Perspectives On Anti-Dated Bill Of Lading On The Basis Of Concurrence Of Liability

Bill of Lading, which originated from Middle Ages, is a bill of document issued by carrier to shipper in carriage by sea. With the constant development of sea transportation, Bill of Lading plays a more outstanding role in the whole procedure of sea commerce, which holds the key position in international trade. Due to the greater importance of Bill of Lading, its legislation also received a profound development, including early practice and custom of sea trade, case law, statute law and code. It is because of the internationalism of sea transportation that promotes a uniform regulation of Bill of Lading, namely the enaction of international convention.Although the legislation of Bill of Lading is being improved, new problems arise continuously in practice. As one of the commonest issue, Anti-Dated Bill of Lading has caused more and more lawsuits in reality while its legislation was far from enough. Generally speaking, Anti-Dated Bill of Lading satisfies the requirement of shipping date in Letter of Credit in order to conceal the fact and fulfill the settlement of exchange accounts. Although Anti-Dated Bill of Lading is always judged illegal according to Maritime Commercial Law of PRC, the Hague Rules and the Hamburg Rules, there is no definite stipulation about its quality and liability. Disputes concerned exist in both judicial and academic areas. Several theories come up, which give prominence to Anti-Dated Bill of Lading. Therefore, it is of great significance to specify the character of Anti-Dated Bill of Lading and study related issues which subsequently could define the right and duty as well as liability of each party. Moreover, the legislation of Anti-Dated Bill of Lading could be enhanced due to further study.The paper is to analyze the quality and liability of Anti-Dated of Bill of Lading on the basis of shipping practice and theory of civil law and commercial law. The author chose concurrence of liability as a clue and consulted related laws, judicial explanations, and international conventions and practices as well. In order to solve disputes in Anti-Dated Bill of Lading, the paper suggests advantageous and profitable resolution in judicial proceedings. Meanwhile, it is the end to reduce fraudulence and speculation in sea commerce and to keep the safety as well as the good morality of sea trade.The whole paper with over 40,000 words is divided into three chapters except for Introduction and Postscript.Chapter 1: Bill of Lading. This chapter generalizes the definition and character of Bill of Lading with its focus on the quality of Bill of Lading. The understanding of Bill of Lading decides the analysis of Anti-Dated Bill of Lading because of its core function in sea trade. It is the fundament of the quality of Anti-Dated Bill of Lading that Bill of Lading itself possesses two different characters. Bill of Lading holds the quality of document title of goods as well as document of debt. The chapter herein analyzes the connotation of both two qualities in order to lay a base for following discussion on Anti-Dated Bill of Lading.Chapter 2: Anti-Dated Bill of Lading and its legal quality. The chapter herein gives a definition of Anti-Dated Bill of Lading and expounds its character and influence in sea trade. With a primary understanding of Anti-Dated Bill of Lading, its legal quality is pinpointed on the basis of legal relations concerned. Its character of both contract and tort has been illuminated from the angle of concurrence of liability, which paves the road for the following chapter structurally.Chapter 3: The civil liability of Anti-Dated Bill of Lading. This chapter includes four sections which analyze the legal liability of Anti-Dated Bill of Lading according to its dual characters. However, four sections focus on different points. Section 1 discusses the contractual liability within three contracts, of which the most significant and arguable issues are laid greatest emphasis on, ranging from rescission of contract, scope of compensation to liability quota of carrier. Section 2 concretely explains the ways of assuming tortious liability as well as the category and scope of compensation through vivid cases. Section 3 and 4 is the key to the whole paper. These two chapters are based on the theory of concurrence of liability. The end of this paper is exposed herein and settled on the issue of judicial proceedings. Three different theories on concurrence of liability are stated here together with distinguishable policies taken by different countries. How to choose the right judicial proceedings seems the essence of the paper, which would also be of great help to related legislation in China as far as recent legal environment in China is concerned. Through comparison of respective advantages and disadvantages between contractual proceedings and tort proceedings, the last two sections find a way of positive application of theory of Anti-Dated Bill of Lading to practice in the hope of stable and harmonious development of sea trade.