goods release without B/L
...y the same as before. This situation leads to the result that after the cargo arrives at the destination already the original Bill of Lading has not been transferred to the receiver. In order to lift good in time so as to resale or to use cargo in other field the receiver usually inquire the carrier to goods release without B/L. 2. The Lost or Damage of Bill of Lading It common in the navigation that because of shipper, receiver or their deputy’s fort the Bill of Lading got lost or damage. In order to fulfill the trade contract if the receiver can prove that he himself is the assignee of the B/L and can give satisfied explanation of the B/L, the carrier has the right to consign the cargo to the receiver. But the procession of lifting goods should after 催告、公示 with warrantee. 3.shipper指示承运人 If the shipper and the carrier have clause of C.I.F. in the transportation contract, the carrier could consign the good with the designation of shipper under this circumstance the receiver need not to show the original Bill of Lading. 4.Habit of the Harbors In some harbor there are the habit of goods release without B/L，so inevitably the carrier consign the goods to the receiver. 5. Law of the destination’s country If there is clear and definite provision in the destination harbor country’s law, no matter the receiver show the original bill of lading or not the carrier should consign the goods to the receiver. 6. Country’s Compulsory The government of one nation has the right take over the goods compulsorily if the goods are smuggled. 7. Forge of Bill of Lading If the third party forges the original bill of lading to lift good but the carrier cannot identify its fault and consign the goods. It is also another kind of goods release without B/L。 8. Other circumstance The consignee is unknown or 提货人refuse to lift goods, the carrier need not to consign goods with original bill of lading only have to consign the goods to the harbor or legally operating warehouse. 3、Definition of Goods release without B/L As an important single certificate Bill of lading plays a unique role in transportation trade and settling payment. We must in different fields to study the Owning right property of the B/L. 3.1 Bill of Lading in the clearance of Letter of Credit——secured property right The seller became the user of letter of credit after the seller got the Bill of Lading. And the seller can show the B/L to the bank to negotiate in order to settling payment and then the Bill of Lading in the procession of settling payment. If the B/L settling payment is under the letter of credit, If the applicant of L/C or buyer 不向银行赎单, 或银行之间发生纠纷，则提单可以被银行质压或留置.If the applicant of L/C or buyer turn to the bank for credit finance can set collateral right for the B/L Therefore the Bill of Lading in the procession of settling payment servers only as secured property in order assure the bank can receive their credit paid in advance. And the basis is the contract between the bank and the applicant of L/C. 3.2 Bill of Lading in Trade——Owning right property Before the buyer’s B/L endowment he must got a contract with the endorsee as consideration. The procession is the same if formal endorsee reendorses the B/L. In this procession the function of B/L is document of title or more accurately the possession of goods, namely sell the B/L means sell the goods. The endorsee can also mortgage the B/L in order to get loan from the bank or from other person or firm. The basis is the mortgage contract. So in this situation the B/L become Owning right property See from mentioned above 物权效力the effectiveness of property right of the B/L originate from its transferability, it does great benefit for transferring and settlement. And the basis is the contracts, practices, and the regulations and it has not direct relation of transportation. 3.3 Bill of Lading in Transportation without owning right property According to the Maritime Commercial Law, the receiver is the person has the right to so the last person who shows the B/L is the legal person to inquire the carrier for the cargo. The right and obligation relation between the holders of are all based on the bill of lading. So when the last holder of the bill of lading inquire for the good, the bill of lading is no longer the document of title it returns to the field of transportation serve as certification of transportation contract, cargo receipt and the prove the carrier in order to consign cargo. The basis this function are the clause in the transportation contact and in the Maritime Law or Law of Bill of Lading. So if there is not any clear provision of bill of lading’s function of document of title, we cannot take it for granted that the bill of lading serves as document of title. And here the holder we discuss should only be the legal one. So in the transportation no matter it serve as transportation contract or warehousing contract or a certificate to consign cargo there is only one judicial relationship of credit right, which embodies the rights and obligations of some related contracts. And the bill of lading holder’s right of inquiring the cargo is based on this right. According to the Clause 78 of the Maritime Commercial Law of china, “the right and obligation relationship between the carrier, receiver and the holder of the bill is defined according to the prescript of the bill” which also certifies that the related contract and law modifies the relation of the all parties of carrier, receiver and the bill of lading’s holder. So the receiver or bill of lading’s holder’s right is not property right but contract right. Goods release without B/L usually occurs in the procession of delivering that the carrier breach the warrantee of delivering cargo at paying bill of lading. It is a kind of breaching of contract not an intrude of the receiver’s or bill of lading hold’s property right. Seen from above, the different understandings of bill of lading’s function lead to different results of the trial. And thus the bill of lading should not be the only factor considered in one trial. However there is not any prescription about the bill of lading’s function as document of title. Even there is not any conceptions of property right or some related things. So under this circumstance the court cannot take the function of document of title as the only standard to try the case and should not just one party lost the right of appeal or not. So I think in transportation, bill of lading is the certificate that the carrier rely on to consign cargo to the legal holder of bill of lading and it is a kind of judicial relationship of right of action, which embodies the right and obligation of some relevant department. At the same time however, if the carrier breach the liability and warrantee of consigning goods at bill of lading it is a kind of contract breach. And under the current legal system, if there are not any reliable counterevidence or the bill of lading’s acceptance that the right of bill of lading belongs to other person, we had better to regard bill of lading as principle evidence to conclude or prove the cargo belongs to the holder. But we should not regard bill of lading as document of title or certificate of possession in order to conclude or solve the compensations or goods release without B/L according to the provision about the property right viewpoint in our country’s law. Just as mentioned above the bill of lading is not document of title and is not necessary to be the document of title. 3.4 Some Misunderstanding of goods release without B/L Before 1997 the juridical and law study field all regard goods release without B/L as a kind of Infringing Rights and their basis is that bill of lading is document of title. In 1997 the Supreme Court of P.R.C. turned to try goods release without B/L as a kind contract breach, the reason now is that goods release without B/L is breach of sea transportation. This change develops with the change of bill of lading’s nature of document of title. Before 1997 the juridical and law study field all regard bill of lading as a document of title or even as certificate of possession. In recent years with accumulation of the knowledge about bill of lading more people are susceptible about the bill of lading’s function as document of title especially in the sea transportation. Those people hold that bill of lading serves not only as a certification about carrier’s acceptance of cargo but also a transferable certificate, which symbols a right that can inquire cargo. So inevitability there is some misunderstandings about bill of lading. Bill of lading is the product of Anglo-American Law System it first appears as causes. Before 1794...