Nonreceipt Of Certain Legal Issues

With the development of international trade and shipping practice, delivery of cargo without production of bill of lading becomes more and more popular. According to statistics, it accounts for approximately 15% of the total international liner services, and almost for 100% of important goods trade, such as ore and oil. And the cases maritime courts have accepted these years on delivery of cargo without production of bill of lading held large in shipping practice. In this paper, the author studied some important problems of delivery of cargo without production of bill of lading, and wish the result of such study will promote to constitute the better legal system of carriage of goods by sea in China, and will promote the development of shipping.The bill of lading was introduced from the aspects of basic law theory and some cases to analyze the legal character of delivery of cargo without production of bill of lading. In respect of the character of right in rem, the author held the point that bill of lading is a document of title, but it just is a document as a proof of indirect possession and control of goods, not ownership of goods. The holder of bill of lading has to propose other evidence to prove his ownership against the counterevidence, if it exists. So, the bill of lading exists as a prima facie evidence of goods ownership. Otherwise, bill of lading is a contract between carrier and the holder of bill of lading. Among the currently different views of point in respect of the legal character of bill of lading contract, this paper takes part with the opinion that the bill of lading contract is defined by law.So, delivery of cargo without production of bill of lading not only bears the feature of breach of bill of lading contract, but also accords with the requirement of tort. Therefore, it constitutes the combination of breach of contract and tort responsibilities. Although the Highest People's Court has concluded that delivery of cargo without production of bill of lading constitutes breach of contract in the case, Yuehai Co. Ltd., v. Cangma Co. Ltd., and Tefa Co. Ltd.,. However, when actions are both of breach and in tort, the Chinese Law gives the victim the rights to choose to sue for tort or for breach, but some limitations in applying substantive law. Further, this paper analyzes the differences in several aspects when the holder of bill of lading sue for tort or for breach of contract.By virtue of the related provisions of the Maritime Code and the General Principles of Civil Law and with reference to international shipping practice, this paper analyzes the conditions under which the carrier, actual carrier, their agent and /or terminal operator may bear liability for loss arising from delivery of cargo without production of bill of lading and the forms of such liability. The liable persons in general shall return cargo or continue to deliver cargo, or compensate for loss. This paper also discusses the method for calculation of damages from delivery of cargo without production of bill of lading. The amount of damages shall be calculated by reference to the value of such goods at the place and time at which the goods are discharged from the ship in accordance with the contract or should have been so discharged. The value of the goods shall be fixed according to the commodity exchange price, or the discharge port current marketing price, or by reference to the normal value of goods of the same kind and quality. Carrier, actual carrier or their agent may defend the claims by time limitation, exclusion clause in charter party or in bill of lading, liability limitation, estoppel and so on.In many cases of delivery of cargo without production of bill of lading, evidences the parties proposed are not accepted by Courts because of not accordance with the form regulated by related laws. This paper discusses how the holder of bill should take evidence of fact about delivery of cargo without production of bill of lading.Focusing on the main legal problems of delivery of cargo without production of bill of lading, the author conducted a systematical research from law theory and case study and tried to analyze and explain the possible issues arising from the practical cases. Therefore the result of this study was expected to provide theoretical references for both parties involved in the cases of shipping business, and to promote the fair reasonable judicature and legislation on delivery of cargo without production of bill of lading.