Carrier’s Liability For Delivery Of Goods Without Presentation Of Original Bills Of Lading And Its New Development Under The Rotterdam Rules

As a core regime, the legal system of bills of lading has always been playinga significant role in international trade and shipping practice since it came intobeing, serving as a receipt of goods, evidence of contract and document of title.Nevertheless, while traditional and time-consuming methods are still utilized inthe flow of transport documents, navigation technology has evolved by leaps andbounds, not only greatly improving the cruising speed but also graduallyshortening the voyage. The unbalance of development between these two areasrenders that cargos arrive at the discharging port earlier than the bill of lading.Additionally, trades under the letter of credit are inclined to result in the delay ofrelevant documents, special laws, regulations or customs of the discharging portare mandatorily applied, bills of lading are lost and so on, which might force thecarrier to deliver the cargo without presentation of original bills of lading undercommercial or transport pressure at both the international and the domestic level.The introduction of the Rotterdam Rules undoubtedly injected new vitalities to thewhole maritime circle with a series of innovational provisions which provide novel ideas and countermeasures to break through the awkward situation with regard todelivery without surrender of bills of lading. Article45-47allow the carrier todeliver the cargo without bills of lading under certain circumstances for the firsttime in the form of international legislation, posting a huge challenge to theconventional Presentation Rule as well as carriers’ liability hereof. Although theserules have not yet come into effect, they establish a legislative trend ofconditionally delivery upon instructions and illustrate the flexible adaption of thePresentation Rule, which is bound to have a far-reaching impact on internationalmaritime law theoretically and practically.Against this backdrop, the study on carrier’s liability for delivery of goodswithout presentation of original bills of lading is of distinct era significance. Onthe ground of collecting, collating, summarizing numerous books, writings, typicalcases as well as other correlative materials, the author first proceeds with the legalbasis of the delivery of goods without presentation of original bills of lading,namely the Presentation Rule, specifying its fundamental principle, purpose ofdesign and the status quo of legislation and practice. Causes for such incorrectdelivery and the nature of carrier’s liability are subsequently expounded in aseparate part specifically for the discussion on issues of straight bills of lading.From the author’s viewpoint, liability for delivery without bills of lading should becategorized as a concurrence liability of contractual and tort liability and cargointerests are supposed to be entitled to choose the cause of action in favor ofthemselves. As bones of contention in the whole academic field, defensesfrequently invoked by carriers as well as their effects are elaborated in ChapterTwo which is of the greatest practical significance. This Chapter is characterizedby the applications of the comparative method and the case study method, whichcan assist readers to completely and further understand relevant propositions andstands of various courts of admiralty. Generally speaking, carriers are able tosuccessfully reduce or exonerate their liability for delivery of goods withoutproduction of bills of lading by invoking certain defenses under procedure law while those under substantial law or arising out of artificial reasons are usually notacceptable. New development under the Rotterdam Rules is also attached greatimportance in this paper. Starting from the concrete articles (article45--47), theauthor makes a fairly objective evaluation from the angle of their merits anddemerits on the basis of comprehensively observing arguments of scholars andattitudes of governments of different countries. By the same token, the research onChina’s legislation and practice concerned is also critical since it provides foreigncountries and the whole international community at large with excellent reference.