On the release of goods without Presentation of B/L in carriage of goods by sea/董刚(12)
b. “doctrine of tort”: Once some people maintained that releasing of goods without B/L constituted the “fundamental breach of contract” in Common Law. That is to say, if the nature of breach of contract is so serious that violate the fundamental of contract, the delinquent party can’t protect himself by invoking exception clauses in contract. Mr. Yang Liangyi (HongKong) has also advocated that the act of releasing of goods without B/L constituted the fundamental breach of contract, and it should be applied the six years’ prescription.[20] In practice, the act of releasing of goods without B/L has also been regarded as fundamental breach of contract by some courts, applying the law of tort directly. But the theory
of fundamental breach of contract is merely a doctrine and has no precise criterion to estimate. So in 1980, it was upsetted by the House of Lords in the case “Photo Production Ltd.V. Securicor Transport Ltd”.[21] Now, the reason of standing for doctrine of tort is ut infro: The B/L is title of document. Its delivery and the physical delivery of goods are provided with equal authenticity, and holding the B/L is just as constructive possession of goods. The function carried out of title of document of B/L is certainly guaranteed by the carrier’s performance of obligation of delivering goods with original B/L. Once the carrier releases of goods without B/L, it constitutes the infringement of the real right owned by the holder of B/L, so it belongs to the act of tort .
总共33页
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