At present, in China’s maritime judicial practice, cases of claims for loss of
delivery of goods without bill of lading are very similar. Usually, the carrier
would have delivered the goods without presenting the original bill of lading to
the consignee at the port of destination, but the shipper in China would not have
received payment for the goods, and could claim for the payment made to the carrier
according to the original bill of lading. Article 6 of the Provisions on Delivery of
Goods without the Bill of Lading provides that “The amount of compensation for the
loss caused by a carrier to the holder of an original B/L due to delivery of goods
without the original B/L shall be calculated based on the value of the goods plus
freight and insurance expenses when the goods are shipped.” This provision is
consistent with Article 55 of the CMC.
In Dongguan City Baojian Paper Co., Ltd. v. Xiamen Kangjie Shun Logistics
Co., Ltd. & other which involved the release of goods without presenting the original
bill of lading,
27 the plaintiff had entrusted the defendant with transporting paper
towels, from Yantian port to Miami, USA. The defendant delivered the goods
without the original bill of lading at the port of destination, and as a result, the
plaintiff did not receive the payment. The court, based upon Article 113 of the
Contract Law and Article 55 of the CMC determined the defendant’s compensation
for the loss of the plaintiff’s goods and the interest calculated on the date of payment
determined by the judgment of People’s Bank of China at the same time.
It is noteworthy that Article 4 of the Provisions on Delivery of Goods without the
Bill of Lading stipulates that the carrier’s civil liability for the delivery of goods
without presentation of bill of lading shall not be limited according to Article 56 of
the CMC. Of course, while the Provisions on Delivery of Goods without the Bill of
Lading affirms the obligations and liability of the carrier to deliver the goods with the
original bill of lading, it draws on the Rotterdam Rules, in providing the exceptions
to the carrier’s liability in Articles 7 to 10. They are as follows:
1. If a carrier is obligated, according to the provisions of the laws of the place where
the port of discharge is located stated in the bill of lading, to deliver the goods
arrived at the port of discharge to the local authority in charge of customs or port,
the carrier shall not bear the civil liability for delivery of goods without any
original bill of lading (Article 7);
2. In the case no customs declaration is made for the goods that have arrived at the
port of discharge within the time limit specified by laws and the relevant customs
collects the goods and sells them legally, or the relevant court renders a decision,
in accordance with law, to sell the goods left by the carrier, if the carrier alleges
the exemption from liability for delivery of goods, the people’s court shall uphold
such allegation (Article 8);
3. Where a carrier, according to the requirements by the consignor of a straight B/L,
suspends the shipment, returns the goods, changes the port of destination or
delivers the goods to other consignees, if the consignee who holds the straight
27 No.292 Judgement [2008], First Instance, Guangzhou Maritime Court.
Compensation for Cargo Damage in International Maritime Transportation:. . .
223
delivery of goods without bill of lading are very similar. Usually, the carrier
would have delivered the goods without presenting the original bill of lading to
the consignee at the port of destination, but the shipper in China would not have
received payment for the goods, and could claim for the payment made to the carrier
according to the original bill of lading. Article 6 of the Provisions on Delivery of
Goods without the Bill of Lading provides that “The amount of compensation for the
loss caused by a carrier to the holder of an original B/L due to delivery of goods
without the original B/L shall be calculated based on the value of the goods plus
freight and insurance expenses when the goods are shipped.” This provision is
consistent with Article 55 of the CMC.
In Dongguan City Baojian Paper Co., Ltd. v. Xiamen Kangjie Shun Logistics
Co., Ltd. & other which involved the release of goods without presenting the original
bill of lading,
27 the plaintiff had entrusted the defendant with transporting paper
towels, from Yantian port to Miami, USA. The defendant delivered the goods
without the original bill of lading at the port of destination, and as a result, the
plaintiff did not receive the payment. The court, based upon Article 113 of the
Contract Law and Article 55 of the CMC determined the defendant’s compensation
for the loss of the plaintiff’s goods and the interest calculated on the date of payment
determined by the judgment of People’s Bank of China at the same time.
It is noteworthy that Article 4 of the Provisions on Delivery of Goods without the
Bill of Lading stipulates that the carrier’s civil liability for the delivery of goods
without presentation of bill of lading shall not be limited according to Article 56 of
the CMC. Of course, while the Provisions on Delivery of Goods without the Bill of
Lading affirms the obligations and liability of the carrier to deliver the goods with the
original bill of lading, it draws on the Rotterdam Rules, in providing the exceptions
to the carrier’s liability in Articles 7 to 10. They are as follows:
1. If a carrier is obligated, according to the provisions of the laws of the place where
the port of discharge is located stated in the bill of lading, to deliver the goods
arrived at the port of discharge to the local authority in charge of customs or port,
the carrier shall not bear the civil liability for delivery of goods without any
original bill of lading (Article 7);
2. In the case no customs declaration is made for the goods that have arrived at the
port of discharge within the time limit specified by laws and the relevant customs
collects the goods and sells them legally, or the relevant court renders a decision,
in accordance with law, to sell the goods left by the carrier, if the carrier alleges
the exemption from liability for delivery of goods, the people’s court shall uphold
such allegation (Article 8);
3. Where a carrier, according to the requirements by the consignor of a straight B/L,
suspends the shipment, returns the goods, changes the port of destination or
delivers the goods to other consignees, if the consignee who holds the straight
27 No.292 Judgement [2008], First Instance, Guangzhou Maritime Court.
Compensation for Cargo Damage in International Maritime Transportation:. . .
223