ICC Digital Library Forum

T.O.,

I anticipated something had ‘got lost in translation’. I just thought it best, for the future, to point out possible dangers in the way your contribution was expressed.

Regarding the matter under discussion, I believe you and I are talking at cross purposes. If I understand correctly, you are saying that the document presented may or may not appear to be a ‘transport document’, based on its contents etc. This I, or the other contributors I imagine, do not deny. However, I do not believe this is the issue.

To me the issue is: what article does the stipulation ‘truck consignment note’, in a credit, require to be applied when examining the document actually presented apparently to meet this requirement? I do not see the answer as being a function of the document actually presented, but as a function of what the credit appears to require. Therefore, if the credit appears to require presentation of a ‘road transport document’ Article 28 must be applied to checking the document, irrespective of whether or not the document actually presented appears to be a ‘(road) transport document’. Clearly, if it is not, it will be found discrepant as it will not -by definition- ‘appear on its face to indicate the name of the carrier and to have been signed or otherwise authenticated by the carrier or a named agent for or on behalf of the carrier and/or to beat a reception stamp or other indication of receipt by the carrier or a named agent for or on behalf of the carrier’.

Lastly, my reference to i.s.b.p. was to interpreting the terms of the credit, not to deciding if the document actually presented appeared/did not appear to be a ‘transport document’.

Jeremy

Dear friends
Here I am again. There is nothing I know that speaks against a truck consignment note being a transport document. If a credit calls for such document and this document is made out subject to article 28 (which means that this document has to be signed by a carrier or his agent) it is OK. This is in line with UCP and my practical experience. In Austria such truck consignment notes mostly are CMRs which are signed by the carrier himself. Only once I have come across one being signed by the agent for the carrier.
Regards
Heinz

Jeremy,

WHAT THE DISCUSSION FORUM IS ALL ABOUT

Now finally we understand each other better. This is good for us. We see heated arguments are good things, and that may be one of the purposes of the Discussion Forum - to have more sparks. This would attract more readers. The important thing for us to remember is that we should not take anything personal.

From our understanding, in the Discussion Forum, we should not stick only to ISBP. We should broaden our horizons and take the lateral thinking approach to the issues under discussion. Creative or evolutionary ideas should not be discouraged.

ISBP OR CMR?

For example, we say “Yes” and “No” to Andrle’s comment that the truck consignment note should be determined by ISBP and not CMR.

For the Yes part, it is the banker who makes the determination and of course bankers will take the banking approach. Fair enough.

SOME ICC OPINIONS SHOULD CONSULT ICC TRANSPORT COMMISSION

However, some decisions made by bankers on documents, which they do not understand too much, may not be always right. For example some bankers consider the statement in a BL “…The carrier reserves the right to substitute the carrying vessel…” or similar wordings as to mean “intended vessel” and hence they require the on board notation to include the name of the vessel although it is already stated in the ‘Vessel’ box in the same BL. Otherwise it is discrepant according to sub Article 23 (a) (ii).

This decision was passed in one ICC Banking Commission meeting but was rebutted by Korea and us. After consulting the ICC Transport Commission, the ICC Banking Commission finally changed their views and considered such clause not to mean “intended vessel”.

That is why we consider the nature of a truck consignment note, whether in the DC or in the presentation, should be determined by CMR and not ISBP, unless the ISBP on this particular issue has taken into the opinions of the ICC Transport Commission. That is what we actually mean. And this is a safer approach.

www.tolee.com

[edited 7/3/02 4:22:39 PM]

Interesting discussion. Suppose the Truck Consignment Note presented, on its face, meets the terms and conditions of the credit but no terms and conditions of carriage are mentioned on the backside of the document. Would we still consider it as a transport document?

Abdulkader

Abdulkader,

Your query is education by nature.

LONG AND SHORT FORM TRANSPORT DOCUMENTS

If the truck consignment note, or whatever it is called, has no terms and conditions on all its faces (front and back), it may still be a transport document on two conditions:

(1) It meets all the UCP 500 requirements, depending on which Article you are going to apply, to end arguments on this point: AND

(2) However, it has referred to a source for the terms and conditions of carriage. In other words, it is in “short form” format. We do have “short form BL” that has no terms and conditions on its face but it always refers to a source for them, such as “Parties who are interested to see the terms and conditions of carriage are welcome to ask for a copy at any of our branches/offices” or words of similar intent.

A TRANSPORT DOCUMENT FOR THE PURPOSE OF UCP 500

Having said that, if it has no terms and conditions of carriage and also has not made any reference to the source of the terms and conditions of carriage to be applied to that document, then of course it is not a contract of carriage. And it follows that it is not a transport document under the interpretation of the UCP 500, or transport practice, if you will.

However, it is still a receipt for (the purpose of) carriage, similar to a FCR/T (Forwarder’s Certificate of Receipt/Transport), which are not regarded as transport documents by the ICC Banking Commission, for the purpose of UCP 500.

We understand that you are from KSA and a lot of bankers from your country have shown interest in a 3-day transport document workshop, through which a clear concept on the various transport documents and the maritime practices could be grasped holistically. Kindly approach Hatem for the planning. We like to share our knowledge and experience with you systematically, other than by piece meals approach, which may confuse you some of the times.

www.tolee.com

[edited 7/3/02 9:15:06 PM]

T.O.Lee,

Thanks for the explanation given. I just forgot to mention that it doesn't not make reference to any other source for the terms.

I have intentionally brought up this question because some of the Truck Consignment Notes issued over here would not mention the terms and conditions of the contract of carriage nor make reference to any other source for them. This might give us a clue to the reason behind the confirming bank not considering this particular TCN as a transport document.


regards
Abdulkader
[edited 7/3/02 11:05:25 PM]

Abdulkader,

Firstly, hello.

Secondly, I would observe that:

1. Unlike Article 23, for example, Article 28 does not require the document presented -to meet the requirement for a road transport document- to appear to contain all of the terms and conditions of carriage, or some of such terms and conditions by reference to a source or document. Therefore, I cannot how the presence or otherwise of the terms and conditions of carriage etc can have any bearing on the matter.

2. In deciding the applicable article, the only consideration of the confirming bank should be the terms of the credit and not the contents (or lack of) of the document presented.

Finally, I think this question emphasises the importance of using UCP500 consistent terminology. If the credit had specified ‘road transport document’ then there could not have been the slightest room for dispute. This is why credits we issue usually refer to ‘multimodal transport document’ (and not for example ‘through’ or ‘combined transport bill of lading’) ‘air transport document’ (and not for example ‘air waybill’ or ‘air consignment note’) and ‘road transport document’ and (not for example ‘international’ or ‘truck consignment note’).

Jeremy

[edited 7/4/02 9:25:46 AM]
[edited 7/4/02 9:26:48 AM]

Jeremy,

Thanks for your input. You have brought up an important information that I have overlooked i.e. article 28 does not require the document presented to appear to contain all of the terms and conditions of carriage, or some of such terms and conditions by reference to a source or document. Let’s see what T.O.Lee says about it.

Regards

What the issuing bank wanted was a transport document. The requirements in the credit were: “...Shipment terms: CIF … (name of city of destination) by truck” and under documents required “Truck Consignment Note showing …. (name) as consignee. The number of this credit, truck license number and name of the driver. Name and address of the carriers local agent and freight prepaid and notify applicant (complete name and address as given in the L/C). Note: The carrying company must make the following declaration on the truck consignment note ‘This truck consignment note is the only issued by us for these goods. We hold ourselves fully responsible to the holder of this truck consignment note in the event that another truck consignment note for the same goods was issued or goods delivered to a third party without obtaining this truck consignment note duly endorsed by … (name)”

Dimitri

WHAT IS A TRANSPORT DOCUMENT?

We are amazed that Jeremy, who knows laws, would consider a document can be regarded as a transport document even if it has no terms and conditions of carriage on it nor makes reference to any source of contract of carriage to which it is based. Jeremy merely sticks to whatever the UCP 500 Articles say, without using his legal mind to test whether the UCP 500 Articles have any inconsistency or contradiction to the simple law of contract. If there is any inconsistency or contradiction between the UCP 500 and the law, the law should override the UCP 500.

SYSTEMATIC ANALYSIS OF THE NATURE OF A TRANSPORT DOCUMENT

Now, we would like to ask Jeremy the following questions that would lead to the right answer to determine whether or not a truck consignment note (without any terms and conditions of carriage on it and without making any reference to the contract of carriage) is or is not a transport document per se, not necessary relying on the UCP 500 provisions, which may have loopholes.

(1) Is a transport document a contract of carriage and a receipt of goods by the carrier?

(2) Is a truck consignment note (that has no terms and conditions of carriage on it and has not made any reference to a source of contract of carriage) a transport document?

(3) If the answer to Question (1) is “Yes”, then the answer to question (2) should be “No”. If Jeremy considers that the answers to both questions can be “Yes”, then we hope he would share with us his legal basis for such determination.

(Only for Jeremy: please don't take these questions as personal challenges. We only wish to clarify the issues by taking a structured approach. We enjoy heated arguments with you and respect you as a powerful rival, not enemy).

BACKGROUND STORY OF UCP 500 DRAFTING

Bear in mind that the UCP 500 was drafted by the bankers, without thoroughly consulting the transport profession. When we asked Charles del Busto, the Chairman of UCP 500 Working Party why some UCP 500 transport Articles were not consistent with the transport practice, he admitted to us that they did send a copy of the UCP 500 draft to the transport people but they only returned with a few cosmetic amendments. So the UCP 500 was launched.

That means the transport people at that time might not realise that the UCP 500 was very important to them and so they just did not care, as it was not “transport related”. Now after the UCP 500 was launched, they got all the troubles on signatory and on board notation. Only then they realised that they had missed the opportunity to put the Articles right. But it was then too late to do anything.

Understanding the scenario under which the UCP 500 was drafted, we are not surprised that in Article 28, there is no need to have terms and conditions of carriage or to have any reference to a source of contract of carriage in a document and yet that document could be considered as a transport document. Those who know law of contract should see this as an impossibility. Probably the UCP 500 Working Party has neglected to see this loophole.

UCP 500 ARTICLES SHOULD NOT BE BLINDLY FOLLOWED

This loophole could not be discovered unless by heated arguments amongst us, and thanks to Jeremy and Dimitri for leading us to this important finding in the loophole existed in Article 28.

We should not act on the UCP 500 provisions blindly. We should use common sense and test the content of the UCP 500 Articles in case of disputes or arguments before we can use it as our defence.

Murphy's Law may apply to anything, UCP 500 included!

www.tolee.com

[edited 7/4/02 10:10:26 PM]