Study On The Legal Issues Of Frustration Of Delivery Of Cargo Carried By Sea

In the admiralty judicial practice in China,disputes arising from the fact that no bill of lading is surrendered to the carrier for the delivery of the goods have been increasing in the recent years. Many uncertainties exist in respect of the rights and obligations of carrier and merchant,mainly because the limited statutory rules in this respect are often conflicting and infeasible. To make a better balance of interests between the carrier and merchant,this paper,based on the careful comparison between the relevant regulations of Contract Law and those of Maritime Code of the People's Republic of China,puts forward the concept of "frustration of delivery" to unveil the nature of the facts that the consignee has delayed in or refused to taking delivery of the goods or the goods were not taken delivery of at the port of discharge. In consideration of that the carrier is exempted from the obligation of delivering the goods and conferred the rights to claim the damages due to "frustration of delivery",this paper expounds the elements requisite for the presence of "frustration of delivery" to avoid carrier's misuse of this defense. Bearing in mind the dilemma the carrier are faced with under the circumstance of "frustration of delivery",the paper fully discusses the legal problems such as "who can sue?","who should be sued?",the time bar,and the scope and ways of exercising this right,inorder to find a comprehensive solution. Great attention is paid to thelacunae in the current law and the way to correct them. In a word,the "frustration of delivery" in the carriage of goods by sea is a legal issue of both theoretical and practical implications,which can only be gradually solved by the further legislation and judicial practice.