Maersk b/l's

PGauntlett · Post by **PGauntlett** » Tue Aug 26, 2003 1:00 am

Just started to see the following wording included in 'Shipped...' clause on Maersk b/l's. Although in small print it is on the front of the b/l:

'...Where the bill of lading is negotiable, surrender of an original b/l will generally be required before delivery is given, but the carrier has the option to deliver the goods to a person whom he reasonably believes to be entitled to take delivery of the goods without requiring surrender of an original b/l........Delivery as aforesaid is authorised and shall constitute due delivery hereunder and the Merchant shall have no claim for loss or non-delivery'

I think that this is a discrepancy since such a clause casts doubt on one of the basic functions of a b/l (i.e. document of title).

This type of b/l will also have repercussions for banks relying on b/l's as security for financing.

Any other views?

Phil Gauntlett

NigelHolt · Post by **NigelHolt** » Tue Aug 26, 2003 1:00 am

Phil,

A 'three piper*' I think. Can't give you an 'answer' before Thursday (because of commitments) at the earliest.

Jeremy

*(Sherlock Holmes)

larryBacon · Post by **larryBacon** » Tue Aug 26, 2003 1:00 am

Phil,

without seeing the full text of the B/L, including the back, I would have to hazard a guess and say that the carrier is trying to cover a situation whereby all of the originals are lost and delivery is made under indemnity, without presentation of an original B/L. Any other inspired guesses are welcome !

Otherwise I agree that the intrinsic value of an original B/L is questionable, to say the least.

Laurence

NigelHolt · Post by **NigelHolt** » Thu Aug 28, 2003 1:00 am

Phil,

Without liability/responsibility:

My personal impression is that the English courts attach great importance, in doc credit operations, to the security that the documents offer a bank. Therefore, based on the bare facts you have given, I would anticipate they would regard such a provision as undermining that security and consider the b/l discrepant, even though it did not breach any express provision of the UCP or credit. Consequently, I imagine I would refuse such a b/l. However, this would be without any great enthusiasm, as I can see –what I think are- strong counter-arguments: precisely that it does not breach any express provision of the UCP or credit.

This seems to me to be one of those relatively rare occasions where an ICC opinion would actually be of some use to the credit world at large.

Regards, Jeremy

JudithAutié · Post by **JudithAutié** » Tue Sep 09, 2003 1:00 am

OK. Who is going to ask for an official opinion from the ICC ? I am really interested in seeing under what stipulation in the UCP such a B/L could be refused, even if banks do seem to have a lesser control of the goods. Has anyone asked Maersk why and how they will use this new clause?
I seriously doubt that any court in France would uphold nonpayment of such a B/L, unless we can find a stipulation in the UCP to support the case or an official ICC opinion.

Now let the fireworks begin

)
Judith

CYRILE · Post by **CYRILE** » Tue Sep 09, 2003 1:00 am

We have asked for a legal opinion and will report later what we are advised. In the meantime, where we look to the goods as security, I don't see any other option but to load LCs with a get out clause if such B/Ls are presented.
I hate these clauses but it will have to be something like "if Maersk B/Ls are presented they are to state on their face that goods will be released only against presentation of an original B/L." Not good but I don't see what choice we have.
Incidentally, we have not rejected such B/Ls.

larryBacon · Post by **larryBacon** » Wed Sep 10, 2003 1:00 am

Cyril,

your idea for a "get out" clause is good, but past experience tells me that other carriers will soon "jump on the bandwagon", so the clause may need to be more generic. It may be necessary to redefine the original B/L as offering uniquely exclusive and unequivocal title to the goods.

Any better ideas ?

Laurence

PGauntlett · Post by **PGauntlett** » Wed Sep 10, 2003 1:00 am

Judith, I believe it is possible to reject documents although the reason may not be in breach of UCP. For instance, many banks have always rejected a bill of exchange if the tenor simply stated '60 days after b/l date' (i.e. no mention of such date)since this contravenes Geneva Convention/BOE Act. I am aware that this matter is now addressed by ISBP.

Similarly, b/l's falling foul of para 99 (supposedly reflecting a banking practice) of ISBP are not acceptable. There is nothing in UCP on that subject.

I can quote from an unpublished ICC opinion from 1996(which, incidentally, states that para 99 b/l's are acceptable):

'When checking a marine b/l ....... banks are not only required to see that the minimum criteria as stated in UCP500 ....are satisfied but also that no clauses are added to the document which have a negative impact on its quality as a document of title'

Although the offending words have not been 'added' I believe it amounts to the same thing and I have a reason for rejecting the b/l on this basis.

regards

Phil Gauntlett

CYRILE · Post by **CYRILE** » Wed Sep 10, 2003 1:00 am

I am going to suggest to our Customers that they import by going personally to the loading port and fill their pockets with the goods. That way we would not need to rely on a document of title just key man insurance. Actually, what we have done is to point out the situation to Customers who will put pressure on the Company/Agents to have the offending item removed. I would suggest that we all do that. However we can cover ourselves perhaps for LCs but what about collection items where we have no control?
I'll give it max month and the paragraph will vanish if we all pile on the pressre.

JudithAutié · Post by **JudithAutié** » Wed Sep 10, 2003 1:00 am

Phil,
Thanks for your suggestion. I am currently contacting the French banks belonging to Credimpex to see if we can meet and adopt a commun position to this, pending an eventual ICC opinion -- which I hope someone is asking for. I also think that if we make a joint effort to put pressure on Maersk (via our customers and systematic refusal of such B/L's under DCs) to take that clause out of their B/L's we might get somewhere. As Cyrile said, we can have some control over DC's but not on collection items.
I'll be interested in seeing the legal opinion if it's given.
Judith