[ 董剛 ]——(2004-1-16) / 已閱38005次
1. Legal basis of taking delivery with original B/L:
(a). The legal character of B/L demands of taking delivery with original B/L:
The 《Hamburg Rules》(1978) defined B/L as: “ a document which evidences a contract of carriage by sea and the taking over or loading of the goods by the carrier, and by which the carrier undertakes to deliver the goods against surrender of the documents. A provision in the document that the goods are to be delivered to the order of a named person, or to order, or to bearer, constitutes such an undertaking.”
On one hand, B/L is the receipt of goods and the evidence of the contrast of carriage. Once the relationship of contrast of carriage has been established between the carrier and consigner, the carrier will have the obligation to deliver the goods to the consignee dominated in the B/L intact. Untill the carrier delivers the good to the holder of original B/L, the obligation will not be performed and the contract of carriage will not terminate.
On the other hand, B/L is the title of document. There’s one opinion that B/L represents the ownership of the goods dominated in B/L, and taking possession of B/L has the same legal validity as holding the ownership of goods.[3] The assignment of B/L means the transfer of ownership. Therefore, the carrier must release of goods with presentation of original B/L.[4] In fact, the view above distorts the implication of “title of document”. The basic feature of “title of document” is assignment without any formal assignment or any notice to debtor .It only indicates the possession, having no relationship with ownership, Rights infiltrate document, therefore it has formed the most important commercial principle that only to deliver goods to the holder of B/L, the debt will be cleared off[5]. Just as Judge Rix said: “In my judgment, a true owner cannot in the absence of some special arrangement oblige a shipowner to deliver his goods to him without presenting his bill of lading.”[6] Namely, even the true owner of goods must take delivery with original B/L.
(b). Taking delivery with original B/L is an international usage.
Taking delivery with original B/L has been a law system accepted and generally acknowledged nearly by every state. As an international trade usage, it has been generally observed in shipping practice. In 1983 the Ministry of Foreign Economic and Trade issued an instrument in the form of notice, permitting to take delivery of goods with copied B/L in addition to letter of guarantee. But in academic circles, people generally don’t regard it as legislative document of government, but a kind of normative document which has coordinative effect.[7] Taking delivery with original B/L still must be observed as an international usage.
2. The judgment, causality, typical model and demur to the act of releasing of goods without B/L.
(a). The criterion for judgment of the act of releasing of goods without B/L
Whether the carrier’s act of releasing of goods without B/L has completed or not, we should take into consideration whether the goods has been delivered in law, namely the act that the carrier shows taking delivery order to consignee. And the behavior of consignee in the process of taking delivery has no effect to the releasing of goods without B/L by carrier.
(b). The causality and typical model of releasing of goods without B/L
I. The carrier delivers goods to the third party subject to the consignee named in B/L in addition to letter of guarantee when the goods arrive at the port of destination.
II. Because of the development of recent navigation seamanship, fast shipping but short voyage, in addition to the documents’ slow negotiation, the carrier releases of goods to the consignee without original B/L in order to cut down expenses of port and set about a new voyage. While the consignee may have no original B/L because of follow reasons:
a. In condition of L/C, because of the discrepancy in the documents, the bank refuses to pay. And the documents have not been returned to the seller, the seller doesn’t exercise the right of stoppage in transit.
b. The consignee is incapacity of redemption of documents by paying the bank.
c. The usage of taking delivery without original B/L has formed between carrier and consignee because of long-term business transactions.
III. The carrier colludes with the person who takes delivery without B/L to fraud the holder of original B/L.
(c). The demur of releasing of goods without B/L
In reality, the situation relating to the releasing of goods without B/L is very complicated. Sometimes, there’s the fact of releasing of goods without B/L, however, some specific affairs can demur its irregularity. These years, the shipowners presented many reasons to demur the liability in lawsuits. There’re different opinions between the theoretical and practical circles. Now, I will analyze several typical reasons.
I. The holder of B/L brings a lawsuit surpassing the prescription. Once there were intense controversies about the prescription of releasing of goods without B/L. Now, the unanimous opinion about it is one year.
II. The law of the place for delivery or the customary practice demands of delivery goods even if without original B/L.[8]
III. Once the consignee doesn’t receive B/L because of its missing, being stealed, extinction or any finance reasons, if he could prove that he is just the assignee of B/L, and could give a satisfactory explanation about the direction in which original B/L has gone, the carrier has right to deliver goods to him. But it is necessary to take delivery with guarantee after the summon exhortation by publication.[9]
V. The holder of B/L knows deliberately the carrier’s act of releasing of goods without B/L. But still provides assistance to take delivery or provides some other convenience or has come to a payment agreement with the buyer. This is just the equitable theory —— estoppel.
Meanwhile, the academic and practical circles have presented some other demurring reasons recently. But it’s worthy of inquiring into whether all the advocations could be tenable.
I. The carrier releases of goods in accordance with the directive of the director named in the B/L: In some people’s opinion, the carrier has performed the liability of delivering goods properly in accordance with law, so he should not be subject to the responsibility of releasing of goods without B/L.[10] But actually it’s based on a premise that the indicator is the lawful holder of the B/L when directing. Even so, the carrier should be subject to the responsibility to the bona fide holder of original B/L.
II. Releasing of goods without B/L under the circumstance of straight B/L: one view is that, the nature of straight B/L as “title of document” has altered. The person subject to the consignee will not take delivery without original B/L, while the consignee named in the B/L can do it without B/L.[11] The same reason as above if the bearer B/L and order B/L has been named by endorsement and has been promised not to be assigned any more, the consignee can also take delivery without original B/L.
The other view is that, there is no mandatory provision in the 《Maritime Law of PRC》 that the carrier must deliver goods to the holder of straight original B/L, so he shouldn’t undertake the responsibility for releasing of goods without named B/L.[12]
Actually, all the views above are partial. In my view, although the
straight B/L can not be assigned, it is still the title of document and basis of releasing of goods. Merely, it is effective to the person named in B/L. Moreover, in according to provision 78 of 《Maritime Law of PRC》 “The relationship between the carrier, consignee and the holder of B/L with respect to their rights and obligations shall be defined by the clause of B/L”. So only if the consignee dominated in straight B/L is the lawful holder of B/L, the contract of carriage by sea between the carrier and consignee could be tenable. In addition, from the judgment of “LaiWu Aidi biochemistry Limited company V HaiCheng BangDa international agent of ship and goods Ltd company”[13], we can draw the conclusion that if the consignee of named B/L has not pay the issuing bank to redeem of documents, the carrier’s act of releasing of goods without B/L will jeopardize the interest of the shipper. Therefore, the view above that the named B/L could be the defense against the responsibility of releasing of goods without B/L is not tenable.
III. The limitation of period of responsibility as the defense: The period of responsibility of the damage or loss of goods in 《Hague Rules》is “hackle to hackle” or “rail to rail”. While the out of releasing of goods without B/L usually happens on the shore, so many shipowners in practice usually present the fact that his obligation of caring for goods is merely from loading to discharging the goods as the defense. There was one case in the House of Lords: Chartered Bank V British Steam Navigation (1909) A.C.396, It was said: “…in all cases and under all circumstances the liability of the company shall absolutely cease when the goods are free of the ship’s tackle, and thereupon the goods shall be at the risk for all purpose and in very respect of the shipper or consignee.”[14] In my opinion, releasing of goods with original B/L is determined by the legal character of B/L as the says above. While the carrier’s loading, handling, stowing, carrying, keeping, caring for and discharging the goods carried properly and carefully is the mandatory provision for him. Both of them are two different obligations the carrier should undertake. And there is no legal provision regulating that the former should be restricted by the latter. So the limitation of period of responsibility could not be the defense of releasing of goods without B/L.
3. The responsibility attribution and exertion of legal capacity to sue of releasing of goods without B/L[15]——the criticism to the “doctrine of breach of contract”. “doctrine of tort”. “doctrine of concurrent”.
In recent years, the problem of the responsibility attribution has become the focus of controversy among the parties in lawsuit, the forward position hot spot of academic circles in maritime law and the difficult spot of equivalent case the court tries.
The different qualitations to the act of releasing of goods without B/L have direct relationship with both the ascertainment of the parties’ rights and duties and the result of litigation. The judicial and academic circles views are as followed:
a. “doctrine of breach of contract”: On one hand, delivering the goods to the person who has the right to own is one of the agreed matters according to the contract of carriage. Not performing the obligation, the carrier will undertake the responsibility for breaching of contract to the contract-party evidenced by B/L.[16] One the other hand, when the B/L is assigned to the bona fide third party including the consignee, once the assignee accepts the B/L, it means acquiescing the term of B/L. It results in the unanimous of expression of intention has formed between the carrier and bona fide assignee of B/L. The B/L plays a role of contract of carriage, and becomes the basis of exercising the right of claim to the holder of B/L. So the carrier’s act of releasing of goods without B/L constitutes the breach of commitment that he had pledge to deliver the goods to the assignee of B/L. This is called by academic circle “doctrine of implied contract” between the carrier and the holder of B/L. Besides there’re “doctrine of agency”[17], “doctrine of assignment of contract”[18], and so on. In judicial practice, in the appeal case “Yuehai Electronic Ltd Company V BaoMa carriage Ltd Company of tendering Bureau” in August27, 1996, the Supreme People’s Court found the carrier should undertake the responsibility for breaching of contract to make up for the loss of the lawful holder of B/L by reason of releasing of goods without B/L.[19]
b. “doctrine of tort”: Once some people maintained that releasing of goods without B/L constituted the “fundamental breach of contract” in Common Law. That is to say, if the nature of breach of contract is so serious that violate the fundamental of contract, the delinquent party can’t protect himself by invoking exception clauses in contract. Mr. Yang Liangyi (HongKong) has also advocated that the act of releasing of goods without B/L constituted the fundamental breach of contract, and it should be applied the six years’ prescription.[20] In practice, the act of releasing of goods without B/L has also been regarded as fundamental breach of contract by some courts, applying the law of tort directly. But the theory
of fundamental breach of contract is merely a doctrine and has no precise criterion to estimate. So in 1980, it was upsetted by the House of Lords in the case “Photo Production Ltd.V. Securicor Transport Ltd”.[21] Now, the reason of standing for doctrine of tort is ut infro: The B/L is title of document. Its delivery and the physical delivery of goods are provided with equal authenticity, and holding the B/L is just as constructive possession of goods. The function carried out of title of document of B/L is certainly guaranteed by the carrier’s performance of obligation of delivering goods with original B/L. Once the carrier releases of goods without B/L, it constitutes the infringement of the real right owned by the holder of B/L, so it belongs to the act of tort .
c. “Doctrine of concurrent”: It advocates the B/L is provided with both the real right and creditor’s right character. Not only can the holder of B/L claim to the carrier for restitution or undertaking the tort responsibility for compensation for damages based on the real right’s claim, but also can he claim to the carrier for bearing the responsibility for breach of contract based on the creditor’s claim.[22] This advocation is accepted universely by theoretical circle. In the article《Delivery without B/L》, Mr. Yang Liangyi illustrated definitely that: the legal consequence of releasing of goods without B/L is two potential responsibilities the carrier should take: one of them is contractual responsibility, and the other is encroachment responsibility.[23]
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