澳门永利全部网址_欢迎您[官方网站]

Brazil and other South American countries without original bill of lading releas
2022-03-16 15:31:00   来源:   评论:0 点击:

The continuous development of the global epidemic has had a serious impact on the economies of some countries, r
The continuous development of the global epidemic has had a serious impact on the economies of some countries, resulting in a sharp deterioration in the credit of some economically distressed foreign consignees, especially in some South American countries, the frequent occurrence of consignees without original bills of lading, resulting in China's exports business suffered heavy losses.
 
The Chinese Maritime Law stipulates that a bill of lading is a document used to prove that the agreement for the carriage of goods by sea and that the goods have been received or loaded by the carrier, and that the carrier guarantees the delivery of the goods. Maritime law theorists believe that the bill of lading not only represents the contractual arrangement of maritime carriage, but also the proof of ownership of the goods (the nature of the bill of lading will not be discussed further in this article). The bill of lading is also a key financing security warrant for the international financing business of the bank. Therefore, the importance of bills of lading in international trade and international shipping has long been self-evident, and it has become very complicated with the development of economic models.
 
Delivery without a bill of lading, also known as delivery without an original bill of lading, refers to the act or phenomenon that the carrier delivers the goods carried under the bill of lading to the consignee without the original bill of lading. With the increasing prosperity and development of international trade and shipping, disputes arising from the release of goods without a bill of lading have also become the most common secondary cause of action in disputes over domestic carriage of goods by sea. The characteristics of the import model and the adjustment of laws and regulations frequently appear.
 
This paper selects Brazil as the representative of the South American country, mainly by sorting out the background and environment of the disputes about Brazil's delivery of goods without a bill of lading in the field of international trade and shipping, and analyzes the role and responsibilities of the carrier in the dispute about the delivery of goods without a bill of lading in Brazil, and analyzes it. Chinese export enterprises put forward countermeasures to prevent such risks.
 
01Brazil's "release of goods without a bill of lading" dispute background
 
(1) China's export to Brazil
 
In recent years, China has always been Brazil's largest import source and export destination country. Although the huge import value from Brazil has caused China to run a trade deficit with Brazil, China's export to Brazil in 2021 will reach 48.34 billion US dollars, a year-on-year increase. An increase of 36.7%. From another perspective, more and more export companies are exposed to the risk of releasing goods without a bill of lading involving Brazil, which is also the market basis for the increasing number of maritime and trade disputes involving Brazil.
 
(2) The impact of the new regulations on delivery of goods without a bill of lading in Brazil
 
The Brazilian Ministry of Finance promulgated and implemented Decree No. 1356 on May 6, 2013 (hereinafter referred to as the "New Regulations"), which regulates the import of goods issued on October 2, 2006. " (hereinafter referred to as "Decree No. 680") some provisions have been revised. According to the revised regulations on the import of goods, the importer does not need to issue the original bill of lading when the goods are picked up from the customs bonded area after customs clearance has been completed. In view of the fact that the Brazilian customs implements the import process of clearing the goods first and then picking up the goods, the relevant laws before the introduction of the new regulations stipulated that the importer or freight forwarder must provide the customs with the original bill of lading, original invoice, packing list and other documents during the customs clearance process. After the promulgation of the new regulations, the importer (consignee) or the forwarder needs to take the original bill of lading (MB/L), go to the shipping company to exchange for the delivery note (D/O-DELIVERY ORDER), and go to the customs for customs clearance. Proof of release to pick up the goods, no need to present the original bill of lading. The Decree was also amended in 2017 by Normative Directive No. 1759. In 2020, Brazil also introduced some decrees on digital customs clearance, which were subsequently revised. South American countries such as Peru and Chile have issued similar laws and regulations.
 
The introduction of the new regulations has affected the conditions for the import and circulation of goods in Brazil, and has also contributed to the occurrence of a large number of unoriginal bills of lading in Brazil.
 
02Interpretation of the new market and the perspective of judicial adjudication in Brazil's delivery of goods without a bill of lading
 
(1) Market Interpretation of Brazil's New Regulations on Release of Goods Without B/L
 
The introduction of the new regulations of Brazil's Decree No. 1356 has aroused the attention of domestic export companies, freight forwarders and other market participants. The Economic and Commercial Counselor's Office of the Chinese Embassy in Brazil stated in its reply to the consultation on the new regulations that it has cooperated with the Brazilian Ministry of Finance Customs Administration. The company verified that the purpose of this amendment to the terms is to improve the efficiency of customs clearance of goods, simplify the import procedures, and not affect the delivery of real rights in normal international trade.
 
Afterwards, the Bureau of Import and Export Fair Trade of the Ministry of Commerce issued the "Explanation on the New Regulations for Picking up Goods without Original Bill of Lading in Brazil" to interpret the impact of the introduction of relevant new regulations in Brazil. And the ship generation faces different risks. The importer can pick up the goods under the following unsettled foreign exchange conditions: 1. The shipowner colluded with the importer; 2. The customs declaration goods were selected as the green channel for customs clearance by the customs foreign trade system.
 
The above new regulations indicate that although they have been withdrawn at the request of some shipping companies, it can still prove that the customs clearance in Brazil still requires the original bill of lading. The decree was also amended by Normative Directive No. 1759 in 2017, stipulating that the consignee still needs to pick up the goods against the original bill of lading.
 
(2) Judgment of the Chinese court on the case of Brazil's delivery of goods without a bill of lading
 
Excluding the cases where the statute of limitations has expired and the goods are still in the warehouse of the destination port, the number of disputes over the contract of carriage of goods caused by the carrier whose unloading port is in Brazil has not delivered the goods with the original bill of lading has surged after the introduction of the new regulations. In such cases, the determination of whether the cargo release without a bill of lading has occurred at a Brazilian port is usually clear, but different courts will adopt different opinions in determining whether the carrier is responsible for the delivery without a bill of lading, and come to judgments with different tendencies.
 
In cases of disputes in which the court determined that the carrier should not be liable for the delivery of goods without a bill of lading, it is generally considered that the carrier cannot be blamed for the carrier's inability to effectively control the goods and the delivery process due to the automatic clearance of the goods through the Brazilian customs green channel. As a result, the goods involved were picked up by the consignee at the destination port without the original bill of lading. However, in cases of disputes in which the court determined that the carrier should be liable for the delivery of goods without a bill of lading, the court usually did not accept the carrier's defense of invoking Article 7 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in Cases of Delivery of Goods Without an Original Bill of Lading". Such judgments hold that, based on the currently identified regulations and interpretations of the Brazilian customs, it cannot be concluded that the goods can be released at the port of destination without the original bill of lading, or that there is no evidence that the goods must be delivered to the local customs and port authorities in Brazil. It is also impossible to prove that the carrier has delivered the goods to the Brazilian customs or port authorities under the current legal provisions.
 
The introduction of the new regulations and the amendments to the relevant laws and regulations of Decree No. 680 have led to a new height in the number of cases involving delivery of goods without B/L in Brazil. The judgments of similar cases in different courts or even the same court are also inconsistent. This situation is largely caused by the specific circumstances of the delivery of the goods and the difference in the carrier's degree of proof or proof.
 
However, on December 2, 2021, the Supreme People's Court once again supported the shipper's request in (2020) Supreme Court Civil Judgment No. 171, and ruled that Mediterranean Shipping Company should compensate the shipper for all the loss of the goods payment and the corresponding interest.
 
Article 63 of the "Minutes of the National Court Meeting on Foreign-related Commercial and Maritime Trials" issued by the Supreme People's Court on January 24, 2022 stipulates that the carrier cited "Several Issues Concerning the Application of Law in the Trial of Cases of Delivery of Goods Without Original Bills of Lading" by the Supreme People's Court. Article 7 of the Regulations stipulates that those who claim not to bear the civil liability of releasing goods without a bill of lading shall provide the law of the location of the port of discharge as stipulated in this article, and provide evidence to prove that they have delivered the goods to the port to the local area in accordance with the laws of the location of the port of discharge. Customs or port authorities have lost control of the goods.
 
03Analysis of the carrier's liability in the dispute involving Brazil's "delivery without a bill of lading"
 
After the goods arrive at the port, the carrier transfers the goods to the bonded area in accordance with the local laws and regulations.
 
First of all, the Brazilian civil and commercial legal system confirms that the bill of lading is not only a document for the contract of carriage of goods, but also a document to prove the ownership of the goods. Carefully take care of the goods loaded on board, and deliver the goods at the destination port with the original bill of lading within a reasonable time or according to the agreed time. The definition of the attributes of the bill of lading and the role of the bill of lading in the transportation and circulation of goods in Brazilian law is consistent with the domestic laws and regulations, and it is also a common understanding in the field of international trade and international freight transportation. Therefore, from the point of view of the basic rules and operational procedures of cargo transportation, the carrier has the obligation to deliver the goods on a voucher, which is manifested in two levels: one is that when the carrier is ready to deliver the goods, it is obliged to pay the consignee's original bill of lading or The equivalent documents shall be proved and confirmed; the second is that when the consignee who holds the original bill of lading or the equivalent documents picks up the goods, the carrier is obliged to deliver it to him.
 
Second, even if the carrier implements the procedures for the release of goods in the new regulations promulgated by the Brazilian Ministry of Finance in 2013, the carrier does not automatically lose control of the goods. From the perspective of maritime law and the principles of international trade, the import/export and customs clearance procedures of goods are essentially the obligations of the importer/exporter and its freight forwarder. The specific responsibility arrangement should be based on the negotiation between the two parties and the selection of applicable trade terms. The role and role of the carrier in shipping is to accept the entrustment to properly transport the goods to the destination for delivery. Although the Brazilian customs implements the import process of clearing the goods before picking up the goods, as the carrier of the goods, the supervision of customs tax during the import process cannot be taken for granted. excludes its control over the management and delivery of the goods.
 
Finally, the carrier can still take steps to restrict the movement of goods if it deems it necessary. Brazilian law stipulates that the carrier has the right to withhold the goods if the freight or the general average contribution has not been paid in full. In trade practice, the carrier can control the goods by locking the goods in the Brazilian Integrated Foreign Trade System (Siscomex). Therefore, if the carrier deems it necessary, it can also require the consignee to return a full set of original bills of lading in this link to meet the legal delivery requirements.
 
To sum up, the current applicable laws and regulations in Brazil cannot be taken lightly as allowing or acquiescing in the release of goods without a bill of lading, so that the carrier cannot of course use the local law to deliver the goods to the customs or port authorities. Custody this reason absolves itself of responsibility.
 
04Export enterprises should deal with the risk prevention of "delivery without a bill of lading"
 
For export companies facing Brazil or other countries with high risk of releasing goods without a bill of lading, we recommend reducing business risks through the following arrangements and adjustments:
 
(1) Choose the appropriate trade term
 
At present, in my country's export trade, the term FOB is widely used by domestic export trade enterprises. According to the definition of FOB rules in the generally applicable "2010 Incoterms Interpretation Principles" (INCOTERMS 2010), the buyer needs to charter a ship, book space, and purchase insurance. , To go through the import customs clearance procedures, the seller shall be responsible for going through the export customs clearance procedures of the goods and deliver the goods to the carrier arranged by the buyer. An important reason why the FOB clause is popular with exporters is that as a seller, there are fewer obligations, and it is not only unnecessary to bother with subsequent transportation contract arrangements, but also can quote the goods at a lower price (without additional transportation costs) and thus be competitive. However, such an arrangement makes the degree of contact and bonding between the exporter and the carrier less. In the case of the importer and the carrier colluding to collect the goods, the importer will even take the initiative to request it to arrange a transportation contract or designate a certain Shipping companies or freight forwarding companies, and then implement pre-planned delivery operations without a bill of lading.
 
By choosing appropriate trade terms or transportation arrangements, exporters can coordinate and arrange shipping companies responsible for transportation. On the one hand, the probability of collusion between importers and carriers can be greatly reduced; Even in the case of Brazil, where the risk of legal policy makes the possibility of releasing goods without a bill of lading increased, exporting companies have more right to speak in the communication and coordination with the carrier and the control of the goods.
 
(2) Payment arrangements
 
In international trade practice, the payment method often used by my country's foreign trade export enterprises is the most convenient wire transfer remittance, namely T/T. In the practical operation of international trade, the buyer prepays part of the payment to the seller as prepayment by wire transfer. The prepayment ratio is determined according to the different types of commodities and the different conditions of the trading parties. After the seller receives the payment, the goods will be delivered to the carrier according to the contract and shipping schedule. After the goods are loaded on the ship and the bill of lading is issued by the carrier, the buyer pays the remaining payment according to the copy or fax of the bill of lading sent by the seller. After receiving the full payment, the seller will hand over the full set of original documents to the buyer or send them by telegram.
 
From the point of view of trade principles, the bill of lading, as a contract of carriage document and the document of title to the goods, connects the buyer, the seller and the carrier, and pushes the seller to issue the goods and the buyer to pay the remaining payment. However, when the goods are released without the original bill of lading, the transfer of the goods is not based on the need for the original bill of lading, and the seller has no effective means to restrain the buyer from paying for the goods.
 
In order to avoid the risk of loss related to the delivery of goods without a bill of lading, it is an important measure to properly arrange the payment method, such as choosing the letter of credit (L/C) method as the payment condition. This type of payment method introduces bank credit into export trade, thereby increasing the payment for goods Guaranteed recovery.
 
(3) Conduct buyer credit investigation
 
At present, there are two main types of losses caused by exporters releasing goods without a bill of lading. One is that the importer colluded with the shipping company or NVOCC, and obtained the bill of lading and other documents of title through conspiracy without paying the full price. Obtaining the goods; another situation is that the importer itself has no plan, but due to some objective factors and conditions, the goods are actually received or controlled under the condition that the full price has not been paid to obtain the document of title such as the bill of lading. Unexpectedly "cheap", many importers can't ask for it, and naturally they have no willingness to fulfill the payment agreement in the sales contract.
 
For import enterprises with good qualifications and high reputation, they often focus on maintaining their own image and reputation, and are unlikely to maliciously defraud the goods through conspiracy. payment. As a result, the risk of losses incurred by exporters due to the delivery of goods without a bill of lading will be reduced accordingly.
 
Therefore, domestic export enterprises need to maintain the necessary prudence in trade transactions, understand the buyer's information as much as possible and screen their qualifications and credit. Although such measures will exclude potential customers of export trade enterprises to a certain extent, but It also eliminates unnecessary risks.
 
(4) Transfer of commercial risks through insurance
 
Although the above-mentioned measures can reduce the occurrence of the release of goods without a bill of lading and the losses caused by the export enterprises to release the goods without a bill of lading to varying degrees, there are still some potential risks that cannot be excluded. At this time, insurance, especially export credit insurance, can be as an effective way to transfer risk.
 
Export credit insurance refers to the security mechanism provided by credit institutions for the export receivables of export goods, services, technologies and capital insured by enterprises. It takes the credit risk of foreign buyers in export trade as the insurance subject, and the insurer insures the losses suffered by domestic exporters in the course of exporting business due to commercial risks on the importer's side or political risks on the importing country's side. With the development of the insurance industry, there are more choices for export credit insurance for export enterprises.
 
Contributors: Cui Yutong, Lu Juncheng, Lu Zhimin

相关热词搜索:

上一篇:Brief introduction of business jet purchase
下一篇:Analysis on legal issues of labor disputes related to the epidemic

分享到: 收藏