On the release of goods without Presentation of B/L in carriage of goods by sea/董刚(11)
3. The responsibility attribution and exertion of legal capacity to sue of releasing of goods without B/L[15]——the criticism to the “doctrine of breach of contract”. “doctrine of tort”. “doctrine of concurrent”.
In recent years, the problem of the responsibility attribution has become the focus of controversy among the parties in lawsuit, the forward position hot spot of academic circles in maritime law and the difficult spot of equivalent case the court tries.
The different qualitations to the act of releasing of goods without B/L have direct relationship with both the ascertainment of the parties’ rights and duties and the result of litigation. The judicial and academic circles views are as followed:
a. “doctrine of breach of contract”: On one hand, delivering the goods to the person who has the right to own is one of the agreed matters according to the contract of carriage. Not performing the obligation, the carrier will undertake the responsibility for breaching of contract to the contract-party evidenced by B/L.[16] One the other hand, when the B/L is assigned to the bona fide third party including the consignee, once the assignee accepts the B/L, it means acquiescing the term of B/L. It results in the unanimous of expression of intention has formed between the carrier and bona fide assignee of B/L. The B/L plays a role of contract of carriage, and becomes the basis of exercising the right of claim to the holder of B/L. So the carrier’s act of releasing of goods without B/L constitutes the breach of commitment that he had pledge to deliver the goods to the assignee of B/L. This is called by academic circle “doctrine of implied contract” between the carrier and the holder of B/L. Besides there’re “doctrine of agency”[17], “doctrine of assignment of contract”[18], and so on. In judicial practice, in the appeal case “Yuehai Electronic Ltd Company V BaoMa carriage Ltd Company of tendering Bureau” in August27, 1996, the Supreme People’s Court found the carrier should undertake the responsibility for breaching of contract to make up for the loss of the lawful holder of B/L by reason of releasing of goods without B/L.[19]
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