Study On Non-Taking Delivery Of Goods At The Port Of Destination

There are lots of cases in the international container liner transportation that there is no one receiving the arrived cargo at destination. The author of this thesis has handled many such cases in his lawyer business,and keenly felt that this kind of matters not only brings much harms to the parties concerned but also creates much waste to the wealth of society. But,the author also felt that this kind of matters has not drawn much attention of the maritime legal community. So till now,the studies on this kind of matters are few. The author now makes a primary study to the matters based on his experiences in dealing with such kind of cases.Considering the length of this thesis and the differences between the charter party and the container liner transportation,the first chapter of this thesis,limits the discussion in two circumstances that the goods are not taken delivery of and the consignee refuses to take delivery of the goods at the port of destination in the international container liner transportation. Then the thesis sums up the characteristics and causes of this kind of matters,analyses the parties suffering the damages or losses,and points out that the carrier is the most suffered.In the chapter two of this thesis,the focal point civil liabilities created from nondelivery at the port of destination was researched thoroughly. From the theory of the transferring of contract,the author believes that the contract of international carriage of goods by sea has no characteristic of binding the third party,and the transferability of this kind of contract is the very characteristic which differences this kind of contract from other contracts. The views " the contract of international carriage of goods by sea has the characteristic of binding the third party" in maritime legal community are not correct. This view directly leads to the disputes in understanding the relevant articles of the Chinese Maritime Code and the disputes in determining the person liable for not taking delivery of the goods at destination. In view of the transferring of contract,the author believes that only when the third party has clearly expressed his intention to accept the established contract and has become a party of the said contract,can the contract have the binding force to this third party. The transferring of this contract of carriage is not thetransferring of all the rights and obligations in the contract. After the transferring of the contract,the shipper and the consignee who have accepted the transferred contract will separately bear certain contractual obligations to the carrier and become the common debtors to the carrier. In view of the transferring of contract,the situation that goods are not taken delivery of or the consignee refuses to take delivery of the goods at the port of destination is the fail of the transferring of contract. So,the shipper who is a party of the contract of carriage should be responsible for the carrier's losses suffered from the above situations. The law does not impose the consignee an obligation to take delivery of the goods at the port of destination. But when the consignee clearly expresses his intention to accede or accept the contract and then becomes a party of the contract,he should have the responsibility to take delivery of the goods. Generally speaking,it should be deemed as a sign of accepting the contract of carriage that the consignee claims against the carrier (claiming to take delivery of cargo or claiming the damage / loss caused by the carrier).The third chapter of this thesis,discusses the difficult positions of the carriers facing the matter of non-delivery at the port of destination,analyses the conflicts between the civil-commercial law and the customary law in dealing with the matter of non-delivery at the port of destination. In order to avoid wastes to the wealth of society and to help the carriers to deal with the difficult position facing non-delivery at destination,all the legal community should do their best to perfect the civil-commercial law an...