本文所涉案件，由于船东无正本提单卸货，托运人向船东索赔货损。船舶保赔险协会认为，由于船东违反协会规则，无正本提单卸货，因此他们对托运人提出的索赔不承担任何赔偿责任。
我们认为，协会以无正本提单卸货为由，认为由此造成的损失不在协会承保范围内的说法是不正确的。
以下为我司观点：
所有IG保赔协会都在其协会规则中排除了由于船东无正本提单放货所引起的责任，理由是这种行为是非法的。不过值得注意的是，导致或触犯协会除外条款是”交付” 货物的行为，而不是”卸下” 货物的行为。具体解释如下。
只有当货物”交付” 给错误的一方，即发生错误交付货物时，才可以适用法律和保险免责。
以上解释毋庸置疑。《海牙规则》、《海牙-维斯比规则》和《汉堡规则》都要求船东将货物交付给适当的一方。《海牙规则》和《海牙-维斯比规则》第三条第六款规定，将货物转移到货运合同下有权监管货物的人手中，并且在卸货后三天内没有收到货损通知，即完成了交付。换句话说，按照以上条款的规定，必须把货物交付给适当的一方，但并不涉及卸货相关责任。《汉堡规则》第四条也作了类似规定，即船东掌管货物并对货物负责，直到其将货物交付给适当的一方。
本案中，货物没有交付给错误的一方，也没有在错误的港口进行交付，因此不构成错误交付货物。船东在提单记载的正确港口进行卸货；货物没有交付给任何一方或收货人而且提单下的收货人并没有打算提货；货物仍放在港口的海关仓库中。托运人已付清港口和仓储费用，凭正本提单换取提货单，以提取货物。综合以上情况，船东没有错误交付货物的行为，也没有从根本上违反运输合同，不应该导致协会因此而免除其责任。尽管托运人的索赔可能涉及与收货人之间的商业纠纷，直接向收货人索赔更为合理，但托运人根据运输合同向船东提出索赔，在保赔协会承保范围之内。
关于究竟是无正本提单卸货还是无正本提单放货会构成非法行为，并导致法律和保险免责这一问题，理论界存在不同的观点。但是运输合同下有关承运人交付货物的责任，《海牙规则》和《海牙-维斯比规则》的规定非常明确，具体如上文所述。同时，IG保赔协会针对这一问题所发通函的措辞以及IG保赔协会推荐的LOI(无单放货保函标准格式)的措辞也很明确，只是针对交付和错误交付货物。
我们也可以参考英国高院2009年的 The Bremen Max 一案。该案中，租家提供保函，船东无正本提单放货。法院解释说，”卸下” 和”交付” 是两个概念。卸下是移动货物越过船舷，交付是将货物的占有转移给岸上的一方。
根据 Westwood Shipping v Geo International (1998) 一案的判决，如果船东在没有正本提单的情况下，将货物交付给了无提货权的一方，船东将承担合同违约和转移货物的责任。同时，船东有权向其交付货物的一方追偿货物或货物价值。本案中，没有发生错误交付货物的情况，包括收货人在内的任何一方都没有提货或占有货物，并且没有任何要求追偿货物的法律行为，这一点也是本案不存在错误交付货物的最有力的证明。
总结，本案中，货物已经在提单载明的港口卸下，没有任何人提货或占有货物，船东正等待托运人作为合法货主凭正本提单提货。因此，认为船东已经违反运输合同，保赔协会可以免除错误交付货物责任的观点，显然是很难成立的。
以上由 ANDREW LIU & CO.,LTD 编译，应以英文为准！
详细信息请参阅附件。
Discharge of cargo without production of original bills of lading
A vessel discharged cargo without production of original bills of lading which resulted in the shippers claiming the shipowner for loss to cargo. In this situation, the vessel’s P&I Club stated they are not liable for any liabilities arising from the shipper’s claim on the grounds the cargo was discharged without production of original bills of lading in breach of Club rules.
We advised the owners it was not correct that their P&I Club stated that Club cover is prejudiced on the grounds cargo was discharged without production of an original bill of lading.
The following is an extract of our opinions.
All the International Group of P&I Clubs have excluded in their rules of cover liability arising from an owner who delivers cargo other than against surrender of the original bill of lading on the grounds this is an unlawful act. It is noteworthy the circumstance which results in or triggers the exclusion of Club cover is the act of ‘delivery’ of the cargo and not the act of ‘discharge’ of the cargo as explained below.
Legal and insurance sanctions only apply to the situation where the cargo is ‘delivered’ to the wrong party which is equivalent to misdelivery of the cargo.
This interpretation must be correct as both the Hague Rules, Hague Visby Rules and Hamburg Rules provide for and require delivery of the cargo to the proper party. Art III(6) of both the Hague and Hague Visby Rules provides that in the absence of notice of damage of goods within three days of discharge, removal of goods into the custody of the person entitled to them under the contract of carriage shall constitute delivery. In other words the Rules provide that delivery of cargo must be made to the proper party and the owner’s liability is not made with reference to discharge of cargo. Under Art 4 of the Hamburg Rules similarly the owner is deemed to be in charge of and liable for the cargo until the time he has delivered the cargo to the proper party.
The cargo has not been misdelivered for the reasons the cargo has not been delivered to the wrong party and the cargo has also not been delivered at the wrong port. The cargo has been discharged at the correct port stated in the B/L ; the cargo has not been delivered to any party nor the receivers and on the contrary the receivers under the B/L do not wish to take delivery of cargo ; the cargo is still in the port customs warehouse and a cargo delivery order has been issued and given to the shippers to take delivery of the cargo upon presentation of the original bill of lading and settlement of port and storage expenses. In these circumstances I cannot see where there can be an act of misdelivery which would be tantamount to the owners being in breach of the contract of carriage fundamentally or otherwise and which would cause the Club to exclude liability therefor. As the shippers have lodged a claim against the owners under the contract of carriage, this liability falls under Club cover notwithstanding the shipper’s claim appears to be a commercial dispute with the receivers and more suitably directed against the receivers.
The difference of opinion whether it is the time of discharge or delivery of cargo which may give rise to an unlawful act if done without production of an original bill of lading whereby the legal and insurance sanctions apply may have arisen due to references in some legal articles to the discharge of cargo without production of original bills of lading. However the carriers’ liability under the contract of carriage in respect of delivery of the cargo is reasonably clear based on the Hague and Hague Visby Rules as explained earlier and based on the wording of the International Group P&I Club’s circular in this connection and their suggested LOI wording which make reference only to delivery or misdelivery of cargo.
Guidance can also be obtained from the High Court case in The Bremen Max (2009) which also concerned a vessel which delivered cargo without production of original bills of lading in consideration of an LOI from the charterers. In this case the Court explained that ‘discharge’ and ‘delivery’ are different concepts. Discharge is the movement of cargo over the ship’s rail and delivery is the transfer of possession of the cargo to a party ashore.
If the cargo is delivered without production of an original bill of lading to a party not entitled to receive it, the owner will be liable for breach of contract and for conversion of the cargo and in this circumstance the owner has a right of action for the recovery of the cargo or its value against the party to whom delivery has been made Westwood Shipping v Geo International (1998). In the circumstances of our case there has been no misdelivery of the cargo as no party including the receiver has taken delivery or possession of the cargo and accordingly no legal actions to recover the cargo is required, the latter being the most cogent evidence that there has been no misdelivery of the cargo.
To conclude, in view the cargo has been discharged at the port stated in the bill of lading, no party has taken delivery or possession of the cargo and the owner is awaiting the shippers who allegedly are the lawful cargo owners to take delivery of the cargo subject to presentation of an original bill of lading, it is difficult to see how it could be alleged the owners have breached the contract of carriage entitling their P&I Club to exclude liability for misdelivery of cargo.
See attached file : ALCO20120061 Discharge of cargo without production of original bills of lading.pdf
