论FOB条件下发货人权利的完善

Improvement over rights of consignor under FOB

在FOB条件下,与承运人订立运输合同的是买方,将货物交给承运人的则是卖方,提单上记载的托运人应该是买方,但是贸易合同和海运习惯要求把卖方记为托运人,为了满足实践需要,立法中不可避免地规定了发货人(第二种托运人)。既然发货人的主体地位得到了确立,立法就应该赋予主体以权利。鉴于立法的规定不足,探讨如何完善发货人权利。

Under FOB, buyer is the one who has concluded with the carrier a Contract of carriage of goods by sea;in fact, seller is the one who has really delivered to the carrier the goods. Usually, the buyer should be stated as “shipper” in B/L. However, it is required the seller should be stated as shipper in B/L as per the sales contract and shipping practices. So consignor （“the second kind of shipper”） is inevitably stipulated into legislation. Since the consignor as the legal subject has been recognized legally, he should also be granted the full rights in law. Therefore, this article aims at how to improve rights of constgnor.