[ 董剛 ]——(2004-1-16) / 已閱37525次
On the release of goods without Presentation of B/L in carriage of goods by sea
——Taking into consideration the introspection and query to the focus of issue of releasing of goods without B/L
Summary Introduction
Bills of lading, the document invented by European merchant, has become the basis of international trade and shipping by hundreds of years’ practice, customs and improvements.[1] These years, the case of taking delivery without B/L has been a large proportion in maritime trials, becoming the focus of the issue of B/L. It has been a long time people argued its nature, legal responsibility and the legal validity of the letter of guarantee. Some people even say “taking delivery without B/L nearly is one of the ‘aberrant’ ocean carriage acts relating to the most problems in theory and practice.”[2] It will be necessary to thrash over the problem for carrier, the owner of goods, agent of shipping and goods and the parties of trade, and it will be beneficial to improve our credit of foreign trade. This article will regulate these issues systematically and try to interpellate the viewpoint about the character of this act and the validity of the letter of guarantee. Meanwhile it will recognize the legal responsibility of the issue logically from a new angular .At last it will give some resolutions to solve the problem of taking delivery without original B/L.
List of content
1. Legal basis of taking delivery with original B/L:
(a). The legal character of B/L demands of taking delivery with original B/L
(b). Taking delivery with original B/L is an international usage
2. The judgment, causality, typical model and demur of the act of releasing of goods without B/L:
(a). The criterion for judgment of the act of releasing of goods without B/L
(b). The causality and typical model of releasing of goods without B/L
(c). The demur of releasing of goods without B/L
3. The responsibility attribution and exertion of legal capacity to sue of releasing of goods without B/L—— the criticism to the “doctrine of breach of contract ”, “doctrine of tort ”, “doctrine of concurrent”
(a). The doctrines of the responsibility attribution of releasing of goods without B/L and the evaluation of them
(b). The posteriori from the logically subsequent of the responsibility attribution of releasing of goods without B/L
4. Letter of guarantee of releasing of goods without B/L—— the interpellation to recent theory and practice
(a). The nature of letter of guarantee
(b). The validity of letter of guarantee —— the interpellation to the criterion of “good faith and malice”.
(c). The extending tendency of the independence of letter of guarantee ——Demand Guarantees.
5. The resolution to the issue of releasing of goods without B/L.
(a). The advice given to solve the issue
(b). The evaluation to the advice mentioned above and the viewpoint about it
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