海上货物运输中的提单承运人识别

发布时间：2018-03-04 21:03

本文选题：提单　切入点：承运人　出处：《上海海事大学》2005年硕士论文　论文类型：学位论文

【摘要】：提单是国际货物贸易和海上货物运输中最重要的一份单证,其维系着国际贸易和运输之各方当事人的权利和义务。签发提单的主体多种多样,可以是船舶所有人、租船人、转租船人、代理人等等,各个主体的签单方式更是千变万化。鉴于签单主体和签单方式的不同,导致非托运人的第三人在买进提单却最终发现货损货差后难以识别和发现真正的承运人。这种困难将直接影响到提单的流转性能,并进而影响整个国际贸易的顺利运转。相反,若能建立一套行之有效的善意提单持有人识别承运人的制度或者方法,将极大得有利于加强国际贸易的买方对于提单本身之信任,使其在发现货损、货差或迟延交付时可以顺利、及时得找到真正的责任人并得到相应的索赔。造成善意持有提单之第三人难以准确识别承运人的原因是多方面的,但主要是因为其并非运输合同订立之当事双方。区别于承托双方的该等第三人地位直接决定了其是在运输合同订立以后才参与到运输中来,无法像托运人那样利用合同订立时的资料来识别承运人,而仅能依赖其购进的提单表面来判断谁系承运人。另一方面,上述签单主体和签单方式的多样性也间接地增加了承运人识别的难度。就承运人识别问题,中国《海商法》对承运人概念作了明文定义,规定承运人是与托运人订立合同之人。但若是机械地将该等概念套用于法典之全部,则势必造成巨大的混淆,伤害国际贸易的稳定性。笔者在查询了近年来国内外学者和各级人民法院就该问题的理论研究和司法实践后认为,鉴于承运人签发提单之做法为法律所规定,故综合提单表面的各项记载及条款后认定之承运人(下文称为提单承运人)在善意持有提单之第三人看来,即系原与托运人订立合同之人,而无论真正之事实是否如此。又鉴于提单承运人和提单持有人之间的权利义务依提单之规定,而提单条款系事先由承运人印制,是真实意思表示的反映,而提单持有人接受提单也可以看成是对该意思表示的接受。故在笔者看来,在提单持有人和提单承运人之间建立了一个基于提单签发和流转而生的提单合同,虽然其订立并不完全依照《合同法》规定的方式,但对于该等提单条款的解释等仍可以比照适用《合同法》关于合同解释的一般原则和方法。关于如何运用合同解释的一般原则来解释提单,进而识别提单承运人的主体身份是一个技术性的问题,应当“具体问题具体分析”。本文对于提单上可能出现的船长
[Abstract]:Bill of lading is the most important document in international trade in goods and carriage of goods by sea, which maintains the rights and obligations of the parties involved in international trade and carriage. Subcharterers, agents, etc., the ways of signing orders of each subject are even more varied. In view of the difference between the subject of signing the order and the way of signing the order, The third party who leads the non-shipper to buy the bill of lading but finds it difficult to identify and find the real carrier after the loss of goods. This difficulty will directly affect the performance of the bill of lading and then affect the smooth operation of the whole international trade. On the contrary, the establishment of an effective system or method for the identification of the carrier by the holder of a bona fide bill of lading would greatly enhance the buyer's confidence in the bill of lading itself in international trade and enable it to detect damage to the goods, Delivery delay or delay in delivery can be smooth, timely to find the real responsible person and receive the corresponding claims. There are many reasons why the third party holding bill of lading in good faith is difficult to identify the carrier accurately, However, it is mainly because it is not a party to the conclusion of a contract of carriage. The status of these third parties, as distinct from the supporting parties, directly determines that they are involved in the carriage only after the conclusion of the contract of carriage. It is not possible to identify the carrier with the information at the time of the conclusion of the contract, as the shipper does, and can only rely on the surface of the bill of lading purchased by him to determine who is the carrier. On the other hand, The diversity of the subject and the way of signing also indirectly increases the difficulty of carrier identification. With regard to the identification of carriers, China's Maritime Law explicitly defines the concept of carrier, which stipulates that the carrier is the person who enters into a contract with the shipper. However, if the concepts are mechanically applied to the whole of the Code, there is bound to be a great deal of confusion. The author, after consulting scholars at home and abroad and people's courts at all levels in recent years on the theoretical research and judicial practice on this issue, believes that since the practice of issuing bills of lading by carriers is prescribed by law, Therefore, the carrier (hereinafter referred to as the carrier of the bill of lading) who has been identified as the carrier of the bill of lading on the surface of the combined bill of lading, in the opinion of the third party holding the bill of lading in good faith, is the person who originally entered into a contract with. And whether or not it is true. And since the rights and obligations between the carrier of the bill of lading and the holder of the bill of lading are governed by the bill of lading and the terms of the bill of lading are printed in advance by the carrier, it is a reflection of the expression of true intention, The acceptance of the bill of lading by the holder of the bill of lading can also be regarded as an acceptance of the meaning of the bill of lading. Although its conclusion is not entirely in accordance with the provisions of the contract Law, the general principles and methods of contract interpretation may be applied to the interpretation of the terms of the bill of lading, etc., mutatis mutandis. How to use the general principle of contract interpretation to interpret the bill of lading and to identify the subject identity of the carrier of the bill of lading is a technical problem, which should be "analyzed concretely". This paper deals with the possible captain of the bill of lading.
【学位授予单位】：上海海事大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D922.294;D996.19

【相似文献】