On the release of goods without Presentation

on the release of goods without presentation of b/l in carriage of goods by sea

——taking into consideration the introspection and query to the focus of issue of releasing of goods without b/l

summary introduction

bills of lading, the document invented by european merchant, has become the basis of international trade and shipping by hundreds of years’ practice, customs and improvements.[1] these years, the case of taking delivery without b/l has been a large proportion in maritime trials, becoming the focus of the issue of b/l. it has been a long time people argued its nature, legal responsibility and the legal validity of the letter of guarantee. some people even say “taking delivery without b/l nearly is one of the ‘aberrant’ ocean carriage acts relating to the most problems in theory and practice.”[2] it will be necessary to thrash over the problem for carrier, the owner of goods, agent of shipping and goods and the parties of trade, and it will be beneficial to improve our credit of foreign trade. this article will regulate these issues systematically and try to interpellate the viewpoint about the character of this act and the validity of the letter of guarantee. meanwhile it will recognize the legal responsibility of the issue logically from a new angular .at last it will give some resolutions to solve the problem of taking delivery without original b/l.

list of content

1. legal basis of taking delivery with original b/l:

(a). the legal character of b/l demands of taking delivery with original b/l

(b). taking delivery with original b/l is an international usage

2. the judgment, causality, typical model and demur of the act of releasing of goods without b/l:

(a). the criterion for judgment of the act of releasing of goods without b/l

(b). the causality and typical model of releasing of goods without b/l

(c). the demur of releasing of goods without b/l

3. the responsibility attribution and exertion of legal capacity to sue of releasing of goods without b/l—— the criticism to the “doctrine of breach of contract ”, “doctrine of tort ”, “doctrine of concurrent”

(a). the doctrines of the responsibility attribution of releasing of goods without b/l and the evaluation of them

(b). the posteriori from the logically subsequent of the responsibility attribution of releasing of goods without b/l

4. letter of guarantee of releasing of goods without b/l—— the interpellation to recent theory and practice

(a). the nature of letter of guarantee

(b). the validity of letter of guarantee —— the interpellation to the criterion of “good faith and malice”.

(c). the extending tendency of the independence of letter of guarantee ——demand guarantees.

5. the resolution to the issue of releasing of goods without b/l.

(a). the advice given to solve the issue

(b). the evaluation to the advice mentioned

above and the viewpoint about it

1. legal basis of taking delivery with original b/l:

(a). the legal character of b/l demands of taking delivery with original b/l:

the 《hamburg rules》(1978) defined b/l as: “ a document which evidences a contract of carriage by sea and the taking over or loading of the goods by the carrier, and by which the carrier undertakes to deliver the goods against surrender of the documents. a provision in the document that the goods are to be delivered to the order of a named person, or to order, or to bearer, constitutes such an undertaking.”

on one hand, b/l is the receipt of goods and the evidence of the contrast of carriage. once the relationship of contrast of carriage has been established between the carrier and consigner, the carrier will have the obligation to deliver the goods to the consignee dominated in the b/l intact. untill the carrier delivers the good to the holder of original b/l, the obligation will not be performed and the contract of carriage will not terminate.

on the other hand, b/l is the title of document. there’s one opinion that b/l represents the ownership of the goods dominated in b/l, and taking possession of b/l has the same legal validity as holding the ownership of goods.[3] the assignment of b/l means the transfer of ownership. therefore, the carrier must release of goods with presentation of original b/l.[4] in fact, the view above distorts the implication of “title of document”. the basic feature of “title of document” is assignment without any formal assignment or any notice to debtor .it only indicates the possession, having no relationship with ownership, rights infiltrate document, therefore it has formed the most important commercial principle that only to deliver goods to the holder of b/l, the debt will be cleared off[5]. just as judge rix said: “in my judgment, a true owner cannot in the absence of some special arrangement oblige a shipowner to deliver his goods to him without presenting his bill of lading.”[6] namely, even the true owner of goods must take delivery with original b/l.

(b). taking delivery with original b/l is an international usage.

taking delivery with original b/l has been a law system accepted and generally acknowledged nearly by every state. as an international trade usage, it has been generally observed in shipping practice. in 1983 the ministry of foreign economic and trade issued an instrument in the form of notice, permitting to take delivery of goods with copied b/l in addition to letter of guarantee. but in academic circles, people generally don’t regard it as legislative document of government, but a kind of normative document which has coordinative effect.[7] taking delivery with original b/l still must be observed as an international usage.

2. the judgment, causality, typical model and demur to the act of releasing of goods without b/l.

(a). the criterion for

judgment of the act of releasing of goods without b/l

whether the carrier’s act of releasing of goods without b/l has completed or not, we should take into consideration whether the goods has been delivered in law, namely the act that the carrier shows taking delivery order to consignee. and the behavior of consignee in the process of taking delivery has no effect to the releasing of goods without b/l by carrier.

(b). the causality and typical model of releasing of goods without b/l

i. the carrier delivers goods to the third party subject to the consignee named in b/l in addition to letter of guarantee when the goods arrive at the port of destination.

ii. because of the development of recent navigation seamanship, fast shipping but short voyage, in addition to the documents’ slow negotiation, the carrier releases of goods to the consignee without original b/l in order to cut down expenses of port and set about a new voyage. while the consignee may have no original b/l because of follow reasons:

a. in condition of l/c, because of the discrepancy in the documents, the bank refuses to pay. and the documents have not been returned to the seller, the seller doesn’t exercise the right of stoppage in transit.

b. the consignee is incapacity of redemption of documents by paying the bank.

c. the usage of taking delivery without original b/l has formed between carrier and consignee because of long-term business transactions.

iii. the carrier colludes with the person who takes delivery without b/l to fraud the holder of original b/l.

(c). the demur of releasing of goods without b/l

in reality, the situation relating to the releasing of goods without b/l is very complicated. sometimes, there’s the fact of releasing of goods without b/l, however, some specific affairs can demur its irregularity. these years, the shipowners presented many reasons to demur the liability in lawsuits. there’re different opinions between the theoretical and practical circles. now, i will analyze several typical reasons.

i. the holder of b/l brings a lawsuit surpassing the prescription. once there were intense controversies about the prescription of releasing of goods without b/l. now, the unanimous opinion about it is one year.

ii. the law of the place for delivery or the customary practice demands of delivery goods even if without original b/l.[8]

iii. once the consignee doesn’t receive b/l because of its missing, being stealed, extinction or any finance reasons, if he could prove that he is just the assignee of b/l, and could give a satisfactory explanation about the direction in which original b/l has gone, the carrier has right to deliver goods to him. but it is necessary to take delivery with guarantee after the summon exhortation by publication.[9]

v. the holder of b/l knows deliberately the carrier’s act of releasing of goods without b/l. but still provides assistance to take delivery or provides some other convenience or has come to

a payment agreement with the buyer. this is just the equitable theory —— estoppel.

meanwhile, the academic and practical circles have presented some other demurring reasons recently. but it’s worthy of inquiring into whether all the advocations could be tenable.

i. the carrier releases of goods in accordance with the directive of the director named in the b/l: in some people’s opinion, the carrier has performed the liability of delivering goods properly in accordance with law, so he should not be subject to the responsibility of releasing of goods without b/l.[10] but actually it’s based on a premise that the indicator is the lawful holder of the b/l when directing. even so, the carrier should be subject to the responsibility to the bona fide holder of original b/l.

ii. releasing of goods without b/l under the circumstance of straight b/l: one view is that, the nature of straight b/l as “title of document” has altered. the person subject to the consignee will not take delivery without original b/l, while the consignee named in the b/l can do it without b/l.[11] the same reason as above if the bearer b/l and order b/l has been named by endorsement and has been promised not to be assigned any more, the consignee can also take delivery without original b/l.

the other view is that, there is no mandatory provision in the 《maritime law of prc》 that the carrier must deliver goods to the holder of straight original b/l, so he shouldn’t undertake the responsibility for releasing of goods without named b/l.[12]

actually, all the views above are partial. in my view, although the

straight b/l can not be assigned, it is still the title of document and basis of releasing of goods. merely, it is effective to the person named in b/l. moreover, in according to provision 78 of 《maritime law of prc》 “the relationship between the carrier, consignee and the holder of b/l with respect to their rights and obligations shall be defined by the clause of b/l”. so only if the consignee dominated in straight b/l is the lawful holder of b/l, the contract of carriage by sea between the carrier and consignee could be tenable. in addition, from the judgment of “laiwu aidi biochemistry limited company v haicheng bangda international agent of ship and goods ltd company”[13], we can draw the conclusion that if the consignee of named b/l has not pay the issuing bank to redeem of documents, the carrier’s act of releasing of goods without b/l will jeopardize the interest of the shipper. therefore, the view above that the named b/l could be the defense against the responsibility of releasing of goods without b/l is not tenable.

iii. the limitation of period of responsibility as the defense: the period of responsibility of the damage or loss of goods in 《hague rules》is “hackle to hackle” or “rail to rail”. while the out of releasing of goods without b/l usually happens on the shore, so many shipowners in practice usually present the fact that his obligation of ca

ring for goods is merely from loading to discharging the goods as the defense. there was one case in the house of lords: chartered bank v british steam navigation (1909) a.c.396, it was said: “…in all cases and under all circumstances the liability of the company shall absolutely cease when the goods are free of the ship’s tackle, and thereupon the goods shall be at the risk for all purpose and in very respect of the shipper or consignee.”[14] in my opinion, releasing of goods with original b/l is determined by the legal character of b/l as the says above. while the carrier’s loading, handling, stowing, carrying, keeping, caring for and discharging the goods carried properly and carefully is the mandatory provision for him. both of them are two different obligations the carrier should undertake. and there is no legal provision regulating that the former should be restricted by the latter. so the limitation of period of responsibility could not be the defense of releasing of goods without b/l.

3. the responsibility attribution and exertion of legal capacity to sue of releasing of goods without b/l[15]——the criticism to the “doctrine of breach of contract”. “doctrine of tort”. “doctrine of concurrent”.

in recent years, the problem of the responsibility attribution has become the focus of controversy among the parties in lawsuit, the forward position hot spot of academic circles in maritime law and the difficult spot of equivalent case the court tries.

the different qualitations to the act of releasing of goods without b/l have direct relationship with both the ascertainment of the parties’ rights and duties and the result of litigation. the judicial and academic circles views are as followed:

a. “doctrine of breach of contract”: on one hand, delivering the goods to the person who has the right to own is one of the agreed matters according to the contract of carriage. not performing the obligation, the carrier will undertake the responsibility for breaching of contract to the contract-party evidenced by b/l.[16] one the other hand, when the b/l is assigned to the bona fide third party including the consignee, once the assignee accepts the b/l, it means acquiescing the term of b/l. it results in the unanimous of expression of intention has formed between the carrier and bona fide assignee of b/l. the b/l plays a role of contract of carriage, and becomes the basis of exercising the right of claim to the holder of b/l. so the carrier’s act of releasing of goods without b/l constitutes the breach of commitment that he had pledge to deliver the goods to the assignee of b/l. this is called by academic circle “doctrine of implied contract” between the carrier and the holder of b/l. besides there’re “doctrine of agency”[17], “doctrine of assignment of contract”[18], and so on. in judicial practice, in the appeal case “yuehai electronic ltd company v baoma carriage ltd company of tendering bureau” in august27, 1996, the supreme people’s court

found the carrier should undertake the responsibility for breaching of contract to make up for the loss of the lawful holder of b/l by reason of releasing of goods without b/l.[19]

b. “doctrine of tort”: once some people maintained that releasing of goods without b/l constituted the “fundamental breach of contract” in common law. that is to say, if the nature of breach of contract is so serious that violate the fundamental of contract, the delinquent party can’t protect himself by invoking exception clauses in contract. mr. yang liangyi (hongkong) has also advocated that the act of releasing of goods without b/l constituted the fundamental breach of contract, and it should be applied the six years’ prescription.[20] in practice, the act of releasing of goods without b/l has also been regarded as fundamental breach of contract by some courts, applying the law of tort directly. but the theory

of fundamental breach of contract is merely a doctrine and has no precise criterion to estimate. so in 1980, it was upsetted by the house of lords in the case “photo production ltd.v. securicor transport ltd”.[21] now, the reason of standing for doctrine of tort is ut infro: the b/l is title of document. its delivery and the physical delivery of goods are provided with equal authenticity, and holding the b/l is just as constructive possession of goods. the function carried out of title of document of b/l is certainly guaranteed by the carrier’s performance of obligation of delivering goods with original b/l. once the carrier releases of goods without b/l, it constitutes the infringement of the real right owned by the holder of b/l, so it belongs to the act of tort .

c. “doctrine of concurrent”: it advocates the b/l is provided with both the real right and creditor’s right character. not only can the holder of b/l claim to the carrier for restitution or undertaking the tort responsibility for compensation for damages based on the real right’s claim, but also can he claim to the carrier for bearing the responsibility for breach of contract based on the creditor’s claim.[22] this advocation is accepted universely by theoretical circle. in the article《delivery without b/l》, mr. yang liangyi illustrated definitely that: the legal consequence of releasing of goods without b/l is two potential responsibilities the carrier should take: one of them is contractual responsibility, and the other is encroachment responsibility.[23]

d. “doctrine of tort exception”: it’s the view identified by the judicial and practical circle. the main content of this view is that the character of b/l determines the cause of action is contract dispute, only when the carrier has fraudulent conduct, the tort can be tenable.[24] it is based on the reason that, the b/l legislation has established the basic rights and duties of both shipping and goods parties, unless the carrier adds the responsibility to himself, the legislative provisions will be incorporated into b/l. the same a

s the b/l clauses agreed by the parties, they’re the outcome of autonomy of will of both parties, so the dispute happened by reason of relationship off b/l is contract action not tort action.

the four doctrines mentioned above are the typical doctrines about the responsibility attribution of releasing of goods without b/l. but in my opinion, all of them are partial and not comprehensive. the form of releasing of goods without b/l is diversified and b/l possesses the attribution of both title of document and document of obligation. all of these determine that the act of releasing of goods without b/l cannot be qualitated uniformly. we should analyze the responsibility attribution logically in accordance with concrete matters.

a. if the holder of b/l is not shipper:

(a). the holder of b/l can sue the carrier:

the cause of action one: “breach of contract”. the premise that the holder of b/l can sue the carrier is the existence of relationship of contract between them. but all the current doctrines have the problems which cannot be explained.

i. doctrine of legal provisions: it advocates that the consignee entitled to the right is based on the legal provision, and the shipper’s rights are suspending when the carrier acquires the rights. so the carrier’s out of releasing of goods without b/l should be regarded as breach of contract by reason of not performing the legal provision debt.[25] but the view of the doctrine violates the basic premise that the responsibility of breach of contract is based on the lawful relationship of contract.

ii. doctrine of implied contract: the view of the doctrine is that the relationship between the carrier and the holder of b/l subject to the shipper is a new contract of carriage independent to the contract between the shipper and carriage. it’s based on the legal provisions. but the doctrine neglects the consensus in idem of the two parties, and confuses the differences between the contractual debt and the debt occurred by unilateral act.

iii. doctrine of agency: the view of the doctrine is that the contract of carriage is concluded by carrier and consignee, and the shipper who enters into the contract specificly only acts as the agent of consignee. actually, the situation is only applied for named b/l and fob contract.[26]

v. “doctrine of third party contract”: it’s a very popular viewpoint in current: when the shipper and consignee are not the same person, the shipper concludes the contract of carriage for the benefit of the consignee. but the doctrine cannot be tenable if analyzed carefully. according to the validity of contract which benefits the third party, the rights and duties of consignee depend on the agreement of carrier and shipper. moreover, the right of consignee is traversed by all the demurs the carrier presents to the shipper. this is not profitable to protect the interests of consignee. and it’s not in conformity with the principle of taking delivery or claiming for damages on

ly with clean b/l.

vi. “doctrine of assignment”: the transfer of the b/l means the assignment of the contract of carriage. the consignee absorbs the relation of the original contract of carriage between the shipper and carrier. but according to the theory of assignment of creditor’s right, the assigner should withdraw from the relation of obligation.[27] actually, the contractual relation between carrier and shipper is not rescinded. and the consignee’s rights and duties assigned may be different from the shipper’s. in 1845, the judge explained in the case “thompson .v. doming”, “nothing could demonstrate that in any commercial customs the b/l can assign the contract. the b/l can only assign the real right not the contract”. [28]

in my opinion, it is the b/l’s character of document of obligation that determines the relation of debt formed between the carrier and the holder of b/l subject to the shipper.

this relation is independent to the contract of carriage between them. it’s based on the act of b/l (act of security). it commences from being issued and terminates when being written off. its exertion and disposition are usually through taking possession of or assigning the b/l. because of the abstract character of the document of obligation, the rights of the holder of b/l are not influenced by the defect of the shipper’s rights. while the transfer of b/l is different from the assignment contract, so it’s not necessary to notice the carrier of transferring the b/l by endorsement. the holder of b/l is entitled to the rights when acquiring the b/l. in accordance with the written nature of b/l, the character and content of the holder’s rights are different from the shipper’s. the b/l is “conclusive evidence” in the holder’s hand. so the transfer of b/l has two effects:

(a): the effect of assigning the right: the assignee is entitled to the creditor’s right claim and the indirect possession of goods after acquiring the b/l. (b): the effect of awarding qualification: the assignee’s rights are not influenced by the defect of the assignor’s rights. so, the provision 78 of《maritime law of prc》 “the relationship between the carrier, consignee and the holder of b/l with respect to their rights and obligations shall be defined by the clause of b/l.” is the reflection of the creditor’s right validity of b/l.

the cause of action two: “torts”

at first, we should clarify two questions. the first one is that, title of document doesn’t represent the ownership of goods as mentioned above. when the b/l is controlled by consignee, the ownership of goods may still belong to the shipper because of the “retention of title clause”. under the circumstance of l/c, the issuing band has the pledge to the b/l if the consignee doesn’t redeem of documents by paying the bank, the second one is that, according to usual parlance, the definition of “ act of tort” is the act which aggresses upon other’s dominated rights or interests protected by law illegally and

the conductor should take the responsibility for the damage.[29] so the object of act of tort is real right, intellectual property, personal right, etc. so the view that the premise of tort obligation is the claimer having the ownership of goods when the act of tort occurs is wrong.[30] because the right of possession is a kind of real right, once it can constitute the four essentials of act of tort, the holder of b/l can also investigate and affix the responsibility to carrier for infringement of physical possession.

the holder of b/l can claim not only the responsibility of breach of contract but also the responsibility of torts, so it constitutes the concurrent of claim. namely, one fact is in conformity with several essentials of norm of claim. the holder of b/l can choose the most profitable cause of action to sue according to the differences in the respect of imputation cause, burden of proof, prescription, essentials, form of responsibility, jurisdiction, applicable law, and so on.

(b). the holder of b/l can sue the person taking delivery without b/l:

the cause of action one: “torts”

the reason is as aforesaid, moreover there is no any contractual relation between the holder of b/l and the person who takes delivery without b/l, so the cause of action is tort unequivocally. in the light of the dominated view in civil law academic and practical circles, the causation of tort should adopt the doctrine of appropriate causation, that is to say, “if only one fact possessed, according to the social common experience, it will result in the same result as the fact of damage.”[31]

the cause of action two: “undue enrichment”

when discussing the responsibility attribution of releasing of goods without b/l, people always take into consideration from the aspect of tort and breach of contract, but never give any attention to the debt of undue enrichment which may be constituted. the definition of “undue enrichment” is that having no legal basis, the beneficiary acquires the interests while jeopardizes the interests of the other people.[32] the essential of constitution are as follows:

i). acquiring the interests in property: taking delivery from the carrier will add up to the property of the person who delivers without b/l positively.

ii). jeopardizing the interests of the other people: the property of the holder of original b/l is reduced negatively because of the delivery of goods by the person without b/l.

iii). the existence of causation between acquiring the interests and being prejudiced: the theory of civil law divides the undue enrichment into types: undue enrichment of pacare and undue enrichment of non-pacare. while the undue enrichment of non-pacare can be divided into three types: undue enrichment on act, undue enrichment on legal provisions and undue enrichment on natural events. while the undue enrichment on act is constituted by three types of act, namely, the act of the person who is prejudiced, the act of bene

ficiary and the act of the third party.[33] the damages in property of the holder of original b/l should be the result of the joint act of beneficiary and the third party.

v). having no cause in law:

it’s absence of cause in law that the person who takes delivery of goods which should belong to the holder of original b/l.

it also forms the concurrent of the claim of undue enrichment and real right for the holder of b/l. but different from the concurrent of the tort and contract action in which the obligee can choose to exercise, there are two doctrines in the theory of civil law about the validity of the concurrent. the first one is the doctrine “priority of effect of rights over things”. it maintains that the claim of rights over things should be applied preterentially, while the exercising of the claim of undue enrichment is the supplementary. the other is the doctrine “independence of claim of undue enrichment”. it maintains that the two claim are reciprocal independent, when they’re co-existence on the same subject-matter, the owner of goods can claim to the person who is unauthorized possession or encroaching on the goods for restitution according to the claim of right over things. meanwhile, he can also claim to the person who is unauthorized for recovery of possession according to the claim of undue enrichment, because possession is also a kind of benefit[34]. the doctrine of supplementary is advocated by early scholarship of germany and switzerland, while the scholarships during the past few years are inclined to the doctrine of independence.

(c). if the holder of b/l is the buyer of the contract on sale:

i). once the trade terms of symbol delivery such as “fob, cip, cfr” are agreed in contract, if the shipper delivers the goods to the carrier at the port of shipment, his obligation of delivery has been performed. unless the holder of b/l could prove that the shipper has the apparent negligence when selecting the carrier, he cannot claim to the seller. it’s similar to the issue of “ absolute payment” or “relative payment” in l/c.

ii. once the trade terms of physical delivery are agreed in contract, in theory, if the carrier releases of goods without b/l, the holder of original b/l can claim directly to the seller for delivery according to the contract on sale.

b. if the holder of b/l is the seller of contract:

(a). the holder of b/l can sue the carrier:

the cause of action one: “breach of contract”, now it is based on the contract of carriage between the carrier and shipper. the effect of obligation of b/l is meaningful only in the score of protecting the current of b/l. the written nature of b/l doesn’t protect the carrier, so the carrier can’t invoke for his own benefits.

the cause of action two: “tort”: the reason is as aforesaid.

(b). the holder of b/l sues the person who takes delivery without b/l.

the cause of action one: “tort”

the cause of action two: “undue enrichment”. the reason is as afo

resaid mentioned.

(c). if the person who takes delivery without b/l is the buyer of contract:

because of the carrier’s act of releasing of goods without original b/l to the buyer of contract on sale, the buyer doesn’t redeem the documents by paying the seller. the seller controls the b/l, but both the goods and money are lost. so the seller can recover of payment to the buyer.

in practice, the holder of b/l usually brings an action against only the carrier or all the debtors to court, so the court is always confused when placing a case on file for investigation and prosecution or hearing case.[35]

actually, it constitutes the unreal joint and several liabilities of civil law. namely, according to the different legal relationships, the obligee enjoys the right of claim to several debtors in the content of uniform subject of matter. no matter from which debtor the creditor’s right is satisfied, all the debts of the other debtors will extinct. in theory, the unreal joint and several liabilities are the co-existence of rights, and the obligee can not only claim to one debtor for performing the debts, but also he can claim to several debtors for performing the unreal joint and several liabilities. in the case of releasing of goods without b/l, the obliges of several legal relationships are uniform—— the holder of b/l, but the debtors are different. the subject of matter of several legal relationships is unanimous. the right that they advocate is the ownership of the goods. if the holder of b/l claims to any debtor for the substantive right successfully, the other debtors’ obligations will extinct.

all the analyses mentioned above can be indicated in the form of graphic statement:

auxiliary graph: the responsibility attribution and exertion of legal capacity to sue of releasing of goods without b/l:

the holder of b/l is not the sell the holder of b/l is the seller

object of action cause of action exertion of legal capacity to sue object of action cause of action exertion of legal capacity to sue

carrier breach of contract tort concurrent carrier breach of contracttort concurrent

the person delivering without b/l tortundue enrichment joint tortconcurrent the person delivering without b/l tortundue enrichment joint tortconcurrent

seller breach of contract (if the holder is buyer and the contract is physical delivery) buyer breach of contract (if the deliverer is the buyer)

4. letter of guarantee of releasing of goods without b/l—— the interpellation to the recent theory and practice.

faced to the contradiction of releasing of goods without b/l, it is common to take delivery with copied b/l in addition to letter of guarantee. in 1983, the ministry of foreign economic and trade issued instrument in the form of notice, permitting to take delivery with copied b/l in addition to letter of guarantee. it’s beneficial to relax the pressure of port, reduce the extension of shipping and accelerate

the circulation of goods. some people said “the letter of guarantee is the lubricant between trade and shipping”.[36] but recently, the issue of letter of guarantee is universe. moreover, the 《maritime law of prc》doesn’t regulate the issue of letter of guarantee, so it bring about long-time dispute among people.

a. the character of letter of guarantee:

letter of guarantee is the document that the guarantor issues to the carrier unilaterally. it belongs to an offer. the acceptance to the letter of guarantee and the act of releasing of goods without b/l constitute the acceptance. so they constitute the contract of suretyship commonly——an agreement of compensative suretyship. according to the provision 6 of 《guarantee law of prc》 “the guarantee mentioned in this law means the act that the guarantor performs the debt or undertakes the responsibility when the debtor doesn’t perform the obligations according to the agreement between the guarantor and creditor”. the main content of letter of guarantee under the circumstance of releasing of goods without b/l is that the guarantor guarantees to take the responsibility to the carrier because of releasing of goods without b/l, and recover the carrier’s damages because of releasing of goods without b/l.

b. the validity of letter of guarantee—— the interpellation to the criterion of “good faith and malice”

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.

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.

secondly, according to the provision 5 of 《guarantee law》, the master obligation guaranteed should be the “master contract”. but according to the provision 1 of the 《jurisdictional interpretation of guarantee law》: “ under the circumstance of non-infringement of the mandatory provisions of law, if the parties create the guarantee for the creditor’s right in the form regulated by the , it may be found validity”. this regulation extends the object of guarantee from “contract” to “creditor’s right”. it’s in conformity with the current tendency of real law. so what’s the letter of guarantee of releasing of goods without b/l guarantees is the obligation of undue enrichment, this standing point has legal basis as mentioned above.

having cleared-cut the two issues above. whether the indemnity of releasing of goods without b/l is valid, at first, we should take into consideration that whether the obligation of undue enrichment—— the master obligation it guarantees——is valid. if the master obligation is invalid, the letter of guarantee must be invalid. secondly, we should consider whether the guarantor has the fraudulent conduct. according to the provision 41 of《jurisdictional interpretation of guarantee law》: “if the debtor and guarantor fraud the creditor jointly to conclude the master and suretyship contracts, the creditor can claim to the court to rescind the contracts. the debtor and guarantor undertake the joint and several responsibility for the damage of creditor.”

now we can draw a conclusion: under general circumstances, if the obligation of undue enrichment between the carrier and the person who takes delivery without b/l is tenable, the letter of guarantee is also valid. in the case of guarantor’s fraudulence, the carrier can request to court for revocating the act of guarantee.

c. the extending tendency of the independence of letter of guarantee—— demand guarantees

recently, the demand guarantees are adopted widely in the contract of international sale on goods. it’s widely used for restricting the guarantor in case of abusing the invalidity of master obligation as the reason of counterargument. one of the cardinal principles is that the guarantee is independent of basic transaction and the relationship between

guarantor and beneficiary.[40] the banks in u.s.a can’t sign and issue letter of guarantee, so they substitute it with “standby l/c”.[41]

in the case of releasing of goods without b/l, the carrier and the demand guarantee presenter agree that when the carrier receives the documents of claim declaration submits to the guarantor, if it’s in conformity with the requirement of demand guarantee, the guarantor should pay to the carrier. thus, the validity of letter of guarantee is independent of master obligation, stressing the autonomy of will of the parties. it is conformity with the regulation of provision 5 of 《guarantee law》 “if the contract of suretyship has other agreements, do according to it”.

6. the resolution to the issue of releasing of goods without b/l

a. the advices given to solve the issue:

(a). employment of sea waybill: sea waybill is a kind of non-negotiable written document which demonstrates the goods carried by sea have been taken over or shipment by the carrier and the carrier guarantees to deliver goods to the designated consignee.[42] because of non-negotiable, sea waybill doesn’t represent the ownership of goods, preventing the fraudulence may be brought about in the assignment of b/l. meanwhile, it reduces the process of circulation, so the consignee can take delivery immediately, adapting to the recent reality of fast shipping but slow exchange of documents. the problem of releasing of goods without b/l is resolved.[43]

(b). adoption of electronic b/l: it’s a kind of procedure which makes use of the system of edi to assign the ownership of goods carried by sea. the 《rules of electronic b/l》 formulated by cmi stipulates in provision 9 that: “…when delivering, once the consignee shows the valid document, the carrier must release of good after checking. the owner of goods issues a directive of delivery to the carrier according to the code given by carrier, and the carrier releases of goods according to the directive of delivery”.[44]

(c). the enterprises of export conclude cip or cfr contracts if possible: in february, 2001, the ministry of foreign economic and trade issued 《 the notice about evasion of risk of releasing of goods without b/l》, expounding that recently the shipping agents were in collusion with the importers to release of goods without b/l in 60-70 percent fob contracts. at last, both the goods and money of our export enterprises were lost. so, the mfet suggested the foreign trade enterprises should conclude cif or cfr contracts if possible.

c. the evaluation to the advice mentioned above and the viewpoint about it.

the documents subject to title of document such as sea waybill have been widely used in the carriage by sea. compared with the traditional b/l, sea waybill has many advantages. but b/l function of exchange in carriage by sea still can’t be substituted by sea waybill completely. some people said: “ the system of company and security are the two basis of modern capitalism”,

while the development of b/l is just in conformity with the tendency of rights securitization. so from the view of encouraging the exchange of trade, it’s not appropriate to substitute the b/l with sea waybill totally.

if electronic b/l is adopted, the owner of goods can control through

the code issued by the carrier. the circumstances of releasing of goods without b/l cannot appear generally. but in the recent stage, this proposal is not appropriate to bring into effect because of many technical elements and incapacity of the parties.

as for the suggestion of the ministry of foreign economic and trade, adoption of the trade terms of cif or cfr is really more beneficial to prevent releasing of goods without b/l than fob. just as mr. yang liangyi said: “if the term fob is adopted, the consignee controls the shipping and takes charge of the ship chartering. he can insist that one provision should be put down in the charter party, stipulating that the shipowner must release of goods without b/l at the discharging port or the damage of waiting for the b/l to discharge doesn’t constitute the demurrage.” in case, original b/l can not be made available at the discharging port, then vessled to release the cargo against charter’s letter of indemnity in accordance to owner’s p&i club wording”.[45] but, meanwhile, we should recognize that most of the fraudulences of b/l come from the buyer in contract cip or cif. if many contracts of cip or cfr are to be adopted, the quantity of our export trade will be influenced.

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 eit

her. 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.