Delivery Legal Nature Of International Maritime Transport Of Goods

International marine transportation is considered as an important part in international trade. A smooth delivery of goods in a proper way at the destination port not only has something to do with the completion of certain duties under the contract of carriage of goods by the carrier, but also has impacts on the trading parties involved in terms of benefits. This thesis focuses on the legal nature of taking delivery of goods in international marine transportation. In the process of research, the author of the thesis has made comprehensive use of the theory of rights and obligations in jurisprudence, the related stipulations in Law of Contract , CMC as well as the international marine practice to define the legal nature of taking delivery of goods and analyze the specific rights and duties. In doing so, the author of the thesis addresses the problems and solutions of none-taking delivery of goods at the port of destination in the hope of contributing to the development of the maritime law of the P.R.C.Besides the Introduction and Conclusion, this thesis is divided into four parts. Part One tries to define some key terms used in international marine transportation, such as taking delivery of goods, subject taking delivery of goods, none-taking delivery of goods at the port of destination and so on. In international marine transportation, taking delivery of goods means the authorized party has the right to claim the cargo based on the international marine contract of carriage and complete the entire process of possession shifting from the carrier to the obligee. Taking delivery of goods should be conducted in accordance with the legal rules and can cause some problems in terms of civil legal affairs. The entire process of taking delivery of goods can be divided into two steps. Firstly the carrier or the agent of the carrier will finish the formalities of taking delivery of goods. Secondly the handing-over of cargo will be effected in the process of taking delivery of goods. It is necessary to elaborate on the behavior of delivering the goods in a discussion of taking delivery of goods. The two concepts have the similar meanings which represent the shift of holding under the creditor's rights. The right to request delivery of the goods means that right holder has the right to ask the carrier to deliver the goods involved depending on the bill of lading. This right should have two meanings: firstly, the right to request the carrier to deliver the goods; secondly the carrier must deliver the goods strictly in accordance with the bill of lading. The legal relations of taking delivery of goods involved in the right of requesting delivery of goods is tendentiously summarized as the legal relationship of the creditor's rights by the academia.Part Two analyzes the legal nature of taking delivery of goods in international marine transportation. In the theory of the civil law, taking delivery of goods falls into the category of assignment by the creditor. By using the comparative method, this thesis compares and analyzes the legal nature of "assignment" in different regions including ancient Rome, France, German, Japan and so. The author of the thesis puts forward the idea of the "co-operator" so as to explain the nature of taking delivery of goods. The nature of the obligation involves theoretical disputes including assisting in the accompanying obligation, obliegenheit and contractual obligations. This thesis holds the view that in certain types of contracts such as the sales and purchase agreement, forwarder contracts and transportation contracts, the action of taking goods constitutes an integral part of the contract, where a special kind of synergy is formed between the two parties concerned, and the conduct of the two sides should not be considered separately. Therefore, the particular right holder also has the obligations of taking delivery of goods while enjoying rights therein.Part Three discusses the rights, obligations and responsibilities of the subject which takes delivery of goods. According to the principle of the relative nature of contract in the Contract Law, the parties have rights and obligations due to the agreement in the contract. Therefore, the carrier and the shipper are the signing parties of the marine transportation contract, and of course, the shipper has the rights and corresponding obligations in the contract of marine carriage of goods. Meanwhile, the relative nature of the contract has been violated with the establishment of the contract preservation system, the creditor's rights turning into property rights and the development of the coincidence of the liability. According to Clause 2, Article 78, the CMC, the rights and obligations between the carrier, the consignee and the bearer should exist in accordance with the provisions of the bill of lading. Therefore, the consignee and the bearer have an access to the carrier's request right in the delivery process and other related rights, obligations and responsibilities directly and independently. The thesis defines the concepts of consignee, bearer and shipper and analyzes the relevant rights and obligations respectively in taking delivery of goods. In the expositions, the author is not confined to the fundamental right of taking delivery of goods but also focuses on the various parties' relevant rights and obligations involved in the whole process. While some scholars hold the view that the consignee's obligations of taking delivery of goods are not mandatory, the present thesis, by analyzing the issue both theoretically and in practice, argues that it is still an action in terms of the nature of rights and obligations.Part Four deals with the problems and solutions of none-taking delivery of goods at the port of destination. The specific rights and obligations of the subject which takes delivery of goods have practical significance only when delivering and taking delivery of goods have been achieved. Under normal circumstances, goods to the destination port will be taken by the right holder timely and this should also be expected reasonably by the carrier. Very often, the reasonable expectations of this kind by the carrier may not be fulfilled in practice. The problem of none-taking delivery of goods occurs frequently and has been becoming an increasingly serious problem especially when the container liner shipping has become the most important mode in international maritime transportation. It will bring adverse consequences to the related parties and put them in a very embarrassing situation. So the analysis of the problem of none-taking delivery of goods has some practical significance. The present thesis summarizes three situations which lead to none-taking delivery of goods. Firstly, the disputes in the international contract for the sale of goods lead to none-taking delivery of goods. Secondly, the changes of the market lead to none-taking delivery of goods. Thirdly, the national laws, regulations and quarantine or trade systems of the destination port may lead to none-taking delivery of goods. Finally, on the basis of analyzing the difficult situation faced by the carrier, the author of the thesis suggests solutions to this problem in terms of improving the application of the relevant provisions in CMC and the Customs Law.