CHINA Law and Practice Contributed by: John Wang, Xu Jun, Song Jia and Zhao Yuxuan, Wang Jing & Co
3. Cargo Claims 3.1 Bills of Lading
B/L in the case (2016) Supreme Court Min Shen No 2284. The Holder of the Bill of Lading/Consignee The lawful holder of the B/L has the right to sue the carrier under the B/L. The Carrier The contractual and actual carriers have the title to sue the shipper under the contract of carriage “Title to sue” is a legal concept in English law, while its equivalent concept in PRC law is usually described as “litigation rights”. Litigation rights are legal procedural rights and are unassignable. In PRC law, creditor’s rights are substantive rights and are assignable, in accordance with contractual agreements and subject to certain exceptions. Although litigation rights alone can - not be assigned, they can be transferred along with and through the assignment of creditor’s rights. 3.3 Ship-Owners’ Liability and Limitation of Liability for Cargo Damages Ship-Owner’s Liability of goods by sea and the B/L. Assignment of Title to Sue The ship-owner, whether it is a contractual or actual carrier, shall be liable for the loss of or damage to the goods during the period in which the carrier is in charge of the goods (with the exception stipulated in Article 51 of the Provi - sions of Delivery of Goods without B/L), and for the loss caused by the delay in delivery within the time expressly agreed upon, if any. In gen - eral, the ship-owners (two types of carriers) should:
The laws and regulations applicable to the car - riage of goods by sea and bills of lading (B/L) in the PRC are: • the CMC; and • the Provisions of the Supreme People’s Court on Several Issues concerning the Applica - tion of Law in the Trial of Cases of Delivery of Goods Without Original Bill of Lading (Provi - sions of Delivery of Goods without B/L). The PRC is not a party to the Hague Rules (except Hong Kong and Macau), the Hague- Visby Rules (except Hong Kong), the Hamburg Rules or the Rotterdam Rules. 3.2 Title to Sue on a Bill of Lading The shipper, the lawful holder of the B/L, and the carrier have the title to sue. The Shipper In PRC law, “shipper” means both the contrac - tual shipper who concludes the contract of car - riage of goods by sea with the carrier and the actual shipper who delivers the goods to the carrier. The contractual shipper has the title to sue the carrier directly under the contract of carriage of goods by sea. The B/L serves as evidence of the contract. The actual shipper who holds the original “to- order” B/L is entitled to sue the carrier, even if their name is absent from the B/L. The Supreme Court held that the actual shipper who holds the straight B/L also has the right to sue the carrier for the delivery of the goods without the original
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