On The Leagle Problems Of Delivery Of Goods Without Presentation Of The Original Bills Of Lading In International Ocean Shipping

With regard to the legal meaning of Delivery of Goods without Presentation of the Original Bills of Lading (hereinafter refers to as DGWOPOBL), both the academe and the practice circle have obscure understandings on it at present. Most of the studies focus on the legal nature and legal liability of DGWOPOBL, and normally they ascertain the legal nature of DGWOPOBL by analyzing the legal nature of bill of lading (hereinafter refers to as B/L). It is rarely to be studied on the aspects of factum juridicum and parties' interests balancing and thus to propose a relief mechanism and a preventive mechanism. Obviously, the study on these problems in this article is not only the summary of foregone researches, but also a leading exploration in setting up and perfecting the relief mechanism and the preventive mechanism.DGWOPOBL is a factual behavior refers to that the principal part, who has the obligation to deliver goods with presentation of the original B/L, delivers the goods without taking back or canceling the original B/L in ocean shipping. DGWOPOBL is a tort caused by breaking of contract and thus the carrier should bear the liability for breach of contract or the liability for tort.The liability to DGWOPOBL should meet four conditions: The carrier has subjective fault, which does not apply to the liability for breach of contract, the carrier delivers goods without taking back or canceling the original B/L, the holder of B/L suffers losses, and there is causality between DGWOPOBL and losses. Loss compensating is the most common form to take the legal liability of DGWOPOBL and the damages should be in line with losses of the holder of B/L. Considering the equity and justice, the liability to the carrier should be exempted for some causes, such as Equitable Estoppel, DGWOPOBL clause in B/L and laws or practices at a destination port.In the litigation on DGWOPOBL, the holder of B/L should choose the lawsuit causes cautiously since different causes lead to different results. The effectiveness of jurisdiction clause in B/L lies on the attitude of the court received the case, and the court should make the rational decision on the premise of not damaging its country's sovereignty. Considering the legal provisions and the principle of fair, the limitation of action should be one year. As for the proof on the fact of DGWOPOBL, the carrier should undertake the burden of proof.The superficial reason to DGWOPOBL is that the circulation of B/L lags behind...