[ 董剛 ]——(2004-1-16) / 已閱36131次
Carrier breach of contract tort Concurrent Carrier Breach of contractTort concurrent
The person delivering without B/L TortUndue enrichment Joint tortConcurrent The person delivering without B/L tortundue enrichment Joint tortConcurrent
seller Breach of contract (if the holder is buyer and the contract is physical delivery) buyer Breach of contract (if the deliverer is the buyer)
4. Letter of guarantee of releasing of goods without B/L—— The interpellation to the recent theory and practice.
Faced to the contradiction of releasing of goods without B/L, it is common to take delivery with copied B/L in addition to letter of guarantee. In 1983, the Ministry of Foreign Economic and Trade issued instrument in the form of notice, permitting to take delivery with copied B/L in addition to letter of guarantee. It’s beneficial to relax the pressure of port, reduce the extension of shipping and accelerate the circulation of goods. Some people said “the letter of guarantee is the lubricant between trade and shipping”.[36] But recently, the issue of letter of guarantee is universe. Moreover, the 《Maritime Law of PRC》doesn’t regulate the issue of letter of guarantee, so it bring about long-time dispute among people.
a. The character of letter of guarantee:
Letter of guarantee is the document that the guarantor issues to the carrier unilaterally. It belongs to an offer. The acceptance to the letter of guarantee and the act of releasing of goods without B/L constitute the acceptance. So they constitute the contract of suretyship commonly——an agreement of compensative suretyship. According to the Provision 6 of 《Guarantee Law of PRC》 “The guarantee mentioned in this law means the act that the guarantor performs the debt or undertakes the responsibility when the debtor doesn’t perform the obligations according to the agreement between the guarantor and creditor”. The main content of letter of guarantee under the circumstance of releasing of goods without B/L is that the guarantor guarantees to take the responsibility to the carrier because of releasing of goods without B/L, and recover the carrier’s damages because of releasing of goods without B/L.
b. The validity of letter of guarantee—— the interpellation to the criterion of “good faith and malice”
Since a long-term period, the most typical standing point about the validity of letter of guarantee is judging the validity according to the good faith or malice of guarantor: the malice letter of guarantee is invalid, and the good faith letter of guarantee is valid only between the relative person.[37] This viewpoint is very popular in the recent academic circle and maritime trial because of the influence of sub-section 2 and 3 of Provision 17, 《Hamburg Rules》[38].
But it is difficult to operate in practice. The criterion of good faith and malice is difficult to grasp, and doesn’t take notice of the character of letter of guarantee. Once some people stressed that according to the Provision 5 of 《Guarantee Law》: “The contract of guarantee is the accessory contract of master contract, if the master contract is invalid, the accessory contract is invalid either”. Because the act of releasing of goods without B/L is absence of legal basis, belonging to illegal activity, the letter of guarantee as the contract of suretyship is invalid either.[39] This standing point recognizes that we should inquire into the issue of the validity of indemnity from the angle of accessory obligation of guarantee contract, but it is not tenable.
Firstly, the obligation which the indemnity guarantees is not the obligation of contract, and is not the act itself of releasing of goods without B/L. The act of releasing of goods without B/L brings about two relationships of debt. One of it is the tort or breach of contract obligation between the carrier and the holder of original B/L. The other one is the relationship of creditor’s right between the carrier and the person who takes delivery without B/L. In my opinion, the relationship between them should be the obligation of undue enrichment. The reason is as aforesaid. The act of the person who takes delivery without B/L is conformity with the essentials of the obligation of undue enrichment. And the relationship between them can only be the obligation of undue enrichment. There’s no contractual relation between them, so the breach of contract can’t be tenable. It’s also impossible to constitute the obligation of voluntary service. Releasing of goods is the voluntary act of the carrier, not infringing his rights, so it doesn’t constitute the obligation of tort either.
Secondly, according to the Provision 5 of 《Guarantee Law》, the master obligation guaranteed should be the “master contract”. But according to the Provision 1 of the 《Jurisdictional interpretation of Guarantee Law》: “ Under the circumstance of non-infringement of the mandatory provisions of law, if the parties create the guarantee for the creditor’s right in the form regulated by the
, it may be found validity”. This regulation extends the object of guarantee from “contract” to “creditor’s right”. It’s in conformity with the current tendency of real law. So what’s the letter of guarantee of releasing of goods without B/L guarantees is the obligation of undue enrichment, this standing point has legal basis as mentioned above.
Having cleared-cut the two issues above. Whether the indemnity of releasing of goods without B/L is valid, at first, we should take into consideration that whether the obligation of undue enrichment—— the master obligation it guarantees——is valid. If the master obligation is invalid, the letter of guarantee must be invalid. Secondly, we should consider whether the guarantor has the fraudulent conduct. According to the Provision 41 of《Jurisdictional interpretation of Guarantee Law》: “If the debtor and guarantor fraud the creditor jointly to conclude the master and suretyship contracts, the creditor can claim to the court to rescind the contracts. The debtor and guarantor undertake the joint and several responsibility for the damage of creditor.”
Now we can draw a conclusion: Under general circumstances, if the obligation of undue enrichment between the carrier and the person who takes delivery without B/L is tenable, the letter of guarantee is also valid. In the case of guarantor’s fraudulence, the carrier can request to court for revocating the act of guarantee.
C. The extending tendency of the independence of letter of guarantee—— Demand Guarantees
Recently, the Demand Guarantees are adopted widely in the contract of international sale on goods. It’s widely used for restricting the guarantor in case of abusing the invalidity of master obligation as the reason of counterargument. One of the cardinal principles is that the guarantee is independent of basic transaction and the relationship between guarantor and beneficiary.[40] The banks in U.S.A can’t sign and issue letter of guarantee, so they substitute it with “standby L/C”.[41]
In the case of releasing of goods without B/L, the carrier and the Demand Guarantee presenter agree that when the carrier receives the documents of claim declaration submits to the guarantor, if it’s in conformity with the requirement of Demand Guarantee, the guarantor should pay to the carrier. Thus, the validity of letter of guarantee is independent of master obligation, stressing the autonomy of will of the parties. It is conformity with the regulation of Provision 5 of 《Guarantee Law》 “If the contract of suretyship has other agreements, do according to it”.
6. The resolution to the issue of releasing of goods without B/L
a. The advices given to solve the issue:
(a). Employment of sea waybill: sea waybill is a kind of non-negotiable written document which demonstrates the goods carried by sea have been taken over or shipment by the carrier and the carrier guarantees to deliver goods to the designated consignee.[42] Because of non-negotiable, sea waybill doesn’t represent the ownership of goods, preventing the fraudulence may be brought about in the assignment of B/L. Meanwhile, it reduces the process of circulation, so the consignee can take delivery immediately, adapting to the recent reality of fast shipping but slow exchange of documents. The problem of releasing of goods without B/L is resolved.[43]
(b). Adoption of electronic B/L: It’s a kind of procedure which makes use of the system of EDI to assign the ownership of goods carried by sea. The 《Rules of Electronic B/L》 formulated by CMI stipulates in Provision 9 that: “…when delivering, once the consignee shows the valid document, the carrier must release of good after checking. The owner of goods issues a directive of delivery to the carrier according to the code given by carrier, and the carrier releases of goods according to the directive of delivery”.[44]
(c). The enterprises of export conclude CIP or CFR contracts if possible: In February, 2001, the Ministry of Foreign Economic and Trade issued 《 The notice about evasion of risk of releasing of goods without B/L》, expounding that recently the shipping agents were in collusion with the importers to release of goods without B/L in 60-70 percent FOB contracts. At last, both the goods and money of our export enterprises were lost. So, the MFET suggested the foreign trade enterprises should conclude CIF or CFR contracts if possible.
c. The evaluation to the advice mentioned above and the viewpoint about it.
The documents subject to title of document such as sea waybill have been widely used in the carriage by sea. Compared with the traditional B/L, sea waybill has many advantages. But B/L function of exchange in carriage by sea still can’t be substituted by sea waybill completely. Some people said: “ the system of company and security are the two basis of modern capitalism”, while the development of B/L is just in conformity with the tendency of rights securitization. So from the view of encouraging the exchange of trade, it’s not appropriate to substitute the B/L with sea waybill totally.
If electronic B/L is adopted, the owner of goods can control through
the code issued by the carrier. The circumstances of releasing of goods without B/L cannot appear generally. But in the recent stage, this proposal is not appropriate to bring into effect because of many technical elements and incapacity of the parties.
As for the suggestion of the Ministry of Foreign Economic and Trade, adoption of the trade terms of CIF or CFR is really more beneficial to prevent releasing of goods without B/L than FOB. Just as Mr. Yang Liangyi said: “If the term FOB is adopted, the consignee controls the shipping and takes charge of the ship chartering. He can insist that one provision should be put down in the charter party, stipulating that the shipowner must release of goods without B/L at the discharging port or the damage of waiting for the B/L to discharge doesn’t constitute the demurrage.” In case, original B/L can not be made available at the discharging port, then vessled to release the cargo against Charter’s letter of indemnity in accordance to Owner’s P&I Club wording”.[45] But, meanwhile, we should recognize that most of the fraudulences of B/L come from the buyer in contract CIP or CIF. If many contracts of CIP or CFR are to be adopted, the quantity of our export trade will be influenced.
Summarizing all the mentioned above, the legal character of B/L determines the absence of legal basis of the act of releasing of goods without B/L. It waves the legal position of B/L as the title of document. We should not quanlificate uniformly to the responsibility of this act. Instead, we should analyze all the responsibility which may result in, such as breach of contract, tort, concurrent of responsibility and unreal joint and several responsibilities according to the concrete situations. While at present, to some extent, the act of taking delivery with copied B/L in addition to letter of guarantee is beneficial to accelerate to the circulation of goods and relieve the pressure of the crowded port. But it’s also an infringement to the interest of the holder of original B/L if adopted frequently. The criterion of “good faith and malice” in juridical practice is different to grasp, so we’d better stipulate the issue of letter of guarantee definitely in the 《Maritime Law of PRC》. I suggest adopting the following model: “Letter of guarantee is the contract of suretyship between the carrier and the person who takes delivery without B/L. It is the accessory obligation of the master obligation of undue enrichment. The validity about it is in the light of the regulations of 《Guarantee Law of PRC》. At present, the several resolutions which people have presented are reasonable to some extent, but all of them have disadvantageous either. In the finial analysis, the solving of the problem lies in enhancing people’s legal ideology, and clarifying the risk of releasing of goods without B/L. Moreover, we should cut down the barriers in the process of exchange of documents. Find out the best balance point between justice， Security and efficiency from the respects of subjective and objective.
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