提单的货物收据功能之辩证

长期以来,在国际海运和贸易界,人们普遍认为,提单所具有的货物收据功能来源于大副收据,并且将大副收据视为签发提单的唯一凭据.当承运人滥用大副批注时,托运人只能以提供保函的形式求得问题的解决.事实上,提单所具有的货物收据功能系根植于法律而非大副收据,承运人有权根据自身的判断并依照自己的意志决定是否采纳或者如何采纳大副批注.当承运人不适当地行使批注权时,托运人和收货人亦可用海事强制令制度和诉讼手段寻求法律救济.

Discrimination for the function of cargo receipt under the B/L

During a long period of time, in the circles of international shipping and trade, it is commonly believed that the function of cargo receipt under the bill of lading（B/L） is derived from mate＇ s receipt, and the mate＇ s receipt has been trea- ted as an absolute evidence for issuing the B/L. Where the carrier abuses his right for putting remarks on the B/L, the only measure which can be taken by the shipper is to provide a letter of guarantee for solving the problems. In fact, the function of cargo receipts under the B/L is rooted in legislation rather than mate＇ s receipt itself. Therefore,the carrier is entitled, ac- cording to his own judgment and at his own will, to decide whether or not the remarks on the mate＇ s receipt should be re- moved to the B/L. In the event of the fact that the carrier abuses his right for putting remarks on the B/L, the shipper and the consignee can seek for legal remedy by virtue of maritime injunction and the means of litigation.