Carriage Of Goods By Sea, Delivery Of Goods And Their Legal Countermeasures

Since 17 century, B/L has been "invented" by European merchants.The function of B/L—document of title has made international tradechanged from barter to symbolic delivery. Today, B/L has been a key document in the way of documentary L/C, and has made a promotion of international trade tremendously. In Maritime Code of the People's Republic of China, B/L means: "A bill of lading is a document which serves as an evidence of the contract of carriage of goods by sea and the taking over or loading of the goods by the carrier, and based on which the carrier undertakes to deliver the goods against surrendering the same. A provision in the document stating that the goods are to be delivered to the order of a named person, or to order, or to bearer, constitutes such an undertaking. " In academia of maritime law, a viewpoint that B/L has three functions is accepted. They are: evidence of receipt for the goods, evidence of the contract of carriage, document of title. As document of title of goods, B/L is the warrant of delivery of goods; B/L also can be used in circulation and mortgage etc.When the carriers, his agents or others deliver the goods without original B/L, the problem appeared. This problem has been a common phenomenon in the shipping area. The forms of delivering goods without B/L are various. The most general form is delivering goods by a copy B/L plus a warrant. The major cause for delivering goods without original B/L is that the shipping time has been much shorted because of the development of the ocean-going technology. That makes the B/L can' t catch the landing. The concrete reasons of the action should be the cause of: the consignee, the carrier, or the custom of some ports.For the legal characters and obligate attributes, there are three viewpoints in the academia: tort doctrine, default doctrine and optiondoctrine. When the carrier misdelivered the goods, the holder of original B/L can make his option based on the subjective and objective conditions of the case. As to the obligate adscription of delivering goods without original B/L, the laws in most countries generally apply a strict principle to carriers. So it will be a very important thing to distinguish the carrier in the dispute of delivering goods without original B/L, it is also a puzzle problem in the maritime law. Except for the above principle, carriers can be released from his obligation for some special excuses as: delivering the goods to the administrant of port by the law or the customary rules; the approval of holder of the original B/L; warehouse keepers misdelivered after reserve; estoppels arise when the holder of B/L who is the seller claims against the buyer who obtains the goods.After the prejudices of deliver the goods without original B/L, the main ways in law to the holder' s aid are litigating or arbitrating. So it is an extremely important thing to improve our institution of proceeding relating to B/L disputes. Otherwise the stipulations of legal choice in B/L are also the problem we should pay attention to.Delivering goods without original B/L hasn' t be solved radically till now for many reasons. People also are researching for the methods practically. It has been the first choice in the international trade to amend or innovate the transport documentary system itself. Till now, people have found out three helpful ways for solving the problem about delivering goods without original B/L, they are: telex release, seaway bill, electronic B/L. At present the electronic B/L is still in study, but it would be the direction of B/L according to its safety, high efficiency and speediness. The pressing thing is to build a multilateral legal mechanism with wide sanction, make an agreement on legal effect of electronic data and standardize the operating system.