Provisions of the Supreme People's Court on Several Issues about the Application of Law in the trail of Cases involving Delivery of Goods in the Absence of Original Bill of Lading

Fa Shi [2009] No. 1

February 26, 2009

The Provisions of the Supreme People's Court on Several Issues about the Application of Laws in the Trial of Cases involving Delivery of Goods in the Absence of Original Bill of Lading, which have been adopted by the Supreme People's Court at 1463rd meeting of Judicial Committee, are hereby promulgated and shall come into force as of March 5, 2009.

In order to correctly try the cases delivery of goods in the absence of original bill of lading, these provisions are formulated in accordance with the Maritime Law of the People's Republic of China, the Contract Law of the People's Republic of China, the General Principles of Civil Law of the People's Republic of China.

Article 1 For the purpose of these provisions, the term "original bill of lading" refers to straight bill of lading, order bill of lading and blank bill of lading.

Article 2 Where a carrier delivered goods in the absence of original bill of lading in violation of the provisions of law, which has caused prejudice to the rights of the holder of original bill of lading, the holder may demand that the carrier assume civil liabilities for the losses herein resulted therefrom.

Article 3 Where a holder of original bill of lading suffered losses from the carrier's delivery of goods in the absence of original bill of lading, the holder of original bill of lading may hold the carrier liable for breach of contract or tort.
For the carrier who has been demanded to assume civil liabilities for delivery of goods in the absence of original bill of lading, the relevant provisions in the Maritime Law shall be applicable; in the absence of such provisions in the Maritime Law, the provisions in other laws shall be applied.

Article 4 The carrier who assumed civil liabilities for delivery of goods in the absence of original bill of lading shall not be entitled to limitation of liability provided for in Article 56.

Article 5 Where a person has taken delivery of the goods with forged bill of lading, the consignee with the original bill of lading may demand the carrier assume civil liabilities for delivery of goods in the absence of original bill of lading.

Article 6 The indemnity for the losses suffered by the holder of the original bill of lading from the carrier's delivery of goods in the absence of original bill of lading shall be calculated on the basis of the value of the goods at the time of shipment plus freight and insurance.

Article 7 Where the carrier is liable to deliver the goods consigned for carriage to the local customs or pot authority under the law of the place where the port of discharge specified in the bill of lading locates.

Article 8 If nobody declare the goods consigned for carriage with the customs within the prescribed period, and such goods were taken over and sold off by the Customs in accordance with the law, or the goods under lien of the carrier were ordered for auction by the court in accordance with the law and the carrier claimed that his obligation of delivery be relieved, such claims shall be sustained by the people's court.

Article 9 Where the carrier suspended carriage, returned goods, changed destination or delivered the goods to another consignee under the requirements of the consignor specified in the straight bill of lading, and the consignee holding the straight bill of lading claimed that the carrier shall assume civil liabilities for delivery of goods in the absence of original bill of lading, such claims shall be denied by the people's court.

Article 10 Where the carrier issued original bill of lading in copies, after the goods was delivered to the first one submitted the original bill of lading, other persons holding the same original bill of lading demand that the carrier assume civil liabilities for delivery of goods in the absence of original bill of lading, such claims shall be denied by the people's court.

Article 11 The holder of the original bill of lading may demand that carrier who delivered goods in the absence of original bill of lading assume several and joint liabilities.

Article 12 Where the shipper who hold the order bill of lading and made actual delivery of the goods has, albeit there's no reference to his shipper status in the original bill of lading, demanded that carrier assume civil liabilities for delivery of goods in the absence of original bill of lading, such claims shall be sustained by the people's court.

Article 13 After the goods were delivered by the carrier in the absence of original bill of lading, if the holder of the original bill of lading has reached an agreement with the person who has taken delivery of the goods on the payment for goods and the amount payable under the agreement is not compensated, the right of the holder of the original bill of lading to demand the carrier assume civil liabilities for delivery of goods in the absence of original bill of lading as for the losses he/she suffered shall not be affect.

Article 14 For the cases filed by the holder of the original bill of lading for carrier's delivery of goods in the absence of original bill of lading, the provision of Article 257 in the Maritime Law shall be applicable. The prescription of such cases shall be one year, starting form the date on which the goods are due for delivery by the carrier.
For the tort cases filed by the holder of the original bill of lading for the delivery of goods in the absence of original bill of lading jointly committed by the carrier and the person who took delivery of the goods without the original bill of lading, the preceding paragraph shall apply in respect of prescription.

Article 15 For the cases filed by the holder of the original bill of lading for carrier's delivery of goods in the absence of original bill of lading, the provision of Article 267 in the Maritime Law shall apply in respect of suspension of prescription.
For the tort cases filed by the holder of the original bill of lading for the delivery of goods in the absence of original bill of lading jointly committed by the carrier and the person who took delivery of the goods without the original bill of lading, the preceding paragraph shall apply in respect of suspension of prescription.