화물선취보증서와 보증도의 법적 지위

Letter of Guarantee is presented at discharge by consignees who cannot provide the original bill of lading. It is designed to provide for a shipowner, where the master release cargo at the request of a party, in respect of claims which may be brought as a consequence of such release, and is a security or suretyship agreement. With the speed of international business, it is often the case that vessels will reach their intended designation before the bills of lading arrive. When the bills of lading are either way laid in the banking system or have yet to arrive, merchants and charterers will attempt to persuade the carrier to accept a letter of indemnity rather than the bill of lading, and such commercial pressure is often successful. The carrier may also wish to deliver without the bills of lading in order to avoid waiting in port until the bills of lading have arrived. Although the use of letters of guarantee has become common practice, it becomes problematic when the goods are never paid for. Another problem that arises is when the consignee named in the bill of lading is not entitled to delivery because the bill of lading has been pledged to the bank - should the carrier deliver to the consignee, the carrier then become liable to the bank. Traditionally, delivery to a receiver not entitled to the goods can place the carrier in a precarious position as this may involve the tort of conversion, therefore rending the carrier liable for the full value of the cargo without the benefit of contractual exemptions. In the past the law dictated that a carrier who delivered without receiving the bill of lading in return does so at his own peril. The trend was that the carrier was held liable to the holder of the bill of lading. However, more recently the courts have on occasion found otherwise. The purpose of this paper is to provide a multi-jurisdictional analysis of the law regarding letter of guarantee, permitting identification of current trends and of most in need of reform.