China: 中国出口企业使用FOB贸易术语时的风险防范

Last Updated: 6 March 2018
Article by John Liu and Minli Tang

FOB(装运港船上交货)术语是国际商会(ICC)制定的国际贸易术语(Incoterms)中使用频率最高的术语之一,也是我国出口企业最常用的贸易术语。在标准FOB术语下,卖方没有义务订立运输合同,而应当由买方负责订立运输合同、支付运费。

然而,在实际交易中,经常出现买卖双方虽约定FOB术语,但合同的实际约定、履行却异于标准条款的情况。FOB作为最常用的贸易术语之一,其在实际交易中的变形也最为常见。在英国法下的经典判例Pyrene Co Ltd v Scindia Navigation Co Ltd [1954] 2 QB 402一案中,Devlin法官就FOB合同的性质做了详细阐述,已成为国际上对FOB合同的经典解释。在该判决中,Devlin法官强调FOB合同已经成为一种灵活的文书(flexible instrument),并界定了三类主要的FOB合同:简单型、经典型以及延伸型。该三种类型也是实践中最为常见的FOB合同变形。

1、常见的FOB合同变形

简单型FOB合同

是FOB合同最简单的形态,买方自己负责订舱、运输(通常由其自身的货代操作)。因此,卖方只负责在装运港将货物装上买方指定的船舶。装船后,提单签发给买方/买方货代(此种情况下,一般货款已结清,或买卖双方信任度较高),卖方一般不取得提单(一般有买方在装运港的货代直接取得提单),也不是运输合同的当事人,与承运人之间没有运输合同关系。

经典型FOB合同

也是实践中更为常见的。在此类情况下,虽由买方指定承运人,但实际中则由卖方替买方安排运输。很多情况下:卖方和承运人之间会在运输合同下约定运费到付(买方付)。提单通常直接签发给卖方。卖方是提单下的托运人,买方则为提单下的收货人。

延伸型FOB合同

该类合同下,卖方除了把货装运上船以外,还同意为买方提供其他双方约定的服务,比如安排签订运输合同、购买保险等。相应的额外费用既可由买方直接支付给承运人或保险人,也可通过卖方转交。

当卖方负责为买方安排保险时,该延伸型FOB合同与CIF合同的区别在于,CIF合同下,卖方签订运输合同是其在买卖合同下合同义务的一部分,相应的报酬已经隐含在买卖合同的货款中。而在延伸型FOB合同下,这部分的报酬独立于买卖合同而单独存在,两者分别开具发票。

2、FOB合同下的合同相对性问题及我国出口企业之风险防范

FOB合同的履行过程中,主要交易框架有买卖合同和运输合同,至少牵涉三方主体:出口卖方、进口买方、承运人。对于买卖合同的纠纷,我国出口企业(卖方)可依据买卖合同主张权利。而当损失发生在与运输事项相关的情况时,出口企业的风险更大。我国出口企业(卖方)承担的风险主要包括:当货物风险尚未转移给买方就发生货损;买方不付款或破产;在经典或延伸型FOB合同下,当其自身为运输合同下的托运人时,对运费的支付义务;承运人无单放货等。由于交易的涉外性,系列合同下常常约定适用外国法。因此,此处不仅仅基于中国法进行讨论。

当货物风险尚未转移给买方就发生货损

FOB合同下,风险自“货物装上买方指定船只时”(FOB术语下的风险转移节点原为货物“越过船舷时”。对此表述,Incoterms 2010做了变更,参见 Incoterms 2010 FOB A4-A5。)由卖方转移给买方。故在装船前阶段,货物灭失或损毁的风险由卖方承担。在此阶段,建议卖方自行为货物及运输过程购买保险。

买方不付款或破产

当货物已发运,而买方不付款或破产时,如果卖方合法持有托运人指示提单,则可以通过转让提单的方式转卖在途货物。相比之下,如果此时提单为记名提单,则卖方处于非常被动的状态——记名提单不得转让,只能由提单下的收货人(即买方)凭单提货。甚至,有些国家的法律(比如美国法,参见Federal Bill of Lading Act 49 U.S.C §§80110)允许记名提单中记载的收货人可以直接无单提货。因此,建议卖方要求取得以自身为托运人的指示提单。

在经典或延伸型FOB合同下,卖方为运输合同下的托运人时,对运费的支付义务

当卖方直接与承运人签订运输合同时,即使与承运人约定运费到付,卖方仍是合同下付款义务方,不能以买方不付款作为抗辩理由。而且,如果发生货损,卖方基于运输合同可从承运人处获得的赔偿也受制于承运人在运输合同下的责任限制。因此,建议卖方应当在货物买卖合同下与买方约定补偿条款,从而在买方未付到付运费,或实际货损超过承运人的责任限制时就差额部分从买方处获得相应赔偿。

承运人无单放货

针对承运人无单放货的风险,应尽量争取与买方约定使用CIF或CFR术语,以此获得自主安排运输的主动权。在不得不使用FOB时,则应仔细审查承运人及买方(包括买方货代)的资质、尽量取得以自身为托运人的指示提单。

需要特别注意的是,在《鹿特丹规则》下,FOB卖方要成为提单下载的托运人并取得提单,必须获得运输合同下托运人的同意。因此,当交易适用《鹿特丹规则》且卖方并非运输合同缔约方时,应该提前在买卖合同下与买方约定:要求买方在与承运人签订运输合同时,明确要求承运人向卖方签发以卖方为托运人的指示提单。

Originally published by Lexology, March 2, 2018

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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