The Legal Nature Of The Bill Of Lading And Its Effect On The Negotiability Of The Bill Of Lading

The negotiability of the bill of lading (B/L) makes the carriage of goods by sea which used to be simple look a quite different way. Besides the convenience it brings, the negotiability also causes lots of problems. Aiming to solve these problems, this thesis carries out a comprehensive analysis of the negotiability of B/L.The analysis starts from the legal nature of B/L. Regarding the relation with property, this thesis clears all kinds of misunderstanding arising in the arguments among the academic circle, and studies the relation between B/L and the ownership of the cargo under different property system of continental law and common law, pointing out that B/L confers possession of goods instead of property rights; regarding debtor's right, this thesis, after conducting a detailed analysis of different theories about the relation between the holder of B/L and the carrier, thinks B/L is a bond conferring debtor's right, which is independent of, and somehow related to, the contract of carriage, has the absolute power of its literal meaning and the character of non-causation, and confers no right of recourse.Based on the legal effects of possession and debtor's right, the negotiability of B/L should be reviewed in two aspects. With regard to the transfer of possession, the negotiability of B/L makes no difference to personal property; with regard to the transfer of debtor's right, the negotiability of B/L is similar with that of negotiable instruments. Both two legal effects constitute the foundation of the right to demand for delivery. The right to demand for delivery based on possession will be influenced by actual status of the title to goods, while the right to demand for delivery based on debtor's right can offer liable protection to the hold of B/L because of the absolute power of the literal meaning B/L. The theory that the right to demand for delivery is mainly based on possession with debtor's right assisting in protection fits better for the nature of delivery against B/L and is in the holder's best interest. Furthermore, the carrier is justified in delivering goods to someone who is in fact lawfully entitled to receive the goods, and B/L must be surrendered no matter before or after the delivery. After B/L is exhausted, the holder will acquire no right against carrier except in cases listed by law. The theory provided in this thesis can be the solution to the issue of the delivery of cargo without an original B/L.