Study Of Legal Issues In Respect Of Relese Of Goods Without Bills Of Lading

Delivery of goods without presentation of bill of lading takes place at the stage of carrier’s delivery of goods and is concerned with the performance of contract of carriage of goods by sea. In the field of international trade, bill of lading functions as document of title and both bill of lading and letter of credit constitute negotiable transaction documents. In the field of carriage of goods by sea, bill of lading is merely a document by which the established contract of carriage relations is evidenced and against the specification of which the carrier undertakes to deliver the goods. The legal regimes of bill of lading and letter of credit are important basis supporting the development of international trade and shipping. Therefore, to accurately ascertain different legal functions of bill of lading in the fields of both trade and transport should be the premise of the research on delivery of goods without presentation of original bill of lading.In shipping practice, delivery of goods without presentation of bill of lading has become a widely accepted usage or custom. Despite that it is understood by the carrier that delivery of the goods without bill of lading is in contravention of law and contract and it should be liable for the losses caused thereby, there are still difficult problems, such as how to perceive and resolve the undertaking of liability, to standardize the application of law in judicial practice and to establish normative judicial rules, which has been commonly recognized by maritime academics and shipping practitioners.The delivery of goods without presentation of bill of lading occurring at the stage of transport has direct impact on the performance of contract of international trade. The establishment, modification and extinction of legal relationship of carriage of goods by sea may have normal and abnormal situations. To deliver the goods with presentation of bill of lading is a normal situation, while delivery of goods without bill of lading falls into an abnormal situation. The abnormal situation of delivery of goods without bill of lading will result in undertaking of civil liability.Strictly speaking, delivery of goods without presentation of bill of lading is not directly subject to mandatory legal provision, but it is mainly regulated on the basis of the judicial decisions. China is not a country recognizing cases as legally binding, instead judicial interpretation is referred to for unifying and standardizing the application of law. The guidelines for drafting the judicial interpretation in relation to delivery of goods without presentation of bill of lading by the Supreme People’s Court is to pay attention to the objective situations and practical needs in shipping practice and maritime trial and endeavor to resolve common problems especially those which are imperative to be resolved in maritime judicial practice.This thesis sets out its discussion with the judicial interpretation drafted and issued by the Supreme People’s Court in relation to delivery of goods without presentation of bill of lading. And then by reference to the relevant foreign and domestic legal provisions and judicial decisions and focusing on the typical theoretical and practical issues, the author makes classified researches on the legal characters and functions of bill of lading in detail. The structure of thesis consists of four parts.In respectt of research on basic legal characteristics and functions of bill of lading, the author tries to grasp the characteristics of bill of lading as a whole. The important basic theoretical and practical problems required to be researched in this part includes:(1) to fully understand the nature of bill of lading right; (2) to accurately ascertain the different functions of bill of lading in the field of the marine transport and the document transaction; (3) to make clear the different situations where bill of lading may be treated as document of title and where the bill of lading may be treated as mere certificate for delivery and the relationship of the these situations.The delivery of goods in the carriage by sea is the core part of this thesis. The aim of performance of contract of carriage is to deliver the goods after it arrives at the destination, so the systematic research on the carrier’s obligation of delivery of goods should be important. The carrier’s delivery of the goods at the destination as per the specification of bill of lading to the consignee holding original bill of lading is both the performing aim of contract of carriage and the mandatory provision of the law. The collection of the goods by the consignee holding bill of lading from the carrier is not a matter concerning real right in bill of lading. Therefore, it is a theoretical common ground to weaken the bill of lading’s real right function at the stage of delivery of goods as performance of contract of carriage so that the basic legal rule of delivering goods with bill of lading can be complied with.The thesis also makes detailed and systematic researches on the basis of liability, the liable persons, the limitation of liability and the scope of indemnity where the delivery of goods without presentation of bill of lading occurs. The basis of liability where the delivery of goods without bill of lading occurs is the same as the carrier’s basis of liability under carriage of goods by sea law. The types of liability of the carrier include the liability for breach of contract, the liability for tort and joint and several liability etc. It is common understanding that the carrier cannot limit liability for delivery of goods without presentation bill of lading but there are different reasons for this understanding. The scope and standard of indemnity is relevant to whether Art.55 of Chinese Maritime Code may apply in this regard. The thesis also discusses the situations where the carrier’s liability for delivery of goods without presentation of bill of lading is exempted and where the carrier is not to be deemed as delivering the goods without presentation of bill of lading.The research on title to sue includes the actual shipper’s title of suit, the validity of compensation agreement signed between the bill of lading holder and person collecting the goods and its impact on the bill of lading right, and the issues relating to returning of bill of lading and regaining of possession of the goods etc. The protection of the bill of lading holder is connected with the carrier’s performance of contract of carriage and relevant to the bill of lading holder’s exercise of right of proceedings as well. The important contents of this thesis also include to research on the approach for protecting the bill of lading holder’s rights after the carrier’s delivery of goods without bill of lading and to maintain the right of proceedings of bill of lading holder in different situations.