Case Analysis On The Right Of Requesting For Compensation For Damage Caused By The Carrier’s Delivery Of Goods Without Original Bill Of Lading

In accordance with Article Three in “Provisions of the Supreme People’ Court onSeveral Issues concerning the Application of Law during the Trial of Cases about Delivery ofGoods without an Original Bill of Lading”, the holder of original bill of lading is entitled tohave the option to request the carrier to bear either the liability for breach of contract or tort.Therefore, in judicial practices, loss caused by the release of goods without a bill of lading iscommonly acknowledged and claim by the holder of original bill of lading on his loss againstthe carrier constructs a concurrence. Based on this provision, this article has analyzed theproblems occurred in the process of exercising the right of claim for breach of contract or tortthrough two separate cases combining the bases of the two different rights of claim and thespecial provision on bill of lading. Here, the author also provides some suggestionsaccordingly in relation to the focus of dispute in the two cases.This article contains six sections in total as follows:Section One and Two introduce the causes and details of the two separate casesconcerning the exercising of two different rights of claim.Section Three abstracts and concludes on the focus of dispute upon the two Cases in fiveaspects: Identification of Type of Bill of Lading, Recognition on Identification of PrimaryLiability Assumer (Carrier), Distribution on Liability for Producing Evidences andDetermination on Standards in Choosing Evidences, Reasons for Counter Arguments ofCarrier and Scope for Claim of Loss.Section Four makes a specific analysis on the focus of dispute concluded in SectionThree based on actual cases in judicial practices and expounds the author’s views on it.In respect of recognition on type of bill of lading, the author suggests the type of bill oflading should not be mistaken as the function of bill of lading as a certification or a certificatefor lading, while the transportation contract and its certificate as well as certificate for ladingand its document of title should also be differentiated. As for the recognition on identificationof carrier, the author suggests when in a case where the liability for breach of contract isrequired by the holder of bill of lading, corresponding recognition should be conducted basedon the principle whether a transportation contract relationship is actually existed; when in acase where the liability for tort is required by the holder of bill of lading, corresponding recognition should be conducted based on primary components of tort. As for specificproblems which may occur during the exercising of right of claim, such as the distribution ofliability for producing evidences, the article also provides a systemic analysis based ondifferent actions of courts and different views of experts.Section Five concludes the restrictions on the holder of original bill of lading to exercisethe right of claim, where problems, such as the influence on legal status of the holder of bill oflading due to unclear identification on the type of bill of lading, and the difficulty inproducing evidences by the holder of bill of lading due to the elease of goods without a bill oflading, as well as unfair and unequal protection on the holder’s rights and interests due todifference in recognition on scope of claim for loss by court are represented.Section Six suggests proposals accordingly based on the analysis of cases, content ofUnited Nations Convention on Contracts for the International Carriage of Goods Wholly orPartly by Sea, and issues reflected by the focus of dispute in the cases, where the authorsuggests to introduce a control right system to separate the right of bill of lading from otherbasic rights, so that to clearly differentiate legal relationship contained in transportationcontract from that in goods purchase contract involved in transaction of bill of lading, andrealize the functions of bill of lading while still respect and protect basic legal relationships.Besides, the author also suggests that legal restrictions for carrier to release goods without abill of lading should be stipulated based on current status, where release of goods without abill of lading frequently occurs, and its cause as well as related provisions as described inUnited Nations Convention on Contracts for the International Carriage of Goods Wholly orPartly by Sea, so that to recognize primary assumer of related liability.