I'm glad that there is now no doubt that these type of b/l's are acceptable.
However, the statement 'The view of the Banking Commission is that such clauses represent terms and conditions of carriage, that have traditionally appeared on the back (or reverse) of the B/L, which some shipping companies have recently transferred to the face' is a distortion of the facts.
Phil
Maersk b/l's
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PGauntlett
- Posts: 153
- Joined: Fri Apr 05, 2019 5:25 pm
Maersk b/l's
Personally, I support the overall effect of the ‘policy statement’, as it makes processing documents easier, and congratulate the Commission on moving so quickly on this matter. However, I would observe that:
A. It is unfortunate that the statement refers to the ‘face’ of a bill of lading, rather than the ‘front’, given the use of the term in sub-Article 13a.
B. I am sceptical that all the ‘clauses’ referred to in the policy statement represent terms and conditions of carriage ‘that have traditionally appeared on the back (or reverse) of the B/L’. For example, I have no doubt that the clause ‘with regard to delivery of goods against a B/L the carrier reasonably believes to be genuine’ is very recent and has only ever appeared on the front of bills of lading.
A. It is unfortunate that the statement refers to the ‘face’ of a bill of lading, rather than the ‘front’, given the use of the term in sub-Article 13a.
B. I am sceptical that all the ‘clauses’ referred to in the policy statement represent terms and conditions of carriage ‘that have traditionally appeared on the back (or reverse) of the B/L’. For example, I have no doubt that the clause ‘with regard to delivery of goods against a B/L the carrier reasonably believes to be genuine’ is very recent and has only ever appeared on the front of bills of lading.
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JudithAutié
- Posts: 195
- Joined: Fri Apr 05, 2019 5:20 pm
Maersk b/l's
Just a short word to say that the French bankers are unhappy with the statement that has been issued by the ICC and hope to raise the question at the next Banking Commission meeting in May.
The way the statement is worded, even putting a clause into a credit refusing B/Ls which enable the shipping co to deliver the goods without presentation of the B/Ls will be of no help -- since "it is quite clear that a bank does not take notice of such terms and conditions"
See you in May
Judith
The way the statement is worded, even putting a clause into a credit refusing B/Ls which enable the shipping co to deliver the goods without presentation of the B/Ls will be of no help -- since "it is quite clear that a bank does not take notice of such terms and conditions"
See you in May
Judith
Maersk b/l's
Judith,
I have to disagree, with the greatest of respect, with your last sentence. If a documentary credit incorporates express terms that override the UCP then they take precedence. Therefore, it is perfectly possible to exclude effectively ‘non-surrender’ bills of lading. The extract you quote can only be taken to relate to a documentary credit where sub-Art 23a(v) has not been overridden.
Regards, Jeremy
I have to disagree, with the greatest of respect, with your last sentence. If a documentary credit incorporates express terms that override the UCP then they take precedence. Therefore, it is perfectly possible to exclude effectively ‘non-surrender’ bills of lading. The extract you quote can only be taken to relate to a documentary credit where sub-Art 23a(v) has not been overridden.
Regards, Jeremy
Maersk b/l's
Anyone go to Paris and able to report back on -what I presume were- the fisticuffs?
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JudithAutié
- Posts: 195
- Joined: Fri Apr 05, 2019 5:20 pm
Maersk b/l's
Hi Jeremy,
Sorry you weren't at the Paris meeting -- you would have enjoyed the fight. All the players came out slugging
The outcome of the rather "animated" discussion is that the statement on the ICC website has been pulled, a small group of 5 or 6 persons will consult and propose a new statement for the local committees to vote on -- by e-mail (aren't we getting progressive) so that a new statement should be published during June 2004 at the latest.
The discussion was very animated, with a very strong opposition to the statement as it stood -- and the vote taken was massively lopsided in favour of the proposal adopted as described above.
There was also a very strong feeling that a small number of the officers were trying to railroad the decision in the favour of keeping the statement as it was. This was very much resented among several of the participants with whom I spoke after the meeting.
I'm afraid that the imbriglio came about due to the manner that things are often presented during the meetings.
For example, when the unpublished opinions were mentionned one by one, Gary Collier said that he had comments from one or another committee, but we were not exactly sure what was going to be done with the comments -- was the opinion going to be changed or not?
You also have to take into account that many of the participants are not that fluent in spoken English, and do not always the proceedings grasp exactly.
A very interesting meeting on other points too.
Regards
Judith
Sorry you weren't at the Paris meeting -- you would have enjoyed the fight. All the players came out slugging
The outcome of the rather "animated" discussion is that the statement on the ICC website has been pulled, a small group of 5 or 6 persons will consult and propose a new statement for the local committees to vote on -- by e-mail (aren't we getting progressive) so that a new statement should be published during June 2004 at the latest.
The discussion was very animated, with a very strong opposition to the statement as it stood -- and the vote taken was massively lopsided in favour of the proposal adopted as described above.
There was also a very strong feeling that a small number of the officers were trying to railroad the decision in the favour of keeping the statement as it was. This was very much resented among several of the participants with whom I spoke after the meeting.
I'm afraid that the imbriglio came about due to the manner that things are often presented during the meetings.
For example, when the unpublished opinions were mentionned one by one, Gary Collier said that he had comments from one or another committee, but we were not exactly sure what was going to be done with the comments -- was the opinion going to be changed or not?
You also have to take into account that many of the participants are not that fluent in spoken English, and do not always the proceedings grasp exactly.
A very interesting meeting on other points too.
Regards
Judith
Maersk b/l's
Thanks, Judith this is most helpful. If only the query ICC UK had put forward well in time for consideration at New Delhi on the subject had been dealt with in the usual way, rather than disappearing without explanation, all this <grief> could have been avoided. This episode is yet another nail in the coffin of the doc credit, as it is still not clear how these bills of lading s/b treated, and the credibility of the <Banking> Commission. All we need now is UCP600 to deliver the coup de grâce.
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larryBacon
- Posts: 689
- Joined: Fri Apr 05, 2019 5:26 pm
Maersk b/l's
Jeremy,
as I said in Paris, it is lamentable that beneficiaries and applicants are so unrepresented at Banking Comm. meetings. If the issues surrounding B/L clauses are not satisfactorily addressed, these unrepresented parties would be wise to avoid DCs.
However, some banks (mainly British) in seeking to diminish their responsibilities to properly check B/L for such clauses, may be "shooting themselves in the foot", as exporters will see soon see through this.
Judging by events in Paris this week, the British National Committee seems to think that almost everybody is "out of step" except the British on this point.
The only parties to benefit from exclusion of examination of these clauses will be crooks and lawyers.
Laurence
as I said in Paris, it is lamentable that beneficiaries and applicants are so unrepresented at Banking Comm. meetings. If the issues surrounding B/L clauses are not satisfactorily addressed, these unrepresented parties would be wise to avoid DCs.
However, some banks (mainly British) in seeking to diminish their responsibilities to properly check B/L for such clauses, may be "shooting themselves in the foot", as exporters will see soon see through this.
Judging by events in Paris this week, the British National Committee seems to think that almost everybody is "out of step" except the British on this point.
The only parties to benefit from exclusion of examination of these clauses will be crooks and lawyers.
Laurence
Maersk b/l's
Laurence,
I am pleased to see the Brits were apparently not following the herd, sheep-like, but thinking and speaking up for themselves. (A mixed metaphor I know.)
Clearly, what constitutes <proper examination> is at issue. I personally can see a very strong case for banks not concerning themselves with this matter, based on both the UCP and pragmatic grounds, i.e. the potentially adverse impact it could have on the document examination process and thus on banks (as well as beneficiaries who want to get paid and applicants that want to get the goods, not that I -as a banker- consider this a relevant factor). However, I am not insensible to the possibility that the courts may hold that banks are obliged to refuse such documents, either because they are not bladings or because it is an implied term of the credit contract that a <document of title> must be presented and such a blading is not. Nonetheless, overall the <British> approach seems to me to be the least risky for the banks.
Whatever the outcome, it is the interests of the banks that must be paramount, not applicants or beneficiaries.
Jeremy
[edited 5/14/2004 1:06:23 PM]
I am pleased to see the Brits were apparently not following the herd, sheep-like, but thinking and speaking up for themselves. (A mixed metaphor I know.)
Clearly, what constitutes <proper examination> is at issue. I personally can see a very strong case for banks not concerning themselves with this matter, based on both the UCP and pragmatic grounds, i.e. the potentially adverse impact it could have on the document examination process and thus on banks (as well as beneficiaries who want to get paid and applicants that want to get the goods, not that I -as a banker- consider this a relevant factor). However, I am not insensible to the possibility that the courts may hold that banks are obliged to refuse such documents, either because they are not bladings or because it is an implied term of the credit contract that a <document of title> must be presented and such a blading is not. Nonetheless, overall the <British> approach seems to me to be the least risky for the banks.
Whatever the outcome, it is the interests of the banks that must be paramount, not applicants or beneficiaries.
Jeremy
[edited 5/14/2004 1:06:23 PM]
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larryBacon
- Posts: 689
- Joined: Fri Apr 05, 2019 5:26 pm
Maersk b/l's
Jeremy,
it is certainly true that the Brits were not following the herd. They are following the example of that other Great Brit, Canute.
I applaud your candour, though not your sentiment, when you say that the interests of the banks are paramount, and not applicants or beneficiaries. You have obviously thought this through in great detail, but to my simple approach, banks who can demonstrate that they take care of their customers interests, actually ensure their own interests also.
Banks who discount drafts based on compliant DC documentation, or hold documentation as surety against default of payment, might want to reconsider their risks if the documentation in question effectively affords no title to the goods.
Laurence
it is certainly true that the Brits were not following the herd. They are following the example of that other Great Brit, Canute.
I applaud your candour, though not your sentiment, when you say that the interests of the banks are paramount, and not applicants or beneficiaries. You have obviously thought this through in great detail, but to my simple approach, banks who can demonstrate that they take care of their customers interests, actually ensure their own interests also.
Banks who discount drafts based on compliant DC documentation, or hold documentation as surety against default of payment, might want to reconsider their risks if the documentation in question effectively affords no title to the goods.
Laurence