On the release of goods without Presentation of B/L in carriage of goods by sea/董刚(26)
Firstly, the obligation which the indemnity guarantees is not the obligation of contract, and is not the act itself of releasing of goods without B/L. The act of releasing of goods without B/L brings about two relationships of debt. One of it is the tort or breach of contract obligation between the carrier and the holder of original B/L. The other one is the relationship of creditor’s right between the carrier and the person who takes delivery without B/L. In my opinion, the relationship between them should be the obligation of undue enrichment. The reason is as aforesaid. The act of the person who takes delivery without B/L is conformity with the essentials of the obligation of undue enrichment. And the relationship between them can only be the obligation of undue enrichment. There’s no contractual relation between them, so the breach of contract can’t be tenable. It’s also impossible to constitute the obligation of voluntary service. Releasing of goods is the voluntary act of the carrier, not infringing his rights, so it doesn’t constitute the obligation of tort either.
总共33页
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