This provision is in line with Article 9 (e) of the 1979 Protocol to the HagueVisby Rules, Article 8(1) of the Hamburg Rules
23 of 1978, and Article 61(1) of the
Rotterdam Rules of 2008.
6 Compensation When Carrier Delivers Goods Without
Presenting Bill of Lading
Article 71 of the CMC stipulates the definition of the bill of lading, in the following
words:
A bill of lading is a document which serves as evidence of the contract of carriage of goods
by sea and the taking over or loading of the goods by the carrier, and based on which the
carrier undertakes to deliver the goods against surrendering the same. . .
A provision in the document stating that the goods are to be delivered to the order
of a named person, or to order, or to bearer, constitutes such an undertaking.
Although the CMC does not clearly stipulate that the carrier must deliver the
goods with presentation of the bill of lading, it has become a principle and common
practice in international shipping due to the delivery certificate function of the bill of
lading. In order to meet the needs of China’s maritime judicial practice, on February
16, 2009, “[T]he Provisions of the Supreme People’s Court on Certain Issues
Concerning the Application of Law to the Trial of Cases Involving Delivery of
Goods without Original Bills of Lading (2009)” (“Provisions on Delivery of Goods
without the Bill of Lading”) was promulgated.
Article 2 stipulates—“Where a carrier, in violation of laws, delivers goods
without the original bill of lading (B/L), thus injuring the original B/L holder’s
rights under the B/L, the original B/L holder may request the carrier to bear the civil
liability for the resultant loss”. Prior to the issue of this provision, Chinese academics
had different viewpoints on the meaning of “delivery of goods without the bill of
lading”. China’s foremost maritime law expert Professor Si Yuzhuo pointed out in
his book “Monographs on Maritime Law” that “delivery of goods without bill of
lading means the carrier, the actual carrier or its agent, the employee did not take
back the original bill of lading and deliver the goods so that they cannot deliver the
goods to the lawful holder of the bill of lading”.
24 There are also scholars who have
defined this as, “delivery of goods without bill of lading refers to the carrier or its
agent delivers the goods without presenting the bill of lading.”
25 Others have pointed
out the purpose and consequences of delivery of goods without presenting the bill of
lading.
26
23 1695 UNTS 3.
24 Si (2006), p. 35.
25 Han (2006), p. 35.
26 Kong (2001), p. 59.
222
L. Han and S. Cai
23 of 1978, and Article 61(1) of the
Rotterdam Rules of 2008.
6 Compensation When Carrier Delivers Goods Without
Presenting Bill of Lading
Article 71 of the CMC stipulates the definition of the bill of lading, in the following
words:
A bill of lading is a document which serves as evidence of the contract of carriage of goods
by sea and the taking over or loading of the goods by the carrier, and based on which the
carrier undertakes to deliver the goods against surrendering the same. . .
A provision in the document stating that the goods are to be delivered to the order
of a named person, or to order, or to bearer, constitutes such an undertaking.
Although the CMC does not clearly stipulate that the carrier must deliver the
goods with presentation of the bill of lading, it has become a principle and common
practice in international shipping due to the delivery certificate function of the bill of
lading. In order to meet the needs of China’s maritime judicial practice, on February
16, 2009, “[T]he Provisions of the Supreme People’s Court on Certain Issues
Concerning the Application of Law to the Trial of Cases Involving Delivery of
Goods without Original Bills of Lading (2009)” (“Provisions on Delivery of Goods
without the Bill of Lading”) was promulgated.
Article 2 stipulates—“Where a carrier, in violation of laws, delivers goods
without the original bill of lading (B/L), thus injuring the original B/L holder’s
rights under the B/L, the original B/L holder may request the carrier to bear the civil
liability for the resultant loss”. Prior to the issue of this provision, Chinese academics
had different viewpoints on the meaning of “delivery of goods without the bill of
lading”. China’s foremost maritime law expert Professor Si Yuzhuo pointed out in
his book “Monographs on Maritime Law” that “delivery of goods without bill of
lading means the carrier, the actual carrier or its agent, the employee did not take
back the original bill of lading and deliver the goods so that they cannot deliver the
goods to the lawful holder of the bill of lading”.
24 There are also scholars who have
defined this as, “delivery of goods without bill of lading refers to the carrier or its
agent delivers the goods without presenting the bill of lading.”
25 Others have pointed
out the purpose and consequences of delivery of goods without presenting the bill of
lading.
26
23 1695 UNTS 3.
24 Si (2006), p. 35.
25 Han (2006), p. 35.
26 Kong (2001), p. 59.
222
L. Han and S. Cai