On the release of goods without Presentation of B/L in carriage of goods by sea/董刚(13)
c. “Doctrine of concurrent”: It advocates the B/L is provided with both the real right and creditor’s right character. Not only can the holder of B/L claim to the carrier for restitution or undertaking the tort responsibility for compensation for damages based on the real right’s claim, but also can he claim to the carrier for bearing the responsibility for breach of contract based on the creditor’s claim.[22] This advocation is accepted universely by theoretical circle. In the article《Delivery without B/L》, Mr. Yang Liangyi illustrated definitely that: the legal consequence of releasing of goods without B/L is two potential responsibilities the carrier should take: one of them is contractual responsibility, and the other is encroachment responsibility.[23]
d. “Doctrine of tort exception”: It’s the view identified by the judicial and practical circle. The main content of this view is that the character of B/L determines the cause of action is contract dispute, only when the carrier has fraudulent conduct, the tort can be tenable.[24] It is based on the reason that, the B/L legislation has established the basic rights and duties of both shipping and goods parties, unless the carrier adds the responsibility to himself, the legislative provisions will be incorporated into B/L. The same as the B/L clauses agreed by the parties, they’re the outcome of autonomy of will of both parties, so the dispute happened by reason of relationship off B/L is contract action not tort action.
总共33页
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