Research On The Legal Issues Of The Protection Of Unpick-up Carriers At The Port Of Destination

It is a circumstance of abnormal performance of the transportation contract that goods are not taken delivery at the port of destination,which may be caused by many reasons.This article takes the circumstance that goods are not taken delivery of at the port of discharge,or the consignee has delayed or refused the taking delivery of the goods as the research objects.On the basis of the existing literature based on the previous separate civil laws,through the study of China’s Maritime Law and China’s Civil Code,and other domestic special rules and general rules,comparing the similarities and differences between the Civil Code and the previous separate civil laws and regulations,and learning from the dynamics of relevant international rules represented by the Rotterdam Rules,this article analyzes the protection of carriers when goods are not taken delivery at the port of destination,the core of which is to protect the interests by taking fully application of current rules and to avert the risk by renewing relevant rules and improving the related contractual agreements.By discussing the definition and rights and obligations of the carrier,the shippers and the consignee,this article reaches the conclusion that the actual carrier in NVOCC business does not have the lien on cargo set by Article 88 of the Maritime Law.Under the circumstance that goods are not taken delivery at the port of destination,the contractual shipper is the subject of responsibilities as stipulated in the Maritime Law and the responsibilities under such circumstance,and the actual shipper is the subject of the corresponding responsibilities for the loss of the circumstance according to his behavior.The identification of the consignee has an important relationship with the exercise of the right to take delivery.Taking delivery is a right of the consignee,and is also an obligation of the consignee once the consignee exercises this right;when the consignee is missing or refuses to take delivery,the contract shipper is obliged to take delivery because of contract and guarantee obligations.When the failure to perform the obligation to take delivery occurs,the carrier can ask the breaching party to continue to perform its obligations,compensate damages,or be otherwise held liable for breach of contract.In practice,the container demurrage announced by the carrier is the compensation for damages agreed by both parties.The carrier can request the shipper to give instructions on the delivery of the goods as the contract provides.Based on the Maritime Law,the carrier has the right to exercise the right to discharge,exercise the lien on the goods to a reasonable extent,apply for auction and further request the shipper to pay off the rest of the amount of damages,and shall be following the reasonable instructions given by the controlling parties.It shall also take appropriate measures to prevent the aggravation of losses.Reasons for defending the exercise of rights include limitation,obligations to mitigate damages,force majeure and change of circumstances.Relative rules can be updated in order to avert the risk.At the same time,the carrier can avoid risks through contractual agreement and strict performance including both the transportation contract and the insurance contract under the present rules.