On the FCR documents _continued_

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					On the FCR documents (continued)
On the FCR documents (continued)
- On the Analysis of a typical case
?
Fourth, FCR documents legal function
Although the FCR documents are increasingly frequent practice in
maritime trade, but many domestic exporters to FCR lack of
understanding of the document, easy to practice with the most common
in the modern ocean bill of lading to be confused, even assuming the
FCR documents regarded as a bill of lading, resulting in errors in the
FCR documents to understand their rights and benefits under the so
controversial. To this end, the author of this legal function by
comparison with the bill of lading, the document's legal function of
FCR.
?
Article 71 of China Maritime Law: Bill of Lading is to prove the
contract of carriage of goods by sea and by the carrier or the goods
have been shipped, and the carrier undertakes to deliver the goods in
the document. According to the above definition, the bill of lading
has three functions: (a) proof of the contract of carriage of goods by
sea; (b) the carrier receives the goods or proof of shipment of the
goods; (c) the carrier undertakes to deliver the goods certificate.
[1]
?
First of all, from the "proof of the contract of carriage of
goods by sea" perspective. The so-called "proof of the
contract of carriage of goods by sea" means the Department of the
bill of lading to indicate that between the carrier and the contract
of carriage between the shipper files. In the modern ocean, in order
to achieve fast and high quality transportation, the carrier law or
peremptory norms of international conventions for the specific
circumstances of shipping, printing bills of lading of the formatted
file, once the shipment, from the carrier the bill of lading issued to
the shipper, so as to provide the basis for performance of maritime
transport of goods. However, the carrier unilaterally by the bill of
lading printed and issued, not the contract itself; in the bill of
lading before the contract of carriage of goods by sea or by the
carrier and the shipper was established through offer and acceptance,
so the law can only be called a bill of lading evidence of the
contract for transportation, proof of the carrier and the shipper
contract of carriage of goods by sea between the relationship and
content of the contract. [2]
China's Maritime Law Article 80 states: the document issued by the
carrier bill of lading to evidence the receipt of other goods to be
carried, such a document shall be entered into a contract of carriage
of goods by sea and the carrier of the goods listed in the preliminary
document evidence. Can be seen, in addition to the bill of lading in
addition, there is also a "contract of carriage of goods by sea
prove" the effectiveness of this evidence and other documents.
So, FCR whether maritime documents required by section 80 of the
"bill of lading documents other than" it? In this regard,
some people think: FCR document is under section 80 of the Maritime
Law of the proof of the contract of carriage of goods by sea to other
documents, the Department of the proof of the contract of carriage of
goods by sea. [3] In judicial practice, there are those who hold this
view. [4]
FCR documents based on document content creation and FCR investigation
and the legal implications of the analysis of documents, I think: FCR
documents do not belong under section 80 of the Maritime Law
"bill of lading documents other than the" do not have proof
the effect of the contract of carriage of goods by sea, according to
documents under the FCR irrevocable instructions detailed analysis of
the content is as follows:
If the FCR can not be revoked under the document indicates the goods
to the consignee as recorded in documents placed in the disposal at
this time FCR documents issued by the general freight forwarder acting
as agent of the consignee, does not have to identity of the carrier
transport of goods meant for exporters, said this case, FCR documents
do not have proof of the validity of the contract of carriage of goods
by sea. The paper quoted the first part of the case as an example, M's
P status for the consignee's freight forwarder, the company only as
agent in accordance with the P P direction the company from the Port
of Ningbo, the company receives the goods exporters to the J J FCR
documents issued by the company, therefore, M Corporation is not the
carrier, has no intention of J company reached a contract of carriage
of goods by sea; and J Company under the trade terms as FOB export
seller, not the rights and obligations to make arrangements for
transportation and instructions, nor as necessary to the shipper M
companies trying to reach a contract of carriage of goods by sea.
Meanwhile, M FCR documents clearly documented "Once received by
the shipper of the cargo freight forwarder, the consignee that the
goods have irrevocable right to dispose of" is "the goods to
the consignee as recorded in documents placed in disposable under the
"instructions. In addition, the case does not exist to prove the
bill of lading contract of carriage of goods by sea. Therefore, in
this case involving FCR documents, exporters J issuer company and the
FCR M document does not exist between the companies a contract of
carriage of goods by sea legal relationship. [5]
If the FCR document under the irrevocable instructions for delivering
the goods to the consignee as recorded documents, documents issued by
freight forwarders FCR acceptance of the instructions that demonstrate
its commitment under the FCR documents from the collection of specific
goods delivery of goods to be delivered to the consignee of delivery,
commitment to the transport and delivery of goods for duty, but his
identity is not thereby transformed into non-vessel carrier, because
it delivered the goods for transport and export of the identity of
remains business agent and does not bear the responsibility of the
carrier, not a third party (such as the actual carrier) responsible
for the actions, which is the FCR difference between the bill of
lading and freight forwarding documents, one of which FCR documents
issued by freight forwarders act itself should be regarded not as the
carrier of its intention. In order to further their own legal identity
clear, freight forwarders in the FCR is not the document that defined
the act as a carrier, to help avoid being mistaken for cargo agents
and carriers are required to bear the responsibility of the carrier.
New Delhi, India in 2006, the Delhi High Court to the Hartley Knits v.
ACS Logistics & Ors. Case decision, the court upheld the freight
forwarder based on documents recorded in the FCR does not act as a
carrier finds that the terms of freight forwarding person is not the
carrier. [6]
Of course, taking into account the different cases related to
differences in the specific business operations, FCR documents do not
have proof of the validity of the contract of carriage of goods by
sea, and can not conclude that FCR documents related to the case of
exporters and freight agents must not exist between the sea
relationship between the contract of carriage of goods, because in the
case of documents issued by FCR freight forwarders may also be issued
with a certificate of legal effect of the contract of carriage of
goods by sea bill of lading or bill of lading other than the
documents, the legal function at this time the bill of lading
documents will replace the FCR.
?
Secondly, on the "carrier of the goods or proof of shipment"
of the goods receipt functions. If the third part of the analysis, FCR
document is a receipt for goods, FCR documents issued by freight
forwarders that have actually received the goods in good condition the
surface and enjoy the right to dispose of the goods; FCR document name
itself has a certain extent, reflect the receipt for the goods of this
feature. Therefore, I believe, FCR documents with proof of receipt of
the goods freight forwarder has the legal function. FCR usually issued
documents for the freight agent of the exporter of the goods
immediately after receipt of the issue; but in practice, as well as in
the case issued after shipment, if the document issued on board after
the FCR and the single card records name, date of shipment, etc., then
as a board FCR documents (hereinafter referred to as "shipped FCR
document"), that the goods have been shipped with the legal
effect of the first part of this article cited the case of M issued by
a company that is on board FCR document.
?
Again, on "the carrier undertakes to deliver the goods
certificate," the document of title function. Bill of lading a
document of title function of maritime practice and theory has been
generally accepted by industry, "bill of lading is a document of
title is well known to say." [7] the so-called property rights
holder of the certificate is authorized to extract the document, hold
and dispose of documents and their goods under a declaration; and
negotiable documents of title representing in fact the evidence under
the goods. [8] According to this feature of the bill of lading, the
consignee at destination must be the original bill of lading to the
carrier to obtain ownership of the goods.
FCR does not have a negotiable document of cargo delivery agent to
deliver goods to the consignee, in the delivery of the goods does not
need to submit original documents FCR. If the exporter of the
documents issued by freight forwarders to FCR irrevocable instructions
for the goods to the consignee as recorded in documents placed in the
disposal, ownership of the goods have been delivered to the shipping
agent at the time were transferred to consignee, while FCR documents
held by the exporter, but the goods are not entitled to any rights
(including any right to claim the goods.) If the exporter has made an
irrevocable instruction to documents recorded in delivering the goods
to the consignee, the holder FCR documents, but only under certain
conditions, entitled to the right of revocation, it does not
necessarily represent the actual control of the goods is still .
Therefore, I believe: FCR does not have a document of title documents
of the legal function, according to FCR document embodied in the
practical application of legal implications, I believe the law will
not like the bill of lading as a document of title given to FCR to the
legal documents function. Back to the article quoted the first part of
the case, according to documents and records the contents of the M
FCR, freight agent irrevocable instructions should be placed in the
consignee for the disposal of the goods, as the consignee's freight
forwarder P J M-company exporters when the company receives the goods,
title to the goods has been transferred to the P companies, so
companies have no right according to FCR J M company documents to make
claims for loss of goods.
?
?
V., FCR document the use of a number of issues
(A) FCR documents and trade terms
In the performance of the seller, exporter trading various types of
contract documents obtained demonstrate compliance with the role of
the seller under the contract in the trade obligations of trade
largely based on trade terms used in the contract, so , exporters must
understand the documents held by the legal function and the
relationship between the terms of trade, so that the unity of
documents and trade terms, or it may therefore bear the legal
consequences of breach of contract.
As mentioned above, FCR documents with a receipt for goods only
function of this law, exporters FCR documents only show that it
completed delivery of the goods to the cargo agents obligations,
looking under the terms of international trade obligations of the
seller to deliver, FCR documents and legal functions of the trade term
is most closely matches the EXW (ex factory), because under the trade
terms EXW delivery obligations of the seller in the designated place
of delivery the buyer will be placed in the disposal of the goods [9],
Exporters only freight forwarder designated by the Buyer to deliver
the goods and get FCR documents issued by freight forwarders can
effectively prove that it had completed its delivery obligation.
In practice, the offenders are usually issued under the terms of trade
appears FCR FOB the case documents, and in the FOB delivery of trade
obligations under the contract for the delivery of the goods at the
port of shipment on board nominated by the buyer [10], for which, I
believe that In this case, exporters should be required FCR freight
agent to issue documents on board, as in the first part of this
article cited the case of the M FCR document. If the exporter and the
buyer agreed port of shipment specified in the forwarding agent to the
buyer is deemed delivery of the goods exporters complete the delivery
obligations, the exporter can accept before shipment documents issued
by the FCR, then equivalent to FOB the deformation, changing the FOB
delivery obligations under the terms of trade to the delivery
obligation, have become synonymous with trade terms EXW.
?
(B) FCR documents and letter of credit
In international trade, payment is usually wire transfer, credit or
collection, etc., the exporter and the buyer in the trade contract
which specifically agreed with the FCR of payment documents issued are
not necessarily linked, but considering the FCR goods receipt document
with only the function of this law is not a document of title, for
which payment is by credit negotiation exporters gain is undoubtedly
the most secure way. Therefore, the author of FCR in this document as
well as the feasibility of negotiable credit under the credit risk of
exporters and banks.
July 1, 2007 shall come into force of the "Uniform Customs and
Practice for Documentary Credits" (UCP600) on the forwarding
agent to cancel the UCP500 transport document issued special
regulations to improve the status of freight forwarders, transport
documents and therefore adjust 7, namely: (1) multimodal transport
document (Transport Document Covering at Least Two Different Modes of
Transport); (2) Bill of Lading (Bill of Lading); (3) non-negotiable
sea waybill (Non-Negotiable Sea Waybill ); (4) The charter party bill
of lading (Charter Party Bill of Lading); (5) the air transport
document (Air Transport Document); (6) road, rail or inland waterway
transport document (Road, Rail or Inland Waterway Transport Documents)
; (7) Courier Receipt, Post Receipt or Certificate of Post (Courier
Receipt, Post Receipt or Certificate of Posting). [11] Since the FCR
document function with only a receipt for goods, it is not regulated
by the transport document UCP600, to avoid controversy in the ICC to
develop a "documentary credit on the examination of documents
under the International Standard Banking Practice" (ISBP ) made
clear that in this particular: FCR documents do not prove the contract
of carriage, is not regulated by the transport document UCP600, UCP600
the terms of the transport document does not apply to FCR. [12]
Although the document does not belong to UCP600 FCR regulated by the
transport document, but according to UCP600 Article 14 (f) provides
that "If a credit requires presentation of transport documents,
insurance documents, and document other than a commercial invoice,
without requiring the document issued by whom or the contents of the
documents, as long as the content of the presentation of documents to
meet their functional needs and other aspects of Article 14 (d), [13]
match, banks will accept documents ", it can be a letter of
credit documents FCR under the other documents, in practice is also
common. UCP does not document the clear provisions of the FCR, so when
both parties consent to FCR replacement document shipping documents,
the issuing bank credit to the FCR should be clearly stipulated in the
document, such as "XXX company or the issuing application
designated person who issued a receipt for goods, to prove that they
have received the goods the surface in good condition, and specify the
date of receipt of goods, value of the goods, the number and letter of
credit number ", otherwise the bank will refuse to accept the FCR
documents, the first part of this article cited case, involving
letters of credit required by the bill of lading documents rather than
FCR, and J FCR companies have submitted documents to the bank for
negotiation, it does not match the bank to reject the payment
documents. Meanwhile, ICC in the "More Queries and Responses On
UCP500 (1997)" (ICC Publication No.596), requested the issuing
bank under the credit documents required to submit the case on the FCR
FCR documents make clear the content and production instructions. [14]
FCR in the credit documents will be clear as the case negotiated
documents, bank documents to see the FCR and other necessary documents
should be immediately pay the purchase price, which is an exchange
earnings of exporters security; However, FCR alone Card is not
transferable and does not have a document of title function, FCR
documents held by the original exporter, enjoyed only under certain
conditions the right to revoke or change the direction, which would
weaken the credit of the role of guarantee funds safely, because: (1 )
if the instructions under the FCR for the document delivering the
goods to the consignee as recorded documents, the exporter of the
goods still enjoy a degree of control over the documents may be
directed to the issue of FCR FCR freight forwarders to submit original
documents to revoke or change direction, this time even though the
consignee at the destination by FCR documents without delivery,
subject to timely payment of the purchase price in exchange for FCR
documents, to ensure that exporters loss avoidance, you can not
withdraw its instructions to the forwarding agent; but the exercise of
the right to revoke the exporter is conditional, the conditions can
not be met once the revocation, exporters also lose control of the
goods; (2) If the instructions under the FCR document is placed in the
document recorded in the goods receipt people alone, once the cargo
agents after acceptance of goods from the exporters get the
consignee's instructions, the exporters enjoyed the right to revoke or
change the direction that is likely to lose the exercise conditions,
and the consignee at the destination without documents and by direct
delivery FCR. In both cases, if the buyer credit change, and the
exporter has failed to submit required documents in strict accordance
with the credit, the buyer may instruct the Bank to both obtain goods
and non-payment; In this case, the exporter is likely to lose both the
goods and can not receive payment. Therefore, the FCR negotiable
document as the case of letters of credit, the exporter should be more
careful to strictly follow the letter of credit requirements in order
to gain credit with the bank to pay the purchase price.
In addition, banks, compared to bills of lading, more prone to issuing
the applicant does not pay ransom to take delivery of the goods FCR
documents and risk, and bank control of the goods is conditional,
which undoubtedly will increase the bank's risk; to maximize the
protection enjoyed by banks to control the goods, the Bank shall
request the consignee under FCR recorded documents for banks, while
issuing issuing applicants should apply a more rigorous review
person's credit or require the applicant to provide more reliable
issuing guarantees.
?
(C) FCR issuance of documents and bills of lading
As exporters lack of understanding of FCR documents, cargo agents in
receiving documents issued by the FCR, not raised any objection to the
payment once the payment is not received by the consignee of goods and
put away, turn on the issue of FCR documents freight agents claim that
the freight forwarder does not issue its bill of lading or delivery,
resulting in the loss of control of the goods, being goods or money
loss. The first part of this article shall be guilty of the cases
cited by the situation. So, in the freight agent to issue documents
the case of FCR, freight forwarders, or whether the obligation to
deliver the bill of lading issued to the exporter do? This author has
negative comments to this article quoted the first part of the case,
for example, reasons as follows:
1. From the point of view of contractual obligations. In the original
document before the issue of FCR, the exporter did not follow the
letter of credit will be asking for a bill of lading as a negotiable
bill of lading issued by freight forwarders, exporters and freight
agents failed to consult on the issue of what kind of documents; in
the original document FCR before the issue of the same with the bill
of lading, cargo agents had requested confirmation FCR exporters draft
documents, and exporters have also confirmed that without any
objection; the same time, after the issuance of the original document
FCR, FCR exporters actually received documents, nor any objections
raised and used for credit negotiation. To this end, I think:
According to the original document issued before the actual FCR
operation, exporters and freight forwarders to reach the actual
behavior of the consensus document issued by FCR, consistent with
Article 10 of China's Contract Law and the "United Nations
International Cargo sale contract, "as reflected in Article 11 of
the formal requirements of the agreement.
Step back, even if the document is issued before the original FCR,
exporters have asked the shipping agent to issue bills of lading, but
the actual operation of the shipping agent to issue the exporter to
accept the original FCR documents, in the law is sufficient to
constitute the original agreed to change [15], let alone accept the
FCR exporters had access to documents and money paid under a credit
precedent.
?
2. From the point of view of legal obligations. FCR documents issued
by the exporter's freight claim agent of the carrier system contract,
according to our maritime law the provisions of section 72, the bill
of lading issued by freight forwarder bears its statutory obligations;
even under FOB shipping agent designated by the buyer, According to
article 42 of China Maritime Law provisions on the shipper, freight
forwarders also has the legal status of the actual shipper. The author
believes that the exporter requests freight forwarder issue bills of
lading the carrier's obligation to assume to be two sides to the
contract of carriage of goods by sea between the premise. If the
fourth part of the analysis, FCR does not belong to the document under
section 80 of the Maritime Law "bill of lading documents other
than the" do not have proof of the validity of the contract of
carriage of goods by sea; not to mention documents issued by freight
forwarders FCR actual legal consignee of the cargo only as an agent,
not the carrier. Without the skin, hair adhere, in the absence of a
contract of carriage of goods by sea, under the premise requires cargo
agents assume the obligations of the carrier is clearly no legal
basis.
?
3. From the perspective of international freight forwarding contracts.
If the exporter and issued its document of cargo agents FCR between
the contractual relationship on the grounds of international freight
forwarders, cargo agents claim based on contract law should be the
delivery of bill of lading issued by the actual carrier, I think: As
the issue of FCR documents the actual legal status of freight
forwarders freight forwarders only the consignee, the goods from the
exporters and shipping companies to deliver the goods to the consignee
of the carrier they were all in accordance with the instructions
given, and not charged to exporters freight agent commission, the
objective does not exist between the exporter international freight
agency contract relationship, it is therefore not applicable to the
contract law of the commission room.
Step back, even if the issue of FCR documents exporters and freight
forwarders international freight agency contract between the
establishment of relations, there is no law expressly provides freight
forwarder bill of lading must be delivered to the exporter. According
to China's Contract Law, the provisions of Section 404, in handling
the entrusted affairs acquired property shall be turned over to the
principal. In the absence of clear instructions in the case of
exporters, freight forwarders will be the actual delivery of the goods
shipped on board the carrier, the transport document is also available
as a bill of lading is not also a document of title may not have the
effect of the sea waybill. If the exporter to accept the FCR
documents, such as described in the third part of this article, then
under a contract of international freight forwarding, freight
forwarders from the exporters received irrevocable instructions to
send the goods receipt document in the record or placed in the
disposal of the consignee, as to how to arrange transport of goods
freight forwarders, transport documents are to be delivered to the
exporter and unless otherwise expressly agreed to, freight forwarders
should have the right to freedom of decision, so the lack of
requirements freight forwarder bills of lading must be delivered
basis.
?
Although the above analysis, documents issued by freight forwarders
FCR there is no agreement or legal obligation to issue or deliver a
bill of lading to the exporter, but in the FCR freight forwarders
under the document assumes the obligation to deliver the goods to the
consignee, freight forwarders the process of arranging transport of
goods transport document shall ensure that the contents of the
document is consistent with the FCR, the exporter or freight forwarder
may be liable. High Court of Hong Kong in 2000 Hirdaramani Industries
Limited and another ("plaintiff") v. Orient Consolidation
Services (HK) Limited ("Defendant") as an example the case
of judgments. [16]
In that case, the plaintiff and the U.S. buyer Malu Malu Imports Inc.
There is a long garment trade, the use of credit payment, the buyer
bank to the consignee designated to avoid the buyer in case of
non-payment for goods. Freight agent of the defendant as the buyer
received the goods delivered by the plaintiff after the issue of FCR
documents, bank records, the consignee is the buyer rather than the
buyer; However, the defendant delivered the goods after the actual
carrier NYK carrier, NKY recorded in the bill of lading issued The
consignee is the buyer rather than the banking instructions by the
buyer. Goods to the United States, the buyer does not pay the purchase
price in case of delivery of the goods according to the bill of lading
records, and subsequently filed for bankruptcy protection. Unable to
get money to pay the plaintiff, the defendant claims payment.
Although the defendant claims its contractual relationship exists
between the plaintiff, but the Hong Kong High Court ruling that: the
plaintiff to the defendant by FCR document the Buyer Bank to deliver
the goods to the consignee's instructions, and records of the
defendant to the consignee to the NKY error indication, causing the
buyer in the case of non-payment to obtain the right goods, in
violation of obligations custody of the goods, so the defendants shall
be liable for any loss the plaintiff money.
Although the sentence was based on common law to this case, but
documents issued by freight forwarders FCR FCR documents in strict
accordance with the instructions under an important reference.
?
?
VI Conclusion
These are the documents I FCR by agents involved in the case of the
Reflections document while the FCR by the research and analysis in
order to exporters, freight forwarders, banks engaged in business
documents related to FCR help, hope of judicial practice can be a
consensus document on FCR to FCR documents from the judicial level to
promote shipping and maritime services in the application and
promotion.




[1] Secretary Yuzhuo: "Maritime monographs," the Chinese
People's University Press, 2007 Edition, pages 158-159.
[2] Division Yuzhuo: "Maritime monographs," the Chinese
People's University Press, 2007 Edition, pages 158-159. Fu Ting in:
"Maritime theory", Law Press, 2007 edition, pages 111-113.
[3] Zhang Jiasheng, Chun-Li Wang: "international freight
forwarding business in the legal risk prevention", Law Press,
2008 edition, p. 143-144 pages.
[4] Xue Kai years: "On the maritime transport of goods in
the" goods receipt "legal nature", from
http://www.ccmt.org.cn.
[5] Shanghai Maritime Court (2005), the beginning of the word Shanghai
Haifa Business Civil Judgement No. 413 also supports this view.
[6] M / s. Hartley Knits v. M / sACS Logistics & Ors. From
http://delhicourts.nic.in.
[7] Yang Liangyi: "bill of lading and other shipping
documents," the Chinese University of Politics and the 2007
edition, p. 5.
[8] Bryan A. Garner, Black's Law Dictionary, 8th edition, Thomson,
2004, p.520. Cited in Ting Fu: "Maritime theory", Law Press,
2007 edition, p. 117-118.
[9] Chen Jingying, Deng Xu: "2000 International Incoterms
interpretation and application", 2000 edition, p. 97.
[10] Chen Jingying, Deng Xu: "2000 International Incoterms
interpretation and application", 2000 edition, p. 188.
[11] Gu Hao: "Uniform Customs and Practice for Documentary
Credits (UCP600) Review of" containing "China Maritime
Law" (2006), Dalian Maritime University Press, 2007 edition, p.
381-396 pages; also see UCP600 sub- article14 (c), articles 19, 20,
21, 22, 23, 24, 25.
[12] International Standard Banking Practice for the Examination of
Documents under Documentary Credits subject to UCP 600 (ISBP):
Documents for which the UCP 600 Transport Articles do not apply 19)
Some documents commonly used in relation to the transportation of
goods, eg, Delivery Order, Forwarder's Certificate of Receipt,
Forwarder's Certificate of Shipment, Forwarder's Certificate of
Transport, Forwarder's Cargo Receipt and Mate's Receipt do not reflect
a contract of carriage and are not transport documents as defined in
UCP 600 articles 19 - 25. ISBP the above provisions ICC documents show
also that the FCR does not have proof of the validity of the contract
of carriage of goods.
[13] UCP600 sub-article 14 (d): Data in a document, when read in
context with the credit, the document itself and international
standard banking practice, need not be identical to, but must not
conflict with, data in that document , any other stipulated document
or the credit.
[14] cited in What forwarders and carriers should know about the UCP
600 by Vlad Cioarec (International Trade Consultant, Romania), from
http://www.forwarderlaw.com.
[15] Shanghai Maritime Court v. Haining Import & Export
Corporation Ltd. Shanghai Waigaoqiao speeding, speeding International
Transport (Hong Kong) Limited's decision that the case support the
opinion, see Xie Zhen title: "The shipper is not required to
accept bills of lading issued cargo receipt shall bear the
corresponding risk ", from http://ibdaily.mofcom.gov.cn.
[16] ruling on the case content from http://www.judiciary.gov.hk.

				
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