第十讲外贸函电(八)索赔与理赔(Claims and Adjustments)(周维家 上海金融学院)在进出口业务中,签约双方中的一方在履行合同的过程中,可能出于某些原因,而不履行、或不完全履行合同。
这时,根据合同规定,其中受损的一方(通常是买方)有权向另一方(通常是卖方)就货物的品种、质量、数量、包装、错发错运、随船单证不全或漏填漏发、交货时间等方面提出抱怨。
按照惯例,抱怨往往伴随着对其所受损失给予赔偿(即索赔)的要求,或其他补救措施。
进出口术语将受损方所采取的上述行为称为“索赔”,而将责任方因对方采取的上述行为而做出的处理,称为“理赔”。
索赔一般包括以下几个程序:1. 拟订索赔声明2. 准备证据3. 发出索赔信函上述程序必须在合同中规定的索赔期内完成。
若双方对争议的内容不能达成一致,进而造成无法通过协商,或通过第三者出面协调来解决争端,这时,按合同规定,往往通过仲裁的方式解决。
要通过仲裁解决,首先必须订立书面仲裁协议书,以表明双方当事人愿意将争端交付仲裁机构裁决。
仲裁协议书可以在拟订合同时拟就,作为合同的条款之一,也可以在争端发生后订立,其一般包括如下内容:1. 仲裁地点2. 仲裁机构3. 仲裁程序4. 仲裁效力5. 仲裁费用起草上述商用书信时,应注意国际惯例:用以理服人的具体证据和彬彬有礼的文字与对方沟通。
受损的一方要避免责备的语气、失望的情绪和威胁对方语句。
致损的一方在收到对方的抱怨信函后,若发现对方的抱怨和索赔的要求不当,也应保持和善的态度,有理有节地予以回复;若理在对方,则应立即向对方表示抱歉,并采取切实措施,以弥补己方的错误,并尽量挽回对方的损失。
常用语句:Upon opening the case we found it contained completely different articles, and we presume that amistake was made and the contents of the case were for another order.开箱时,我们发现所装的货物与订单规定的不同,我方估计是贵方出了错误,此箱货物系另一张订单的。
We regret to inform you that the goods shipped per s.s. Dragon arrived in such an unsatisfactorycondition that we cannot but lodge a claim against you.我方很遗憾地通知贵方:鉴于“龙”号轮运达的货物状况令人非常不满意,我方只能向贵方诉诸索赔。
Any complaint about the quality of the products should be lodged within 15 days after their arrival.任何有关产品质量的投诉,必须在货物到达后的十五天内提出。
After re-inspection we found that the quality of the goods was not in conformity with the contractstipulations.我方在复验后发现:货物质量与合同规定不符。
In view of the above, we regret that we have to return the defective goods to you for replacement at yourexpense.鉴于上述情况,我方只能遗憾地将劣质的货物发还贵方调换,费用由贵方负担。
Not only have you been unpunctual in effecting shipment, but the goods you supplied are not up to thestandard as well. We think it necessary for you to make up the defects.贵方非但未能准时交货,而且所提供的货物也低于标准。
我方认为贵方有必要弥补这个缺陷。
Our investigation shows that damage was caused by improper packing. Therefore we have to refer thismatter to you.我方调查显示,货物损坏是由包装不当引起的。
因此,我方只能将此事提交贵方。
We will ship the correct items to you immediately at our expense.我方将立刻装运正确的货物,费用由我方承担。
We hope this will not affect our friendly relationship.我们希望这不会影响我们之间的友好关系。
We regret to tell you that your claim cannot be entertained as it is raised far beyond the time limitstipulated in the contract.我方很遗憾地告知贵方:贵方的索赔因为超过了合同规定的期限太长,而不能被接受。
We will make further efforts to try to find a compromise, so as to settle the claim quickly and amicably.我方将进一步找到折中办法,以迅速友好地进行理赔。
In the spirit of goodwill and friendship we agree to accept all your claims.本着良好的意愿和友谊,我方同意接受贵方全部索赔要求。
The goods delivered are not up to the standard of samples, as the pattern is uneven in places and thecoloring varies.所交货物未达到样品的质量标准,多处花样不匀,颜色各异。
We cannot possibly deliver the merchandise in this condition to our customers, but might accept thelot at a reduction of 20% on the contract price.我方不可能将这样的货物交给客户,但如按合同价削减20%,也许可以接受。
类例:Buyer Asking for Replacement(买方要求退货)Dear Sirs,This is to acknowledge the receipt of the above order and to inform you that there is an error in the shipment.The merchandise I ordered was Model 8, while the merchandise I received is Model 7.Upon receiving your instructions for the return of goods, I will send the same to you.I would like to receive the correct merchandise as quickly as possible and will appreciate your expeditioushandling of this matter.Yours sincerely类例:Complaints about Shipping Wrong Goods(关于发错货的投诉)Dear Sirs,We have received your goods covering our order of August 15th.On opening the case, we have found it contains completely different articles.As we need the correct articles, we request you arrange for dispatch of replacements at once.Meanwhile, we will keep the goods at your disposal.Yours faithfully类例:Complaints about the Goods not Corresponding with the Original Samples(关于货物与样品不一致的投诉)Dear Sirs,We have received today the goods we ordered on June 18th.On examination we have found not all the goods correspond with your original samples.The quality is much inferior and the weights lighter.We are, therefore, returning the goods to you with freight forward.Yours faithfully类例:Seller Agreeing to Replace the Goods(卖方同意换货)Dear Sirs,Your letter of June 18th has been received, and we were very sorry to hear about the problem youexperienced.We maintain rigid inspection standards, but occasionally an imperfection does slip by, as it unfortunatelydid in the case.We have entered a replacement order to be shipped to you at once. Your satisfaction is extremely importantto us and we do apologize for the inconvenience we have caused you.Thank you for purchasing our products.Yours sincerely类例:Settlement of a Claim(索赔的解决)Dear Sirs,Thank you for your letter of July 15th informing us that the sewing machines we shipped to you arrived ina damaged condition on account of imperfectness of our packing.Upon receipt of your letter, we have given this matter our immediate attention. We have studied yoursurveyorÕs report very carefully.We are convinced that the present damage was due to extraordinary circumstances under which they weretransported to you. We are therefore not responsible for the damage, but as we do not think that it would befair to have you bear the loss alone. We suggest that the loss be divided between both of us.We hope you will feel that this concession on our part is a satisfactory solution of the difficulty.Yours faithfully类例:Complaints Accepted(投诉被接受)Dear Sirs,Re: Your order No: 2456 per s.s.“Dragon”Thank you for your letter dated May 10th. We were glad to know that the consignment was deliveredpromptly, but it was with much regret that we hear Case No. 88 did not contain the goods you ordered.On going into the matter we find that a mistake was indeed made in the packing through a confusion ofnumbers, and we have arranged for the right goods to be dispatched to you at once. Relative documents willbe mailed as soon as they are ready. We have already cabled to inform you of this, and we enclose a copyof the telegram.Please keep Case No.88 and its contents until called for by our Commercial Counselor’s Office, whom wehave informed of the matter accordingly.We are very sorry for the trouble caused by the error.Yours faithfully类例:Claim Rejected(拒绝索赔)Dear Sirs,We are in receipt of your letter of July 10th and regret to note your complaint respecting the Woolen Goodswe sent you by s.s.“Dragon”.We have looked up the matter in our records, and so far as we can find, the goods in question were in first-class condition when they left here, as was evidenced by the Bill of Lading. It is therefore, quite obvious thatthe damage complained of must have taken place in transit. In the circumstances, we are apparently not liablefor the damage and would advise you to claim on the shipping company who should be held responsible.At any rate, we thank you for bringing this to our attention and if you feel it necessary we shall be pleasedto take the matter up on your behalf with the shipping company concerned.Yours faithfully。