On the release of goods without Presentation of B/L in carriage of goods by sea/董刚(25)
Since a long-term period, the most typical standing point about the validity of letter of guarantee is judging the validity according to the good faith or malice of guarantor: the malice letter of guarantee is invalid, and the good faith letter of guarantee is valid only between the relative person.[37] This viewpoint is very popular in the recent academic circle and maritime trial because of the influence of sub-section 2 and 3 of Provision 17, 《Hamburg Rules》[38].
But it is difficult to operate in practice. The criterion of good faith and malice is difficult to grasp, and doesn’t take notice of the character of letter of guarantee. Once some people stressed that according to the Provision 5 of 《Guarantee Law》: “The contract of guarantee is the accessory contract of master contract, if the master contract is invalid, the accessory contract is invalid either”. Because the act of releasing of goods without B/L is absence of legal basis, belonging to illegal activity, the letter of guarantee as the contract of suretyship is invalid either.[39] This standing point recognizes that we should inquire into the issue of the validity of indemnity from the angle of accessory obligation of guarantee contract, but it is not tenable.
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