责任主体视角下FOB卖方的无单放货风险防范

FOB Seller's Risk Prevention on Delivery of Goods without Bills of Lading from Perspective of Subject of Responsibility

无单放货是FOB卖方时刻面临的风险,正确识别无单放货的责任主体对实践中FOB卖方如何应对无单放货具有重要意义。通过具体案例分析无单提货人、承运人、货运代理人等各方当事人的法律地位与无单放货行为的关系以及应承担的法律责任。就责任主体而言,无单放货主要是承运人的责任,但特殊情况下的承运人不用承担责任;对于承运人承担无单放货责任的,无单提货人应承担连带责任;货运代理人由于身份的复杂性和不确定性,是否需要承担无单放货责任关键在于其与无单放货行为之间是否具有因果关系。

Delivery of cargo without presentation of original bills of lading is the risk FOB sellers always en- counter. To correctly identify the subject of responsibility is of great significance to FOB sellers to take precautions against delivery of cargo without presentation of original bills of lading in practice. Through case study, the paper analyzes the legal status of the person to take delivery without original hills of lad- ing, the transport contractor and the freight forwarder, their respective relationship with the act of deliv- ery of cargo without presentation of original bills of lading, and their corresponding legal responsibility. For the subject of responsibility, delivery of cargo without presentation of original bills of lading is mainly the responsibility of the transport contractor, but the transport contractor does not need to undertake re- sponsibility under special circumstances. When the transport contractor needs to undertake the responsibil- ity, the person to take delivery without original bills of lading should bear the joint liability. Since the sta- tus of the freight forwarder is complicate and uncertain, the key to whether the freight forwarder needs to bear the responsibility is whether there is causal relationship between the freight forwarder and the act of delivery of cargo without presentation of original bills of lading or not.