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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 judg

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