the buyer
eventually.
Suggestions:
It
’
s more than
important to clarify the obligations and rights of
different parties
involved and to make
sure the division of the risk when INCOTERMS are
employed
in
the
sales
contract.
When
the
sales
is
done
with
overseas
party,
to
make
it
clear
which laws and
conventions are applicable.
CASE TWO
Background:
Sztejn V
. J. Henry Schroeder
Banking Corp.
Transea Traders in India
contracted to sell hog bristles to Sztejn the
plaintiff. A
the request of Sztejn, the
Schroeder Banking Corp. (Schroeder), the
defendant, issued an irrevocable letter
of credit in favor of Transea covering the
shipment of the hog bristles and
payable upon presentation of certain documents,
including a maritime bill of lading.
Transea allegedly filled 50 cases with cow hair
and other rubbish and delivered these
to the carrier in order to obtain the required
bill
of lading. This bill, along with
the other required documents, and a draft payable
to
Transea, were presented to Schroeder
by the Chartered Bank of India, acting as an
agent for Transea. Before Schroeder
could pay on the credit Sztejn brought this action
against Schroeder to enjoin it from
doing so. Schroeder asked the court to dismiss the
case. Schroeder also appealed to the
court to dismiss the
plaintiff
’
s motion. In the
end,
the
defendant
’
s motion to
dismiss the case is denied.
卖方印度
Transea Traders
公司（以下简称
TT
）与卖方，也是本案的原告
Sztejn
公司
（以下简称
S
）
，
双方签订食用猪的销售合同
。
应原告
S
公司的申请，
Schroeder Banking
Corp. (Schroeder)
银行，即被告方（以下简称
SBC
）
，开立以
TT
为受益人的不可撤销信用证，其中涵盖了食用猪的运输条款，并且提示银行
见
该信用证及相关单据，包括海运提单应付款至卖方。
TT
公司有
意用牛毛和其
他垃圾装了
50
箱货，并
且将货运至承运人来获取海运提单。卖方即
TT
公司因
此取得了本提单和其他银行要求的单据，
然后来到印度的渣打银行，
即卖方的代
理人处，开立汇票。在
SBC
银行见单据准备付款之前，
S
公司向法
院申诉，要
求禁止银行付款。并且，
S
公司向法院提出申诉，撤销本次销售。
SBC
银行向法
院驳回原告诉求。最后，
SBC
银行，即原告的
诉求被法院驳回。
ANALYSIS:
This is a case
between the account party, the plaintiff
＆
the buyer, and its
issuing bank, the defendant.
It
’
s an extremely rare case.