On the release of goods without Presentation

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.

《On the release of goods without Presentation(第9页)》