介绍
国际业务交易需要精确且详细的基础合同。但是，自己起草这样的合同可能既昂贵又耗时。世界商业组织国际商会通过ICC示范国际销售合同响应了市场对可靠和公平的模型的需求，该模型提供了一套解决方案，可针对最基本的需求提供一套清晰明确的标准合同条件国际贸易协定。
尽管此模型被称为“销售”合同，但由于它平衡了出口商（卖方）和进口商（买方）的利益，因此也适合买方使用。因此，它也可以用于所谓的“购买”协议。
此标准条件不仅适用于违反合同的情况，而且某些公约与国际航空运输特别相关，例如1929年的《华沙公约》，1955年的《海牙议定书》和1999年的《蒙特利尔公约》。提到与义务，负债，文件等有关的条件。
值得一提的是，在不同缔约国的两个缔约方使用航空运输进行的交易中，最重要的文件是航空货运单，这是该学术文章中最重要的主题。
该学术文章分为六个部分，从国际空运合同和与此相关的主题开始；公约提到了国际航空货物销售合同的法律制度；航空运单；最后是一个案例研究，结论和参考。
1.国际空运合同
1.1。概念
国际空运合同是货物的托运人或所有人与承运人之间的一项协议，承运人必须承担最后的责任，并且必须将货物发送到目的地的托运人。承运人可以是航空公司或国际运输公司。
运输合同包括在出发地接受航空公司货物的货运站，货物的实际移动，在旅途中航班执行的秤以及将货物交付给收货人位于目的地国家/地区的终端。
1.2。特点
- 协商一致：仅凭遗嘱就可以订立货物运输合同。双方之间一旦达成协议，就必须履行合同，并按照其中规定的条件进行运输。主要：完全独立于其他现有的航空运输协议。承运人确定的运输条件。由于合同的加入性质，用户无法更改这些条件。
1.3。关键概念
1.3.1。托运人
发货人或卖方（货物的所有人）是将货物交付给承运人以将货物运输到收货人的个人或公司。
1.3.2。交付
收货人或买方（付款后的货物的未来所有者）是发货人在运输单据（作为AWB）中指定的当事方，其托运单将在目的地港口交付。
1.3.3。商品或商品
一种固有的有用且相对稀少的有形物品（物品，商品，材料商品，商品），其生产活动将在营业地点位于不同国家的当事方之间进行交易。根据《销售公约》，“货物”一词不包括（a）供个人使用的货物，（b）通过拍卖，（c）执行时，（d）库存，股份，（e）船舶，船只，气垫船或飞机，（f）电力。 （国际货物销售合同公约，第二条）。
危险物品; 它们是具有潜在危险特性的物品或物质，被定义为具有明显危险的物质，例如酸，酒精，燃料，炸药，放射性物质等。以及其他日常在家中使用的物品和物质，例如用于斑点的服装，气雾剂，温度计等。（1929年《华沙公约》）。
1.3.4。载体
承运人是承担将某物从一个地方转移到另一个地方以换取称为运费的人。
1.4。航空运输合同当事方的义务
1.4.1。承运人的义务
根据航空运输合同，承运人负有接收货物并将其在约定的时间空运至约定地点的基本义务，此外，还应按收货的相同状态将货物交付收货人。
这意味着两个基本服务：
至。货物的物理运动；其中包括提供合适的车辆，在约定的时间内进行运输或在合理的期限和合理的直接路线使用上未达成协议。
在航空运输中，发件人和承运人很少同意在特定的时间交货。但是，这并不意味着时间不是驱动发件人选择乘飞机旅行而不是选择其他运输方式的关键因素。通常，用于航空运输的货物对交货时间特别敏感，要么是因为它是易腐烂的货物（鲜花，药品等），要么是因为零件或备件需要紧急更换。因此，期望航空承运人在进行运输时考虑到航空货物的这些特性，从而使货物运往目的地的过度延误应由承运人承担，以便延误交货。
关于合理的直接路径，还期望运行的传送带通过直接飞行路径收缩，即没有秤。但是，它必须审查合同的条款，而合同条款通常是承运人的插入条款，可以为制衡甚至滥用提供很大的自由度。
b。运输中货物的保养和保存；为了履行这一基本义务，承运人必须了解货物的性质，即托运人在将货物转移至承运人时在所有相关文件中提供并提及的信息。
如果货物需要特殊照顾，则托运人有义务向承运人表达义务，并向承运人提供必要的指示，以履行承运人对货物的照料和保护责任。当然，对于需要特别注意的货物，可以合理地假设货运的价值可能会增加。
1.4.2。托运人的义务
托运人的义务是提供与护理和保存所交付货物有关的预防措施所需的必要信息，以及与满足当地海关要求所需的货物有关的所有文件，卫生许可证（如果有的话）。需要）等 “承运人没有义务查询此类信息或文件的正确性或充分性”（1929年《华沙公约》第16条第2款）。
2.航空国际货物销售合同的法律制度
1.1。1929年华沙公约
1929年的《华沙公约》载有国际航空，旅客和行李运输的基本规则。
1929年在华沙签署了第一份国际航空公约，即《统一某些国际航空运输规则的公约》。该公约旨在统一国际航空运输的规则。
该公约于1933年2月13日生效，已有151个国家通过。迄今为止，它是采用最广泛的国际公约。（贸发会议，《航空货物运输》，2006年）
这项公约«适用于飞机为酬谢而进行的所有人员，行李或货物的国际运输。它同样适用于由航空运输公司进行的免费飞机运输» 1929年华沙公约）
1929年《华沙公约》提供了适用于国际航空运输索赔的统一赔偿责任制度的全面结构。
该公约的主要领域可以总结如下：
公约：
- 规范要包含在运输单据中的详细信息；对不遵守要包含在运输单据中的详细信息处以罚款（承运人失去限制其赔偿责任的货币上限）；制定了规则，索赔人无需证明承运人或其代理人在损失方面的过失；为航空承运人的利益指定有限数量的抗辩辩护；确定限制航空承运人赔偿责任的货币上限。旅客受伤或死亡的货币上限为125,000金法郎（按1929年现行汇率计算约为5,000美元），货物或登记行李的灭失或损坏每公斤250金法郎（约10美元）每位旅客未登记的行李为法郎（约合200美元）。定义了在何种情况下承运人可能会失去限制其责任的货币上限的利益；列出了有关时限和管辖权的规则；
提供所规定规则的排他性应用和强制性效果。
1929年《华沙公约》的条款具有专有性，并具有强制性效力。这意味着，在1929年《华沙公约》适用于特定索赔的情况下，索赔人只能依靠1929年《华沙公约》的赔偿责任规则。
1.2。1955年《海牙议定书》
The Hague Protocol 1955 modifies the Warsaw Convention 1929. The Hague Protocol 1955 doubles the monetary cap on the carrier’s liability in respect of passenger injury or death from 125,000 gold francs (about US$ 5000) to 250,000 gold francs (about US$10,000). However, the Hague Protocol 1955 does not change the financial limitation of the carrier’s liability in respect of cargo and registered baggage (which remains at 250 gold francs, about US$ 10), or in respect of unregistered baggage (which remains at 5,000 gold francs per passenger, about US$ 200). Some other innovations of the Hague Protocol 1955 include the following. (UNCTAD, Carriage of Goods by Air, 2006)
The Protocol:
- Simplifies the particulars to be included in the documents of carriage, however, maintains the penalty for non-compliance with the particulars to be included in the documents of carriage (carrier loses monetary cap limiting his liability);Specifies that legal costs are excluded from a claimant’s award of damages;Introduces an incentive for out of court settlements.
The Hague Protocol 1955 provides that if a State becomes a Contracting State to the Hague Protocol 1955, but is not a Contracting State to the Warsaw Convention 1929, this «should have the effect of adherence» to the Warsaw Convention 1929 modified by The Hague 1955 called now «Warsaw-Hague Convention 1955». (UNCTAD, carriage of goods by air, 2006)
The Hague Protocol 1955 entered into force on 1 August 1963 and has been adopted by 136 States.
1.3. Montreal Convention 1999
The Montreal Convention 1999 provides that it «shall prevail over any rules which apply to international carriage by air», according to Art. 55 Montreal Convention 1999, as between Contracting States to the Montreal Convention 1999, which are also Contracting States to one or more of the Warsaw-system conventions. Thus, as between States, which are Contracting States to any one of the Warsaw system conventions, and the Montreal Convention 1999, the Montreal Convention 1999 takes precedence.
The Montreal Convention 1999 entered into force on 4 November 2003 and has, to date, been adopted by 70 States. The fact that such a large number of states have adopted the Montreal Convention1999 in a relatively short period of time illustrates the need for greater uniformity in the field of air law; it also suggest that the Convention has achieved the right balance between the conflicting interests of the different parties involved in air transportation.
2. Determining the applicable international air convention.
As is evident from the above overview, there are different legal regimes which may be applicable to a claim arising from the international carriage of goods by air. Whether the Warsaw Convention 1929 or the Montreal Convention 1999, is often a complicated question.
In all cases, the trigger for the application of any of those international air conventions and its corresponding legal regime is the concept “international carriage”. There is a single definition of international carriage, which has not been changed by the various amendments to the original Warsaw Convention 1929. To determine whether a specific contract is international carriage, making one of the two international conventions applicable, there is a two-stage inquiry, which is complex and in practice often creates considerable difficulty.
First, is necessary to determine whether the carriage comes within the technical concept of international carriage defined as (by the two conventions):
(i) The agreed place of departure and the place of destination are situated within the territories of two Contracting States, whether or not there is a break in the carriage or a transhipment;
(ii) The agreed place of departure and the place of destination are situated within the territory of a single Contracting State, if there is an agreed stopping place within the territory of another State, whether or not this is a Contracting State. (UNCTAD, Carriage of Goods by Air, 2006).
Secondly, it is necessary to check that the states of departure and destination are contracting states to the same version of either the Warsaw Convention 1929 or the Montreal Convention 1999. Therefore, it is imperative to study the Airway Bill closely to ascertain the agreed places of departure and destination, as well as any agreed stopping place, and to determine whether these meet the requirements set out in i) or ii) above. In cases where the requirements for international carriage do not apply, then none of the international conventions is applicable. Therefore, national law or the terms of the contract (i.e. terms and conditions printed on the air waybill) will be applicable.
The term High Contracting States or, changed later by the Montreal Convention, Contracting States has induced a conflict in respect to the meaning of this concepts. Tapia Salinas indicates that the logical way to consider two parties as contracting states, are not only those who signed the convention, but also the ones that later on rectified it or adhere to the conventions.
3. Air Waybill
3.1. Introduction
The contract for air transport is concluded between a user and an airline, which the airline commits to move from one place to another by air, certain goods for delivery to the addressee or consignee, after complying with the provisions of the Act General of Customs and its Regulation.
The air transportation contract includes from acceptance of cargo at a terminal designated by the airline at the point of origin to delivery to the user or his representative in a terminal also designated by the airline to the destination. In any case the charge is delivered on the platform or ramp maneuvers airports (DS No. 050-2001-MTC, Regulations of the Civil Aeronautics Law No. 27261 of Peru).
International air transport is regulated by the Convention for the Unification of Certain Rules for International Carriage by Air 1999 (Montreal Convention), the Convention on International Civil Aviation of 1944 (Chicago Convention), the Convention for the Unification of Certain Rules International Air Transport 1929 (Warsaw Convention), approved by res. Leg. No. 24819; Civil Aeronautics Law of Peru and its Regulations, the General Customs Law and its Regulations, and as noted in the RAP 112.
The air waybill is by far the most essential document issued in respect of the international carriage of cargo. It evidences the contract or agreement of international carriage between the parties and plays a central role in the liability regime. In current practice, air waybills are usually not negotiable. This is explained by the speed of air transport, which means that there is normally no need for a document, which enables sale of goods in transit. (UNCTAD, Carriage of Goods by Air, 2006).
3.2. Definition
The Air waybill can be defined as a document made out by or on behalf of the shipper, which evidences the contract between the shipper and the carriers for carriage of goods, by air and specific goods between places and conditions expressly determined.
3.3. Classification
(1) According to the classification Carrier Name
(a) Airline Air Waybill
Printed plane ticket (emission carrier) name and logo (emblem aircraft, code, etc.) of the air waybill.
(b) Neutral Air Waybill
Without preprinted name and logo of any company in the consignment the consignment. AWB constitutes neither an airline is neutral letters bearing.
(2) According to the classification of different roles
(a) Air Master Air Waybill (MAWB)
When the delivery note issued by the air transport company called Master Air Waybill.
(b) House Air Waybill HAWB
Company of transportation of goods by aircraft Published a roadmap of each carrier for operates businesses.
3.4. Functions performed by the Airway Bill
Besides being a document, which accredits the contract of carriage, the air waybill serves in turn to perform the following functions:
- It is a Proof of receipt of goodsContains the list of shipment, in which all the documents accompanying the shipmentIt is the invoice for freight and fees charged by the airline.It is a commercial document required for customs clearance.It is a commercial document required by the payment of the letter of credit or documentary collections.Used to accredit direct shipment of the goods and, that way, comply the rules of origin to be subject to tariff preferences.
3.5. Requirements of the Airway Bill
It is a document that certifies the international air transport agreement, in which all registered information must be complete and valid; it is composed of the following requirements:
- Shipper or exporter.Name of consignee.Number of flight and destination.Airport departure and arrival.Details of cargo: weight, volume, quantity, price and description.Indicate if the freight is paid at origin or destination.Amount of freight.Number of air waybill.Date of issue.
It should be contain information required by the aeronautical technical regulations and standards, In the sending of the air cargo and issued the corresponding letter Porte that protects must be documents which originate as a result of it, for example commercial invoice, certificate of origin, packing list etc. and these are delivered to importer in the country of destination together with the original Porte Charter The consignment, unless proven otherwise, the receipt of the cargo by the airline and transport conditions; can replace the document by other electronic means, The absence, irregularity or loss of the consignment note, or a breach of contract does not invalidate the existence of the contract of carriage, which may be credited with any other evidence, under the responsibility of the carrier.
International air transport is regulated by the Convention for the Unification of Certain Rules for International Carriage by Air 1999 «Montreal Convention» means the Convention on International Civil Aviation 1944 «Chicago Convention» means the Convention for the Unification of Certain Rules International Air Transport 1929 «Warsaw Convention», approved by Legislative Resolution 24819; Civil Aeronautics Act of Peru and its Regulations, the Customs Act and its Regulations, and as noted in the Aviation Regulation No. 112 of Peru, known as RAP 112. In our country, the Air Charter has the Porte scope of a Title value, remains applicable Law 27287.
3.6. Structure of the Airway Bill
The air waybill consists of a series of standard forms of green, pink, blue, yellow, and numbered forms with the same content. Pages 1, 3 and 4 are considered original and the back of each contract terms are specified, this is distributed to other operators engaged in air transport in the following way:
The «original 1 (green)» is for the airline issuing the air waybill.
The «original 2 (pink)» is for the consignee.
The «original 3 (blue)» is for the consignor.
The «Copy 4 (yellow)» is the certification of cargo delivery to the consignee.
Additionally, there white copies required for transport. The relevant provisions are set out in the Montreal Convention and on the conditions of the contract.
The AWB is not a document of title to the goods; it does means that not transfer any property rights over the goods. Therefore, the airway cannot be issued «to order» and declare the consigned by name and exact address.
The contract of carriage evidenced by the AWB, has no legal force until it has been signed by the user (or his agent) and the carrier (or its agent) and ends with the delivery of the goods to the consignee at the point of destination.
3.7. Conditions
2.2.2.1limits on the carrier’s liability for loss, damage or delay of goods, including fragile or perishable goods; must file a claim or bring an action against the carrier for its acts or omissions or those of its agents;
2.2.2.5 Rights of the carrier and limitations concerning delay or failure to perform service, including schedule changes, sub-stitution of alternate carrier or aircraft and rerouting.
3.The agreed stopping places (which may be altered by carrier in case of necessity) are those places, except the place of departure and place of destination, set forth on the face hereof or shown in carrier’s timetables as scheduled stopping places for the route. Carriage to be performed here under by several successive carriers is regarded as a single operation.
4. For carriage to which neither the Warsaw convention nor the Montreal convention applies, carrier’s liability limitation shall not be less than the per kilogram monetary limit set out in carrier’s tariffs or general conditions of carriage for cargo lost, damaged or delayed, provided that any such limitation of liability in an amount less that 17SDR (Standard Dimension Ratio) per kilogram will not apply for carriage to or from the united states.
5.2. When no part of the consignment is delivered, a claim with respect to such consignment will be considered even though transportation charges thereon are unpaid.
7. 7.1 in cases of loss of damage or delay to part of the cargo, the weight to be taken into account in determining carrier’s limit of liability shall be only the weight of the package or packages concerned.
7.2. Notwithstanding any other provisions, for “foreign air transportation” as defined by the U.S transportation code:
7.2.1. In the case of loss of damage or delay to a shipment, the weight to be used in determining carrier’s limit of liability shall be the weight which is used to determine the charge for carriage of such shipment and;
7.2.2 In the case of loss of damage or delay to a part of a shipment, the shipment weight in 7.2.1. shall be prorated to the packages covered by the same air waybill in whose value is affected by the loss, damage or delay. The weight applicable in the case of loss or damage to one or more articles in a package shall be the weight of the entire package.
10. Receipt by the person entitled to delivery of the cargo without complaint shall be prima facie evidence that the cargo has been delivered in good condition and in accordance with the contract of carriage.
10.1.1 in the case of damage to the cargo, immediately after discovery of the damage and at the latest within 14 days from the date of receipt of the cargo.
10.1.2 In the case of delay, within 21 days from the date on which the cargo was placed at the disposal of the person entitled to delivery.
10.1.3 In the case of non-delivery of the cargo, within 120 days from the date of issue of the air waybill, or if an air waybill has not been issued, within 120 days from the date of receipt of the cargo for transportation by the carrier.
10.2 such complaint may be made to the carrier hose air waybill was used or to the first carrier or to the last carrier or to the carrier, which performed the carriage during which the loss, damage or delay took place.
10.3 Unless a written complaint is made within the time limits specified in 10.1 not action may be brought against carrier.
10.4 Any rights to damages against carrier shall be extinguished unless an action is brought within two years from the date of arrival at the destination or from the date on which the aircraft ought to have arrived or from the date on which the carriage stopped.
4. Case Study
The following case is a supposition about what would do “ROSATEL” company (located in Lima, Peru) if had a problem with the import of flowers by air, in this case delay of delivery of roses by “FLYINGFLOWERS” company (located in Watergate, UK). Mainly this case going to show the following phases: the realization of the international contract, how affect this problem to the contract, what is the solution of the problem.
Phase 1: Realization of the international contract
Request of the product (roses):
The logistics area of «ROSATEL» company requires 80 boxes of 12 red roses each one, by air cargo. The logistics area makes a requisition Nº 5672015 to the “FLYINGFLOWERS” company; in this application, the characteristics of the roses as variety, color, steam length, size button, and vase life are emphasized. “FLYINGFLOWERS” company receives the requisition and sends back to “ROSATEL” company a quote with the characteristics below which serial number is FMQ-2015629. Finally, “ROSATEL” company accepts quotation.
- Variety: FreedomColor: RedSteam Length: 50-60 cm.Size button: 5.0 – 6.0 cm.Vase life: 10 days
Purchase order/ contract
“ROSATEL” company sends an e-mail to “FLYINGFLOWERS” company the acceptation of the quote, attaching a purchase order. So “FLYINGFLOWERS” sends the international sale contract with the terms and conditions (annex 1), in addition, in the contract specify the following points:
- Port: “Jorge Chávez” Airport, Lima, PeruPlace if delivery: ROSATEL´s warehouseTransportation: air transport – LAN airlinesIncoterm: DDPPrice: $7,500.00Date: February 6thDelivery date: February 13th at 12:00 hours
Both parties signed the contract on Saturday, February 13, 2015. All the documents mentioned before were realized electronically. In addition, all the information above is printed on the air waybill.
Phase 2: The problem
Origin of the problem
LAN Airlines, which services were contracted by “FLYINGFLOWERS” company, provided the transport of the merchandise. So when the merchandise arrived to Lima, on Saturday, February 13, at 11:00 hours, was in perfect conditions, the problem was the warehousing; it was just a couple of hours that the merchandise was not under the correct temperature because the necessary documentation of the merchandise wasn´t ready yet.
Effect of the problem over the contract
So finally the merchandise arrived at ROSATEL´s warehouse as was agreed on the contract (incoterm DDP), on February 13th, at 14:00 hours, obviously the delay of the merchandise was not longer, but affect to the merchandise, because the roses were almost 2 hours without the correct temperature, suffered damaged, in this case the wilting, which is practically a lost for “ROSATEL” company. So “ROSATEL” company gets in contact with “FLYINGFLOWERS” company and informs about the problem and request compensation and the avoidance of the contract. “ROSATEL” lost its merchandise because of the delay of the delivery and wants avoid the contract and claim compensation because lost the sale of a lot of orders in a date where Rosatel´s products were highly demanded, Valentine´s Day, which is a lost for the company.
Phase 3: Solution of the problem
The ruling resolved married in due course: “First ´FLYINGFLOWERS´ Company has to pay compensation for damages to “ROSATEL” company the same amount plus the 50% of the amount printed in the commercial invoice; and the avoidance of the contract. According to articles 30 and 35 of Vienna Convention obligating the seller to guarantee timely delivery of goods and documents related to them, all in accordance with the contract; and the transfer of ownership, free of any claim by third parties on the same. But, according to article 18.2.of Warsaw Convention, the carrier is liable for damage sustained in consequence of destruction, loss or damage to the goods, provided that the cause event has occurred during air transport. The period during which the cargo is in the custody of the carrier, whether in an aerodrome or on board an aircraft or in any place for a landing outside the aerodrome. So ´FLYINGFLOWERS´ Company has to claim compensation to the carrier, LAN airlines, for damages. Also according to article 13.3 and 52 of Montreal Convention, ´FLYINGFLOWERS´ Company can reject the charge that it has an abnormality or simple will; you can claim compensation for delay in delivery for more than 7 calendar days.
5. References
- Warsaw Convention 1929.Montreal Convention 1999.United Nations Conference on trade And Development (2006) “Carriage of goods by air: A Guide to the International Legal Framework” Retrieved from http://unctad.org/en/Docs/sdtetlb20061_en.pdfUnited Parcel Service UPS. Air Waybill. Retrieved from http://www.ups.com/aircargo/using/services/supplies/airwaybill.htmlMinisterio de Comercio Exterior y Turismo (2009). “Guía de Orientación al usuario del transporte aéreo”. Retrieved from http://www2.congreso.gob.pe/sicr/cendocbib/con4_uibd.nsf/22853E566072CB2F05257DE2007925C0/$FILE/Gu%C3%ADa_Orientaci%C3%B3n_UsuarioTransporteA%C3%A9reo.pdfInternational Air Transport Association-IATA. Retrieved from https://www.iata.org/whatwedo/cargo/pages/air_waybill.aspxVicente Guzmán, J. (2003). “Aspectos Generales del Contrato de transporte aéreo Internacional de Mercancías”. Retrieved from http://www.emercatoria.edu.co/paginas/volumen2/pdf01/aspectos.pdfUribe Calderón, D. (2011). “El contrato de Transporte Aéreo Internacional: Análisis Comparado”. Retrieved from
