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Lecturer: ANNIE CHEN

CMS IN-HOUSE SEMINAR 2009 ●CY 、 CFS 、 FCL & LCL ●DUE DILIGENCE ●Apparent Good Order & Condition ●Who is the Master of a Ship?. Lecturer: ANNIE CHEN. CY 、 CFS 、 FCL & LCL. CY (Container Yard): 整櫃 CFS (Container Freight Station 貨櫃集散地 ): 散裝、併櫃

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Lecturer: ANNIE CHEN

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  1. CMS IN-HOUSE SEMINAR 2009●CY、CFS、FCL & LCL●DUE DILIGENCE●Apparent Good Order & Condition●Who is the Master of a Ship? Lecturer: ANNIE CHEN

  2. CY、CFS、FCL & LCL • CY (Container Yard): 整櫃 • CFS (Container Freight Station貨櫃集散地): 散裝、併櫃 • FCL (Full Container Load or Full Carload): 又稱Container Load Container (CL Container)或CY Container，整櫃，又分大櫃(40呎)及小櫃(20呎) • LCL (Less than Container Load): 散裝、併櫃→有其他說法如：Loose Container Load、Less than Carload、Loose Carload

  3. CY versus CFS • Difference: manner & the location of the cargo delivery and receipt in a container service. • CY: the delivery/receipt of a whole container from/at the shipper’s/forwarder’s/consignee’s premises. • CFS: loose cargo delivered/received from/at the carrier’s freight station, which is operated by the carrier’s for receipt, forwarding, and assembling/disassembling of cargo, and normally, the CFS is a customs clearance center.

  4. The CFS service may be necessary under any of the following circumstances: • The kind of cargo and quantity of order does not warrant the use of the whole container. • The shipper's or the consignee's premises are inaccessible by container due to poor road conditions (e.g. narrow road) and location (e.g. remote area not served by container). • The overall load of vehicle exceeds the legal limitation. • The shipper or the consignee lacks the necessary container loading or unloading equipment.

  5. FCL versus LCL • 實務上來說，差別在於是否整櫃貨物(the ‘whole container’ or ‘not the whole container’)都為同一收貨人 。 • FCL意指貨載量達到貨櫃可容許載重或尺寸之上限(或滿櫃)。然而在實務上，FCL不一定指貨櫃裝載內容達到其收費載重量(payload)或滿櫃。 • 出貨人若要將貨櫃中貨物出給同一目的地的多個收貨人，此為LCL，則運送人會以LCL費率向出貨人收費。在LCL程序中，出貨人需自行將貨物送抵container freight station再裝櫃，此舉不保證此出貨人的所有貨物會裝在同一櫃。在某些情況下，出貨人可以在其工廠/營業場所先行裝櫃，而後運送人在container freight station再將更多來自不同出貨人之貨物裝進同一櫃中，使其成為FCL。

  6. Reference Resource • More details or cases in practice, please refer to EXPORT911:http://www.export911.com/e911/ship/fclLCL.htm

  7. DUE DILIGENCE • 何謂Due Diligence？ • 意指為實現某種法律或合約規定，或履行某義務時，一個人被合理期待，且通常也會實現的注意義務(legal obligation)。此詞界定的是一種「注意的程度」(standard of care, the degree of prudence and caution required of an individual who is under a duty of care)，比照我國法律並轉換成中文來說，可稱為「善良管理人的注意義務」。 • 反過來說，未盡到「善良管理人的注意義務」，即為過失(negligence/offense)。

  8. Related Articles in Hague Rules 1924 • Article 3.1 – The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to: • (a) Make the ship seaworthy. • (b) Properly man, equip and supply the ship. • (c) 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. • The carrier should exercise due diligence of making sure the carrying vessel is fit for carriage of the goods until the end of voyage.

  9. DILIGENCE & DUTY • 若深入探討此兩詞的意義，會發現diligence是主動的，duty是被動的/順從的。 • 因應法令規定→產生duty of care→滿足此需求→執行due diligence • 當需要執行due diligence時，依事件本質的不同，會產生相對應的一組要求

  10. REFERENCE RESOURCE • 海上貨物運送人責任之法律經濟分析 – 以航海過失免責條款為中心 • 研究生：國立臺灣海洋大學 • 海洋法律研究所 • 方凱弘(94學年度) • 指導教授：崔汴生

  11. Apparent Good Order & Condition • Bill of Lading is: • receipt of goods • evidence of the contract of carriage • document of title to the goods

  12. Hague Rules 1924 – Article 3 • 3. After receiving the goods into his charge the carrier or the master or agent of the carrier shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things: • (a) The leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts. (後略) • (b) Either the number of packages or pieces, or the quantity, or weight, as the case may be, as furnished in writing by the shipper.

  13. 3(c)- The apparent order and condition of the goods. • Provided that no carrier, master or agent of the carrier shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received, or which he has had no reasonable means of checking.

  14. 4. Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraph 3(a), (b), and (c).

  15. Issuing B/L with incorrect details of cargo can lead to law suit, or criminal penalties. Depriving the issuer of being able to rely on contractual limitations and its insurance protection is also possible. • If external condition of cargo is known to be defective or in discrepancy, the carrier must not issue the B/L described like “clean on board”.

  16. REFERENCE RESOURCE • TT Club Publications: Stop Loss → Release of Cargo

  17. Who is the Master of a Ship? • Definition of “master” – any person (except a pilot) having command or in charge of a ship. • (New Zealand Maritime Transport Act 1994 Section 2)

  18. Background of the Court Case

  19. The Charges • Failure to comply with the obligation of reporting any accident, incident or mishap to the Authority as soon as practicable. (section 31, section 71) • Operating a ship in a manner which causes unnecessary danger or risk to any other person or property. (section 65)

  20. DISTRICT COURT RULING • Dismissed the unnecessary danger charge. • Held Mr. Birchall liable for delay reporting.

  21. HIGH COURT RULING • Quashed the conviction of delay reporting for the reason of Mr. Birchall is not the Master at the relevant time.

  22. THE COURT OF APPEAL RULING • ISSUE: Whether Mr. Birchall “Master” of the vessel at the relevant time? • The Court of Appeal considered from three approaches:

  23. Interpretative: the definition of “Master” in the Act refers to “any person”, so the Master is not necessary always the same person. • Historical: in an old court case in 1840, the definition of “having command or charge” of a ship was deemed to be in the “conduct and charge” of a vessel. • Factual: the facts of the case indicated that Mr. Birchall was in command or in charge at the time. Until the Caption retook the command, Mr. Birchall must comply with the reporting obligation of the Act.

  24. In consistent with the aims of the Act to enhance safety at sea. The person in control of the ship at a particular time should be responsible for the overall safety of the ship.

  25. REFERENCE RESOURCE • New Zealand Maritime Law http://www.maritimelaw.org.nz/index.html -- Cases 2009 Maritime New Zealand v Birchall (CA) -- Statutes Maritime Transport Act 1994

  26. Question • 1.大多數海商訴訟皆以船長/船員是否exercise due diligence為爭論點。試指出我國海商法內有關due diligence的各條款。 • 2.ITC 1/10/83中述及之Master可否代以Captain，為什麼？若代替之，對條款效力有何影響？ • 3.我國海商法中提及之「船長」，英文翻譯為何？為什麼？

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