On the release of goods without Presentation of B/L in carriage of goods by sea/董刚(32)
Summarizing all the mentioned above, the legal character of B/L determines the absence of legal basis of the act of releasing of goods without B/L. It waves the legal position of B/L as the title of document. We should not quanlificate uniformly to the responsibility of this act. Instead, we should analyze all the responsibility which may result in, such as breach of contract, tort, concurrent of responsibility and unreal joint and several responsibilities according to the concrete situations. While at present, to some extent, the act of taking delivery with copied B/L in addition to letter of guarantee is beneficial to accelerate to the circulation of goods and relieve the pressure of the crowded port. But it’s also an infringement to the interest of the holder of original B/L if adopted frequently. The criterion of “good faith and malice” in juridical practice is different to grasp, so we’d better stipulate the issue of letter of guarantee definitely in the 《Maritime Law of PRC》. I suggest adopting the following model: “Letter of guarantee is the contract of suretyship between the carrier and the person who takes delivery without B/L. It is the accessory obligation of the master obligation of undue enrichment. The validity about it is in the light of the regulations of 《Guarantee Law of PRC》. At present, the several resolutions which people have presented are reasonable to some extent, but all of them have disadvantageous either. In the finial analysis, the solving of the problem lies in enhancing people’s legal ideology, and clarifying the risk of releasing of goods without B/L. Moreover, we should cut down the barriers in the process of exchange of documents. Find out the best balance point between justice， Security and efficiency from the respects of subjective and objective.
总共33页
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