Manish Choudhary, Deputy Commissioner, Ministry of Finance, Government of India, B.Tech (GGSIPU), LL.B. (DU), PG Diploma (ILI), EE (ISB) and presently pursuing PG Diploma (ISIL)
ABSTRACT
During carriage by sea, the risk and responsibility for loss of or damage to cargo are borne by the buyer or seller, as per INCOTERMS incorporated in the contract of sale. Furthermore, the carrier, acting as a bailee of the cargo, is liable for the safe delivery of the goods in the condition in which they were received. The transfer of title is determined by the terms of contract, while the transfer of risk is governed by INCOTERMS and the Vienna Convention (CISG), incorporated in the contract of sale. The liability of the carrier is ascertained as per the Hague Rules, Hague-Visby Rules, Hamburg Rules, or Rotterdam Rules, as applicable. The questions this paper aims to address are when the title and risk get transferred and how the transfer of ownership impacts valuation in tax law. Additionally, the paper will explore the extent to which the carrier is liable and upon whom the burden of proof lies. International trade law jurisprudence has evolved in different jurisdictions, such as the US, UK, France, and India, to shed light on such issues. By analyzing relevant provisions and case laws, this paper seeks to examine and answer the above questions.
Keywords: INCOTERMS, Transfer of title, Transfer of risk, Vienna Convention (CISG), Hague Rules, Hague-Visby Rules, Hamburg Rules, Rotterdam Rules, Valuation in tax law.
