Conclusion:

The practice in the United States, Brazil, Honduras, El Salvador, Dominica, Venezuela, Turkey and other countries is that the consignee of "straight bill of lading" can pick up the goods only by the endorsement on the "Notice of arrival" and the identity certificate of the consignee instead of the "original bill of lading". Some countries, such as the Brazilian customs, further do not accept the "bearer pick-up" and require the shipper to issue a "straight bill of lading". Therefore, the Chinese shipper in Brazil is simply unable to control the maritime cargo right through the original bill of lading.

Basic concepts:

1. Ocean bill of lading (B / l-bill of lading for short) is the most important document in the operation of international trade. It has the following functions:

1) To prove the establishment of the contract of carriage of goods by sea between the consignor and the carrier;

2) A document certifying that the goods have been accepted or loaded by the carrier and that the carrier undertakes to deliver the goods;

3) The most important document of title to goods.

Because the ocean bill of lading is regarded as the "document of title", in the current international trade practice, we generally believe that who owns the original bill of lading will own the ownership of the sea cargo under the bill of lading.

2. Straight bill of lading, instruction bill of lading and bearer bill of lading:

1) Bearer bill of lading (blank / L or open B / L): that is, the space of consignee in the bill of lading is empty, there is no consignee information or "to order", and the name of the consignee is not clearly displayed in other positions of the bill of lading, which means that whoever holds the bill of lading will have the ownership of the goods under the bill of lading. The bearer bill of lading can be transferred without endorsement. Anyone holding the bill of lading can require the carrier to release the goods, which poses a great risk to all parties in the trade, especially the shipper (seller). Therefore, this form of bill of lading is rarely used in international trade practice.

2) Straight B / L: it refers to the bill of lading with the name of the consignee on the bill of lading. Straight bill of lading can only be picked up by the consignee designated on the bill of lading;

3) Instruction bill of lading: refers to the bill of lading with the words "to order" or "to order of XXXX" in the consignee column of the bill of lading. (to order) is called bearer instruction bill of lading. The carrier shall deliver the goods according to the shipper's instructions. However, in practical operation, generally, whoever holds the original bearer instruction bill of lading has the right to the goods under the bill of lading; (to order of XXX) is called straight instruction bill of lading. The carrier delivers the goods according to the instruction of the straight instruction person. Generally, "to order of XXX bank" often appears as the consignee under the conditions of letter of credit (L / C) or collection (D / P). In international practice, the bank is generally required to endorse the bill of lading before it can be transferred to the consignee designated by the bank.

Risk tips:

Export enterprises often think that after the goods are shipped, if the customer does not pay, they can instruct the carrier to return the goods or entrust an agent to resell the goods with the original bill of lading, which will not empty the money and goods; If the shipping company releases the goods without presenting the original bill of lading, the shipping company can also be investigated for the responsibility of releasing the goods without bill of lading. Generally, the security of bill of lading is guaranteed, but there are still exceptions.

Brief introduction to the case

In 2010, an export enterprise a in Sichuan signed a batch of export contracts for garment products with American importer B, with an amount of USD 200000, and the payment method is LC30 days. The importer issues a letter of credit, which requires that the importer be designated as the consignee and a company in the United States be designated as the carrier. The exporter timely arranged the shipment and presented the documents to the bank, but the payment for goods was delayed. At this time, the bank raised the discrepancy and returned the documents. The exporter quickly inquired about the whereabouts of the goods and was told that the goods had been taken away. Exporter a asked the shipping company to explain why the three original bills of lading were still in the bank and there was no delivery instruction. Why should the goods be released? The shipping company informed that according to American law, the straight bill of lading can release the goods without the original bill of lading and only the identity certificate of the consignee, and the shipping company has no responsibility. Exporter A is faced with the cruel reality of holding the original bill of lading but leaving both goods and money empty. In the case of no result in asking the shipping company to compensate for the goods, a petition pushed the shipping company into the dock. The final judgment of this case is applicable to the U.S. maritime transportation law of 1936. According to this law, under the straight bill of lading, the carrier can release the goods without the original bill of lading, as long as the consignee provides relevant documents proving his legal identity, the final judgment is that the shipping company is not liable.

Case summary

In this case, the importer had a bad intention at the beginning, but the exporter did not see through, resulting in the situation of empty money and goods. Analyzing the case, the exporter made three obvious mistakes: first, the destination country bought the hidden danger of loss for straight bill of lading, instruction bill of lading and bearer bill of lading; The second is. The adoption of FOB trade terms and the appointment of the carrier by the importer seems to save time and effort, but the carrier of the other party certainly favors the importer and fails to notify the exporter in time when the importer takes delivery without payment; Third, the use of law was not agreed in the contract between the two parties, resulting in the court's judgment that it was reasonable for the carrier to release the goods without bill of lading.

Risk prevention suggestions

Straight bills of lading must be used with caution. If a straight bill of lading is required in a credit, it is best to require amendment; If the customer insists on using the straight bill of lading, he must find out the reason and understand the legal provisions of the countries involved in the transportation business on the property of the document of title of the straight bill of lading. If the goods are shipped to the United States, the straight bill of lading should not be used, or a statement should be added on the straight bill of lading: "this bill of lading is applicable to China's maritime law" to restrict the carrier to release the goods against the original bill of lading, Only in this way can we ensure the safety of trade under the letter of credit.

Based on the above situation, Chinese exporters should understand the provisions of the laws of the destination country on the nature of the bill of lading and take preventive measures.

At present, the legal provisions on the nature of straight bill of lading are not consistent in various countries. For example, in China, according to Article 71 of the maritime law, bill of lading refers to the document used to prove that the contract of carriage of goods by sea and the goods have been received or loaded by the carrier, as well as the carrier's guarantee to deliver the goods. The terms stated in the bill of lading on delivery of goods to the named person, or in accordance with the instructions of the instructing person, or to the holder of the bill of lading constitute the guarantee on which the carrier delivers the goods ". In other words, China's law stipulates that the straight bill of lading is also a document of title, and the shipping company can deliver the goods to the straight consignee only with the original straight bill of lading.

Article 6 of the United States Federal Bill of lading stipulates that the straight bill of lading shall not be negotiable, and the front shall state "non negotiable." Article 9 clearly stipulates that the carrier has the right to deliver the goods to the consignee of the straight bill of lading. However, if the cargo owner exercises the right of stoppage, the carrier shall be liable if it still releases the goods to the named consignee (Article 22). Straight bills of lading cannot be transferred without equity, and the endorsement of such bills of lading does not give the transferee any additional rights (Article 29).

In addition, § 2-505 (1) of the Uniform Commercial Code of the United States stipulates that "a straight bill of lading delivered to the seller himself or another person determined by the seller enables the seller to retain its interest by maintaining its possession of the goods. Therefore, the seller must restore its possession and lien on the consigned goods through the right of stoppage in the middle of the process, so as to provide guarantee for its payment for the goods." "A straight bill of lading with the buyer as the consignee does not enable the seller to retain a security interest even if it is in the possession of the seller.".

Therefore, in U.S. trade, if the bill of lading has a named consignee, such bill of lading cannot be circulated. Such a straight bill of lading is only another alias of the sea waybill misusing the name of the bill of lading. According to Article 9, the carrier has the right to deliver the goods to the named person even without submitting the straight bill of lading.

Other major trading countries have different agreements on straight bills of lading. Article 654 of the German commercial code in 1998 stipulates that the master must take back all the original straight bills of lading before instructing the return or delivery of goods. However, there is no legal provision for straight bills of lading in Britain.