On the release of goods without Presentation of B/L in carriage of goods by sea/董刚(15)
II. Doctrine of implied contract: The view of the doctrine is that the relationship between the carrier and the holder of B/L subject to the shipper is a new contract of carriage independent to the contract between the shipper and carriage. It’s based on the legal provisions. But the doctrine neglects the consensus in idem of the two parties, and confuses the differences between the contractual debt and the debt occurred by unilateral act.
III. Doctrine of agency: The view of the doctrine is that the contract of carriage is concluded by carrier and consignee, and the shipper who enters into the contract specificly only acts as the agent of consignee. Actually, the situation is only applied for named B/L and FOB contract.[26]
V. “Doctrine of third party contract”: It’s a very popular viewpoint in current: when the shipper and consignee are not the same person, the shipper concludes the contract of carriage for the benefit of the consignee. But the doctrine cannot be tenable if analyzed carefully. According to the validity of contract which benefits the third party, the rights and duties of consignee depend on the agreement of carrier and shipper. Moreover, the right of consignee is traversed by all the demurs the carrier presents to the shipper. This is not profitable to protect the interests of consignee. And it’s not in conformity with the principle of taking delivery or claiming for damages only with clean B/L.
总共33页
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