論海上貨運單（Sea Waybill）——兼論最高法院九十年台上字

Abstract

國際貿易，將貨物由一國送往另一國，雙方當事人係處於不同之國家，此種買賣契約之履行，係不同於國內買賣之環境。在國際貿易中，買賣雙方當事人對於買賣標的之貨物均未實際占有，其通常係由第三人占有。國際貿易中貨物之運送過程相當長久，此即意味國際貿易之買賣雙方，必須就貨物之運送與保險事項加以安排。在國際貿易之買賣關係中，出賣人負有交付貨物之義務，買受人有支付價金之義務，雙方當事人均需確保買賣貨物過程順利進行。載貨證券在國際貿易之運作有相當重要地位，為其重要之單據。載貨證券具有三種功能，其分別為接受貨物之收據、運送契約之證明，及代表貨物所有權之憑證，受貨人須憑藉載貨證券於目的港請求運送人交付貨物。於貨櫃運送興起後，船舶運送速度增快，常產生貨物已抵達目的港，而載貨證券尚未交付於受貨人之情況，而於某些情形，國際貿易之進行無需使用載貨證券。為解決此項困難，實務中發展出電報交付貨物之模式，然此種交付貨物之模式，對運送人與貨方均有不利之影響。且載貨證券有遺失、被變造或偽造之風險，因此又發展出以海上貨運單代替載貨證券之模式。電報交付貨物與使用海上貨運單交貨係兩種不同之模式，雖其運作過程有些許類似，然我國最高法院九十年台上字第一七九三號判決，將此兩種運作之模式混為一談，本文即針對電報交付貨物與使用海上貨運單之模式加以說明，釐清二者之差異。

International sale of goods poses different challenges to sales in a domestic environment. Sellers and buyers are located in different countries and the goods sold are often not in the physical possession of the seller, but in the hands of a third party. Invariably, international sales involve transportation of the goods, often over large distances. This means that either the seller or the buyer needs to make arrangements relating to the transportation and insurance of the goods sold. Both parties to the sale contract need to perform their respective main obligations, that is, delivery of goods in accordance with the contract and payment of the agreed price, while at the same time seeking to ensure contractual performance by the other party. The negotiable bill of lading has played a key role in international trade, as it fulfils a number of functions facilitating trading in an international environment. It is sometimes said that a bill of lading is like a cloakroom ticket, because it must be produced in order to obtain delivery. The bill of lading may serve three different functions：firstly, it operates as a receipt providing evidence that goods conforming to the contract have been shipped as agreed and is in the physical possession of the carrier for delivery to the consignee at destination. Secondly, the bill of lading evidences the relevant terms of contract between the carrier and the shipper. Thirdly, the negotiable bill of lading operates as a transferable document of title. In a variety of trades, there is no need for negotiable bill of lading. Further, delays are often caused by bill of lading being unavailable in the port of discharge, partly because modern container ships can operate so quickly so that they arrive before the documents have processed through the shipping and banking systems. Also, there is a risk of forged、altered or lost of bill of lading. In practice, the merchants are developing other models to replace bill of lading, such as telex release without producing bill of lading or issuing sea waybill. The article is discussing the different functions between telex release without producing bill of lading and issuing sea waybill.