[ 董剛 ]——(2004-1-16) / 已閱38002次
d. “Doctrine of tort exception”: It’s the view identified by the judicial and practical circle. The main content of this view is that the character of B/L determines the 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 questions. The first one is that, title of document doesn’t represent the ownership of goods as mentioned above. When the B/L is controlled by consignee, the ownership of goods may still belong to the shipper because of the “retention of title clause”. Under the circumstance of L/C, the issuing band has the pledge to the B/L if the consignee doesn’t redeem of documents by paying the bank, The second one is that, according to usual parlance, the definition of “ act of tort” is the act which aggresses upon other’s dominated rights or interests protected by law illegally and the conductor should take the responsibility for the damage.[29] So the object of act of tort is real right, intellectual property, personal right, etc. So the view that the premise of tort obligation is the claimer having the ownership of goods when the act of tort occurs is wrong.[30] Because the right of possession is a kind of real right, once it can constitute the four essentials of act of tort, the holder of B/L can also investigate and affix the responsibility to carrier for infringement of physical possession.
The holder of B/L can claim not only the responsibility of breach of contract but also the responsibility of torts, so it constitutes the concurrent of claim. Namely, one fact is in conformity with several essentials of norm of claim. The holder of B/L can choose the most profitable cause of action to sue according to the differences in the respect of imputation cause, burden of proof, prescription, essentials, form of responsibility, jurisdiction, applicable law, and so on.
(b). The holder of B/L can sue the person taking delivery without B/L:
The cause of action one: “torts”
The reason is as aforesaid, moreover there is no any contractual relation between the holder of B/L and the person who takes delivery without B/L, so the cause of action is tort unequivocally. In the light of the dominated view in civil law academic and practical circles, the causation of tort should adopt the doctrine of appropriate causation, that is to say, “if only one fact possessed, according to the social common experience, it will result in the same result as the fact of damage.”[31]
The cause of action two: “undue enrichment”
When discussing the responsibility attribution of releasing of goods without B/L, people always take into consideration from the aspect of tort and breach of contract, but never give any attention to the debt of undue enrichment which may be constituted. The definition of “undue enrichment” is that having no legal basis, the beneficiary acquires the interests while jeopardizes the interests of the other people.[32] The essential of constitution are as follows:
i). Acquiring the interests in property: Taking delivery from the carrier will add up to the property of the person who delivers without B/L positively.
ii). Jeopardizing the interests of the other people: The property of the holder of original B/L is reduced negatively because of the delivery of goods by the person without B/L.
iii). The existence of causation between acquiring the interests and being prejudiced: The theory of civil law divides the undue enrichment into types: undue enrichment of pacare and undue enrichment of non-pacare. While the undue enrichment of non-pacare can be divided into three types: undue enrichment on act, undue enrichment on legal provisions and undue enrichment on natural events. While the undue enrichment on act is constituted by three types of act, namely, the act of the person who is prejudiced, the act of beneficiary and the act of the third party.[33] The damages in property of the holder of original B/L should be the result of the joint act of beneficiary and the third party.
v). Having no cause in law:
It’s absence of cause in law that the person who takes delivery of goods which should belong to the holder of original B/L.
It also forms the concurrent of the claim of undue enrichment and real right for the holder of B/L. But different from the concurrent of the tort and contract action in which the obligee can choose to exercise, there are two doctrines in the theory of civil law about the validity of the concurrent. The first one is the doctrine “priority of effect of rights over things”. It maintains that the claim of rights over things should be applied preterentially, while the exercising of the claim of undue enrichment is the supplementary. The other is the doctrine “independence of claim of undue enrichment”. It maintains that the two claim are reciprocal independent, when they’re co-existence on the same subject-matter, the owner of goods can claim to the person who is unauthorized possession or encroaching on the goods for restitution according to the claim of right over things. Meanwhile, he can also claim to the person who is unauthorized for recovery of possession according to the claim of undue enrichment, because possession is also a kind of benefit[34]. The doctrine of supplementary is advocated by early scholarship of Germany and Switzerland, while the scholarships during the past few years are inclined to the doctrine of independence.
(c). If the holder of B/L is the buyer of the contract on sale:
i). Once the trade terms of symbol delivery such as “FOB, CIP, CFR” are agreed in contract, if the shipper delivers the goods to the carrier at the port of shipment, his obligation of delivery has been performed. Unless the holder of B/L could prove that the shipper has the apparent negligence when selecting the carrier, he cannot claim to the seller. It’s similar to the issue of “ absolute payment” or “relative payment” in L/C.
ii. Once the trade terms of physical delivery are agreed in contract, In theory, if the carrier releases of goods without B/L, the holder of original B/L can claim directly to the seller for delivery 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 sell The holder of B/L is the seller
Object of action Cause of action Exertion of legal capacity to sue Object of action Cause of action Exertion of legal capacity to sue
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