Business Profile（内容概览）

In international trade, if one party fails to perform the contract and causes loss to another party, the latter may ask the former for compensation. This must be done within a specific time limit and according to the contract stipulations.

Depending on the cause of the loss, different parties will be responsible for the claim lodged. If the seller breaches the contract, and incurs loss, the buyer should make a claim against the seller according to the contract stipulations. If the buyer breaches the contract, the buyer will be responsible for the loss sustained and the seller should claim from him. If the loss takes place during transit, it is the responsibility of the insurance company or the shipping company and the party who has suffered loss should file a claim against the insurance company or the shipping company.

With regard to claims and settlements, all parties concerned should have an amicable, practical and realistic attitude. The case in question should be investigated in depth to ascertain what the real cause is and which party is to be responsible. The amount of loss and the method of compensation will also be based on the results of this investigation. The proofs should be complete and clear, and the investigating authority should be competent and able to issue the relevant certificates. Otherwise, the claim can be refused by the relevant party.

The period within which a claim can be filed should also be stipulated. Claims beyond the agreed effective period can be refused by the party in breach. Therefore, the claim period should be reasonably fixed. Generally speaking, a period that is too long may put the seller under heavy responsibility and a period that is too short may make it impossible for the buyer to file a claim. Furthermore, a detailed stipulation in respect of the starting date for making a claim should also be included in the contract.

If a claim is justified, prompt and well-supported, it can be settled in the following ways: making a refund and compensating for other direct losses or expenses, selling the goods at lower prices, or replacing the faulty goods.

The following are some typical examples of claim clauses in contracts:

(1) In a case of discrepancy in the quality of the goods found by the buyer after arrival of the goods at the port of destination, a claim may be lodged against the seller within 30 days after arrival of the goods at the port of destination. The claim must be supported by an Inspection Certificate issued by a reputable public surveyor. The seller will then consider the claim in light of the actual circumstances. For loss or losses due to natural causes or within the responsibility of the ship owners or the underwriters (the insurers), the sellers shall not consider any claim for compensation.

(2) Any claim by the buyer of whatever nature arising under this contract, shall be made by cable (letter) within thirty days after the arrival of the merchandise at the destination specified in the bill of lading. Further full particulars of such claims shall be made in writing and forwarded by registered mail to the seller within fifteen days after cabling. This must be accompanied by particulars, such as the survey report which must be issued by reputable international surveyor(s). If the buyer fails to notify and/or to forward full details within the period specified above, the buyer shall be deemed to have waived his right to assert any claim.

(3) The buyer undertakes to make all claims regarding quality, quantity and/or suitability by notifying the seller in writing, giving a description of the defects and/or shortages. Such notice should be posted within thirty days of arrival of the goods at the destination of the final user and the unpacking of the goods. (The period designated for unpacking should be specified in the contract.) The seller shall continue to be responsible for latent defects of the goods, even after delivery and inspection and/or delay of notification by the buyer.

 (4) Notice of claim. When the cargo is taken delivery of by the receiver against the bill of lading, notice of any damage or partial loss must be made in writing to the carrier at the time of the removal of the goods by the receiver. If no such notice is given and the goods are removed, such removal shall be prima facie evidence of the delivery by the carrier of the goods to be as described in the bill of lading. If the partial loss or damage to the goods is not discovered during the delivery process, but is found on arrival at the final destination, a notice of claim shall be given in writing within three days of the delivery.

However, such notice of claim is not required in a case where the receiver has verified the goods jointly with the carrier.