On the release of goods without Presentation of B/L in carriage of goods by sea/董刚(18)
The holder of B/L can claim not only the responsibility of breach of contract but also the responsibility of torts, so it constitutes the concurrent of claim. Namely, one fact is in conformity with several essentials of norm of claim. The holder of B/L can choose the most profitable cause of action to sue according to the differences in the respect of imputation cause, burden of proof, prescription, essentials, form of responsibility, jurisdiction, applicable law, and so on.
(b). The holder of B/L can sue the person taking delivery without B/L:
The cause of action one: “torts”
The reason is as aforesaid, moreover there is no any contractual relation between the holder of B/L and the person who takes delivery without B/L, so the cause of action is tort unequivocally. In the light of the dominated view in civil law academic and practical circles, the causation of tort should adopt the doctrine of appropriate causation, that is to say, “if only one fact possessed, according to the social common experience, it will result in the same result as the fact of damage.”[31]
总共33页
[1] [2] [3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13] [14] [15] [16] [17] 18
[19] [20] [21] [22] [23] [24] [25] [26] [27] [28] [29] [30] [31] [32] [33] 上一页 下一页