Theory On The Legal Function Of The Bill Of Lading

As the most important document of carriage of goods by sea,the Bill of Lading is the prove of transport contract,the receipt of goods by the carrier and the document for collecting goods.Moreover,the Bill of Lading plays an important role in the other fields of international trade. The Bill of Lading has led to the substitute of documentary sale by goods sale. With the development of the modern international trade ,the function of the Bill of Lading increases gradually. Some different opinions on its nature and function has led to many disputes, which has caused the forcus of more and more scholars. The thesis will begin with the fields of international trade which the Bill of Lading involves in,discussing the two functions of the Bill of Lading——real right function and creditor's right function.This thesis is divided into five chapters. The first chapter is an overview of the Bill of Lading including the concept of the Bill of Lading,the history and development and the significance of researching on the the Bill of Lading' function. Then we will have a general knowledge of the Bill of Lading and draw forth the latter contents.The second chapter introduces several different views about the nature and function of the Bill of Lading,and gives comment on them simply. In this charter, the author demonstrates the thesis'view that the Bill of Lading not only have the real right function but also have the creditor's right fuction. We should analyze them in different fields of international trade. The function of the Bill of Lading is mainly involved in three fields——the field of carriage of goods by sea, the field of international sale of goods,the field of international payment.In the field of international sale of goods and the field of international payment,the Bill of Lading has a function of real right ,while in the field of carriage of goods by sea the Bill of Lading has an effect of credit's right function.The third chapter and the forth chapter are the most important parts of this thesis,demonstrating the two functions.The third chapter introduces the real right function of the Bill of Lading, including its definition and characters,the embodiments in the field of international sale of goods and the field of international payment and so on. In the stage of international sale of goods,the role of the Bill of Lading is embodied in the delivery of goods and the transfer of ownership of goods. The Bill of Lading acts as an initial evidence of ownership of goods and document of possession. In the stage of international payment,under the letter of credit(L/C)system,the holder of the Bill of Lading has the pledge of rights. If the debtor didn't discharge the debt in due dates,the holder(the issuing bank or the negotiating bank) can get the payment from the carrier and deal with the goods.The forth chapter introduces the creditor's right function of the Bill of Lading,including its definition and characters,demonstrating the creditor's right function is embodied in the the field of carriage of goods by sea. In the stage of shipping,the Bill of Lading represents the relationship of creditor's right between the holder and the carrier. It proves that the carrier has the goods shipped and the right of the holder's asking the carrier to deliver the goods. This part also analyzes some different views about the character of the relationship of creditor's right and gives a detailed disscussion on them. Finally the author draws the conclusion that the Bill of Lading's creditor's right relationship is independent from that inoriginal carriage contract and it only affects the carrier and the holder and it is a security relationship. The Bill of Lading is signed basing on the security,and combined with the security itself together.The last chapter analyzes some disputes about the Bill of Lading and gives some suggessions perfecting the Bill of Lading's legislation. The author suggest that we should bulid a complete law system of the Bill of Lading and combine with the reality of our country to enact the B/L's law to make its rights more and more perfect.