ry 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 aforesaid 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 sellThe holder of B/L is the seller
Object of actionCause of actionExertion of legal capacity to sueObject of actionCause of actionExertion of legal capacity to sue
Carrier breach of contract tortConcurrent CarrierBreach of contractTortconcurrent
The person delivering without B/L TortUndue enrichmentJoint tortConcurrentThe person delivering without B/Ltortundue enrichmentJoint tortConcurrent
sellerBreach of contract (if the holder is buyer and the contract is physical delivery)buyerBreach 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 co

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