Abstract

The presentation rule of the straight bill of lading developed indifferent approaches in the jurisdictions of Mainland China and Hong Kong. In the Mainland, the carrier shall not be liable for the delivery of goods without the presentation of the straight bill if hedoes so according to the shipper’s instruction and the consignee has no cause of action against the carrier for such delivery. Conversely, Hong Kong followed the strict presentation rule confirmed by the precedents of Singapore and UK in which the straight bill of lading is required to be presented for the delivery of goods. These developments indicate the disharmony of the presentation rule of the straight bill of lading. The recently adopted Rotterdam Rules may play an important role for the unification of the presentation rule.


I. Introduction

In Mainland China, after the adoption and the promulgation of the Maritime Code of the People’s Republic of China (“the Maritime Code”), which became effective as of July 1, 1993, the straight bill of lading, although it is non-negotiable, is considered a document of title. On the other hand, Article 308 of the Contract Law of the People’s Republic of China (“the Contract Law”) which took effect as of the 1st of October 1999 confers on the shipper the right of control so as to vary the delivery of goods. In “Supreme People’s Court Rules on the Law Application in the Trial of Cases of Delivery of Goods without Original Bill of Lading” (the No.1 Judicial Interpretation of 2009), the Supreme Peoples’ Court of the People’s Republic of China (“the Supreme Court”) interpreted that the carrier is not liable for the delivery of goods without the presentation of straight bills of lading subject to the right of control exercised by the shipper.

Contrary to China’s approach, the Court of Final Appeal of Hong Kong upheld the decision in Carewins Development (China) Ltd. v. Bright Fortune Shipping Ltd. (Carewins v Bright Fortune) in 2009 that goods must be delivered to the consignee only against the presentation of straight bills of lading. This decision kept the Hong Kong law in accord with that of other common law jurisdictions, e.g. England and Singapore.

The right of control in the Contract Law is a typical legal right in civil law, while such right does not exist in common law. This different development may be polarised into two opposite approaches for the presentation rule of the straight bill of lading inMainland China and Hong Kong jurisdictions. The United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (A/RES/63/122), namely “the Rotterdam Rules”, aims to harmonize the common and civil law approaches to the presentation rule of the straight bill of lading.