On the release of goods without Presentation

of the agreed matters according to the contract of carriage. Not performing the obligation, the carrier will undertake the responsibility for breaching of contract to the contract-party evidenced by B/L.[16] One the other hand, when the B/L is assigned to the bona fide third party including the consignee, once the assignee accepts the B/L, it means acquiescing the term of B/L. It results in the unanimous of expression of intention has formed between the carrier and bona fide assignee of B/L. The B/L plays a role of contract of carriage, and becomes the basis of exercising the right of claim to the holder of B/L. So the carrier’s act of releasing of goods without B/L constitutes the breach of commitment that he had pledge to deliver the goods to the assignee of B/L. This is called by academic circle “doctrine of implied contract” between the carrier and the holder of B/L. Besides there’re “doctrine of agency”[17], “doctrine of assignment of contract”[18], and so on. In judicial practice, in the appeal case “Yuehai Electronic Ltd Company V BaoMa carriage Ltd Company of tendering Bureau” in August27, 1996, the Supreme People’s Court found the carrie

r should undertake the responsibility for breaching of contract to make up for the loss of the lawful holder of B/L by reason of releasing of goods without B/L.[19]
b. “doctrine of tort”: Once some people maintained that releasing of goods without B/L constituted the “fundamental breach of contract” in Common Law. That is to say, if the nature of breach of contract is so serious that violate the fundamental of contract, the delinquent party can’t protect himself by invoking exception clauses in contract. Mr. Yang Liangyi (HongKong) has also advocated that the act of releasing of goods without B/L constituted the fundamental breach of contract, and it should be applied the six years’ prescription.[20] In practice, the act of releasing of goods without B/L has also been regarded as fundamental breach of contract by some courts, applying the law of tort directly. But the theory
of fundamental breach of contract is merely a doctrine and has no precise criterion to estimate. So in 1980, it was upsetted by the House of Lords in the case “Photo Production Ltd.V. Securicor Transport Ltd”.[21] Now, the reason of standing for doctrine of tort is ut infro: The B/L is title of document. Its delivery and the physical delivery of goods are provided with equal authenticity, and holding the B/L is just as constructive possession of goods. The function carried out of title of document of B/L is certainly guaranteed by the carrier’s performance of obligation of delivering goods with original B/L. Once the carrier releases of goods without B/L, it constitutes the infringement of the real right owned by the holder of B/L, so it belongs to the act of tort .
c. “Doctrine of concurrent”: It advocates the B/L is provided with both the real right and creditor’s right character. Not only can the holder of B/L claim to the carrier for restitution or undertaking the tort responsibility for compensation for damages based on the real right’s claim, but also can he claim to the carrier for bearing the responsibility for breach of contract based on the creditor’s claim.[22] This advocation is accepted universely by theoretical circle. In the article《Delivery without B/L》, Mr. Yang Liangyi illustrated definitely that: the legal consequence of releasing of goods without B/L is t

《On the release of goods without Presentation(第5页)》