Some Views On Delivery Of Cargo Without Production Of Bill Of Lading

According to the international custom of bill of lading, it is an obligation of carriers to deliver goods against presentation of original bill of lading in order to protect the interest of the lawful holder of bill of lading. But in real life, carriers may have to deliver the cargo against a letter of indemnity or bank guarantee, especially in trades where it is difficult or impossible for the bills of lading to arrive at discharging port in time.In such circumstances, it is most likely for the carrier to bear the responsibility of loss incurred by in tort or breach of contract. At first, the bill of lading is regarded as document of title in the history, the contract is to deliver, on production of the bill of lading, to the person entitled under the bill of lading, delivery of cargo without bill of lading is an infringement of title of a lawful holder of bill of lading, this is the theory in tort; bill of lading is the contract binding the carrier and lawful holder of bill of lading or the consignee, delivery of the goods without production of bill of lading is in breach of the contract of two parities, this is the theory of breach of contract; delivery of cargo without production of bill of lading is both in infringement of title, and in breach of the contract, this is the theory of both of breach and in tort. The chapter not only states those fundamental theories and shipping practice, but also compares the different legal results caused by different means.Secondly, I probe into the theory of the letter of guarantee and its practical usage. In practice, if the bill of lading is not available, delivery is affected against an indemnity. As the letter of guarantee is part of delivery of cargo without production of bill of lading and is regarded as a security for the carrier, it's of great importance to the carrier. The effectiveness of the letter of guarantee, its wordings and its enforceability will determine whether the carrier shall bear the legal responsibility. Inthis part of the article, I also discuss different types of letter of guarantee, as well as their different validity in law, i.e. The bona fide one is valid between the two parties of it, while the mala fide one is void even between the two parties of it.The above is the main ideas of this thesis. By reference to the legislation and cases in China, England and the USA, I try to make a detailed discuss on the issue of delivery of cargo without the bill of lading and the problems it occurs accordingly. I hope it will be helpful to perfect the theory and practice of the issue of the bill of lading.