Several Legal Issues In The Shipment Release Without Collection Bill Of Lading

To take delivery of goods by original bill of lading is widely recognized as aninternational shipping practice and international marine transportation principle, andalso the basic obligation that should be assumed by the carriers. However, because ofdiverse reasons, the phenomenon of delivery without original bill of lading (shorted asdelivery of goods without B/L) in international marine transportation becomescommon, as a result, the disputes induced take a large percentage in the maritimetrials. Though the existence of delivery of goods without B/L has some reasonableaspects in some extent, but it is illegal. The delivery of goods without B/L may causethe shippers, the holders of the original B/L, carriers, banks and other relative partiesundertake large risk and loss, critically harm the safety of the transaction, cause theinternational trade and shipping business to adverse influence.Towards this issue, this thesis makes detailed analysis. According to the thoughtof “propose issue—analyze issue—resolve issue”, this thesis is divided into fourchapters, and twenty four thousand words approximately.The first chapter interprets the overview of the delivery of goods without B/L.Firstly, introduce the meaning and the nature; Secondly, elaborate the induced reasonsand common types; At last, analyze the influence towards international trade.The second chapter analyze the legal nature of delivery of goods without B/L.Firstly, summarize the three phases of the act of delivery of goods without B/L inChinese juridical practice, namely infringement phase, breach of contract phase, thecompetition and cooperation between infringement and breach of contract phase;Secondly, elaborate three main theories about the legal nature of delivery of goodswithout B/L in academic circles, namely infringement theory, breach of contracttheory, the competition and cooperation between infringement and breach of contracttheory; At last, raise the point of view of this thesis: the thesis considers that we cannot determine delivery of goods without B/L into one uniform nature, when thecarriers are as the obligation subjects, delivery of goods without B/L constitutes thecompetition and cooperation between infringement and breach of contract. But if inthe condition of other shipping operators make delivery of goods without B/L, it generally constitutes infringement.The third chapter mainly analyze the legal obligation of delivery of goodswithout B/L. Firstly, analyze the legal subjects of delivery of goods without B/L;Secondly, from two aspects of extent of compensation and limitation of compensationliability, discuss the compensation issues about delivery of goods without B/L; At last,conclude subject of non-responsibility. The carriers can apply for non-responsibilityaccording to the subject of the law and practice in the port of destination, no deliveryof goods in the port of destination, having exceeded limitation of actions, beingforbidden breach of promise and etc.The fourth chapter analyze the solution methods. Firstly, provide severalprotective measures of solving delivery of goods without B/L: such as selecting thesuitable terms of payment, increasing the transfer speed of documents, paying moreattention to the credit capacity of the participants, increasing the carriers’responsibility cost of delivery of goods without B/L; Secondly, from two aspects oflegislation and justice, provide the legal consideration of handling delivery of goodswithout B/L. In the aspect of legislation, utilize “the Rotterdam Rules”,complete ournation’s legislation of bill of lading. At the same time, accelerate the perfection of theMaritime Law; In the aspect of justice, strengthen relative justice explanation, exertthe guidance effects of typical cases.