Study On Liability For Delivery Of The Goods Without The Original Bill Of Lading

With the development of shipping technology and containerization of marine transport, there are more and more instances when the bill of lading could not be availed of or secured at the time of entry of the goods at the discharge port, and so the delivery of goods without the bill of lading arises and disputes on such delivery are on the rise. As a matter of fact, such disputes account for a considerable percentage in the maritime cases, and consequently the scholars and the practioners attach importance on this question. However, most studies focus on analysis of cases or jurisprudential comment. A special study on this question is rarely seen, still less of a thorough and systemic study. The thesis begins with the key factor of delivery without the bill of lading, i.e. the bill of lading, gives an analysis of the nature of lading, then the nature, constitution and assumption of liability for delivery without the bill of lading, and discusses in detail the relationship between the form of such delivery and the assumption of liability and the relationship between scope of liability and limitation of liability per unit, with the aim of finding the countermeasures against such delivery and giving a comment on the several solutions.Delivery without the bill of lading means that the carrier releases the goods without drawing back an original copy of bill of lading and the consignee takes delivery without presentation of an original. The bill of lading is a band that connects all the parties concerned and it is the nature of it that determines the nature of liability for such delivery. So, the thesis gives a detailed study of the functions of lading in different phases before the discussion of legal liability for such delivery. The bill of lading is not a document of title but evidence of a contract of carriage during the period of transportation. But it does convey a document of title during the trade of goods and payment. Consequently, the liabilities for delivery of goods without bill of lading involve liability for breach of contract, liability for tort and liability for both breach and tort.The constructive conditions of this kind of liability are no different from that of other liabilities for damages, which includes the act, the consequence and the causation between them. The thesis illustrates all kinds of acts in practice, analyses the relationshipbetween each act and the liability for it on the grounds of the provisions of international conventions, the custom and usage, and the laws of several countries, and gives a discussion of their reasonableness and the special provisions in Chinese Maritime Code.The thesis determines the scope of such liability on the basis of article 55 of Chinese Maritime Code. It distinguishes the methods for calculating the damage between subjective method and objective method and gives an analysis and comparison between them. The author holds that the subjective method conforms to the practice, gives a full protection of the obligee and conveys the spirit of modern law. The value of the damaged goods should be calculated on the basis of market price of the same goods at the discharge port. The responsibility for the delivery of goods without bill of lading should lie on the carrier. As in practice it happens more frequently that the carrier' s agent himself releases the goods on bond or at the request of the consignee, the agent, the person who provides the bond and the person who takes delivery should be jointly and severally bound for the damage resulted from such delivery. There is another question that should not be omitted: whether the liable person can avail of the limitation of liability in defense of the compensation. Based on an analysis of the limitation of liability, the thesis points out the liable person should not be protected by the limitation of liability.The aim of this thesis is to prevent and solve disputes arising from delivery of goods without bill of lading. So, it gives several countermeasures in both legislation and system. It first anal...