中华人民共和国海商法（四）

会计考友 · 发表于 2012-8-16 08:34:12

　　Chapter IV Contract of Carriage of Goods by Sea
　　Section 1 Basic Principles
　　Article 41 A contract of carriage of goods by sea is a contract under which the carrier， against payment of freight， undertakes to carry by sea the goods contracted for shipment by the shipper from one port to another.
　　Article 42 For the purposes of this Chapter：
　　（1） “Carrier” means the person by whom or in whose name a contract of carriage of goods by sea has been concluded with a shipper；
　　（2） “Actual carrier” means the person to whom the performance of carriage of goods， or of part of the carriage， has been entrusted by the carrier， and includes any other person to whom such performance has been entrusted under a sub-contract；
　　（3） “Shipper” means：
　　a） The person by whom or in whose name or on whose behalf a contract of carriage of goods by sea has been concluded with a carrier；
　　b） The person by whom or in whose name or on whose behalf the goods have been delivered to the carrier involved in the contract of carriage of goods by sea；
　　（4） “Consignee” means the person who is entitled to take delivery of the goods；
　　（5） “Goods” includes live animals and containers， pallets or similar articles of transport supplied by the shipper for consolidating the goods.
　　Article 43 The carrier or the shipper may demand confirmation of the contract of carriage of goods by sea in writing. However， voyage charter shall be done in writing. Telegrams， telexes and telefaxes have the effect of written documents.
　　Article 44 Any stipulation in a contract of carriage of goods by sea or a bill of lading or other similar documents evidencing such contract that derogates from the provisions of this Chapter shall be null and void. However， such nullity and void ness shall not affect the validity of other provisions of the contract or the bill of lading or other similar documents. A clause assigning the benefit of insurance of the goods in favour of the carrier or any similar clause shall be null and void.
　　Article 45 The provisions of Article 44 of this Code shall not prejudice the increase of duties and obligations by the carrier besides those set out in this Chapter.
　　Section 2 Carrier's Responsibilities
　　Article 46 The responsibilities of the carrier with regard to the goods carried in containers covers the entire period during which the carrier is in charge of the goods， starting from the time the carrier has taken over the goods at the port of loading， until the goods have been delivered at the port of discharge. The responsibility of the carrier with respect to non containerized goods covers the period during which the carrier is in charge of the goods， starting from the time of loading of the goods onto the ship until the time the goods are discharged therefrom. During the period the carrier is in charge of the goods， the carrier shall be liable for the loss of or damage to the goods， except as otherwise provided for in this Section.
　　The provisions of the preceding paragraph shall not prevent the carrier from entering into any agreement concerning carrier's responsibilities with regard to non-containerized goods prior to loading onto and after discharging from the ship.
　　Article 47 The carrier shall， before and at the beginning of the voyage， exercise due diligence to make the ship sea worthy， properly man， equip and supply the ship and to make the holds， refrigerating and cool chambers and all other parts of the ship in which goods are carried， fit and safe for their reception， carriage and preservation.
　　Article 48 The carrier shall properly and carefully load， handle， stow， carry， keep， care for and discharge the goods carried.
　　Article 49 The carrier shall carry the goods to the port of discharge on the agreed or customary or geographically direct route.
　　Any deviation in saving or attempting to save life or property at sea or any reasonable deviation shall not be deemed to be an act deviating from the provisions of the preceding paragraph.

会计考友 · 发表于 2012-8-16 08:34:13

　　Article 50 Delay in delivery occurs when the goods have not been delivered at the designated port of discharge within the time expressly agreed upon.
　　The carrier shall be liable for the loss of or damage to the goods caused by delay in delivery due to the fault of the carrier， except those arising or resulting from causes for which the carrier is not liable as provided for in the relevant Articles of this Chapter.
　　The carrier shall be liable for the economic losses caused by delay in delivery of the goods due to the fault of the carrier， even if no loss of or damage to the goods had actually occurred， unless such economic losses had occurred from causes for which the carrier is not liable as provided for in the relevant Articles of this Chapter.
　　The person entitled to make a claim for the loss of goods may treat the goods as lost when the carrier has not delivered the goods within 60 days from the expiry of the time for delivery specified in paragraph 1 of this Article.
　　Article 51 The carrier shall not be liable for the loss of or damage to the goods occurred during the period of carrier's responsibility arising or resulting from any of the following causes：
　　（1） Fault of the Master， crew members， pilot or servant of the carrier in the navigation or management of the ship；
　　（2） Fire， unless caused by the actual fault of the carrier；
　　（3） Force majeure and perils， dangers and accidents of the sea or other navigable waters；
　　（4） War or armed conflict；
　　（5） Act of the government or competent authorities， quarantine restrictions or seizure under legal process；
　　（6） Strikes， stoppages or restraint of labour；
　　（7） Saving or attempting to save life or property at sea；
　　（8） Act of the shipper， owner of the goods or their agents；
　　（9） Nature or inherent vice of the goods；
　　（10） Inadequacy of packing or insufficiency or illegibility of marks；
　　（11） Latent defect of the ship not discoverable by due diligence；
　　（12） Any other causes arising without the fault of the carrier or his servant or agent.
　　The carrier who is entitled to exoneration from the liability for compensation as provided for in the preceding paragraph shall， with the exception of the causes given in sub-paragraph （2）， bear the burden of proof.
　　Article 52 The carrier shall not be liable for the loss of or damage to the live animals arising or resulting from the special risks inherent in the carriage thereof. However， the carrier shall be bound to prove that he has fulfilled the special requirements of the shipper with regard to the carriage of the live animals and that under the circumstances of the sea carriage， the loss or damage has occurred due to the special risks inherent therein.
　　Article 53 In case the carrier intends to ship the goods on deck， he shall come into an agreement with the shipper or comply with the custom of the trade or the relevant laws or administrative rules and regulations.
　　When the goods have been shipped on deck in accordance with the provisions of the preceding paragraph， the carrier shall not be liable for the loss of or damage to the goods caused by the special risks involved in such carriage.
　　If the carrier， in breach of the provisions of the first paragraph of this Article， has shipped the goods on deck and the goods have consequently suffered loss or damage， the carrier shall be liable therefor.
　　Article 54 Where loss or damage or delay in delivery has occurred from causes from which the carrier or his servant or agent is not entitled to exoneration from liability， together with another cause， the carrier shall be liable only to the extent that the loss， damage or delay in delivery is attributable to the causes from which the carrier is not entitled to exoneration from liability； however， the carrier shall bear the burden of proof with respect to the loss， damage or delay in delivery resulting from the other cause.
　　Article 55 The amount of indemnity for the loss of the goods shall be calculated on the basis of the actual value of the goods so lost， while that for the damage to the goods shall be calculated on the basis of the difference between the values of the goods before and after the damage， or on the basis of the expenses for the repair.

会计考友 · 发表于 2012-8-16 08:34:14

　　The actual value shall be the value of the goods at the time of shipment plus insurance and freight.
　　From the actual value referred to in the preceding paragraph， deduction shall be made， at the time of compensation， of the expenses that had been reduced or avoided as a result of the loss or damage occurred.
　　Article 56 The carrier's liability for the loss of or damage to the goods shall be limited to an amount equivalent to 666.67 Units of Account per package or other shipping unit， or 2 Units of Account per kilogramme of the gross weight of the goods lost or damaged， whichever is the higher， except where the nature and value of the goods had been declared by the shipper before shipment and inserted in the bill of lading， or where a higher amount than the amount of limitation of liability set out in this Article had been agreed upon between the carrier and the shipper.
　　Where a container， pallet or similar article of transport is used to consolidate goods， the number of packages or other shipping units enumerated in the bill of lading as packed in such article of transport shall be deemed to be the number of packages or shipping units. If not so enumerated， the goods in such article of transport shall be deemed to be one package or one shipping unit.
　　Where the article of transport is not owned or furnished by the carrier， such article of transport shall be deemed to be one package or one shipping unit.
　　Article 57 The liability of the carrier for the economic losses resulting from delay in delivery of the goods shall belimited to an amount equivalent to the freight payable for the goods so delayed. Where the loss of or damage to the goods has occurred concurrently with the delay in delivery thereof， the limitation of liability of the carrier shall be that as provided for in paragraph 1 of Article 56 of this Code.
　　Article 58 The defence and limitation of liability provided for in this Chapter shall apply to any legal action brought against the carrier with regard to the loss of or damage to or delay in delivery of the goods covered by the contract of carriage of goods by sea， whether the claimant is a party to the contract or whether the action is founded in contract or in tort.
　　The provisions of the preceding paragraph shall apply if the action referred to in the preceding paragraph is brought against the carrier's servant or agent， and the carrier's servant or agent proves that his action was within the scope of his employment or agency.
　　Article 59 The carrier shall not be entitled to the benefit of the limitation of liability provided for in Article 56 or 57 of this Code if it is proved that the loss， damage or delay in delivery of the goods resulted from an act or omission of the carrier done with the intent to cause such loss， damage or delay or recklessly and with knowledge that such loss， damage or delay would probably result.
　　The servant or agent of the carrier shall not be entitled to the benefit of limitation of liability provided for in Article 56 or 57 of this Code， if it is proved that the loss， damage or delay in delivery resulted from an act or omission of the servant or agent of the carrier done with the intent to cause such loss， damage or delay or recklessly and with knowledge that such loss， damage or delay would probably result.
　　Article 60 Where the performance of the carriage or part thereof has been entrusted to an actual carrier， the carrier shall nevertheless remain responsible for the entire carriage according to the provisions of this Chapter. The carrier shall be responsible， in relation to the carriage performed by the actual carrier， for the act or omission of the actual carrier and of his servant or agent acting within the scope of his employment or agency.
　　Notwithstanding the provisions of the preceding paragraph， where a contract of carriage by sea provides explicitly that a specified part of the carriage covered by the said contract is to be performed by a named actual carrier other than the carrier， the contract may nevertheless provide that the carrier shall not be liable for the loss， damage or delay in delivery arising from an occurrence which takes place while the goods are in the charge of the actual carrier during such part of the carriage.

会计考友 · 发表于 2012-8-16 08:34:15

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　　Article 61 The provisions with respect to the responsibility of the carrier contained in this Chapter shall be applicable to the actual carrier. Where an action is brought against the servant or agent of the actual carrier， the provisions contained in paragraph 2 of Article 58 and paragraph 2 of Article 59 of this Code shall apply.
　　Article 62 Any special agreement under which the carrier assumes obligations not provided for in this Chapter or waives rights conferred by this Chapter shall be binding upon the actual carrier when the actual carrier has agreed in writing to the contents thereof. The provisions of such special agreement shall be binding upon the carrier whether the actual carrier has agreed to the contents or not.
　　Article 63 Where both the carrier and the actual carrier are liable for compensation， they shall jointly be liable within the scope of such liability.
　　Article 64 If claims for compensation have been separately made against the carrier， the actual carrier and their servants or agents with regard to the loss of or damage to the goods， the aggregate amount of compensation shall not be in excess of the limitation provided for in Article 56 of this Code.
　　Article 65 The provisions of Article 60 through 64 of this Code shall not affect the recourse between the carrier and the actual carrier.
　　Section 3 Shipper's Responsibilities
　　Article 66 The shipper shall have the goods properly packed and shall guarantee the accuracy of the description， mark， number of packages or pieces， weight or quantity of the goods at the time of shipment and shall indemnity the carrier against any loss resulting from inadequacy of packing or inaccuracies in the above mentioned information.
　　The carrier's right to indemnification as provided for in the preceding paragraph shall not affect the obligation of the carrier under the contract of carriage of goods towards those other than the shipper.
　　Article 67 The shipper shall perform all necessary procedures at the port， customs， quarantine， inspection or other competent authorities with respect to the shipment of the goods and shall furnish to the carrier all relevant documents concerning the procedures the shipper has gone through. The shipper shall be liable for any damage to the interest of the carrier resulting from the inadequacy or inaccuracy or delay in delivery of such documents.
　　Article 68 At the time of shipment of dangerous goods， the shipper shall， in compliance with the regulations governing the carriage of such goods， have them properly packed， distinctly marked and labelled and notify the carrier in writing of their proper description， nature and the precautions to be taken. In case the shipper fails to notify the carrier or notified him inaccurately， the carrier may have such goods landed， destroyed or rendered innocuous when and where circumstances so require， without compensation. The shipper shall be liable to the carrier for any loss， damage or expense resulting from such shipment.
　　Notwithstanding the carrier's knowledge of the nature of the dangerous goods and his consent to carry， he may still have such goods landed， destroyed or rendered innocuous， without compensation， when they become an actual danger to the ship， the crew and other persons on board or to other goods. However， the provisions of this paragraph shall not prejudice the contribution in general average， if any.
　　Article 69 The shipper shall pay the freight to the carrier as agreed.
　　The shipper and the carrier may reach an agreement that the freight shall be paid by the consignee. However， such an agreement shall be noted in the transport documents.
　　Article 70 The shipper shall not be liable for the loss sustained by the carrier or the actual carrier， or for the damage sustained by the ship， unless such loss or damage was caused by the fault of the shipper， his servant or agent.
　　The servant or agent of the shipper shall not be liable for the loss sustained by the carrier or the actual carrier， or for the damage sustained by the ship， unless the loss or damage was caused by the fault of the servant or agent of the shipper.

会计考友 · 发表于 2012-8-16 08:34:16

　　Section 4 Transport Documents
　　Article 71 A bill of lading is a document which serves as an evidence of the contract of carriage of goods by sea and the taking over or loading of the goods by the carrier， and based on which the carrier undertakes to deliver the goods against surrendering the same. A provision in the document stating that the goods are to be delivered to the order of anamed person， or to order， or to bearer， constitutes such an undertaking.
　　Article 72 When the goods have been taken over by the carrier or have been loaded on board， the carrier shall， on demand of the shipper， issue to the shipper a bill of lading.
　　The bill of lading may be signed by a person authorized by the carrier. A bill of lading signed by the Master of the ship carrying the goods is deemed to have been signed on behalf of the carrier.
　　Article 73 A bill of lading shall contain the following particulars：
　　（1） Description of the goods， mark， number of packages or pieces， weight or quantity， and a statement， if applicable， as to the dangerous nature of the goods；
　　（2） Name and principal place of business of the carrier；
　　（3） Name of the ship；
　　（4） Name of the shipper；
　　（5） Name of the consignee；
　　（6） Port of loading and the date on which the goods were taken over by the carrier at the port of loading；
　　（7） Port of discharge；
　　（8） Place where the goods were taken over and the place where the goods are to be delivered in case of a multi modal transport bill of lading；
　　（9） Date and place of issue of the bill of lading and the number of originals issued；
　　（10） Payment of freight；
　　（11） Signature of the carrier or of a person acting on his behalf.
　　In a bill of lading， the lack of one or more particulars referred to in the preceding paragraph does not affect the function of the bill of lading as such， provided that it nevertheless meets the requirements set forth in Article 71 of this Code.
　　Article 74 If the carrier has issued， on demand of the shipper， a Received for shipment bill of lading or other similar documents before the goods are loaded on board， the shipper may surrender the same to the carrier as against a shipped bill of lading when the goods have been loaded on board. The carrier may also note on the received-for-shipment bill of lading or other similar documents with the name of the carrying ship and the date of loading， and， when so noted， the received for shipment bill of lading or other similar documents shall be deemed to constitute a shipped bill of lading.
　　Article 75 If the bill of lading contains particulars concerning the description， mark， number of packages or pieces， weight or quantity of the goods with respect to which the carrier or the other person issuing the bill of lading on his behalf has the knowledge or reasonable grounds to suspect that such particulars do not accurately represent the goods actually received， or， where a shipped bill of lading is issued， loaded， or if he has had no reasonable means of checking， the carrier or such other person may make a note in the bill of lading specifying those inaccuracies， the grounds for suspicion or the lack of reasonable means of checking.
　　Article 76 If the carrier or the other person issuing the bill of lading on his behalf made no note in the bill of lading regarding the apparent order and condition of the goods， the goods shall be deemed to be in apparent good order and condition.
　　Article 77 Except for the note made in accordance with the provisions of Article 75 of this Code， the bill of lading issued by the carrier or the other person acting on his behalf is prima facie evidence of the taking over or loading by the carrier of the goods as described therein. Proof to the contrary by the carrier shall not be admissible if the bill of lading has been transferred to a third party， including a consignee， who has acted in good faith in reliance on the description of the goods contained therein.

会计考友 · 发表于 2012-8-16 08:34:17

　　Article 78 The relationship between the carrier and the holder of the bill of lading with respect to their rights and obligations shall be defined by the clauses of the bill of lading.
　　Neither the consignee nor the holder of the bill of lading shall be liable for the demurrage， dead freight and all other expenses in respect of loading occurred at the loading port unless the bill of lading clearly states that the a fore said demurrage， dead freight and all other expenses shall be borne by the consignee and the holder of the bill of lading.
　　Article 79 The negotiability of a bill of lading shall be governed by the following provisions：
　　（1） A straight bill of lading is not negotiable；
　　（2） An order bill of lading may be negotiated with endorsement to order or endorsement in blank；
　　（3） A bearer bill of lading is negotiable without endorsement.
　　Article 80 Where a carrier has issued a document other than a bill of lading as an evidence of the receipt of the goods to be carried， such a document is prima facie evidence of the conclusion of the contract of carriage of goods by sea and the taking over by the carrier of the goods as described therein.
　　Such documents that are issued by the carrier shall not be negotiable.</p>

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[FECT高级考试] 中华人民共和国海商法（四）