Ankwei Chen
The Kaohsiung Branch of the Taiwan High Court rendered the 104-Hai-Shang-Shang-2 Civil Decision of February 2, 2016 (hereinafter, the “Decision”), holding that in the event of any dispute regarding whether a telex release has been completely implemented, the consignee may not request the carrier to deliver the cargo on such basis.
In this case, the Appellant argued that after Company A bought the goods at issue from Company B, Company _ then sold the goods to Appellant. Company B loaded the goods at issue into the subject container for shipment. The Appellee issued the bill of lading to Company B, Company B returned the original bill of lading back to Appellee, asked it to handle the release of goods through telex and separately provided a copy of the bill of lading to Appellant. When Appellant submitted the copy of the bill of lading to the customs authority for delivery, Appellee refused to release the goods on the ground that Company B had not paid the shipping cost in full. Therefore, this complaint was filed based on the legal relationship formed as a result of the carrier contract and the bill of lading, with the relief sought being an order to compel Appellee to deliver the container at issue.
According to the Decision, delivery through Òtelex releaseÓ in maritime practice refers to the consignor, after shipping the goods and obtaining from the carrier an executed bill of lading, returns to the carrier the bill of lading so received (including the original and copy). Another method is where the carrier provides only a photocopy of the bill of lading to the consignor instead of the original, and after affixing ÒSurrenderedÓ, ÒTELEX RELEASEÓ on the original bill of lading, the carrier then notifies its affiliate or agent at the port of destination through telephone, telex, fax or email to allow the consignee designated on the bill of lading to take delivery of the cargo without presenting the original bill of lading. Therefore, the “telex release” procedure still needs a bill of lading to operate, only that the consignee is no longer obligated to present the original bill of lading as pursuant to law when taking delivery of the cargo (e.g. a consignee need to take delivery of the cargo before it has received the original bill of lading from the consignor due to an emergency). By issuing a telex to its affiliate or agent at the port of destination to approve the release of the cargo, the carrier may provide an expedient method which allows the consignee to take delivery of the cargo.
The Decision then found that due to the risks that may arise from the telex release method (e.g., payment of the shipping cost or carrier making delivery before accepting the bill of lading), the carrier and the consignor would agree and cooperate on certain safeguard mechanisms. This also shows that the telex release notice is merely an expedited method of handling given the cargo delivery requirements and does not have the same effect and characteristics as an actual bill of lading. Therefore, in case of any dispute concerning whether the telex release has been completely implemented, the telex release notice cannot be used to replace a bill of lading, and the consignee may not require the carrier to deliver to cargo on that release alone. Finally, the Decision found AppelleeÕs arguments that Appellant has failed to prove it has agreed to a telex release and that Appellee has no duty to deliver the cargo at issue before the bill of lading is presented and returned as persuasive, thus the appeal was rejected.