A Study on the Delivering Cargoes without Presentation of Straight B/L

• Main Authors: Hung-wen Kao, 高宏文
• Other Authors: Jason Lin
• Format: Others
• Language: zh-TW
• Published: 2008
• Online Access: http://ndltd.ncl.edu.tw/handle/443uh6

碩士 === 東吳大學 === 法律學系 === 96 === It is one of the hottest points having been gravely challenged at the threshold of the new century that whether the carriers are titled to deliver the goods without the surrendering of the straight B/L. Technically speaking, this problem has been suspended in the many states and even in some states having settled the aforesaid problem, views still divided with one anther. Inevitably, the trouble arising thereof is omnipresent in the shipping industry, therefore, the Writer hold that it is out of great necessity to conduct the overall research over this issue under the Maritime Code of the People's Republic of China. The provisions of Maritime Code of the People's Republic of China are contradicted in terms of its wording: “straight B/L falls in the sphere of B/L” on the one hand and "a straight B/L is not negotiable" on the other This imprecision of the wording in practice has translated into the debate that whether the carrier should burden the liability of the delivering of the goods without the surrendering of the straight B/L. This paper will firstly go deep into the different concept of the "delivering of the goods without the surrendering of the straight B/L” under the common law and continental law system respectively. Then the focus will mainly cast upon the domestic understanding of the aforesaid problem under the Maritime Code of the People's Republic of China and the judicial practice prevailing. Additionally, the discussion of the subject will inevitably involving the research of issues pertaining to the straight B/L. As of the nature of the straight B/L, the views of the scholars' domestics as well as the overseas are different from each other. To facilitate the discussion and research of the subject, the Writer will treat the nature of the straight B/L（including whether the straight B/L is one kind of B/L, whether straight B/L is the document of tile, the assignment of straight B/L, the comparison with sea waybill, ect.） as a cut point in the research, then shifts the pen to the main subject "delivering of the goods without the surrendering of the straight B/L” from the angles of jurisprudence and judicial practice. In respect of the methodology, the comparative law is applied with the view of the regulations and judicial practice. To finish the discussion of this section, the main stream view over the global is supported by the Writer: the carrier should deliver the goods against the surrounding of the straight B/L. In the very end, the Writer, based on the above discussion and research, purpose his suggestion to the revision of the Maritime Code of the People's Republic of China. It is held that the provisions pertaining to the straight B/L is not so precise and perfect. To refine and revise good Maritime Code of the People's Republic of China, it is necessary to make the reference to the successful legislation information and judicial practice. May the Writer's effort can contribute to revise process the Maritime Code of the People's Republic of China is undergoing.