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essay Instructions delivered an endorsement of bill of lading legal effect
Instructions of the delivery of the bill of lading endorsement legal effect
On 28 September 2001, tea company in the company to sign with light by processing agreement, both sides agreed upon in the tea company entrust the light of 500 metric tons of cocoa processing company, the company shall be responsible for the light to return processing finished products. Involving endorsed on the bill of lading for people in the shipper company S, sales contract the seller C company, the company in tea light company, and finally by the company holds to the light bill of lading the defendant take delivery.
[the] essay
Shanghai maritime court that the trial, instructions of the bill of lading is the contract of carriage endorsement means the transfer of rights and obligations. The goods at destination delivery involved before, the bill of lading has endorsed by tea company in the company to light, and light company as to the carrier the bill of lading holder that pick up the goods, the bill of lading to prove in the transport the rights and obligations under the contract has been transferred, and the light of tea by processing between the company and to take delivery of the relationship between the carrier and the insurer can't fight, including the third person. The company has not in tea of the bill of lading legitimate holders, its again with the bill of lading to prove in the transportation contract as the basis, told the defendant shall bear the liabilities for breach has no legal basis. So this case the plaintiff to claim compensation for the damage to the defendant can't. According to the plaintiff's action for decision not to support. The plaintiff disaffected appeal, the higher people's court of the trial, in December 22, 2003, in the course of the decision made, dismissed the appeal, that ruling.
[comments]
This case is the together generation ask for compensation cases, according to the maritime law "of the provisions of article two hundred and fifty-two of the assured the actual pay later, shall obtain the generation ask for compensation power, to insurant loss responsibility for the third person recovery, but must satisfy several conditions, the most important point is: the generation of the insured, the subject matter of the insurance to cause damage to the third person, according to law, have the claim for damages, in turn, said the third person will also have the right to the insured for defense against the insurer to. Therefore, the trial of the case would first need that: in the bill of lading has been involved in the instructions of insurance company legal endorsed tea and delivered to the xing light extracting the goods company, after tea company in to the defendant whether the carrier has under a bill of lading damage resulting therefrom.
A bill of lading, instructions of the delivery of the endorsement of the internal validity: in the endorsement of tea company and the endorsee xing light between the company, tea company in the behavior of the bill of lading endorsement delivery is transferred to prove in the bill of lading transportation of rights and obligations under the contract (including the carrier under a bill of lading damage resulting therefrom) preliminary evidence, of course, of the company may, according to the tea with the light between the company by processing, as well as the relations between the law about the ownership of the classification of the XiangXingGuang agreed that the company of bill of lading corresponding rights.
According to our country "maritime law" regulation, the bill of lading is the carrier and the shipper reached between the contract of carriage of goods by sea proof, the role of the bill of lading that it is in the validity of the creditor's rights, it is both sides in the cargo transport of goods in relation to determine the basis for the rights and obligations. When the bill of lading from the shipper or the consignee, the transfer to transfer the transferee or other bill of lading holder, the proof of the bill of lading contract of carriage of goods by sea is then shift. The carrier and the holder of the bill of lading the rights and duties in the relationship between in accordance with the provisions of the bill of lading to determine. The nature of the transfer of bill of lading, according to China's most scholars point of view and is regarded as the international practice of British "1855 bill of lading law" and the "1992 years of carriage of goods by sea law", it is to point to "include the proof of the bill of lading or contract conveyance". The modern civil law countries accepted both the contract in principle can be conceded, contract after the baton, from the original contract relationship between the transferor and transferee replace the transferor become parties. According to our country "maritime law" regulation, the bill of lading must be endorsed and instructions after delivery of the transfer, endorsed the instructions on the back of the bill of lading to record and signature of behavior, is the bill of lading for people in the bill of lading of who or who instructions by taking delivery of the goods description. The bill of lading holder to prove the rights of the continuous endorsed, is a bill of lading legal assignee, thus make the bill of lading to prove in the contract of the parties of the legal status, namely enjoy receive the goods, the damage to claim rights. Because the contract transfer is the contract rights and obligations summarized conceded, all the contract contents include all the benefits and drawbacks are jib at the assignee, between the rights and obligations cannot be separated, receive the goods of the rights and the damage to natural also claim cannot be separated. Therefore, it is of bill of lading instructions for taking the goods and on the basis of bill of lading shall have the right to put forward to the carrier the damage of the claim should be endorsed by continuous and hold a bill of lading lawfully obtained the consignee. In this case, in the back of the bill of lading shall tea and delivered to the xing light company used to pick up the goods, accord with the bill of lading the transfer of the formal requirements, has become the transfer of the preliminary evidence of bill of lading, of course, the tea companies can still according to its and the light by processing between the company and other laws, as well as the relations between the divided about the ownership XiangXingGuang company agreed that the bill of lading corresponding rights.
Second, the instructions of the delivery of the bill of lading endorsement of foreign effect: involving bill of lading legally instructions that the carrier has endorsed delivery which are legal in effect, the carrier is also only just to bill of lading of legal transferee contract to perform its obligations under a contract fails to fulfill the obligation and the responsibility of the company and the light of tea company by processing legal relationship between the ownership of the goods as well as about division agreed the carrier can't fight.
The bill of lading transfer the generation after two effectiveness, internally effect, as mentioned above, the bill of lading to prove in the transportation all the contract contents shall transfer to the assignee, all of the benefits and drawbacks damage resulting therefrom also then including transfer, but the transferor and transferee unless otherwise agreed between the except; Foreign, the carrier is also only just to the assignee to perform under a bill of lading contract obligation and does not perform obligations of responsibility, such as the damage to the liability for compensation, and no longer for people to the bill of lading to perform its obligations under a contract and accept responsibility. The bill of lading transfer is not the general contract transfer, but the provisions of law the baton special, because this bill of lading contract without notifying the baton as part of the carrier or get it, with the agreement of the bill of lading is issued by the carrier has been confirmed in advance of the bill of lading transfer, as long as the bill of lading transfer form conform to the laws and practices, for the carrier for, which is effective. As mentioned above, in this case the tea company behavior has constitute the legal sense of the bill of lading endorsement assignment, the plaintiff is repeatedly claims that, in the company and bill of lading be endorsed tea scattered light company is the relationship between by processing, not business relationship, the bill of lading is not necessarily the endorsement is right transfer for the purpose, the endorsement of tea company behavior by the light delivery company only, etc. But on the back of the bill of lading involved signature or bill of lading surface are used only for delivery without rights such as keep mean said, the endorsee xing light when taking delivery, the company also did not inform the department to take delivery of the carrier, the carrier has enough to believe that the company has light has bought a bill of lading, and based on this kind of trust XiangXingGuang company to perform the obligation of the delivery of the goods, the tea company and the light between the company other agreement not of the carrier check list the delivery of goods examination scope, can't fight by processing the contract relative to the third party-the carrier. For the carrier for the transport of goods on the way, the bill of lading goods under the other party is in a state of uncertainty, but as long as the bill of lading legal endorsement assignment, the bill of lading goods under the affirmatory already, the carrier is also only just to the bill of lading legal transferee to perform its obligations under a contract and does not perform obligations of responsibility.
In addition, according to the international shipping practice, the full set of original bill of lading in three copies, each have the same legal effect. In the unloading port, the carrier to deliver goods the transferee of bill of lading, recycling a original bill of lading, after the delivery of the goods have been fulfilled the responsibility, and the rest of the bills of lading are ineffective. Therefore, the plaintiff a burden of original bill of lading and can't be insurance proof of tea company and the carrier still exists between the contract of carriage of goods by sea relationship.#p#分页标题#e#
In conclusion, involving bill of lading legally instructions for endorsement after delivery, be insurance companies have not have tea of the bill of lading holder or the consignee's legal position, and its and the carrier has not exist between the contract of carriage of goods by sea relationship, shall have the right to require the carrier to undertake according to the bill of lading/responsibility. And as the insurance generation of the plaintiff, its since is a generation or transfer the insured's claims, and can't get the insured in the law have lost the rights, can't surpass insurant to the third person to exercise their rights, on the other hand, will be the third person to the insured's right of defense (including rights flaws) constraints, therefore the basis of bill of lading carrier shall request the damage to the liability for compensation of the same facts and lack of filing legal basis, according to law shall not support.
Bill of lading endorsement after delivery instructions to produce two effectiveness, internally, unless otherwise agreed, the endorsee (bill of lading grantor) endorsement of the bill of lading is transfer delivery behavior of bill of lading to prove in the transport of the rights and obligations under the contract (including the carrier under a bill of lading damage resulting therefrom) preliminary evidence; Foreign, since the carrier is also only just to the bill of lading the assignee to perform under a bill of lading contract obligation and does not perform obligations of responsibility includes the damage to the liability for compensation, and no longer for people to perform its obligations to the bill of lading or bear the responsibility. In this case the carrier has enough to believe that the company has light has bought the bill of lading, and based on this kind of trust XiangXingGuang company to perform the obligation of delivery. In this case, the bill of lading endorser) tea company and bill of lading the assignee xing light by processing between the company and other laws, as well as the relations between the division of the ownership, not of the carrier to check only put the goods examination scope, by processing of the formation of the contract law relationship can't fight--the carrier third party. The complainant as insurer exercise generation ask for compensation power, can't get the insured in the law have lost the right, of which the carrier shall be based on the bill of lading for damage compensation liabilities suing for the same lack of facts and legal basis, can't get support.
[the case is
Accuser: China some insurance company
essay The defendant: Japan inc
September 20, 2001, as the buyer in the tea with the Dutch C company sign 500 metric tons of cacao sales contract, and the payment conditions for FOB Abidjan, payment by l/C. The shipment time is in November 2001, packing for new sack. On November 19, 2001, the plaintiff China some insurance companies issue involving cargo transportation insurance policy, which was recorded in the insurance people tea company, from ivory coast (ivory coast) to Shanghai, China, for all risks insurance don't pile. On the same day, tea company in pay the premium. November 20, 2001, the accused Japan corporation issued Numbers for 754062853 of the bill of lading records: the shipper for S company, the consignee with instructions, notifying the tea company in light company, the port of loading for ivory coast (ivory coast) Abidjan, port of Shanghai, China to the state of the goods for 7700 package ivory coast (ivory coast) cacao, 500 metric tons.
December 21, 2001, involving a imports of goods customs declaration, customs declaration form of business unit in recorded for tea company, receiving the unit is xing light company, goods USES for the annoyance of processing. In the same year on December 29, the plaintiff China some insurance companies from the accused Japan a company claims notice. On January 15, 2002, China import and export commodity inspection corporation (hereinafter referred to as the China commodity inspection) is the inspection certificate issued by the goods involved, that Chinese commodity inspection personnel in December 25, 2001 to test site of shaoxing, zhejiang province library field, container is found, no, bill of lading and nut consistent, box without damage, but have ooze water, the top have a large number of condensate, desiccant all wet, pad of cardboard soaked goods, the place sacks corrosion damage, the upper goods moldy to a lesser degree, the bottom water and moldy agglomerate, the loss that comes to $105835, the reasons for the loss of basic judge as the sea by the sea water container on caused by soaking. On March 8, 2002, issue of tea and rights transfer receipt reparations, prove its already received involving cargo insurance indemnity RMB 1157824.01 yuan, and agreed to have made the reparations of the subject matter of the insurance of all rights transfer to the plaintiff.
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