On The Character Of Bill Of Lading

Bill of Lading is the product of the development of carriage of goods by sea to some historic stage. Original Bill of Lading was only a receipt signed to the shipper by the carrier, which proved that the carrier had received the goods. By showing it, the holder could ask the carrier to deliver the goods. Later, with the development of international trade, Bill of Lading was then given the real-right effect and it could be transferred instead of the goods itself, which made the transform from real exchange into document exchange possible. From then on, Bill of Lading has been playing a decisive role in the stage of international trade, which is much more important than its function in sea transportation. It thus obtains strong life. There, however, have been many arguments on the character of Bill of Lading for a long time and no final conclusion has been reached, which has hindered Bill of Lading to give its full scope. In practice, its character also produces great effect on disputes caused by it, such as Carrier's Delivery Without Presenting Bill of Lading, Antidated Bill of Lading, Advanced Bill of Lading, lose or steal of goods and so on.This article is divided into five charters.Charter One briefly reviews the history of the development of Bill of Lading. In view of the present situation that many scholars tend to begin with the definition of Bill of Lading when studing its character, the author doesn't think this starting point is right. Instead, the article is based on the development of Bill of Lading itself and points out that its functions are the result of the development of history. Bill of Lading has the character of creditor's right and real right, while the former came first.Making the object of study clear is the prerequisite of discussing its nature. So in Charter Two, the article demonstrates the concept of Bill of Lading by using provisions concerned both at home and abroad, thus to indicate the necessary conditions making up Bill of Lading.Charter Three, Charter Four and Charter Five discuss the character of Bill of Lading and they are the main parts of the article.First, Charter Three, Section One states the concept of security, pointing out that Bill of Lading is a kind of security in a broad sense. And Section Two analyses its character of security by applying relevant domestic and foreign regulations. Finally, Section Three concludes that Bill of Lading is real-right and creditor's-right security, abstract and create-right security, literary-content security, completely negociable security, instrictly formal security, presenting security as well as hand-in-for-cancellation security.Charter Four and Charter Five seperately explain the character of creditor's right and real right of Bill of Lading.Charter Four sets forth the creditor's-right effect. First, Section One provides some information about its establishing process, which is the basis of deeper study. As to various theories on the creditor's-right effect of Bill of Lading, Section Two gives detailed analysis and shows their unreasonable places clearly one by one. At last, as to the scope of this effect in sea transportation, the author points out that the relationship presented in Bill of Lading is independent from that in original carriage contract and it only affects the carrier and the holder.Charter Five expounds real-right effect. Like last charter, Section One briefs the establishing process, upon which the article denies the theory of negation of the effect of real right and affirms the effect. Then Section Two analyses different theories on this issue and concludes that when the goods has been taken by the third party in bad faith the theory of absolute right is perfect, while in other situations, agency theory is more suitable. Section Three analyses the function of document of title of Bill of Lading at tenth. Here attention should be paid that the article gives no explanation to the Chinese meaning of "document of title" which comes from Anglo-American law system, because this system is different...