On the release of goods without Presentation of B/L in carriage of goods by sea/董刚(22)
The cause of action two: “tort”: the reason is as aforesaid.
(b). The holder of B/L sues the person who takes delivery without B/L.
The cause of action one: “tort”
The cause of action two: “Undue enrichment”. The reason is as aforesaid mentioned.
(c). If the person who takes delivery without B/L is the buyer of contract:
Because of the carrier’s act of releasing of goods without original B/L to the buyer of contract on sale, the buyer doesn’t redeem the documents by paying the seller. The seller controls the B/L, but both the goods and money are lost. So the seller can recover of payment to the buyer.
In practice, the holder of B/L usually brings an action against only the carrier or all the debtors to court, so the court is always confused when placing a case on file for investigation and prosecution or hearing case.[35]
Actually, it constitutes the unreal joint and several liabilities of civil law. Namely, according to the different legal relationships, the obligee enjoys the right of claim to several debtors in the content of uniform subject of matter. No matter from which debtor the creditor’s right is satisfied, all the debts of the other debtors will extinct. In theory, the unreal joint and several liabilities are the co-existence of rights, and the obligee can not only claim to one debtor for performing the debts, but also he can claim to several debtors for performing the unreal joint and several liabilities. In the case of releasing of goods without B/L, the obliges of several legal relationships are uniform—— the holder of B/L, but the debtors are different. The subject of matter of several legal relationships is unanimous. The right that they advocate is the ownership of the goods. If the holder of B/L claims to any debtor for the substantive right successfully, the other debtors’ obligations will extinct.
总共33页
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