Study On The Legal Liability For Delivery Of Goods Without Original Bills Of Lading In International Ocean Shipping

In shipping practice, due to the time difference between the quickness of sail of vessel and the lagging of negotiation of bill of lading, carriers often have to deliver the goods without bill of lading against letter of guarantee. The phenomenon of delivery of goods without original bills of lading is becoming more and more,therefore, initiates the dispute also increases along with it,but there are still so many disputes about delivery of goods without original bills of lading in academic and practice circles .The legal liability of delivery of goods without original bills of lading is fuzzy, the responsibility of ownership was still indefinited, continuously for a long time hence, it will inevitably does not make for the development of international trade and seafaring. These are reasons underlay the study in this article of delivery of goods without original bills of lading. The problem of delivery of goods without original bills of lading has been with us for a long time, We all know the risk and severe consequence of delivery of goods without original bills of lading,but it is still necessary in shipping practice now. In this paper, the writer study the above problems and wish the result of such study will promote to constitute the better legal system of carriage of goods by sea in China. This thesis contains five chapters:The first part is beginning with the definition of delivery of goods without original bills of lading,analyzes the scope and types of delivery of goods without original bills of lading,expounds reasons which cause delivery of goods without original bills of lading. And analyzes the reasonable part and the hazardous nature of delivery of goods without original bills of lading from the pro and con two aspects.In the second part, the author defines the nature of its legal liability. As to the issue on the legal liability of discharging goods without bill of lading, there exist great disputes among scholars and in practice. At present, there are three doctrines on the legal liability of discharging goods without bill of lading in theory: the doctrine on tort, the doctrine on breach of contract, the doctrine on the concurrence of breach and tort. In practice,the court had made controversial decisions according to different doctrines. Beginning with the different functions of bill of lading in different places,the author points out the deficiency of the above three doctrines and proposes that because of the diversity of the subjects on discharging goods without bill of lading and the complexity of its counterpart the nature of discharging goods without bill of lading cannot be defined in uniform and we can only consider it as breach,tort,or concurrence of the two according to the existing conditions.In the third part,on the basis of recognizing the different responsibility persons,the paper analyzes the legal liability for delivery of goods without original bills of lading in logical organization. Expounds the liability of discharging goods without bill of lading 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 bill of lading, the holder of bill of lading suffers losses,and there is causality between delivery of goods without bill of lading and losses. And analyzes the ownership of liability of delivery of goods without bill of lading,proposes the general principal of liability in respect of delivery of goods without bill of lading should be strict responsibility principle. In the fourth part, the author discusses the possible pleading reasons quoting by the carriers during the process of discharging goods without bill of lading These pleading reasons includes estoppel, exoneration clauses corporated in bill of lading and charter contract,the law or customs in discharing port, delayed taking , time bar and so on. And analyses whether these reasons could help the carrier getting rid of the legal liability .In the fifth part,the paper analyzes the experience of legislations in the domestic and foreign,proposes some new legal measures in dealing with delivery of goods without original bills of Lading including electronic bill of lading,sea waybill,and dealing with delivery of goods without original bills of Lading practicecally.