Consider this scenario: A valuable shipment arrives at its destination port after a long voyage. The consignee anxiously awaits delivery, but the original bill of lading (B/L) hasn't arrived. The carrier, either for "convenience" or under pressure, unpacks the container and releases the goods without the B/L holder's consent. Is this automatically considered unlawful "delivery without bill of lading" (DWBOL)? The answer is more nuanced than it appears.
The Core Issue: Control Transfer Without Proper Documentation
The essence of DWBOL lies in the carrier or its agent transferring goods control to a non-B/L holder without obtaining the original document . According to maritime law and international trade conventions, the B/L serves as the carrier's guarantee for proper delivery, creating a strict "surrender B/L before delivery" obligation.
The critical distinction: Unpacking (devanning) is merely a logistical step in containerized cargo handling. The act itself doesn't constitute delivery unless accompanied by control transfer to the consignee without proper B/L documentation .
Key Factors Determining Whether Unpacking Constitutes DWBOL
1. Unpacking Party and B/L Type: Who Unpacks What?
Different unpacking parties and B/L types directly affect liability attribution.
a) Full Container Load (FCL) B/L: Directly issued by carrier
When the carrier issues the B/L directly to the shipper/consignee, it maintains direct cargo control. Any carrier-initiated unpacking requires careful monitoring of subsequent cargo movement. The carrier must ensure continuous control until proper B/L surrender.
b) Less than Container Load (LCL) B/L: Forwarder-issued house B/L
For LCL shipments, freight forwarders typically issue house B/Ls while carriers issue master B/Ls to forwarders. Here, unpacking usually falls to forwarders. Liability depends on whether the forwarder unpacked without proper house B/L authorization, with master B/L terms determining ultimate responsibility.
2. Post-Unpacking Control Status: Was Control Transferred?
The essence of "delivery" lies in control transfer . We must examine whether cargo remained under carrier control post-unpacking.
Scenario 1: Unpacked cargo remains under carrier control (no delivery)
If the carrier unpacks into its bonded warehouse/yard and requires B/L surrender for release (with secured storage and managed inventory), control hasn't transferred . This constitutes lawful "readiness for delivery" preparation.
Example: A destination port carrier unpacks into customs-controlled storage, awaiting proper B/L presentation. This unpacking is legal.
Scenario 2: Unpacked cargo directly transferred to consignee (delivery completed)
If the carrier unpacks and releases cargo to consignee possession (via direct pickup or letter of indemnity) without B/L surrender, this constitutes DWBOL. Here, unpacking facilitates unlawful delivery.
Case reference: A carrier unpacked and released goods against a company guarantee without original B/L. Courts ruled this DWBOL (Shanghai Maritime Court Case (2019) Hu 72 Min Chu XXX).
3. Implied Delivery Through Unpacking: Was Control Effectively Relinquished?
Sometimes, unpacking may indirectly facilitate control transfer through carrier inaction:
- No post-unpacking controls: Unsecured storage allowing consignee self-service
- Customs clearance declarations: Carrier deregistering manifests effectively releases cargo from oversight
Such actions may constitute "implied delivery" even without explicit release instructions.
4. Comparative Case Analysis: Unpacking ≠ DWBOL Without Subsequent Delivery
Case 1: Unpacking without delivery - No DWBOL
An FCL shipment was unpacked by the carrier into secured storage with B/L surrender requirement. As consignee never presented B/L, goods remained under carrier control. Courts found no DWBOL.
Case 2: Unpacking with unauthorized delivery - DWBOL
A carrier unpacked and released goods against a letter of indemnity without B/L. The consignee took possession. Courts ruled this DWBOL (Guangzhou Maritime Court Case (2020) Yue 72 Min Chu XXX).
5. Exceptions: Lawful Unpacking Without B/L
Certain scenarios permit unpacking and delivery without original B/L:
- Telex release: Shipper authorized electronic release, voiding original B/L
- Properly endorsed B/L: Consignee obtained B/L through legitimate channels (e.g., LC negotiation)
- Judicial/arbitration orders: Court-mandated release instructions
Conclusion: Unpacking Isn't the Issue - Unauthorized Delivery Is
Unpacking alone doesn't constitute DWBOL. The critical factor is whether it facilitates unauthorized control transfer :
- Unpacking with maintained carrier control: Lawful
- Unpacking leading to unauthorized transfer: DWBOL with carrier liability
Parties should monitor post-unpacking cargo movement documentation (warehouse records, delivery receipts) to assess DWBOL risks. Carriers must strictly adhere to "surrender B/L before delivery" principles to avoid legal exposure.