On the release of goods without Presentation

nsignee 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

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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withdraw from the relation of obligation.[27] Actually, the contractual relation between carrier and shipper is not rescinded.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 sh

ould 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 tor

《On the release of goods without Presentation(第7页)》