On the release of goods without Presentation of B/L in carriage of goods by sea/董刚(14)
The four doctrines mentioned above are the typical doctrines about the responsibility attribution of releasing of goods without B/L. But in my opinion, all of them are partial and not comprehensive. The form of releasing of goods without B/L is diversified and B/L possesses the attribution of both title of document and document of obligation. All of these determine that the act of releasing of goods without B/L cannot be qualitated uniformly. We should analyze the responsibility attribution logically in accordance with concrete matters.
a. If the holder of B/L is not shipper:
(a). The holder of B/L can sue the carrier:
The cause of action one: “Breach of contract”. The premise that the holder of B/L can sue the carrier is the existence of relationship of contract between them. But all the current doctrines have the problems which cannot be explained.
I. Doctrine of legal provisions: It advocates that the consignee entitled to the right is based on the legal provision, and the shipper’s rights are suspending when the carrier acquires the rights. So the carrier’s out of releasing of goods without B/L should be regarded as breach of contract by reason of not performing the legal provision debt.[25] But the view of the doctrine violates the basic premise that the responsibility of breach of contract is based on the lawful relationship of contract.
总共33页
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