The act of releasing goods without a bill of lading is a frequent trade risk faced in international trade transportation. Marine bill of lading is a kind of transportation transaction certificate often used in international trade transportation, is a complex of nautical transportation and trade transactions, has an important value significance. The traditional bill of lading method will produce the transport ship arrived at the port and the bank for settlement when the bill of lading is still not given to the consignee of the problem. This causes the port blockage, the consignee can not take the economic loss of the goods in time.
Therefore, the carrier will face the problem of no bill of lading, and the consignee will suffer from the inability to receive the goods, resulting in a series of maritime disputes. According to the relevant statistics, 15% of cargo ships have the phenomenon of no-order release, and the transportation of chartered ships can reach 50%, and valuable cargoes such as minerals and oil can be as high as 100%.
Related Overview
The basic principles of international shipping point out that the carrier has the obligation and responsibility to complete the delivery in the agreed port with the original bill of lading. No bill of lading is not a written definition in the legal sense, is in the legal cases and international trade in this phenomenon occurs constantly and gradually formed the customary statement.
Our scholars for no bill of lading has done a lot of research, put forward a lot of different connotations. Thunder introduced, no bill of lading is the carrier through a copy of the bill of lading in the port of destination to complete the delivery of the behavior, that is, the carrier with a copy of the bill of lading plus a letter of guarantee to release the goods. Guo Feng pointed out in the study, no bill of lading refers to the carrier in the port of discharge without the original bill of lading in the case of the release of goods, this interpretation, no bill of lading a broader range. The concept of no bill of lading will be enlarged, Li Shouqin, no bill of lading contains two kinds of cases. In addition to the delivery of goods without the original bill of lading also contains for the withdrawal of goods with the original, this view from the delivery and delivery of goods from two different perspectives to elaborate. To sum up, no bill of lading that the carrier in the absence of the original bill of lading, the goods will be delivered to the holder of the non-original bill of lading and make the goods out of their control and the consignee face the risk of no goods phenomenon.
The manifestation of the bill of lading is various, according to the different subjects can be divided into three categories of the bill of lading. One, the carrier did not obtain the original bill of lading and the delivery person to complete the delivery behavior, this kind of in the bill of lading disputes occupy a large proportion. Second, the actual carrier in the issuance of bills of lading under the implementation of the bill of lading behavior. Third, the actual carrier in the case of the bill of lading is not issued under the implementation of the bill of lading behavior.
Legal nature
The legal nature of the bill of lading is different, the legal responsibility of its composition is also different, will cause the scope of compensation, exemption from liability and other different consequences. The legal nature of the unmanifested goods and the rights and obligations of the parties and the determination of the outcome of the litigation have a great relationship, its accurate characterization has great importance. On whether the act of releasing goods without a bill of goods is illegal is still very controversial, many scholars also have different views. In summary, the legal nature of the release of goods without a bill of goods are mainly breach of contract, tort, breach of contract and tort competing three types.
(A) breach of contract
Bill of lading in international trade shipping link is the proof of the contract of carriage, indicating the contractual relationship between the shipper and the carrier. Carrier without a bill of lading is a violation of the contract of carriage, with breach of contract nature.
China’s “maritime law” of the relevant regulations pointed out that the bill of lading enjoys the nature of the contract of carriage by sea. After the agreement between the carrier and the consignor, the contract will take effect. The bill of lading is the proof of contract, with the characteristics of the contract, which records the terms of transport. Si Yutu mentioned in his own editorial, the bill of lading contract proof of its claim effect, is to establish the rights and obligations of the carrier and the parties in the freight transport relationship based. Luo Yisong said, the consignee and the carrier between the bill of lading documents only, there is no other contractual relationship. Therefore, the consignee accepts the bill of lading, the consignee and the carrier between the contract of carriage, the carrier’s release of goods without a bill of lading violates its obligation to ensure that the consignee with the original bill of lading delivery of goods, with the nature of breach of contract, should bear the corresponding liability for breach of contract under the provisions of the bill of lading.
In addition, China’s “Contract Law” provides that the parties shall bear the corresponding responsibility for remedy or compensation if they do not fulfill their contractual obligations. The law does not require the contract of carriage is a document in rem, only to prove that both parties to the contract is the parties at the same time to prove that the consignee because of the carrier’s economic loss without a bill of lading. Therefore, whether the bill of lading has the role of evidence of property rights is not the focus, the carrier to ensure that the bill of lading with the original release of goods is the responsibility and obligation should travel. The risk of the carrier without a bill of lading, contrary to the terms of the contract, with breach of contract.
(B) tort
The premise of the tort is that the bill of lading is a document of property rights. The risk of non-billable goods caused by the original consignee can not properly extract its property, the ownership of goods infringed, the carrier shall bear the corresponding tort liability.
The tort of the bill of lading originates from the legal nature of the bill of lading, that is, the bill of lading has the nature of the document of property rights. In our country “maritime law” and civil law and regulations on whether the bill of lading is the legal nature of the document in rem, even if the bill of lading is recognized as a document in rem, the carrier in the absence of a bill of lading, the consignee does not enjoy the right of possession of the goods, the consignee and can not file a lawsuit against the carrier, only those who enjoy ownership of the goods can be prosecuted for infringement. In addition, the tort civil liability elements of the existence of loss, but no bill of lading does not necessarily occur loss of goods. This carrier tort claim is still controversial.
In this paper, from the consignee’s point of view, no bill of lading and the shipper, the original bill of lading holder does not have any contractual relationship between the original bill of lading, its behavior without the original bill of lading to lift the goods violates their property ownership, belongs to the tort.
(C) the breach of contract tort competition
When the bill of lading is the transport of evidence of property rights and the contract of carriage between the two parties, the carrier in the absence of the original bill of lading under the delivery of both the contractual obligations of the carrier and the holder of the original bill of lading infringes on the ownership of the goods, that is, no single release of goods at the same time with breach of contract and tort.
According to China’s “contract law” Article 122, breach of contract and tort liability can not coexist, civil liability bearers also need to bear only one civil liability. In practice, in accordance with the Supreme People’s Court announced the legal cases, in the absence of a single release dispute first for breach of contract disputes, the parties do not have a contract between them before they are recognized as tort disputes, in special circumstances, constituting a breach of contract and tort competing, the rights holder has the right to choose.
In this paper, the release of goods by bill of lading is not a legal requirement but the practice of international shipping, the carrier’s release of goods without a bill of lading and the contractual guarantee obligations. At the same time, the contract is the basis of the entire maritime transaction, in the case of both exist, generally will choose the default of the release of goods without a bill of lading.
Legal liability
(A) liability constitution
No bill of lading risk phenomenon of legal liability is the basis and premise of the corresponding responsibility, the elements of the existence of damage, damage results, damage results and damage between the act of causal link.
The act of releasing goods without a bill of lading violates the obligations agreed upon by both parties, and also infringes on the ownership of the legal bill of lading, resulting in the loss of interests of the shipper and the legal holder of the bill of lading, so the act is the damage.
The result of damage is that some acts cause the right subject’s property rights, personal rights, etc. to be infringed, so that the fact that the property interests are reduced or disappeared. The risk of damage is reflected externally in the bill of lading holder’s existing property reduction, internally reflected in the loss of the expected benefits available under the trade contract.
There is an inevitable causal relationship between the act of lending without a bill of lading and the results of damage, the occurrence of the risk leads to the implementation of the results of damage, and the damage is brought to the risk.
(II) Legal liability to assume
The assumption of legal responsibility is defined in two aspects: the scope of responsibility and the bearer of responsibility. The measurement of the scope of responsibility relies on the degree of damage to the goods, the bearer of responsibility is to bear the legal responsibility for the unbilled release of goods.
The calculation method stipulated in China’s Maritime Law is an objective way of calculating the subjective and objective way of calculating the liability for damages. It is stated in the regulations that the compensation for the extinction of the goods shall be based on their actual value; the compensation for damage shall be based on the difference between their actual value before and after damage or the cost of repair. No bill of lading caused the victim did not receive the goods should receive, according to the provisions of the Contract Law, compensation should be calculated according to the loss caused by the breach of contract.
In the international trade shipping, the liability of the unmanifested release of goods is generally the carrier, but in most cases the real implementation of the act is the carrier’s agent or hired person. China’s “General Principles of Civil Law” provides that the carrier must bear the corresponding legal responsibility for its agents or employees of the unmanifested release of goods, the carrier can recover from its agents or employees after taking responsibility. In judicial practice, the victim is mostly to the carrier and its agent, bond issuer, lading together with the lawsuit for compensation.
The countermeasures of risk of unbillable release of goods
With the continuous development of international trade, no bill of lading in shipping has been intensified, causing legal disputes by the theory and practice departments attach great importance. To explore the urgent need for countermeasures without a bill of lading, this paper will analyze countermeasures from the following points.
(A) prevention countermeasures
No single release of the prevention of the first need to establish a special authorized shipper bill of lading registration system, the system requires the shipper in the carrier issued a bill of lading, the carrier can query the registration system to determine the identity of the consignee, according to the instructions specified in the system to complete the delivery of goods before the responsibility for delivery is completed. Second, in the shipping process can be used in other documents instead of bill of lading. For example: electronic bill of lading, sea waybill, etc. Finally, the exporter should carry out a reasonable and effective internal control, including the establishment of a sound organizational structure and their own take coordination, etc. Strengthen the contract control, agree on the appropriate trade mode, clear responsibility attribution without a bill of lading, do a good job of risk prevention and risk transfer in advance.
(B) Solution measures
Preventive measures in the trade process can only reduce the risk of non-billable goods, but the real occurrence of the loss, it is necessary for the parties to take immediate measures. First of all, the victim should actively look for the evidence of non-billable goods, due to the special nature of the act of non-billable goods, this is a little difficult. Secondly, the parties should correctly choose the object of the complaint, clearly identify the identity of the defendant and the legal responsibility to be borne. Finally, the parties in the statute of limitations should righteously assert their litigation rights, clear expiration date, clear their rights.
(C) feedback countermeasures
In the international trade process to solve the problem of economic losses brought about by the non-bill release, as the carrier and the two sides of the trade to have the process of reflection and feedback. Shippers to have a sense of risk, the choice of carriers to have clear boundaries, learn from the experience and lessons brought about in the process of loss of interest, to prevent the risk of loss again. The carrier should be responsible in accordance with the provisions of the delivery, to reduce the incidence of risk without a bill of lading. The consignee should receive the port in time with the original bill of lading to reduce the insertion of malicious persons and reduce the risk of international trade losses.
Conclusion
The act of releasing goods without a bill of lading is the international trade without legal provisions of the trade delivery method, is difficult to avoid the risk of both sides of international trade, will bring great economic losses to the three parties in the trading system. Therefore, effective measures to prevent the occurrence of risk and targeted solutions are the most important in international trade to deal with the behavior of non-billable goods. At present, the legal nature of the act of releasing goods without a bill of lading is somewhat controversial, and the corresponding legal responsibilities are also very different, requiring specific analysis of specific issues.
In international trade, in order to avoid the loss of economic interests brought about by the unmanifested release of goods, the trade parties should do the necessary risk prevention measures, clarify the risk of unmanifested release of goods, actively take countermeasures, improve the international trade transport system, and gradually establish a standardized international trade market.