he enterprises of export conclude CIP or CFR contracts if possible: In February, 2001, the Ministry of Foreign Economic and Trade issued 《 The notice about evasion of risk of releasing of goods without B/L》, expounding that recently the shipping agents were in collusion with the importers to release of goods without B/L in 60-70 percent FOB contracts. At last, both the goods and money of our export enterprises were lost. So, the MFET suggested the foreign trade enterprises should conclude CIF or CFR contracts if possible.
c.The evaluation to the advice mentioned above and the viewpoint about it.
The documents subject to title of document such as sea waybill have been widely used in the carriage by sea. Compared with the traditional B/L, sea waybill has many advantages. But B/L function of exchange in carriage by sea still can’t be substituted by sea waybill completely. Some people said: “ the system of company and security are the two basis of modern capitalism”, while the development of B/L is just in conformity with the tendency of rights securitization. So from the view of encouraging the exchange of trade, it’s not appropriate to substitute the B/L with sea waybill totally.
If electronic B/L is adopted, the owner of goods can control through
the code issued by the carrier. The circumstances of releasing of goods without B/L cannot appear generally. But in the recent stage, this proposal is not appropriate to bring into effect because of many technical elements and incapacity of the parties.
As for the suggestion of the Ministry of Foreign Economic and Trade, adoption of the trade terms of CIF or CFR is really more beneficial to prevent releasing of goods without B/L than FOB. Just as Mr. Yang Liangyi said: “If the term FOB is adopted, the consignee controls the shipping and takes charge of the ship chartering. He can insist that one provision should be put down in the charter party, stipulating that the shipowner must release of goods without B/L at the discharging port or the damage of waiting for the B/L to discharge doesn’t constitute the demurrage.” In case, original B/L can not be made available at the discharging port, then vessled to release the cargo against Charter’s letter of indemnity in accordance to Owner’s P&I Club wording”.[45] But, meanwhile, we should recognize that most of the fraudulences of B/L come from the buyer in contract CIP or CIF. If many contracts of CIP or CFR are to be adopted, the quantity of our export trade will be influenced.
Summarizing all the mentioned above, the legal character of B/L determines the absence of legal basis of the act of releasing of goods without B/L. It waves the legal position of B/L as the title of document. We should not quanlificate uniformly to the responsibility of this act. Instead, we should analyze all the responsibility which may result in, such as breach of contract, tort, concurrent of responsibility and unreal joint and several responsibilities according to the concrete situations. While at present, to some extent, the act of taking delivery with copied B/L in addition to letter of guarantee is beneficial to accelerate to the circulation of goods and relieve the pressure of the crowded port. But it’s also an infringement to the interest of the holder of original B/L if adopted frequently. The criterion of “good faith and malice” in juridical practice is different to grasp, so we’d better stipulate the issue of letter of guarantee definitely in the 《Maritime Law of PRC》. I suggest adopting the following model: “Letter of guarantee is the contract of suretyship between the carrier and the person who takes delivery without B/L. It is the accessory obligation of the master obligation of undue enrichment. The validity about it is in the light of the regulations of 《Guarantee Law of PRC》. At present, the several resolutions which people have presented are reasonable to some extent, but all of them have disadvantageous either. In the finial analysis, the solving of the problem lies in enhancing people’s legal ideology, and clarifying the risk of releasing of goods without B/L. Moreover, we should cut down the barriers in the process of exchange of documents. Find out the best balance point between justice， Security and efficiency from the respects of subjective and objective.