Research On The Legal Problem Of Delivery Of Goods Without Original Bill Of Lading

Delivery of goods without original Bill of Lading (B/L) means the act which the carrier hasn't recovered the original B/L but delivered the goods to the others at the port of destination. This includes the act which goods were delivered to the person who is always impossible to obtain the original B/L and to the true owner of the original B/L but at the delivery time who is not the original B/L holder. At present, delivery of goods without original B/L, widespread in the shipping industry, has become a kind of tacit agreement or an unspoken rule between the carrier and the consignee but are not officially recognized in the law. If this problem cannot be solved well, thus it will have a severe impact on the development of international trade and international shipping business. In the theoretical circle, people always accuse the act of delivery of goods without original B/L on the carrier which is not so appropriate in the law and reasonableness that the most important reason is contradiction between the development of navigation technology and the slow transmission of shipping documents. In essence, it is the contradiction between the development of science and technology and backward law system. This paper attempts from the nature of B/L to discuss the nature of delivery of goods without original B/L. Then the favorable defenses to the carrier's delivery of goods without original B/L and final solution approaches were presented.Introduction gave us a brief explanation of delivery of goods without original B/L and following is how to study the problem and research targets to be achieved. In the first part the author first of all analyzed the basis of B/L, that is to say origin of B/L; and then analyzed the nature of B/L and the three major functions of B/L. In particular, the document of title of B/L was mentioned. The author thinks the nature of B/L should be defined as a quasi commercial instrument to collect right in rem and debt. In the second part the author analyzed the causes and nature of delivery of goods without original B/L. By analyzing the various reasons for the delivery of goods without original B/L, and then drawn the nature of delivery of goods without original B/L from the nature of B/L. Delivery of goods without original B/L should be characterized as commingle of tort liability and breach of contract and the claimant should be allowed to choose a favorable cause of action. In the third part the author analyzed the defense reasons of delivery of goods without original B/L such as special laws and regulations at the discharge or destination port, the practice of effective guarantees plus a copy of B/L, the application of the estoppel theory and immunity agreement in the B/L. We should recognize the practice of the effective guarantees plus a copy of B/L in the statute which help to speed up the flow of goods and to solve the problem of blocking cargo ships. In the fourth part the ways of perfecting relevant legal systems of delivery of goods without original B/L were put forward. The author thinks that the fundamental solution of delivery of goods without original B/L lies in the designation of legal system and legislative recognition of the right in rem of B/L and the practice of guarantees plus a copy of B/L. In addition, we can adopt the Electronic B/L, telex release of B/L and Seaway Bills to solve the problem of delivery of goods without original B/L.