Phil,
I also agree that it is a discrepancy. With such a clause included, the B/L’s function as a contract of title is certainly questioned. Apparently, Maersk had initially started including this clause as an attachment, whereas now it is printed (fine print) on the face of the B/L. In any case, we continue to refuse it. In fact we received one a few days ago which was rejected.
Cyril,
Our legal advisor has agreed to have a “get out” clause added in our credits but we’ll not be limiting to Maersk B/L’s only. Have you received a legal opinion on this?
Dimitri
Maersk b/l's
-
DimitriScoufaridis
- Posts: 85
- Joined: Fri Apr 05, 2019 5:17 pm
-
MarkColeman
- Posts: 23
- Joined: Fri Apr 05, 2019 5:22 pm
Maersk b/l's
Re my question of “should it be called a dirty B/L?” I know art 32a refers to the goods only and does not apply to this case. My question is “in the new revised UCP, should a B/L clause like the Maersk on be called a dirty B/L?”
I have raised this point to someone within my industry (freight forwarding) and he has pointed out:
“Looks like they are attempting to limit their liability, although, again, I cannot see how they can do it under either the Hague Rules, Hague-Visby Rules, or Hamburg Rules, because it is expressly forbidden under those rules, for a carrier to insert any clause which reduces their liability. They are only permitted to insert extra clauses which limit their rights, or increase their liabilities.”
I will speak to Maersk Australia tomorrow and see what their official line is.
Mark from Melbourne
I have raised this point to someone within my industry (freight forwarding) and he has pointed out:
“Looks like they are attempting to limit their liability, although, again, I cannot see how they can do it under either the Hague Rules, Hague-Visby Rules, or Hamburg Rules, because it is expressly forbidden under those rules, for a carrier to insert any clause which reduces their liability. They are only permitted to insert extra clauses which limit their rights, or increase their liabilities.”
I will speak to Maersk Australia tomorrow and see what their official line is.
Mark from Melbourne
-
larryBacon
- Posts: 689
- Joined: Fri Apr 05, 2019 5:26 pm
Maersk b/l's
WHEN IS A B/L NOT A B/L ?
I agree with previous postings that a document incorporating such a clause should be rejected. In fact, one of the three main functions of a B/L is that it can act as a document of title. Despite the fact that it may be titled B/L, one must question if it is entitled to be so called, if it fails this primary function.
Laurence
[edited 9/23/03 4:19:39 PM]
I agree with previous postings that a document incorporating such a clause should be rejected. In fact, one of the three main functions of a B/L is that it can act as a document of title. Despite the fact that it may be titled B/L, one must question if it is entitled to be so called, if it fails this primary function.
Laurence
[edited 9/23/03 4:19:39 PM]
-
JudithAutié
- Posts: 195
- Joined: Fri Apr 05, 2019 5:20 pm
Maersk b/l's
You might be interested in looking into a site called www.forwarderlaw.com where you will find a case concerning MAERSK who were condemned for delivering goods without presentation of the bill of lading. .....
which can explain a lot of things.
Has anyone had any further updates on this?
Judith
which can explain a lot of things.
Has anyone had any further updates on this?
Judith
-
PGauntlett
- Posts: 153
- Joined: Fri Apr 05, 2019 5:25 pm
Maersk b/l's
Following email received from one of our clients. It'll be interesting to see how soon the re-revised wording comes through (the offending clause will probably now be put on the back!).
'Thought you might like to know that you have caused an international
crisis in the shipping world! You may remember spotting a clause which
Maersk had added into their Bills of Lading by the signature which basically would have meant that a negotiable BL was no longer a secure document of title. I pointed this out to my boss who discussed it with another of our banks. They then discussed it with the International Maritime Bureau, who published an article on it. Maersk seem to have been bombarded by all kinds of big clients who were outraged by this sneaky addition and their Copenhagen office has just taken the decision to remove the clause'
[edited 9/24/03 4:46:21 PM]
'Thought you might like to know that you have caused an international
crisis in the shipping world! You may remember spotting a clause which
Maersk had added into their Bills of Lading by the signature which basically would have meant that a negotiable BL was no longer a secure document of title. I pointed this out to my boss who discussed it with another of our banks. They then discussed it with the International Maritime Bureau, who published an article on it. Maersk seem to have been bombarded by all kinds of big clients who were outraged by this sneaky addition and their Copenhagen office has just taken the decision to remove the clause'
[edited 9/24/03 4:46:21 PM]
Maersk b/l's
While doing a bit of research on the ‘Maersk question’ I came acroos this very apposite quote from J I MACWILLIAM CO INC v MEDITERRANEAN SHIPPING COMPANY S.A.( Neutral Citation Number: [2003] EWCA Civ 556 Case No: A3/2002/0909) by Lord Justice Rix:
‘The effect of a negotiable bill of lading has been famously described by Bowen LJ in Sanders v. Maclean (1883) 11 QBD 327 at 341 in this passage:
"A cargo at sea while in the hands of the carrier is necessarily incapable of physical delivery. During this period of transit and voyage, the bill of lading by the law merchant is universally recognised as its symbol; and the indorsement and delivery of the bill of lading operates as a symbolical delivery of the cargo. Property in the goods passes by such indorsement and delivery of the bill of lading, whenever it is the intention of the parties that the property should pass, just as under similar circumstances the property would pass by an actual delivery of the goods…It is a key which in the hands of a rightful owner is intended to unlock the door of the warehouse, floating or fixed, in which the goods may chance to be."’
I regard this as simply confirming my personal view that ‘Maersk’ type bladings are discrepant, either because they are not bladings or because they breach the implied terms of the credit contract.
Also, my thanks to Phil for having brought this matter to the attention of the 'doc credit world'.
[edited 9/25/03 11:59:13 AM]
‘The effect of a negotiable bill of lading has been famously described by Bowen LJ in Sanders v. Maclean (1883) 11 QBD 327 at 341 in this passage:
"A cargo at sea while in the hands of the carrier is necessarily incapable of physical delivery. During this period of transit and voyage, the bill of lading by the law merchant is universally recognised as its symbol; and the indorsement and delivery of the bill of lading operates as a symbolical delivery of the cargo. Property in the goods passes by such indorsement and delivery of the bill of lading, whenever it is the intention of the parties that the property should pass, just as under similar circumstances the property would pass by an actual delivery of the goods…It is a key which in the hands of a rightful owner is intended to unlock the door of the warehouse, floating or fixed, in which the goods may chance to be."’
I regard this as simply confirming my personal view that ‘Maersk’ type bladings are discrepant, either because they are not bladings or because they breach the implied terms of the credit contract.
Also, my thanks to Phil for having brought this matter to the attention of the 'doc credit world'.
[edited 9/25/03 11:59:13 AM]
Maersk b/l's
One of our Customers has been advised by Maersk Sealand Indonesia that B/Ls with the offending clause will not be used for their (our Customers') shipments.
Could this be because the Customer had advised Maersk that they will not ship through them? Also, Customer has recently instructed in LCs not to allow shipment by Maersk.
Also we understand from IMB that Maersk have received numerous complaints.
I give it 3 months until Maersk retreat or even earlier if they use up their stock of those B/Ls!
Could this be because the Customer had advised Maersk that they will not ship through them? Also, Customer has recently instructed in LCs not to allow shipment by Maersk.
Also we understand from IMB that Maersk have received numerous complaints.
I give it 3 months until Maersk retreat or even earlier if they use up their stock of those B/Ls!
Maersk b/l's
The following is a summary of a response received from Maersk Sealand:
----------------------
When Maersk Sealand revised their Bill of Lading in August 2003, new clauses were inserted in order to better accommodate the needs of Customers and Carriers.
The clause in question (to which this discussion refers) was inserted to regulate situations where the Carrier has to hand over the cargo to Government Authorities - such as customs - who will then release the cargo directly to customers.
Unfortunately, this clause can be seen as an attempt to release Maersk Sealand of liability for misdelivery without Bill of Lading.
That was of course not the intent.
Maersk Sealand has therefore decided to change the wording.
The Bill of lading has already been changed, in order to accommodate our Customers - and thereby their banks.
The sentence referring to delivery without a negotiable Bill of Lading has been taken out entirely.
--------------------------
[edited 10/1/03 5:25:03 PM]
----------------------
When Maersk Sealand revised their Bill of Lading in August 2003, new clauses were inserted in order to better accommodate the needs of Customers and Carriers.
The clause in question (to which this discussion refers) was inserted to regulate situations where the Carrier has to hand over the cargo to Government Authorities - such as customs - who will then release the cargo directly to customers.
Unfortunately, this clause can be seen as an attempt to release Maersk Sealand of liability for misdelivery without Bill of Lading.
That was of course not the intent.
Maersk Sealand has therefore decided to change the wording.
The Bill of lading has already been changed, in order to accommodate our Customers - and thereby their banks.
The sentence referring to delivery without a negotiable Bill of Lading has been taken out entirely.
--------------------------
[edited 10/1/03 5:25:03 PM]
Maersk b/l's
I would merely observe that if Maersk retain a provision that permits them to deliver goods on a ‘straight consigned’ b/l without its production, it will still be -in my opinion- discrepant.
-
PGauntlett
- Posts: 153
- Joined: Fri Apr 05, 2019 5:25 pm
Maersk b/l's
Have today seen a Maersk b/l with the revised wording which reads as follows:
'...Where the bill of lading is negotiable, the carrier will be entitled to give delivery of the goods against what he reasonably believes to be a genuine original bill of lading'
However, following from Jeremy's post above, it still bears the statement re option to deliver to consignee upon proof of identity without a b/l when non-negotiable (i.e. straight). To reject only on this clause might be difficult because of the different approaches to straight b/l's throughout the world e.g. In the USA a consignee does not need to produce a b/l to obtain the goods. There is also an argument as to whether this type of b/l is a document of title since it is non-negotiable and can't be transferred by endorsement.
Phil
'...Where the bill of lading is negotiable, the carrier will be entitled to give delivery of the goods against what he reasonably believes to be a genuine original bill of lading'
However, following from Jeremy's post above, it still bears the statement re option to deliver to consignee upon proof of identity without a b/l when non-negotiable (i.e. straight). To reject only on this clause might be difficult because of the different approaches to straight b/l's throughout the world e.g. In the USA a consignee does not need to produce a b/l to obtain the goods. There is also an argument as to whether this type of b/l is a document of title since it is non-negotiable and can't be transferred by endorsement.
Phil