Specifically:
1) Don't waste legal fees;
2) Pre-litigation preservation-if the seller is a shell company or a company with unstable economy, he should arrest the ship or apply for an injunction as soon as possible to obtain pre-litigation preservation;
3) Insurance requirements-to determine the correct claim object, the buyer can take appropriate actions in time to protect the subrogation right of the insurance company, otherwise it can counterclaim the loss from the buyer;
4) Take timely measures to preserve evidence. If the object of litigation is a ship, the buyer will consider checking whether it is seaworthy and suitable to determine whether to respond to the shipowner. Moreover, if the cargo damage and cargo difference exist before shipment, and the correct claim object should be the shipowner rather than the seller, then it is a very wrong decision to refuse to receive the goods when the cargo damage and cargo difference are found during unloading. Because if the seller breaches the contract, the buyer can refuse to receive the goods according to the goods sales law. However, the law on the sale of goods does not apply to bills of lading or charters, and the legislation on the application of bills of lading (such as The Hague Rules and China Maritime Code) does not mean that the buyer refuses to accept the goods, and the risks of the goods belong to the shipowner. A hasty refusal will only lead to the total loss of the goods.
5) Restrictions A involve restrictions on the sale of goods. If there are no explicit restrictions in the sales contract, bill of lading or lease, the buyer will claim compensation from the seller. According to English law, the limitation period is six years. If the claim object is the shipowner, it is often only 1 year. In addition, the ship is very mobile, and it takes time to "tell the right place". If the buyer is not careful, he will miss the limitation period. B if foreign laws are used in the contract for the sale of goods, the relevant provisions of foreign laws will apply.
In the "Jay Bala" case tried by the English court, the plaintiff lost the opportunity to claim compensation from the actual carrier because the wrong litigation object exceeded the limitation. Of course, the cargo side can also file a lawsuit against the relevant parties, but this will unnecessarily increase the time and cost, and the party who is finally proved irresponsible will be allowed to claim the litigation costs from the plaintiff. Due to the transfer of the contract, the contradiction and obscurity of the contents recorded in the bill of lading, and the diversity of the ship, the difficulty of identifying the carrier still exists in practice, which makes the holder of the bill of lading at a disadvantage in information asymmetry, and also makes the carrier escape legal responsibility, which is not conducive to the circulation of the bill of lading. We should actively seek legal relief and maintain the normal mechanism of bill of lading.
The record of the carrier in the bill of lading and the identification of the carrier are first judged from the record in the bill of lading. According to the Uniform Customs and Practice for Documentary Credits (1993), the name of the carrier must appear in the bill of lading, and there are three records about the carrier on the bill of lading: the name and logo of the transportation company are printed on the front of the bill of lading; Signature in the lower right corner of the front of the bill of lading; On the back are "carrier identification clause" and "bareboat charter" clauses. First of all, in practice, whether in foreign countries or in China, courts rarely rely entirely on the company name printed on the bill of lading to determine the carrier.
Because the bill of lading management is not very strict today, the carrier may issue its own standard bill of lading, or it may be the standard bill of lading of the actual carrier, or it may be the standard bill of lading formulated by a shipping association, or even "borrowing" the standard bill of lading of other unrelated companies, so it is difficult to determine who is the real carrier just by the header name. The signature in the lower right corner of the front of the bill of lading is regarded as a representative, indicating who is willing to be the carrier, and its legal significance lies in the intention of being responsible for the creditor's rights arising from the issuance of the bill of lading. The person who issued or named the bill of lading may be liable to the holder of the bill of lading for reasons such as unauthorized agency, estoppel and fraud. However, on this basis, it cannot be completely determined that the signatory is the carrier. The definition of carrier in The Hague Rules only lists shipowners and charterers. With the development of international trade and shipping, it is increasingly impossible to list the carriers one by one. For example, freight forwarders and NVOCC are increasingly acting as organizers of shipping and issuers of bills of lading. It is not uncommon for the captain or "on behalf of the captain" to issue the bill of lading.
If the signature on the bill of lading is the name of the agent, it is necessary to further determine the principal. Otherwise, disputes about the bill of lading will still arise. The dispute over the delivery of goods without the original bill of lading by inland river cruise ships is an example. Under the charter party, the contract of carriage is concluded before the bill of lading, and the signature on the bill of lading cannot be equated with the conclusion of the contract of carriage. The identity of the carrier should be judged in combination with the charter party.
As for the identification clause on the back of the bill of lading, one kind is the general identification clause, which directly points out or describes the characteristics of the carrier. The former is like "the carrier is P&"; D container co., ltd. "; The latter is like "the carrier refers to the person who issues or issues the bill of lading for him." The other is the "bareboat clause", which is specially used to judge the carrier of the bill of lading under the charter party. For example, "If the ship is not owned by the carrier or chartered bareboat, this bill of lading should be signed by the carrier's agent as the owner or bareboat charterer, and the carrier only acts as an agent and does not bear personal responsibility." In essence, except bareboat charter, the shipowner is the carrier on the bill of lading, and the carrier appearing on the bill of lading is only the agent of the shipowner, and the holder of the bill of lading cannot take him as the defendant. Different countries have different provisions on its validity, and Britain recognizes its validity. Such as 1974, Berkshire [1974], lioyd's reports185. However, the cases in the United States and Canada hold that the bareboat clause violates Article 3, paragraph 8 of The Hague Rules, that is, "the carrier's liability shall not be reduced".