A Research On Delivery Of Cargo Without Original Bills Of Lading

The problem of delivery of cargo without original bills of lading has been with us for a long time. We all know the risk and severe consequence of delivery of cargo without original bills of lading, but it is still necessary in shipping practice now. In recent years, the numbers of cases concerning delivery of cargo without original bills of lading goes up quickly. In this paper, the writer study the above problem and wish the result of such study will promote to constitute the better legal system of carriage of goods by sea in China. Also, writer want to give suitable ways for carriers to deliver cargo without original bills of lading safely and gain the best economic benefit, and this will promote the development of productivity finally.In CHAPTER ONE Writer try to analyze the concept of delivery of cargo without original bills of lading, the concept is "actions of the carrier, the agent or cargo's supervisor to deliver cargo without original bills of lading", and this concept is in the same meaning in judicial practice of Maritime Court in China.CHAPTER TWO Legal Character about delivery of cargo without original bills of lading is the theoretic basis of this paper. Writer's view of point is that delivery of cargo without original bills of lading has the character of breaching of the contract, because releasing cargo against original bills of lading is carrier's legal liability in carrying out the carriage of goods by sea. Also it has the character of action in tort, as if the actions violate the civil law of liability in tort, the doer shall take on the liability of compensation. However when actions are both of breach and in tort, the Chinese Law gives the victim the rights to choose to sue in tort or of breach, but some limitations in applying substantive law. Finally, delivery of cargo without original bills of lading promote the developmentof shipping in a way in practice, it has reasonability in existence.CHAPTER THREE is writer's study for 10 leading cases of Chinese Maritime Court and Court of Cassation concerning delivery of cargo without original bills of lading, writer conclude as follows: Chinese courts are inclined to regard it as breach of contract but not in tort in judicial practice; Chinese courts allow the plaintiff to choose to sue in tort or of breach; Chinese courts have abandoned the viewpoint of "who holder the bills who must have the right to sue" or "who holder the bills who must win the case" ; and in many cases concerning delivery of cargo without original bills of lading, the court ignored plaintiff's actions against the carrier, it proved that carrier can escape reasonability of delivery of cargo without original bills of lading in some cases.CHAPTER THREE is about legal liability of delivery of cargo without original bills of lading. The main responsible persons in delivery of cargo without original bills of lading are carriers or their agents. The liable persons in general shall return of cargo or continue to deliver cargo, or compensate for losses according to "Maritime Code of PRC", "Contract Law of PRC", and "General Principles of the Civil Law of the PRC". The losses shall be calculated base on the value of cargo, interests and default fine. The value of cargo shall be the GIF price of goods. To the buyer, one may claim the loss of profit after payment against documents. Defence of Carrier or agent may be accept by the Courts are following: the holder of bills of lading waive the right of demanding the carrier to release cargo against original bills of lading, or the holder recognize carrier's such delivery; the carrier may use to site the clauses in charter party or in bills of ladings for denfence; the carrier may use time limitation for defence. The beginning of time limitation and discontinuance of time limitation shall not be according to regulations of "General Principles of the Civil Law of the PRC", but "Maritime Code of PRC". The means of relief for holder of bills of lading as follows: take an action against the carrier or agent for demanding retu...