ibt_mabry_fall93_levy(编辑修改稿)

ibt_mabry_fall93_levy(编辑修改稿)内容摘要：

to destination) Bill of Lading 7 c. Transportation and Delivery: Bill of Lading 1. Multipurpose a. as a document of title。 seller can be paid right away。 can be used to pledge security on a debt b. as a contract for carriage: agreement to ship goods) c. as a receipt: id’s goods with particularity d. as a k for bailment: carrier accepts possession of goods and agrees to deliver 2. Where they fit in process: a. seller gives goods to carrier b. carrier gives b/l to seller c. carrier delivers goods d. seller submits b/l to buyer (w/ draft) for payment 3. Distinctions and Definitions a. negotiable/order bill: to order of X and their assigns。 bill a legally transferable doc of title。 made extra useful (esp. in l/c context)。 must be to order, in transit, and w/ good title。 goods locked up w/ bill b. straight bill: deliver to a specific buyer, regardless of who has a specific piece of paper。 less time sensitive 4. Statutory Context in US: Federal Bill of Lading Act (FBLA) a. Coverage: all outbound shipments from US (federally mandated choice of law) 1. inbound regulated by state law (UCC) or law of exporting country (choice of law analysis) b. Purpose: to perfect negotiability。 to be negotiable b/l must be 1. to order 2. in transit (ie. must be transferable goods。 can’t have been delivered b/l at this point is not doc of title) eg. Barclays v. Commissioners of Customs (UK 1963): doc of title quality of b/l does not cease upon arrival of goods at point of destination。 b/l docs are also a k for bailment insuring that carrier will tender to a certain person entitled to take possession 3. with good title c. 167。 89: To whom can carrier deliver the goods: 1. a person legally entitled to possession 2. consignee of straight bill 3. person in possession of bill d. 167。 90: When will carrier be liable for deliver to person not entitled: even if delivered under 2 or 3 above will still be liable if: 1. was requested to not deliver by someone w/ right 2. knew that person was not entitled e. If b/l is stolen, how is carrier protected?: 1. if delivers to thief (w/o knowledge) not liable will often require true owner to sue him order to pel delivery to him 2. if delivers to true owner not liable f. what about distinction between times when b/l does pass title and when it doesn’t? 1. passes title: when b/l issued to someone who acquired goods by fraud=holder in due course will have title (and defrauded true owner will have to sue defrauder) Bill of Lading 8 2. does not pass title: when b/l issued by someone who acquired by theft=holder in due course has no c/a (and will have to sue defrauder) COGSA 9 g. Carrier’s Liability for Safe Carriage of Goods: COGSA 1. history: try to balance shipping interests (dev’d world) (look for someone to be liable at least where there’s been negligence) and shipper interests (dev’g countries) (to absolve selves of responsibilities) 2. application: mandatory。 not optional。 to any contract evidence a contract for carriage of goods by sea to or from port of the US (Indussa, Prudential Lines) a. but see: Bremen v. Zapata Offshore (US 1972): broad acceptance of choice of forum clauses, even where they implied choice of fx law 3. Principal duties for carriers a. duty to exercise due diligence in putting vessel in seaworthy ship if unseaworthiness causes damage, carrier must show due diligence or exemption (1304(1)) (burden shifting device) including basic petence of crew b. duty to care for cargo c. can’t absolve self of negligence 4. Principal immunities for carriers a. not liable for act, neglect, etc. of employees (except for minimum standards of petence) (167。 1304(2)(a)) b. not liable for fire c. nor any other damage without fault/neglect of chip/crew (burden on carrier claiming exemption to prove no fault) d. max $500 liability per container 1. force shipper to specify value (allowing carrier to charge more) 2. Komatsu v. States Steamship: carrier can take advantage of limit only if gives shipper opportunity to declare value 5. Distinguishing between exemption for fire and duty to provide seaworthy ship: Sunkist Growers v. Adelaide (1979) a. characterize quite substandard crew performance as a matter of unseaworthiness, not crew neglect b. What caused loss? 1. fire: shipper would have to show lack of due diligence 2. Court says unseaworthiness (refrigeration and untrained crew) putting burden on carrier to show due diligence 3. Given procarrier bias of COGSA, Ct will look harder at diligence Terms of Sale and Damage for Breach 10 d. Terms of Sale and Damage for Breach 1. Traditional remedies a. mon law: expectation damages put aggrieved party in as good as position as they would have been in had the party in breach performed b. civil law: specific performance 2. General rule for expectation damages in k’s for sales of goods: party in breach has to pay difference between k’ually agreed upon price and price of cover 3. Problem 1: What is time for measurement of breach? When does breach occur? When does aggrieved party know about it? a. Seaver v. Lindsay Light Co. (1922 NY): k for thorium cif London。 no question of liability。 q is measure of damages b. damages if measured by place of delivery (London) = $8316 if measured by place of payment/delivery of docs = $868 c. cif k rules: seller pletes obligation when delivery occurs。 delivery was to be made when docs turned over and insurance/carriage paid through to London 4. Problem 2: What is place for measurement of cover price? Which market? a. Sharpe v. Nosawa (1917 UK): k for peas cif London。 no q of liability。 q is damage measure b。