The Liability For Releasing Cargo Without Collecting Bills Of Lading

The bill of lading is the important and specific document used in international maritime transportation. It is not only a transportation document but also a trade document acting with an important role in the international trade. With the legislation of law, the bill of lading contains the character of the document of title to goods, which makes the relation with regard to the bill of lading more complex. By the translation of the word "document of title"into Chinese, the bill of lading is called "certificate of property". Anyhow, there is no authoritative definition in English law about the word "document of title". In English law, the kinds of document of title are mainly stipulated by law, sometimes by commercial custom. In China, the law of property hasn't been enacted yet. The possession of a bill of lading is only the prima facie evidence that the holder of the bill of lading possess the ownership or occupation of the goods covered by that bill of lading. While between the carrier and the holder of the bill of lading, the bill of lading acts as the certificate of credit. So it is more proper to call the bill of lading "certificate of right"instead of "certificate of property". It is based on the apprehension of the bill of lading with respect to the document of title to goods, different countries make different laws with different attitudes about the liability for releasing cargo without collecting bills of lading. It is confirmed by all countries that bearer bill of lading and order bill of lading contain the character of the document of title to goods, so laws which require that bills of lading be collected before cargo is released are enacted in these countries. With respect to straight bill of lading, the countries and areas such as America and Hongkong which don't recognize its document of title to goods allow the release of the cargo without collecting bills of lading, while the other countries such as England and Singapore which recognize its document of title to goods don't allow the release of the cargo without collecting bills of lading. In China the law stipulates that the cargo should be released against the surrender of the straight bill of lading, which indicates that the law confirms the character of the document of title in straight bill of lading. According to the stipulation of law, the liability between the carrier and the holder of the bill of lading should be adjusted as per the contents of the bill of lading. So the carrier who releases cargo without collecting bills of lading breaks the stipulation of the bill of lading itself which always requires the release of cargo against the surrender of bill of lading. In which case, the carrier'action constitutes the breach of contract and the carrier should then be liable for such doing in consequence. Meanwhile, if the bill of lading holder's interests of property were also damaged, the carrier's such action would constitute a tort against the holder of the bill of lading. Under aforesaid circumstances, a mixture liability for breach of contract and for tort arises. If the goods were released by parties other than the carrier, the liability for tort should arise because there is no contract relation between the holder of the bills of lading and the aforesaid parties. As　the　fact　that　the　goods　were　released　without　collection　of　bills　of　lading　could　count　for　a　fault,　no　legal　immunity　of　liability　could　be　available　to　the　party　who　did　so.　As　to　the　possibility　of　the　application　of　legal　limitation　of　liability　granted　by　law,　the　intention　of　that　party　on　whether　to　do　so　on　purpose　or　not　will　be　taken　into　account.　As　the　period　during　which　the　law　stipulates　that　the　carrier　should　be　liable　for　goods　differs　on　account　of　the　kinds　of　goods　concerned,　the　clauses　which　release　and/or　reduce　the　carrier's　liability　for　releasing　containerized　cargo　without　collecting　bills　of　lading　are　void　and　null　because　of　the　breach　of　compulsorily　stipulations　of　the　Chinese　Maritime　Law,　while　such　clauses　are　also　void　and　null　because　of　the　breach　of　the　Chinese　Contract　Law　in　case　the　goods　which　were　released　without　collection　of　bills　of　lading　by　the　carrier　are　not　containerized　cargo.　With regard to pursuing the liability of the party who released the cargo without collecting bills of lading, as there exists difference between the liability for tort and the liability for breach of contract in several respects, the plaintiff should choose the proper claim to protect their interests. With respect to the limitation period for claims, if it is the carrier who releases the cargo without collecting bills of lading, irrespective of which claim the plaintiff choose, i.e. for tort or for breach of contract, both the Chinese Maritime Law and the Hague-Visby Rules grant the one year's time limitation. If it is the party other than the carrier who releases the cargo without collecting bills of lading, the limitation periods granted by different conventions are different while there is no stipulation in this respect by the Chinese Maritime Law. As all conventions permit the prolongation of the limitation period by the mutual consent of the parties to a claim, the Chinese Maritime Law should be revised in this respect soonest to protect the interests of Chinese claimants.