On the release of goods without Presentation of B/L in carriage of goods by sea/董刚(17)
(a): the effect of assigning the right: The assignee is entitled to the creditor’s right claim and the indirect possession of goods after acquiring the B/L. (b): the effect of awarding qualification: the assignee’s rights are not influenced by the defect of the assignor’s rights. So, the provision 78 of《Maritime Law of PRC》 “The relationship between the carrier, consignee and the holder of B/L with respect to their rights and obligations shall be defined by the clause of B/L.” is the reflection of the creditor’s right validity of B/L.
The cause of action two: “torts”
At first, we should clarify two questions. The first one is that, title of document doesn’t represent the ownership of goods as mentioned above. When the B/L is controlled by consignee, the ownership of goods may still belong to the shipper because of the “retention of title clause”. Under the circumstance of L/C, the issuing band has the pledge to the B/L if the consignee doesn’t redeem of documents by paying the bank, The second one is that, according to usual parlance, the definition of “ act of tort” is the act which aggresses upon other’s dominated rights or interests protected by law illegally and the conductor should take the responsibility for the damage.[29] So the object of act of tort is real right, intellectual property, personal right, etc. So the view that the premise of tort obligation is the claimer having the ownership of goods when the act of tort occurs is wrong.[30] Because the right of possession is a kind of real right, once it can constitute the four essentials of act of tort, the holder of B/L can also investigate and affix the responsibility to carrier for infringement of physical possession.
总共33页
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