无单放货的法律责任及承运人的抗辩

发布时间：2018-04-24 08:20

本文选题：无单放货 + 法律责任　；参考：《华东政法大学》2008年硕士论文

【摘要】： 无单放货一直是海商法的热点问题。现代航运技术的进步大大缩短了国际海上货物运输的时间,而提单的缓慢流转却成了海运中货物交付的障碍。在国际海上运输中,经常出现船货已经早早到达目的港,而提单尚没有到达收货人的手中的情况。此时,承运人往往出于自身利益的考虑,为了避免货物压仓,遭受船期延误的损失,在未出示正本提单的情况下将货物交给前来提货的人。在英国审理的一个案件中,一位有着14年船龄的船长当被问到有多少次遇到交货前向他递交正本提单的情况时,他回答的是“我从未见过它(正本提单)。”足见无单放货的现象频繁发生。对于无单放货,承运人到底应该承担什么样的责任?是违约还是侵权?又或是两者竞合呢?学界的看法不一,而司法实践中法院在不同时期对此所做的判决也大不相同。对于无单放货的责任的纷争引起了人们对于在国际贸易中扮演重要角色的提单的功能的讨论。提单应该被视为物权凭证还是债权凭证?无单放货在某些特定情况下,是否有其合理之处,承运人是否一律需要对其行为承担责任?承运人可以援引那些抗辩事由,以阻却其无单放货行为的违法性?在记名提单下,承运人是否一定要凭单放货? 笔者拟从提单的功能出发,认为提单在贸易运输中流转各个环节,在每个环节中承担着不同的使命,具有不同的功能,对于提单的功能应当在不同环节中加以区分,而不可一概地将提单归为物权或债权凭证,进而对无单放货的性质展开讨论,认为无单放货行为既违反了承运人根据其与托运方签定的运输合同中规定的凭单放货的义务,同时也侵害了提单持有人的货物所有权,造成了提单持有人的财产损失,构成违约和侵权责任的竞合。而在签发记名提单下,承运人无须凭单放货,对其无单放货行为不需要承担责任。同时笔者认为无单放货行为也不一定都违法,也可能在某些情况下具有合理性。由于某种特定事由的出现,承运人并不必然对其无单放货行为承担责任。笔者就承运人在提单持有人向其提出索赔时通常提出的几种抗辩事由如诉讼主体,诉讼时效,提单持有人的认可以及卸货港的法律等等进行剖析,以使大家能更好地审视无单放货这一问题,从中得到一定的启示。最后笔者就无单放货问题提出了相关的解决建议,以期更好地规避无单放货这一风险,平衡船货各方的利益关系。
[Abstract]:Delivery of goods without documents has been a hot issue in maritime law. The progress of modern shipping technology has greatly shortened the time of international carriage of goods by sea, but the slow circulation of bills of lading has become an obstacle to the delivery of goods in maritime transportation. In international maritime transport, it often occurs that the cargo has arrived at the port of destination early, and the bill of lading has not reached the consignee. At this time, the carrier often out of their own interests, in order to avoid cargo pressure, suffered the loss of delay in shipping time, in the absence of presentation of the original bill of lading to deliver the goods to the person who came to pick up the goods. In one British case, a 14-year-old captain was asked how many times he was presented with the original bill of lading before delivery, and he replied, "I've never seen it before." It is obvious that the phenomenon of loading goods without bill occurs frequently. What kind of responsibility should the carrier bear for the delivery of goods without documents? Default or infringement? Or the two? There are different opinions in academic circles, and the courts' judgments in different periods in judicial practice are also very different. The dispute over the liability of delivery without documents has led to a discussion of the functions of bills of lading, which play an important role in international trade. Should the bill of lading be regarded as a document of title or a document of claim? Is there any justification for the delivery of goods without documentary evidence in certain specific circumstances, and does the carrier always have to be held responsible for its conduct? What defences can the carrier invoke to prevent the illegality of its undocumented delivery? Under a registered bill of lading, does the carrier have to deliver the goods on demand? Starting from the function of bill of lading, the author thinks that every link of bill of lading in trade and transportation has different missions and functions in each link, and the function of bill of lading should be distinguished in different links. However, the bill of lading cannot be classified as property right or creditor's right, and the nature of undocumented delivery of goods is discussed. It is considered that the act of releasing goods without bill of lading violates the carrier's obligation to release the goods according to the documents stipulated in the contract of carriage signed between the carrier and the shipping party. At the same time, it also infringes the owner's ownership of goods, and causes the property loss of the holder of bill of lading, which constitutes the concurrence of breach of contract and tort liability. Under the bearer bill of lading, the carrier does not need to release the goods on paper, and does not have to take responsibility for the delivery of goods without the bill of lading. At the same time, the author thinks that the behavior of releasing goods without bill is not always illegal, and it may be reasonable under some circumstances. As a result of a particular cause, the carrier is not necessarily liable for its undocumented delivery. The author analyzes several kinds of defenses usually raised by the carrier when the holder of the bill of lading claims against him, such as the subject of action, the limitation of action, the approval of the holder of the bill of lading and the law of the port of discharge, etc. In order to enable you to better examine the issue of non-documentary delivery, from which to get some enlightenment. Finally, the author puts forward some suggestions to solve the problem, in order to avoid the risk and balance the interests of all parties.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D996.19;D922.294

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