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 as 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 only 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 que

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