On The Legal Issues Of Lawsuit Over Delivery Of Goods Without The Original Bill Of Lading

According to relevant international conventions, international customary law and laws of almost all countries in the world, delivering goods against the original bill of lading, as a guarantee for the right of the legal holder of bill of lading (hereinafter B/L), is the basic obligation of the carrier in the carriage of goods by sea. But owning to many reasons, delivering goods without B/L by the carrier and other relevant parties has become more and more common recently. The number of cases of delivering goods without the original B/L is also increasing rapidly. On the other hand, there is no unified international convention and different countries have different regulations and customs on the carriage of goods by sea. How to solve the disputes related to delivery of goods without B/L became a difficult problem in the maritime circle. Therefore, study on the legal issues of lawsuit over delivery of goods without B/L has great practical significance.Based on Chinese Maritime Code, Maritime Procedure Law of the People's Republic of China and judicial practice, and advanced experiences of legislation and judicial practice in the world, the thesis discusses following issues of lawsuit over delivering goods without B/L, such as the jurisdiction, the cause of action, identification of the plaintiff and defendant, the burden of proof and the limitation of prosecutions.Except for the introduction and the conclusion, the thesis includes five parts.Part one is the overview of delivery of goods without B/L, which includes its causation, its parties and their relationships, and its nature. The reasons are various, such as the slow circulation of B/L, deceitful ocean carriage and so on. There are often more than two relevant parties and the relationships between them are very complicated. But the primary legal relationship is contractual relationship between the holder of B/L and the carrier. As far as the nature is concerned, delivery of goods without B/L is basically a breach of contract, but also a tort in some particular situations. This tort should be generally regarded as violating creditor's rights.Part two discusses the jurisdiction of lawsuit over delivering goods without B/L. The principles of how to determine the jurisdiction mainly consist of doctrine of territorial jurisdiction, agreement on election of forum and deduced jurisdiction. In practice, the first to do is to ascertain the effect of the jurisdiction clause in B/L based on the principles abovementioned, because most of bills of lading have a jurisdiction clause each. In the meantime, we should also consider the following aspects: the content and the form of the jurisdiction clause in B/L, the applicable law, the relevant parties and so on.Part three discusses how to select the cause of action in the case of delivery of goods without B/L. Due to the complexity of the delivery of goods without B/L, we should select the cause of action based on its nature and the judgment of different situations of each case. The thesis makes detailed discussion from the two aspects: whether there is actual carrier's participation during the course of delivery of goods without B/L or not.Part four analyzes the identification of the plaintiff and defendant. The plaintiff in a case of delivering goods without B/L must be the party lawfully holding bill of lading. The defendant is mainly the carrier. As to the identification of the carrier, liner company is carrier in the case of liner transport, because B/L is generally signed by line company. In the case of time charter or voyage charter, especially the lessee ships the third party's goods by the chartered ship, under Chinese law, the lessee is carrier while the lessor(shipowner) is actual carrier, and the signature in the B/L is the basis of identification of carrier in practice.Part five is mainly about the burden of proof and the limitation of prosecutions of the lawsuit over delivery of goods without B/L. As to the burden of proof, based on the rules of evidence of China and the Theory of Classification of Element of Law brought forward by Rosenberg, the thesis pointed that it is the plaintiff who should bear the burden of proof as to the fact that the carrier delivered goods without B/L. As to the limitation of prosecutions, the limitation of prosecutions in CMC is different from the provision in the relevant international conventions and more rigid compared with the civil law.