| The bill of lading can be divided into different types according to different criteria, for example, in accordance with the bill of lading any notation, bill of lading can be divided into clean bill of lading and unclear or foul bill of lading. Clean bill of lading refers to the delivery of the goods by the shipper to the carrier, the surface condition is in good condition, the carrier or its agent does not add any damage on the bill of lading, packing or other hazardous to the settlement of exchange notation. Accordingly, bad appearance, when loading the goods, the carrier or its agent filling clause on the mate’s receipt and bill of lading shows the bill of lading, as an unclear bill of lading. In international shipping and trade, bank collection usually need a clean bill of lading for the settlement of exchange. Because unclear bill of lading means outer packing of goods defective, suggests inherent quality cannot be guaranteed, this bill of lading is very difficult to transfer, bank settlement, generally do not accept unclear bill of lading. And the carrier at the time of acceptance of defective goods, the surface condition of the goods or the actual losses tend to be truthfully endorse the bill of lading, the consignee for the future exemption. And the seller(consignor) are often willing to issue a guarantee,to the carrier in exchange for clean bill of lading, after all, replacing the packaging of goods or the defective goods need more time, shipment delay is a great economic loss. In this condition, the carrier thinks not only loss can be avoided, but also can avoid responsibility for their own compensation consignee, consignor may also make access to clean bill of lading for the bank settlement. Therefore, in the actual transport, this approach appears a lot, and unclear bill of ladings are rare. In fact, once the shipper issued a clean bill of lading, they must be responsible for clean condition of goods, if defects or major damage occurs during the delivery, it is easy moniker "fraud charges." Letter of guarantee is actually issued by the shipper to the carrier guarantee, usually for ensuring the liability of the carrier for the third parties due to the absence of lading endorsement caused. Provide indemnity case there are two: one is the shipper and the carrier on the quantity of goods, weight or appearance of the packaging and other issues when no agreement issued; the other is both knowing look bad goods should be in the bill of lading do without the endorsement situation. Former general is to be settled as soon as possible when they looks on cargo shipment, smoothly to trade, the latter is obvious fraud. Given this flexible approach can provide convenience for the export transport to some extent, one proposition of transport is to allow this practice continues to execute, not restrict it in international convention; Another argument is that bond will produce fraud in many cases and they declared letter of guarantee is invalid to protect the consignee in the convention. At first, the United Kingdom, the United States, France and other maritime powers hold serious and rigorous attitude to letter of guarantee. Many international organizations such as international ship owners’ association, the international maritime law association, the international chamber of commerce, international Marine insurance association, etc., were also deny the validity of the letter of guarantee. Later, as the guarantee for clean bill of lading is growing, the fraud phenomenon appeared, specification guarantee have to think about the issues. 1978 "Hamburg Rules" before, "Hague Rules" and "Visby Rules" did not make specific provisions for the bond issue. In order to meet the development needs of the Sea Merchants practice in 1978 "Hamburg Rules" for the first time into the effectiveness of the guarantee provisions. The Rule 17, paragraph 2, of the third party guarantee is invalid; Paragraph 3 provides that, in the absence of fraudulent intent guarantee the case between the carrier and the shipper effective; Paragraph 4 is further provides that bond with a fraudulent intent, the carrier shall indemnify the loss of a third party, and shall enjoy the limitation of liability under the Convention. Therefore, the carrier should be taken when accepting guarantees cautious attitude, not with the intent to defraud.Since then, not only the Hamburg rules, but also most countries are support bona fide guarantee is valid and malicious guarantee is not valid. China’s maritime trial practice also shows the trend. The so-called goodwill guarantee refers to the issue of guarantees in exchange for clean bill of lading, and the carrier, the shipper or consignee are no fraudulent intent of lading holder, only to quickly fulfill trade contracts, there is no appearance in the case of goods under significant adverse circumstances, the consignor guarantees, clean bill of lading issued by the carrier. And malicious guarantee refers to the carrier in the goods packing, severe damage cases accept letter of guarantee, issue a clean bill of lading, or associated with the shipper of fraud or other holder of the bill of lading, the consignee will not be visible goods surface blemishes notation, secretly reach a guarantee agreement. The “Hamburg rules” stipulated such malicious guarantee there is no effect in principle. Letter of guarantee is invalid means that the carrier can’t claim rights from the shipper, but must be liable for damage to the consignee without reason. Therefore, for the carrier, accept letter of guarantee and clean bill of lading there is a big risk. Not only that, but this approach for the shipper, consignee and shipping the underwriter has the legal risks also. To prevent the legal risks, the most fundamental is to clear the effectiveness of the clean bill of lading guarantee from the legislation, malicious guarantee of rules and regulations, establish a responsibility system, etc., to effectively restrain the use of letter of guarantee for the bill of lading fraud phenomenon. Of course, it is not enough to perfect legislation and, should also be combined with practice. Goodwill should be determined from the Angle of legislation and practice of double bond in the specific standard of goodwill, to judge the time frames in return for a guarantee, clean bill of lading. In judicial practice, strengthen the education of the trial, regulating the exercise of the judge’s discretion, the judgement of benign guarantee will be more fair and reasonable, convincing. For the shipper, should guarantee the quality of delivery and packaging specifications, for the carrier, should be careful to issue a clean bill of lading. For the consignee, when open the L/C, the bank agreed to unclean bill of lading can be accepted to a certain extent, will also wipe out some obstacles for trading. In addition, in terms of technology, if the EDI technology applied to the maritime trade in our country as soon as possible, the negative impact of with a letter of guarantee for clean bill of lading will be reduced.Current the effectiveness and properties of the letter of guarantee for the clean bill of lading have been discussed more, this paper pay more attention to what legal risk of letter of guarantee for clean bill of lading, combined with the case, the paper will give the corresponding risk prevention a First chapter describes the concept guarantees clean bill of exchange, analysis of the nature and effect of such practices. The second chapter, from the time the guarantee potency and effectiveness of people in exchange for the guarantee of the effectiveness of specific clean bill outlining the former "Hamburg Rules", some countries do not recognize the effectiveness of clean bill of exchange for the guarantee, the "Hamburg Rules" after the enactment of the International clean bill of exchange for guarantees on the mainstream approach is effective in good faith, and only to the carrier and the shipper. Then, analyses the difference between guarantee and ill guarantee, combined with the case, pointed out our country existing legislation and trial of letter of guarantee for the attitude of the clean bill of lading. The third chapter, from the perspective of the shipper, the carrier, the consignee, the underwriter, analysis with the letter of guarantee for clean bill of lading may have legal risk, and puts forward corresponding preventive Suggestions, especially on the current "maritime law" provision of the letter of guarantee for clean bill of lading and give some legislative Suggestions. Finally, from the Angle of practice, put forward prevention strategies. Specifically, it is suggested that our country legislation must be bona fide guarantee law, rules of malicious guarantee is not valid. Fraud third-party guarantee is not protected by law, not only to the third party is invalid, in between the carrier and the shipper is invalid. Malicious letter of guarantee issued by a person with the recipient no longer enjoy any liability limit. Cargo status didn’t agree with the bill of lading, the carrier shall undertake liability for the consignee. Enjoy notation permissions as a carrier, but abuse shall bear the corresponding legal consequences. Perfecting the legislation is to ensure that laws, only legislation, has no scientific practice to promote the development of shipping business. In terms of specifications with a guarantee for the practice of clean bill of lading, shall establish a mechanism of the notary inspection before shipment, clear the goods at the time of shipment is clean, and will do notarization record appearance condition, asking whether the notary organ can use the letter of guarantee for clean bill of lading, with professional methods to identify and guarantee the authenticity of bills of lading. As between the carrier and the shipper agree, in exchange for clean bill of lading guarantee is concluded by the parties under the principles of freedom, but shall comply with laws and regulations, does not damage the interests of others, so the specific contents of the letter of guarantee to strict review. In addition, the shipper as an important subject of commercial trade, and shall adhere to the principle of good faith, packing, delivery, the goods properly in accordance with the contract, the shipper as an important participant of maritime trade, kindly issue a bill of lading.By the above, is intended more comprehensive interpretation of international transport by the Sea Merchants guarantee clean bill of exchange phenomena, and this practice legal risks adequately interpret, given proposed legislation and practice to prevent double level. |
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