On the release of goods without Presentation

wo potential responsibilities the carrier should take: one of them is contractual responsibility, and the other is encroachment responsibility.[23]
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 co

《On the release of goods without Presentation(第6页)》