The Study Of Anti-dated Bill Of Lading Under UNCITRAL TRANSPORT LAW (DRAFT)

The bill of lading is the cargo receipt, the transport contract proof and the real right certificate. International cargo business and sea transportation massive use bill of lading. Each country and the corresponding international convention like "the Hague Rule" and "the Hamburg Rule" to the bill of lading signing and issuing time's stipulation basically is consistent. The bill of lading signing and issuing date is the cargo shipping date proof, after the cargo shipment, the carrier signs and issues the bill of lading is carrier's legal obligation.Anti-dated bill of lading is refers to the cargo shipment, the carrier signs and issues one kind the bill lading is earlier than the cargo actual shipping date. The goal of anti-dated bill of lading generally is to cause in the bill of lading the loading days to meet letter of credit's requirement, avoids the responsibility of delay payment, so anti-dated bill of lading constitutes to consignee's cheat. The behavior of anti-dated bill of lading does not conform to "the Hague Rule" obviously and "the Hamburg Rule", the consignees must undertake very big risk for this reason. Because "Hague Rule" and "Hamburg Rule" stipulate to bill of lading too generally, various countries' legal rule also has the conflicts, therefore the question in processing to anti-dated bill of lading have the very big difference.Based on this tendency, after in 1996 the United Nations Trade law Committee 29th conference, the committee has considered a suggestion: Will examine the international marine goods traffic domain present convention and the law includes its work program, with the aim of determining that the necessity still wasn't having whether there is the uniform rules aspect to formulate this kind of rule, and causes each kind of law to compare is now more unified. Discussion after the multiple conference, has formed newly "the Transport Law (Draft) " in January, 2008."Transport Law (Draft)" releasing, regarding signed the bill of lading question processing to have the enormous influence but actually, it in the unification signed the bill of lading the potency, the legal nature, the responsibility to undertake and questions and so on but actually jurisdiction has the very big promoter action. This article analysis the questions about the anti-dated bill of lading by " Transport Law (Draft)", Underby " Transport Law (Draft)",the article elaborated the potency of the anti-dated bill of lading, the legal nature of the anti-dated bill of lading, the responsibility main body and the lawsuit main body of the anti-dated bill of lading and the jurisdiction question.The full text altogether divides into five parts:The first part is about the potency of the antedate bill of lading. The present argument about the potency of anti-dated bill of lading mainly include three kinds, anti-dated bill of lading is invalid, anti-dated bill of lading is effective and anti-dated the bill of lading constituts letter of credit cheat exception .Now "Transport Law (Draft)" have been clear that anti-dated bill of lading is potency, in order to protects bill of lading right by the good intentions consignee or the good intentions possessor.The second part is about legal nature of anti-dated bill of lading. The argument mainly concentrate in four theories, respectively be the violation behavior said that the abuse of authority said that the responsibility competes gathers discusses and concludes a treaty the neglect duty theory. "Transpor Law (Draft)" has not selected a determination in the above argument's viewpoint to make sure the legal nature, but has introduced a brand-new concept - - domination, in order to influence the legal nature of anti-dated bill of lading. The domination both has the creditor's rights nature and the real right nature. Encroaching upon the domination, has encroached upon the real right and the creditor's rights.The third part is the article key point,this partment discusses responsibility main body under"TransportLaw (Draft)". "Transpor Law (Draft)" had stipulated explicitly the responsibility main body are the carrier and performing party. For the first time ,"Transport Law (Draft)" discriminates the carrier and d performing party , determined respectively different responsibility period and the responsibility scope. Carrier's responsibility period is"the gate to the gate", adopts the lattice liability system, they must undertake the Deferred delivery responsibility including damage of the cargo, the extinguish loses and the economic loss cause by delay. Performing party divides into the marine transportation performing party and other performing party .The marine transportation performing party responsibility period is"the port to the port", other performing party's period is inland transport stage, in the port to port this period, the marine transportation performing party undertake with the carrier same liability of compensation, if the damage to goods occurs in the non-marine transportation inland transport stage, other performing party's liability bases on the national law determination of this sector.In "Transport Law (Draft)", the shipper had not stipulated the responsibility main body for anti-dated bill of lading, the shipper liability of compensation foundation only should be suitable between the carrier and shipper's congruent relationship, but shippers should undertakes the liability of compensation to the consignee or the bill of lading possessor in two kind of situation :The first kind is the carrier and the shipper plots together signs the anti-dated bill of lading, the shipper and the carrier are both the responsibility main body, undertakes the association liability of compensation with the carrier;The second kind is in the shipper writes up the letter of guarantee, in the situation the carrier to sign the anti-dated bill of lading , the responsibility main body of anti-dated bill of lading was still the carrier, the shipper only undertakes based on the letter of guarantee potency is certain the liability of compensation.The fourth part involves the influence about the shipper, the consignee and the bill of lading possessor right of prosecution . "Transport Law (Draft)" the biggest breakthrough in the right of prosecution is that if the shipper can prove he suffer the loss, and the bill lading possessor has not suffered the loss, shipper can prove the carrier ,although the bill of lading has been transferred . Regarding bill of lading possessor, no matter it whether to have suffered the actual loss, may file the charge. Consignee's right of suit is smaller than the bill of lading possessor, when has suffered the actual loss only then may file the charge.The fifth part discussed the influence in the jurisdiction of anti-dated bill of lading cause by"Transport Law (Draft)" ."Transport Law (Draft)" expanded the scope of jurisdiction , make various condition to limit the effective of the bill of lading jurisdiction provision.In respected in the litigant meaning autonomous situation, acknowledged the agreement jurisdiction and the agreement arbitration potency, but made similarly to the bill of lading arbitral agreement has been various the limit.