Dear Mr. Andrle
Please go through this and provide your feedback. There some excerpts from prvious posts for your personal considerations
GUESS WHAT I’M THINKING
It is not important that our utterances satisfy the demand of the question but that they satisfy the demand of the audience. It is rare to have some one say “I don’t understand what I would have to do in order to find an answer” or “ I did not understand what this question really mean” because we were not trained in schools to examine the types of questions teachers ask. Such behaviour would invariably result in some form of penalty and is, of course, scrupulously avoided, except by “wise guys” like Mr. Lee.
Now, if you reflect on the fact that queries are put in an ambiguous manner so that every time we have to provide assumptions to the original query, then you may become depressed. Consider where does knowledge come from? Knowledge isn’t just there in a book waiting for someone to come along and “learn” it. Knowledge is produced in response to questions, and new knowledge is the outcome of new questions; quite often new questions about old questions.
The point is that once you have learned to ask questions - relevant, appropriate and substantial - you have learned how to learn and no one can keep you from learning whatever you want or need to know.
Therefore appreciation is due to Mr. Lee for his toil and fortitude to clarify vague issues for the audience of the DC PRO.
Mr. Pavel Andrle may wonder I would intervene in this argument. With all respect to both parties, here are my reasons
a) Although I do not personally know any one, neither Mr. Lee nor Mr. Andrle, but I know something about the opportunity cost. To give some basics of what is the opportunity cost, please consider this example. If you come to me as a friend and ask for USD500 dollars for one month to settle you telephone bill and I agree for that, then I, in essence lost an ample opportunity to get some return on this amount from a bank who would happily give me 4% per annum for time deposit. My opportunity cost lending you the money while I would get a return from other party. Now if we apply this to what Mr. Lee is doing his opportunity cost would be that if the same time he spends on DCPRO discussion forum is utilized for training assignments, consultations or any related business activities what would be his opportunity cost. In crystal words the cost of Mr. Lee’s LOST OPPORTUNITY is high, and who is paying for that? No one. Not only that but to add fuel to fire he is getting criticized that he is imparting this knowledge on us.
NOTE: OPPORTUNITY COST IS NOT INCLUDED IN UCP 500
b) The amount of information given by Mr. Lee is so substantial. Apparently this did not come from nowhere. Surely it has involved a lot of fortitude, handwork, money and commitment. Knowledge cannot be fed-breast nor bought from the market place but rather from a long and complicated process. Only a person who lacks knowledge can hardly appreciate this.
c) Mr. Andrle has a peculiarity that all of a sudden he attacks not only Mr. Lee but also others then when he is challenged or if his ideas are examined then goes into hibernation. I feel guilty towards Mr. Lee because once I wrote him a small note so that he makes life easy for Mr. Andrle because from what I have seen Mr. Lee can be hardly defeated, especially when it comes to professional knowledge. Of course I’m not suggestion that he is omniscient or god or the like but the guy has stuff, he is not an empty shell. Sometimes I disagreed with him, but I consider this as privilege. If a wrestler fights with a champion certainly to privilege goes more in my opinion to that wrestler although he is defeated. So the very fact that we are discussing issues with experienced people is a plus for us internal self record system.
d) Another important reason for my intervention is that we should not discourage such a wealth of experience to be silenced. An active users like Mr.’s lee, Abdulkader, Laurence, Jeremy and others should not be suppressed by the thinking that smells intimidation and ignorance should not be given a room in DC PRO.
e) There is an Indian proverb, which says, “ it is better to be a servant of a wise person rather than being a master of a fool.
RICE AND NOODLES FOR MR. LEE AND HIS FAMILY
Dear Mr. Lee,
I can tell you that so many people appreciate your contributions in DC PRO. Another thing is that I want to share with you this wisdom, which says “obstacles are but things that you see when you remove your eyes from your goal”. We do care for your time, for the well being of you and your family but at the same time, allow me to be frank and selfish, we do care for our stream of knowledge to keep on flowing in abundance.
CARRY ON MR. LEE BECAUSE WE WILL SUFFER AN OPPORNITY COST IF YOU ARE SILENCED.
Is the freight forwarder considered the first carrier?
-
hatemshehab
- Posts: 220
- Joined: Fri Apr 05, 2019 5:19 pm
Is the freight forwarder considered the first carrier?
Dear Hatem,
PRESSURE FROM ALL FRONTS
My wife, Patricia, has been advising, if not complaining, to me time and again that I should not have spent so much of my time in finding our rice and noodles in the Discussion Fourm. Now I apprecaite from my heart that you have realised this heavy opportunity cost.
To be frank, other consultants are also advising us not to release so much of our professional secrets, experiences and knowledge gained in the hard way free of charge over the internet, both for our articles and hightlights of dispute cases resolved in our website. Now also in in the Discussion Forum.
They even give us an example. If a cat shares with a mouse her secret of how to run faster, the cat may one day die of starvation.
WE BELIEVE IN SHARING THAT MAKES THE WORLD GO ROUND
We do not believe this. If you have a bucket of water and the others have empty buckets, you never try to find a new source of water as you may grow complacent. If you share the water with others, you know you are saving lives and also not better than anyone else, then you will rise up early in the morning to find new wells. And everybody has more water and more chance to survive. This is what I learn from Buddhism teachings.
We keep sharing for the last thirty years with participants in our workshops around the world. That is why now we know so many DC related technologies. By giving secrets out, we have no more secrets left and we have to find new secrets.
The bonus is the thanks from people like you, Hatem, that knows how to respect and thank the one who shares his water with you. We do not have to find a lot of friends who appreciate.
A Chinese proverb says: "If a man has one true friend who really understands him fully, he should die without regrets".
Mr. Charles del Busto said two times to me when I was depressed after being attacked by other DC practitioners: "T. O. Jesus Christ tried to save the world. You know how people did to Jesus Christ? They crucified Him!".
WHAT WE CANNOT BEAR
As a small potato, I am prepared for such treatment in the Discussion Forum. We do not mind at all people having different opinions with us. If we cannot convince them, such as Jeremy, we would stop arguing at one point and create a joke so that we both can stop without hurting our relationship.
But we do mind that some people who don't know their stuff too well but pretend that they know everything and challenge us with a wrong reasoning. Only under such situation that we would defend ourselves. Another reason is not to allow such incorrect concepts to mislead other members.
We also cannot bear any member who does not contribute to the discussion whilst it is hot and then after a time, when all the different opinions have come out, this "wise guy" comes back as a God and decides unilaterally who is right (for those opinions that meet his own thinking) and criticise those who are wrong, irrrelevant, not the answer the enquirer asks (for those opinions that he disagrees). The most irritating part is to quote other's opinions in isolation and criticise, sometimes with the wrong reasoning or approach. Such behaviour seems to be very smart but in fact not because members here are "wise guys" and can see this through.
THE DC PRO IS NOT A RIGHT PLACE TO PLAY HIDE AND SEEK
So, for our friend Mr. Pavel Andrle, please speak up now whether you still consider us incorrect in our "CIF Hong Kong China" " story and regard that the Incoterms would pass the risk from a seller to a buyer for unascertained goods. Long silence would only make things worst. If one has the courage to challenge opinions of others, one also should have the courage to admit that one is incorrect. After all, we all may make mistakes sometimes, myself included.
I AM LOOKING FORWARD TO A DEFEAT, AND IF I HAVE A CHOICE, BY A DISCIPLE
Dear Hatem, in fact I am looking for a frequent participant to my workshops to defeat me one day. I am not hard to defeat as you have regarded, although I feel flattered for such a compliment. I often say in my workshops: "The highest honour to a sword playing trainer is to be killed by one of his disciples". Maybe one day by Hatem! You should have such potential, judging from your words of wisdom.
T. O.
http://www.tolee.com
[edited 9/24/01 9:52:42 PM]
[edited 10/27/01 10:48:31 PM]
PRESSURE FROM ALL FRONTS
My wife, Patricia, has been advising, if not complaining, to me time and again that I should not have spent so much of my time in finding our rice and noodles in the Discussion Fourm. Now I apprecaite from my heart that you have realised this heavy opportunity cost.
To be frank, other consultants are also advising us not to release so much of our professional secrets, experiences and knowledge gained in the hard way free of charge over the internet, both for our articles and hightlights of dispute cases resolved in our website. Now also in in the Discussion Forum.
They even give us an example. If a cat shares with a mouse her secret of how to run faster, the cat may one day die of starvation.
WE BELIEVE IN SHARING THAT MAKES THE WORLD GO ROUND
We do not believe this. If you have a bucket of water and the others have empty buckets, you never try to find a new source of water as you may grow complacent. If you share the water with others, you know you are saving lives and also not better than anyone else, then you will rise up early in the morning to find new wells. And everybody has more water and more chance to survive. This is what I learn from Buddhism teachings.
We keep sharing for the last thirty years with participants in our workshops around the world. That is why now we know so many DC related technologies. By giving secrets out, we have no more secrets left and we have to find new secrets.
The bonus is the thanks from people like you, Hatem, that knows how to respect and thank the one who shares his water with you. We do not have to find a lot of friends who appreciate.
A Chinese proverb says: "If a man has one true friend who really understands him fully, he should die without regrets".
Mr. Charles del Busto said two times to me when I was depressed after being attacked by other DC practitioners: "T. O. Jesus Christ tried to save the world. You know how people did to Jesus Christ? They crucified Him!".
WHAT WE CANNOT BEAR
As a small potato, I am prepared for such treatment in the Discussion Forum. We do not mind at all people having different opinions with us. If we cannot convince them, such as Jeremy, we would stop arguing at one point and create a joke so that we both can stop without hurting our relationship.
But we do mind that some people who don't know their stuff too well but pretend that they know everything and challenge us with a wrong reasoning. Only under such situation that we would defend ourselves. Another reason is not to allow such incorrect concepts to mislead other members.
We also cannot bear any member who does not contribute to the discussion whilst it is hot and then after a time, when all the different opinions have come out, this "wise guy" comes back as a God and decides unilaterally who is right (for those opinions that meet his own thinking) and criticise those who are wrong, irrrelevant, not the answer the enquirer asks (for those opinions that he disagrees). The most irritating part is to quote other's opinions in isolation and criticise, sometimes with the wrong reasoning or approach. Such behaviour seems to be very smart but in fact not because members here are "wise guys" and can see this through.
THE DC PRO IS NOT A RIGHT PLACE TO PLAY HIDE AND SEEK
So, for our friend Mr. Pavel Andrle, please speak up now whether you still consider us incorrect in our "CIF Hong Kong China" " story and regard that the Incoterms would pass the risk from a seller to a buyer for unascertained goods. Long silence would only make things worst. If one has the courage to challenge opinions of others, one also should have the courage to admit that one is incorrect. After all, we all may make mistakes sometimes, myself included.
I AM LOOKING FORWARD TO A DEFEAT, AND IF I HAVE A CHOICE, BY A DISCIPLE
Dear Hatem, in fact I am looking for a frequent participant to my workshops to defeat me one day. I am not hard to defeat as you have regarded, although I feel flattered for such a compliment. I often say in my workshops: "The highest honour to a sword playing trainer is to be killed by one of his disciples". Maybe one day by Hatem! You should have such potential, judging from your words of wisdom.
T. O.
http://www.tolee.com
[edited 9/24/01 9:52:42 PM]
[edited 10/27/01 10:48:31 PM]
Is the freight forwarder considered the first carrier?
I think this was the original question posed.
"If a seller delivers his product to his freight forwarder for shipment of the product to his international customer, has he technically delivered the product to the "carrier". If the product is stolen from the freight forwarder's lot, who has the risk of loss, the seller or his buyer? If a seller delivers his product to his freight forwarder for shipment of the product to his international customer, has he technically delivered the product to the "carrier". If the product is stolen from the freight forwarder's lot, who has the risk of loss, the seller or his buyer?
VOB: The answer depends on 1)the applicable INCOTERM; or 2) alternative terms of the contract of sale agreed between the seller and the buyer. Under specific INCOTERMS the seller has yes technically delivered the product when the goods have been provided to the carrier. For instance INCOTERMS 2000 define what the seller must do to deliver under A4 which is headed delivery. The heading B 4 taking delivery outlines the buyers obligations. Under CIF Hong Kong (INCOTERMS 2000) the seller satisfies his delivery obligation by delivering the goods on board the vessel at the port of shipment. The buyer must bear all risks of loss or damage to the goods from that time.
INCOTERMS do not deal with transfer of title or property rights in goods at all. Retention of tile clause can of course be very important but they have nothing to do with the obligations of buyers or sellers under INCOTERMS.
The UN Convention on Contracts for the International Sale of Goods (CISG) did not deal with the interpretation of trade terms as these elements were best addressed through INCOTERMS of the ICC.
The focus of Incoterms is quite narrow but they are incredibly important in the context of the huge value of international consignments being shipped on an ongoing basis.
That is my answer to the question asked. I hope it is of benefit.
Vin
"If a seller delivers his product to his freight forwarder for shipment of the product to his international customer, has he technically delivered the product to the "carrier". If the product is stolen from the freight forwarder's lot, who has the risk of loss, the seller or his buyer? If a seller delivers his product to his freight forwarder for shipment of the product to his international customer, has he technically delivered the product to the "carrier". If the product is stolen from the freight forwarder's lot, who has the risk of loss, the seller or his buyer?
VOB: The answer depends on 1)the applicable INCOTERM; or 2) alternative terms of the contract of sale agreed between the seller and the buyer. Under specific INCOTERMS the seller has yes technically delivered the product when the goods have been provided to the carrier. For instance INCOTERMS 2000 define what the seller must do to deliver under A4 which is headed delivery. The heading B 4 taking delivery outlines the buyers obligations. Under CIF Hong Kong (INCOTERMS 2000) the seller satisfies his delivery obligation by delivering the goods on board the vessel at the port of shipment. The buyer must bear all risks of loss or damage to the goods from that time.
INCOTERMS do not deal with transfer of title or property rights in goods at all. Retention of tile clause can of course be very important but they have nothing to do with the obligations of buyers or sellers under INCOTERMS.
The UN Convention on Contracts for the International Sale of Goods (CISG) did not deal with the interpretation of trade terms as these elements were best addressed through INCOTERMS of the ICC.
The focus of Incoterms is quite narrow but they are incredibly important in the context of the huge value of international consignments being shipped on an ongoing basis.
That is my answer to the question asked. I hope it is of benefit.
Vin
Is the freight forwarder considered the first carrier?
Vin,
AN UNSPECIFIC ENQUIRY MAY LEAD TO WIDE SCOPE VIEWS
Long time no see!
Your opinions are right for most goods that are "specific goods". Since the enquirer has never told us what exactly the goods are, we try to cover the scope of the query more widely by providing our opinions on other forms of goods too. And we have shared our "hydrocarbon" liquid goods (a kind of "unascertained goods") story to convince members that this sort of problems does not necessarily be so simple and can all be easily solved by simply quoting a page in the Incoterms 2000 guidebook.
As we have said before and say it again here: "Otherwise consultants would all lose their jobs!"
INCOTERMS MAY NOT APPLY IN OTHER FORMS OF GOODS
For "unascertained goods" and "future goods", the Incoterms may not be applicable, even if one does not wish to deal with title or ownership issue and limits it to the risk issue alone.
MAKE BETTER USE OF THE DISCUSSION FORUM
With all the high calibre members here, it would be a waste of resources just to answer the educational query. Why not we try to widen the scope of discussion and not to be bound by the query itself and land on exhange of opinions on some more complex issues that the ICC Banking Commission has not yet touched, particularly we all pay a high fee to enter the Discussion Forum.
We see a query as a fuse to explode a "free (call it wild if you will) discussion" bomb. Let all the wide ideas surface! We should not label those ideas as "irrelevant or not those the enquirer wants" to block freedom of expression, a constitutional right.
http://www.tolee.com
[edited 9/24/01 11:13:22 PM]
[edited 10/27/01 10:33:01 PM]
AN UNSPECIFIC ENQUIRY MAY LEAD TO WIDE SCOPE VIEWS
Long time no see!
Your opinions are right for most goods that are "specific goods". Since the enquirer has never told us what exactly the goods are, we try to cover the scope of the query more widely by providing our opinions on other forms of goods too. And we have shared our "hydrocarbon" liquid goods (a kind of "unascertained goods") story to convince members that this sort of problems does not necessarily be so simple and can all be easily solved by simply quoting a page in the Incoterms 2000 guidebook.
As we have said before and say it again here: "Otherwise consultants would all lose their jobs!"
INCOTERMS MAY NOT APPLY IN OTHER FORMS OF GOODS
For "unascertained goods" and "future goods", the Incoterms may not be applicable, even if one does not wish to deal with title or ownership issue and limits it to the risk issue alone.
MAKE BETTER USE OF THE DISCUSSION FORUM
With all the high calibre members here, it would be a waste of resources just to answer the educational query. Why not we try to widen the scope of discussion and not to be bound by the query itself and land on exhange of opinions on some more complex issues that the ICC Banking Commission has not yet touched, particularly we all pay a high fee to enter the Discussion Forum.
We see a query as a fuse to explode a "free (call it wild if you will) discussion" bomb. Let all the wide ideas surface! We should not label those ideas as "irrelevant or not those the enquirer wants" to block freedom of expression, a constitutional right.
http://www.tolee.com
[edited 9/24/01 11:13:22 PM]
[edited 10/27/01 10:33:01 PM]
-
hatemshehab
- Posts: 220
- Joined: Fri Apr 05, 2019 5:19 pm
Is the freight forwarder considered the first carrier?
As a banker I can tell you that certain issue in INCOTERMS remain secrets. Generally bankers are not acquainted with the limitations of INCOTERMS or the correlation with other issues like title or ownership, contract of sales versus contract of carriage, premature passing of risks and so on. Some bankers understand that the basic utility of INCOTERMS is just to deliver certain goods called for in the L/C to the ultimate buyer through a means of conveyance. When it comes to more than a humble L/C we may be stuck or surprised that we are in a real dilemma.
There is another face to the problem, which resides in our conventional understanding that an INCOTERM comes unto the surface when a contract comes into being when two parties reach an agreement on a sales transportation. To me this is a fairly universal principle to be respected. However, what is the value addition of a banker who is technically trained and made knowledgeable enough to finance this contract? While I respect the intention of the parties to contract, I as a banker, know that there are variations, limitations to the for these INCOTERMS, there are variations in applicable laws, there may be misinterpretations or even contrasting expectations among partiers. Of course the essential part should be the burden of the two parties contracting “ad idem” that they are in complete harmony. But I have a legitimate question to throw: Is the principle “freedom to contract” is a blindly acceptable arrangement that it is above questioning or examining?
In this age we bakers live in a moving oceans that we should not confine ourselves to one static approach. We all know that in the fast going deals contracts are nothing but shorthand deals that simply specify quantities of goods, unit price, time frame for delivery, and certain place for receipt. Therefore a prudent banker should be armed with a well-structured knowledge of what are INCOTERMS, their various rights and obligations and their impact on the L/C transaction.
If we accept that fact that a short hand deal expressed in a pro forma invoice cannot extinguish the thirst of the bank to issue a “good, water-tight” letter of credit then, by definition, we should not accept shorthand expressions like INCOTERMS to be included in the letter of credit without being fully understood.
There is another face to the problem, which resides in our conventional understanding that an INCOTERM comes unto the surface when a contract comes into being when two parties reach an agreement on a sales transportation. To me this is a fairly universal principle to be respected. However, what is the value addition of a banker who is technically trained and made knowledgeable enough to finance this contract? While I respect the intention of the parties to contract, I as a banker, know that there are variations, limitations to the for these INCOTERMS, there are variations in applicable laws, there may be misinterpretations or even contrasting expectations among partiers. Of course the essential part should be the burden of the two parties contracting “ad idem” that they are in complete harmony. But I have a legitimate question to throw: Is the principle “freedom to contract” is a blindly acceptable arrangement that it is above questioning or examining?
In this age we bakers live in a moving oceans that we should not confine ourselves to one static approach. We all know that in the fast going deals contracts are nothing but shorthand deals that simply specify quantities of goods, unit price, time frame for delivery, and certain place for receipt. Therefore a prudent banker should be armed with a well-structured knowledge of what are INCOTERMS, their various rights and obligations and their impact on the L/C transaction.
If we accept that fact that a short hand deal expressed in a pro forma invoice cannot extinguish the thirst of the bank to issue a “good, water-tight” letter of credit then, by definition, we should not accept shorthand expressions like INCOTERMS to be included in the letter of credit without being fully understood.
Is the freight forwarder considered the first carrier?
Dear Mr. Lee
You might see that I finished my comments above as this: “With respect to the comment "A knife has two edges. You may either kill your enemy or yourself if you don’t know how to use it properly", surely as professionals we should restrain ourselves from personalizing our comments, as this does nothing to advance the goal of this discussion forum.”
I see that you have taken it very personally and made the all effort to show yourself “always correct experienced and learned consultant”. I do not see this Forum as “battlefield” as you seem to do according to some of your comments. I have found your comments above very personal, oversensitive and offensive.
Lets deal with the CIF argument itself. For clarity purposes I will quote your previous posting which I was commented on:
Quote:
Our client, a buyer, purchased goods on CIF Hong Kong China Incoterms and the goods sustained damages during the sea voyage. According to Incoterms, the risk should have shifted from the seller to the buyer once the goods had crossed the ship's side. The buyer had to bear the risk of the damages.
If life (or deciding everything by Incoterms) were so simple, we trade disputes consultants would have no business.
However, when we looked at the invoice, we found a protective clause, probably suggested by the seller's lawyer to protect his client from non-payment: "The title of the goods will be retained by the seller unless and until the goods have been fully paid for". And Bingo! This clause would overturn everything, making our client, a buyer, from a loser in "Incoterms" to a winner in "title" or "ownership" if that matters (as certian scholars think that there is a difference between "title" and "ownership" and both are abstract terms anyway). This is a contractual term, a specific term to override a generalized term in the Incoterms. Also the law of contract would override the Incoterms, which, like the UCP, is not law. In fact the Incoterms, like the UCP, allow parties to make their own rules.
We asked the seller's lawyer a simple question: "Who is the OWNER of the goods at the time of distress?' Of course it was the seller because the payment was by a deferred payment DC. At the time of distress, the issuing bank had not yet made any deferred payment undertaking, whether drafts or no drafts were used.
Normally, if there were not such a protective clause, according the CISG Vienna Convention of the United Nations, or commercial legislations on sales of goods in most countries, title would normally pass (i) on signing contract, (ii) on delivery or (iii) according to the intention of the parties, a general situation(s) assumed by the Incoterms based on which the risk between the seller and the buyer is determined.
But with this specific protection clause being incorporated in the contract and the invoice, the rules of the game had been changed.
So our buyer, should be a loser in Incoterms, was saved by a special condition, which overrode the Incoterms. So as the Chinese saying goes: "A knife has two edges. You may either kill your enemy or yourself if you don't know how to use it properly".
Unquote
As much as I am trying I can not see any note re. “unascertained goods" there!!!!!
SO THIS WAS NOT ISSUE we discussed as you must know. We have discussed the “protective clause issue” and whether it would override the Incoterm term or not re. transfer of the risks! I was correct saying that –quote: “So the fact that the seller retains title to the goods until the goods are fully paid for (as a protective retention of title clause) does not necessarily mean that he should suffer from the damage to the goods in transit.”
We are supposed to be professionals who obey the standard rules when discussing issues. One of these “rules” is that , as I see it, we base our opinions only on the known facts and information provided. We discussed the “protective clause” and Incoterm relations, there was no whatsoever note re. “unascertained goods”. So I must repeat myself again – This was irrelevant. This is what I disagreed with : quote: “But with this specific protection clause being incorporated in the contract and the invoice, the rules of the game had been changed.” Unquote.
So I do not accept your comments above as they are based on facts which were not discussed. There is always possibility of “special facts”, acc. to intention of the parties etc. Furthermore I consider this attempt to bring this irrelevant issue in and try to “defeat” your opponent as very unfair. I am very disappointed and sad by it. We might disagree and be strong about it, but we should always play fair play.
To be very honest with you, I was and I am pretty aware of the “unascertained goods" re. transfer of ownership effect (also in relation with B/L etc) and for a minute I was thinking to mention that as a precondition in my last posting. Then I left that as this was irrelevant to the case and I thought that nobody would ever argue about that. Anyway to cover myself against this slight possibility, I have included in my relevant posting this:
quote:
“I understand that the outcome might me different taking into account special circumstances of the matter. But I highly doubt that any court would ignore this standard rule given by the used Incoterm, unless there is, of course, another express indication of the matter (transfer of the risks) in the contract itself.
Of course we could have different scenario if the seller did not comply with the CIF contract terms, but I am assuming that this is not the case.“
Unquote:
Unascertaining of the goods might be well considered as a special circumstance of the case.
BUT even in the case that the goods are not being ascertained to the contract, it might not be definitive answer to the question when the risks were transferred from the seller to the buyer. It depends on the governing law, special circumstances of the case such as implied intention of the parties etc. (effecting the CIF – policy in favor of the buyer might be well taken as implied intention of the parties for the risks to be transferred with CIF rule for instance).
The rest is just your self promotion which is very untactful. I do not wish to comment on that as this does nothing to advance the goal of this discussion forum.
Pavel Andrle
You might see that I finished my comments above as this: “With respect to the comment "A knife has two edges. You may either kill your enemy or yourself if you don’t know how to use it properly", surely as professionals we should restrain ourselves from personalizing our comments, as this does nothing to advance the goal of this discussion forum.”
I see that you have taken it very personally and made the all effort to show yourself “always correct experienced and learned consultant”. I do not see this Forum as “battlefield” as you seem to do according to some of your comments. I have found your comments above very personal, oversensitive and offensive.
Lets deal with the CIF argument itself. For clarity purposes I will quote your previous posting which I was commented on:
Quote:
Our client, a buyer, purchased goods on CIF Hong Kong China Incoterms and the goods sustained damages during the sea voyage. According to Incoterms, the risk should have shifted from the seller to the buyer once the goods had crossed the ship's side. The buyer had to bear the risk of the damages.
If life (or deciding everything by Incoterms) were so simple, we trade disputes consultants would have no business.
However, when we looked at the invoice, we found a protective clause, probably suggested by the seller's lawyer to protect his client from non-payment: "The title of the goods will be retained by the seller unless and until the goods have been fully paid for". And Bingo! This clause would overturn everything, making our client, a buyer, from a loser in "Incoterms" to a winner in "title" or "ownership" if that matters (as certian scholars think that there is a difference between "title" and "ownership" and both are abstract terms anyway). This is a contractual term, a specific term to override a generalized term in the Incoterms. Also the law of contract would override the Incoterms, which, like the UCP, is not law. In fact the Incoterms, like the UCP, allow parties to make their own rules.
We asked the seller's lawyer a simple question: "Who is the OWNER of the goods at the time of distress?' Of course it was the seller because the payment was by a deferred payment DC. At the time of distress, the issuing bank had not yet made any deferred payment undertaking, whether drafts or no drafts were used.
Normally, if there were not such a protective clause, according the CISG Vienna Convention of the United Nations, or commercial legislations on sales of goods in most countries, title would normally pass (i) on signing contract, (ii) on delivery or (iii) according to the intention of the parties, a general situation(s) assumed by the Incoterms based on which the risk between the seller and the buyer is determined.
But with this specific protection clause being incorporated in the contract and the invoice, the rules of the game had been changed.
So our buyer, should be a loser in Incoterms, was saved by a special condition, which overrode the Incoterms. So as the Chinese saying goes: "A knife has two edges. You may either kill your enemy or yourself if you don't know how to use it properly".
Unquote
As much as I am trying I can not see any note re. “unascertained goods" there!!!!!
SO THIS WAS NOT ISSUE we discussed as you must know. We have discussed the “protective clause issue” and whether it would override the Incoterm term or not re. transfer of the risks! I was correct saying that –quote: “So the fact that the seller retains title to the goods until the goods are fully paid for (as a protective retention of title clause) does not necessarily mean that he should suffer from the damage to the goods in transit.”
We are supposed to be professionals who obey the standard rules when discussing issues. One of these “rules” is that , as I see it, we base our opinions only on the known facts and information provided. We discussed the “protective clause” and Incoterm relations, there was no whatsoever note re. “unascertained goods”. So I must repeat myself again – This was irrelevant. This is what I disagreed with : quote: “But with this specific protection clause being incorporated in the contract and the invoice, the rules of the game had been changed.” Unquote.
So I do not accept your comments above as they are based on facts which were not discussed. There is always possibility of “special facts”, acc. to intention of the parties etc. Furthermore I consider this attempt to bring this irrelevant issue in and try to “defeat” your opponent as very unfair. I am very disappointed and sad by it. We might disagree and be strong about it, but we should always play fair play.
To be very honest with you, I was and I am pretty aware of the “unascertained goods" re. transfer of ownership effect (also in relation with B/L etc) and for a minute I was thinking to mention that as a precondition in my last posting. Then I left that as this was irrelevant to the case and I thought that nobody would ever argue about that. Anyway to cover myself against this slight possibility, I have included in my relevant posting this:
quote:
“I understand that the outcome might me different taking into account special circumstances of the matter. But I highly doubt that any court would ignore this standard rule given by the used Incoterm, unless there is, of course, another express indication of the matter (transfer of the risks) in the contract itself.
Of course we could have different scenario if the seller did not comply with the CIF contract terms, but I am assuming that this is not the case.“
Unquote:
Unascertaining of the goods might be well considered as a special circumstance of the case.
BUT even in the case that the goods are not being ascertained to the contract, it might not be definitive answer to the question when the risks were transferred from the seller to the buyer. It depends on the governing law, special circumstances of the case such as implied intention of the parties etc. (effecting the CIF – policy in favor of the buyer might be well taken as implied intention of the parties for the risks to be transferred with CIF rule for instance).
The rest is just your self promotion which is very untactful. I do not wish to comment on that as this does nothing to advance the goal of this discussion forum.
Pavel Andrle
Is the freight forwarder considered the first carrier?
Dear Mr. Pavel Andrle,
Thank you very much for showing up at last to express yourself, although a bit late, only after repeated requests. But better late than never. We do appreciate that and maybe you are also busy.
Now please come to reasons and not to blame others. We should not turn the Discussion Forum into a battlefield or a tabloid.
BOTH OPINIONS ARE CORRECT
You make your comments based on a "generalised condition" (goods being "specific goods"). They are correct.
We make our comments based on facts in our consultancy case, which we cannot disclose all the details or otherwise you may criticise again that it is too lengthy. And once we start talking about "unascertained goods" we would open another can of worms and need to explain in lengthy passages again as certain members may not fully understand what we are talking about. This applies to other comments from us as well. We cannot do many things at the same time.
We base on a special condition, where "unascertained goods" are involved. So we are also correct.
WHO CREATES ALL THESE TROUBLES
From simple logic, since both of us are correct, then we should not have any argument. You know where the troubles come from? It is because you quote our comments and regard that we are incorrect.
If you know what unascertained goods are, as admitted by you, then why don't you clarify with us before you assume that in our case, we MUST BE referring to ALSO "specific goods", after knowing very clearly yourself that there are other forms of goods.
As we have said it before and are saying it here again: "If all goods are specific goods, then there is no need for a consultant".
In conclusion, YES we are both correct in our opinions on Incoterms. BUT you are incorrect in quoting our opinions and saying that we are incorrect. So your comments or criticism if you will, on us are INCORRECT, by making a wrong ASSUMPTION without first clarifying THE FACTS from us about the nature of the goods. If we carry this practice in our Expert's Report used as a court evidence in a DC trade dispute, our career would be finished.
NO NOTION OF FAIR OR UNFAIR IN AN EXCHANGE OF OPINIONS
You consider it UNFAIR to you that we bring forth the "unascertained goods" issue. Well is it also UNFAIR to us that you criticise us as incorrect without first trying to clarify with us the nature of the goods (which you admit that you know there IS A POSSIBILITY of other forms of goods)?
In fact, there is no notion of fair or unfair in a discussion. Remember, there is no prize to win. We are in the process of exchange of opinions and both of us do not know the final outcome or conclusion, if there is one. You should not deem it as a combat with T. O. Lee. No wonder you make all the wrong moves as a result of such incorrect attitude.
For your information, there are other complexities in that same case that may lead to more sophisticated issues beyond the scope of the DC Pro. So don't ever oversimplify our case (or an issue under discussion). Our lawyer clients would not give us their business for an answer which can be easily obtained by quoting the Incoterms.
So be careful next time when you try to quote and criticise others. You have to clear the land mines first. And don't ever see a discussion as a combat. If we wish to combat, we would not choose you.
A GOOD EXAMPLE ON HOW TO POINT OUT OTHER'S MISTAKES
This is a negative promotion if you will. It also shows to you that we are not "always correct, an experienced and learned consultant" as you have regarded us to be. We never claim to be one. Our friend, an ICC DC expert from Austria gave us an email couple of months ago to correct one incorrect statement we made about the Euro currency being applied in a DC issued in a non Euro currency and we appreciate that sort of friendly advice in private to respect us and to protect our name, rather than criticising openly in the DC Pro to destroy our image, as you did so often but everytime you failed. The one who goes wrong is you, sorry to say this.
We made that statement due to poor memory or negligence or both. We don't know. And we swiftly corrected that comment and also thanked that friendly banker from Austria - Mr. Heinz Hertl - ICC's representative to liaise with the ICC Commission on Transport for transport issues related to DC operations. He is watching us all the time here.
In your eyes, we, as an international consultant, getting involved in drafting the Incoterms 2000 as a representative of Canada (no intention for promotion, just to give facts to make our statement more convincing, that is all), should not have appeared to be so stupid to have given such incorrect comments, that an ordinary DC practitioner should know.
It is your goodself that have created all these unnecessary arguments here. By the way, for the 300 plus responses we have made so far in the Discussion Forum, we seldom, if never, quote the comments from other members and criticise that they are wrong. This is not a good practice as it may offend others easily by not giving them face and may force them to respond emotionally. We should learn from our intelligent friend, Mr. Heinz Hertl here.
We have already explained this to Jeremy when he asks us why we do not object to an incorrect statement from another member. Jeremy assumes that our silence means that we have shared the same incorrect statement. What we are trying to do is to make our different views without criticising or embarrassing others. We may be wrong sometimes too.
OUR FRINEDLY ADVICE
We have a friendly advice for you and it is free. Don't do unto others what you don't want others to do unto you. Otherwise the DC Pro would not have quiet days.
KNOWLEDGE AND EXPERIENCE SHARING IS A NOBLE DEED
We share our knowledge and experience, which is what the Discussion Forum is all about. You should not look at it as an untactful promotion of our business. A noble deed should not be misunderstood as a filthy deed. There is a famous saying in psychology: "One sees what one's mind wants one to see". If one has a dirty mind, when one sees a naked girl, he would... When an artist sees that same naked girl, he has a totally different response. He would try to record that moment of beauty.
And in fact a member has openly asked us not to stop it or he may learn less from the Discussion Forum. We would not stop sharing just because you don't like it.
WHY NOT START SHARING YOURSELF TODAY?
If you regard yourself also as a learned banker, then why not share with us your profound knowledge on things like transport, insurance, law, and the like so that we may all learn from you. So far we do not see such sharing from you except criticism, who is right and who is wrong, complaining and not sharing. Would you start by sharing with us some landmark bills of lading legal cases on unascertained goods, since you have mentioned this in your response?
AN IRRELEVANT BRUCE LEE STORY
Bruce Lee has many challengers who want to build a fast fame by challenging a champion of international fame. If Bruce Lee refuses to accept the challenge, the challenger may say Bruce is a coward and yells about this to the media people to make his name widely spread by the tabloid. If Bruce accepts the challenge and is defeated, although unlikely, or there is a draw, then this wise guy would rise to fame in one night.
TIME IS A LUXURY ITEM FOR US
Although we are merely T. O. Lee Consultants Ltd. and not Bruce Lee, and we do not know Chinese Kungfu or known internationally like Bruce, we do not wish to waste our time on you, arguing without an end. We are self-employed and have to use our time more productively to find our rice and noodles. We have already lost six bowls of rice and seven bowls of noodles here.
PLEASE LEAVE US ALONE
Please, for a third time. leave us alone. We do not wish to have your comments on our opinions again to avoid further arguments or clarification each time. This is killing us. And don't quote our comments. Thank you very much for this.
We would not respond any more after making our position clear once and for all. So next time, if you find a stupid comment from us, please clarify with us first before you quote and criticise. Our email is experts@tolee.com or fax (905) 883 5427 in Toronto.
In fact, if you have a clear mind, our responses to your first and second attacks were quite mild to give you face. One member also reacted strongly on what you had said to us. You should have smelt that something went wrong with your style or attitude. However, you never learn. So in our third response, we had to give you a lesson and told you frankly what we felt about your criticism and your style. However, we still tried to give you face by saying that we might be wrong in our interpretations of your comments and if that were the case, we apologised for that.
If we have the opportunity to meet again personally, such as in the forthcoming Frankfurt ICC Banking Commission meetings, may we shake hands and smile to each other? I would be the first one to put my hand out. After all, this is only a stir in a tea cup. We have a difficult case awaiting us upon our return from Saudi Arabia. So we do not have too much time for the DC Pro by then.
Good bye and take care.
http://www.tolee.com
[edited 9/27/01 4:27:14 AM]
[edited 10/27/01 10:18:35 PM]
Thank you very much for showing up at last to express yourself, although a bit late, only after repeated requests. But better late than never. We do appreciate that and maybe you are also busy.
Now please come to reasons and not to blame others. We should not turn the Discussion Forum into a battlefield or a tabloid.
BOTH OPINIONS ARE CORRECT
You make your comments based on a "generalised condition" (goods being "specific goods"). They are correct.
We make our comments based on facts in our consultancy case, which we cannot disclose all the details or otherwise you may criticise again that it is too lengthy. And once we start talking about "unascertained goods" we would open another can of worms and need to explain in lengthy passages again as certain members may not fully understand what we are talking about. This applies to other comments from us as well. We cannot do many things at the same time.
We base on a special condition, where "unascertained goods" are involved. So we are also correct.
WHO CREATES ALL THESE TROUBLES
From simple logic, since both of us are correct, then we should not have any argument. You know where the troubles come from? It is because you quote our comments and regard that we are incorrect.
If you know what unascertained goods are, as admitted by you, then why don't you clarify with us before you assume that in our case, we MUST BE referring to ALSO "specific goods", after knowing very clearly yourself that there are other forms of goods.
As we have said it before and are saying it here again: "If all goods are specific goods, then there is no need for a consultant".
In conclusion, YES we are both correct in our opinions on Incoterms. BUT you are incorrect in quoting our opinions and saying that we are incorrect. So your comments or criticism if you will, on us are INCORRECT, by making a wrong ASSUMPTION without first clarifying THE FACTS from us about the nature of the goods. If we carry this practice in our Expert's Report used as a court evidence in a DC trade dispute, our career would be finished.
NO NOTION OF FAIR OR UNFAIR IN AN EXCHANGE OF OPINIONS
You consider it UNFAIR to you that we bring forth the "unascertained goods" issue. Well is it also UNFAIR to us that you criticise us as incorrect without first trying to clarify with us the nature of the goods (which you admit that you know there IS A POSSIBILITY of other forms of goods)?
In fact, there is no notion of fair or unfair in a discussion. Remember, there is no prize to win. We are in the process of exchange of opinions and both of us do not know the final outcome or conclusion, if there is one. You should not deem it as a combat with T. O. Lee. No wonder you make all the wrong moves as a result of such incorrect attitude.
For your information, there are other complexities in that same case that may lead to more sophisticated issues beyond the scope of the DC Pro. So don't ever oversimplify our case (or an issue under discussion). Our lawyer clients would not give us their business for an answer which can be easily obtained by quoting the Incoterms.
So be careful next time when you try to quote and criticise others. You have to clear the land mines first. And don't ever see a discussion as a combat. If we wish to combat, we would not choose you.
A GOOD EXAMPLE ON HOW TO POINT OUT OTHER'S MISTAKES
This is a negative promotion if you will. It also shows to you that we are not "always correct, an experienced and learned consultant" as you have regarded us to be. We never claim to be one. Our friend, an ICC DC expert from Austria gave us an email couple of months ago to correct one incorrect statement we made about the Euro currency being applied in a DC issued in a non Euro currency and we appreciate that sort of friendly advice in private to respect us and to protect our name, rather than criticising openly in the DC Pro to destroy our image, as you did so often but everytime you failed. The one who goes wrong is you, sorry to say this.
We made that statement due to poor memory or negligence or both. We don't know. And we swiftly corrected that comment and also thanked that friendly banker from Austria - Mr. Heinz Hertl - ICC's representative to liaise with the ICC Commission on Transport for transport issues related to DC operations. He is watching us all the time here.
In your eyes, we, as an international consultant, getting involved in drafting the Incoterms 2000 as a representative of Canada (no intention for promotion, just to give facts to make our statement more convincing, that is all), should not have appeared to be so stupid to have given such incorrect comments, that an ordinary DC practitioner should know.
It is your goodself that have created all these unnecessary arguments here. By the way, for the 300 plus responses we have made so far in the Discussion Forum, we seldom, if never, quote the comments from other members and criticise that they are wrong. This is not a good practice as it may offend others easily by not giving them face and may force them to respond emotionally. We should learn from our intelligent friend, Mr. Heinz Hertl here.
We have already explained this to Jeremy when he asks us why we do not object to an incorrect statement from another member. Jeremy assumes that our silence means that we have shared the same incorrect statement. What we are trying to do is to make our different views without criticising or embarrassing others. We may be wrong sometimes too.
OUR FRINEDLY ADVICE
We have a friendly advice for you and it is free. Don't do unto others what you don't want others to do unto you. Otherwise the DC Pro would not have quiet days.
KNOWLEDGE AND EXPERIENCE SHARING IS A NOBLE DEED
We share our knowledge and experience, which is what the Discussion Forum is all about. You should not look at it as an untactful promotion of our business. A noble deed should not be misunderstood as a filthy deed. There is a famous saying in psychology: "One sees what one's mind wants one to see". If one has a dirty mind, when one sees a naked girl, he would... When an artist sees that same naked girl, he has a totally different response. He would try to record that moment of beauty.
And in fact a member has openly asked us not to stop it or he may learn less from the Discussion Forum. We would not stop sharing just because you don't like it.
WHY NOT START SHARING YOURSELF TODAY?
If you regard yourself also as a learned banker, then why not share with us your profound knowledge on things like transport, insurance, law, and the like so that we may all learn from you. So far we do not see such sharing from you except criticism, who is right and who is wrong, complaining and not sharing. Would you start by sharing with us some landmark bills of lading legal cases on unascertained goods, since you have mentioned this in your response?
AN IRRELEVANT BRUCE LEE STORY
Bruce Lee has many challengers who want to build a fast fame by challenging a champion of international fame. If Bruce Lee refuses to accept the challenge, the challenger may say Bruce is a coward and yells about this to the media people to make his name widely spread by the tabloid. If Bruce accepts the challenge and is defeated, although unlikely, or there is a draw, then this wise guy would rise to fame in one night.
TIME IS A LUXURY ITEM FOR US
Although we are merely T. O. Lee Consultants Ltd. and not Bruce Lee, and we do not know Chinese Kungfu or known internationally like Bruce, we do not wish to waste our time on you, arguing without an end. We are self-employed and have to use our time more productively to find our rice and noodles. We have already lost six bowls of rice and seven bowls of noodles here.
PLEASE LEAVE US ALONE
Please, for a third time. leave us alone. We do not wish to have your comments on our opinions again to avoid further arguments or clarification each time. This is killing us. And don't quote our comments. Thank you very much for this.
We would not respond any more after making our position clear once and for all. So next time, if you find a stupid comment from us, please clarify with us first before you quote and criticise. Our email is experts@tolee.com or fax (905) 883 5427 in Toronto.
In fact, if you have a clear mind, our responses to your first and second attacks were quite mild to give you face. One member also reacted strongly on what you had said to us. You should have smelt that something went wrong with your style or attitude. However, you never learn. So in our third response, we had to give you a lesson and told you frankly what we felt about your criticism and your style. However, we still tried to give you face by saying that we might be wrong in our interpretations of your comments and if that were the case, we apologised for that.
If we have the opportunity to meet again personally, such as in the forthcoming Frankfurt ICC Banking Commission meetings, may we shake hands and smile to each other? I would be the first one to put my hand out. After all, this is only a stir in a tea cup. We have a difficult case awaiting us upon our return from Saudi Arabia. So we do not have too much time for the DC Pro by then.
Good bye and take care.
http://www.tolee.com
[edited 9/27/01 4:27:14 AM]
[edited 10/27/01 10:18:35 PM]
Is the freight forwarder considered the first carrier?
Dear Mr. T.O.LEE,
I am not “targeting you”, I have been commenting on yours opinions only. I have quoted your words just to make my point clear and to eliminate any possible misunderstanding.
One should not consider an opinion which he does not like or agree with as being targeted at him. I have commented at your opinions only.
My intent is to enjoy an interesting discussion with other participants in the professional manner. My silence is due to my recent work preoccupation and to the fact that I choose to answer the postings which interest me and I also have enough time to deal with them and I feel I can add something interesting. In many cases I see that the opinions are very professional and in my view very correct, then I do not see any point to send my posting as well. I have been very busy last two-three months as I have been working outside my country. My access to Internet was rather limited, I had to go to Internet café to check my e-mails and from time to time to have a look at the DC PRO Forum as well.
Yes, we might have the opportunity to meet personally in the forthcoming Frankfurt ICC Banking Commission meetings. I might be there as being the secretary of the banking commission of ICC Czech Republic. I hope we will enjoy some interesting debates by then.
With respect,
Pavel Andrle
I am not “targeting you”, I have been commenting on yours opinions only. I have quoted your words just to make my point clear and to eliminate any possible misunderstanding.
One should not consider an opinion which he does not like or agree with as being targeted at him. I have commented at your opinions only.
My intent is to enjoy an interesting discussion with other participants in the professional manner. My silence is due to my recent work preoccupation and to the fact that I choose to answer the postings which interest me and I also have enough time to deal with them and I feel I can add something interesting. In many cases I see that the opinions are very professional and in my view very correct, then I do not see any point to send my posting as well. I have been very busy last two-three months as I have been working outside my country. My access to Internet was rather limited, I had to go to Internet café to check my e-mails and from time to time to have a look at the DC PRO Forum as well.
Yes, we might have the opportunity to meet personally in the forthcoming Frankfurt ICC Banking Commission meetings. I might be there as being the secretary of the banking commission of ICC Czech Republic. I hope we will enjoy some interesting debates by then.
With respect,
Pavel Andrle