On the release of goods without Presentation of B/L in carriage of goods by sea/董刚(16)
VI. “Doctrine of assignment”: The transfer of the B/L means the assignment of the contract of carriage. The consignee absorbs the relation of the original contract of carriage between the shipper and carrier. But according to the theory of assignment of creditor’s right, the assigner should withdraw from the relation of obligation.[27] Actually, the contractual relation between carrier and shipper is not rescinded. And the consignee’s rights and duties assigned may be different from the shipper’s. In 1845, the judge explained in the case “Thompson .V. Doming”, “Nothing could demonstrate that in any commercial customs the B/L can assign the contract. The B/L can only assign the real right not the contract”. [28]
In my opinion, it is the B/L’s character of document of obligation that determines the relation of debt formed between the carrier and the holder of B/L subject to the shipper.
This relation is independent to the contract of carriage between them. It’s based on the act of B/L (act of security). It commences from being issued and terminates when being written off. Its exertion and disposition are usually through taking possession of or assigning the B/L. Because of the abstract character of the document of obligation, the rights of the holder of B/L are not influenced by the defect of the shipper’s rights. While the transfer of B/L is different from the assignment contract, so it’s not necessary to notice the carrier of transferring the B/L by endorsement. The holder of B/L is entitled to the rights when acquiring the B/L. In accordance with the written nature of B/L, the character and content of the holder’s rights are different from the shipper’s. The B/L is “conclusive evidence” in the holder’s hand. So the transfer of B/L has two effects:
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