ICC Digital Library Forum

My personal thoughts, regarding the above, without liability or responsibility are:

1. Judith,

One thing I’ve learned since being a ‘contributor’ to DC-Pro discussions is that, at least under English law, UCP is not the ‘be all, and end all’ when it comes to documentary compliance. As Raymond Jack et al say in ‘Documentary Credits’ (3rd edition), paragraph 1.20:

‘In a commercial context the parties may be presumed to contract in accordance with any custom or usage with the particular trade. Evidence of custom in the trade is admissible to explain the terms used in the contract, and to also clarify ambiguities and to establish matters on which the contract is silent.’

2. As to the terms of the credit/UCP, has in fact a ‘bill of lading’ been presented? Unfortunately, the Carriage of Goods at Sea Act 1992 does not define a b/l (other than negatively, S1(2)(a)); perhaps other countries have legislation that does? However, Richard King in Gutteridge & Megrah’s Law of Bankers’ Commercial Credits (8th edition) says:

‘By mercantile law, “bills of lading are the symbol of the goods”. They are documents of title and the indorsement and delivery of them … transfers the right to possession of the goods’.

Jack et al refer to ‘Scrutton on Charterparties’ and quote:

‘the bill of lading serves also as:
…
(2) A document of title, by the indorsement of which the property in the goods for which it is a receipt may be transferred, or the goods pledged or mortgaged as security for an advance’.

It seems to me the ‘b/l’ described by Phil fails to meet this criteria. Therefore, it seems questionable whether a ‘b/l’ has actually been presented.

3. I agree with Laurence(!) that this ‘clause’ is likely to catch on with carriers. I suspect its origin may lie in recent litigation where I believe carriers have been held liable for releasing goods wrongfully.

Jeremy

[edited 9/11/03 3:35:51 PM]

I agree with Jeremy (!!!) that the origin of this clause is likely to have been litigation. Carriers, like banks or any other commercial enterprise, do not like to lose money, especially in the courts. When they do, it is incumbent upon them to take measures to avoid recurrences. This should mean, for carriers, taking the correct steps regarding the circumstances for release of goods without documents of title.

Unfortunately, there is another option which I would call the "Lazy Option", which is to avoid responsibility by means of a clause inserted for that purpose.

Laurence

I believe this all started because in a certain country, for years they were releasing goods without surrender of an original B/L. Then they got sued!
IMB will mention the matter, hopefully in their next bulletin.
In the meantime I have stirred up dozens of Importers who will complain to Agents etc.

I've had a Maersk b/l referred to me this morning. I will be refusing it.

L\Cs have always asked for a “CLEAN” on board B/L. The word “clean” has always referred to ‘no notation of damage to the cargo’. Should a “DIRTY” B/L be referred as a B/L that has notation of damage to the cargo OR a B/L that has a get out clause as the Maersk B/L’s currently do?

Mark from Melbourne.

Mark, you definitely cannot apply Art 32a/b to this clause since, as you say, 'clean' refers to condition of goods/packing.
Phil

Just seen Safmarine Deutsche Afrika-Linien b/l with offending clause. Have refused.

part of the Maersk group!
[edited 9/18/03 12:21:06 PM]

All is explained.

Is it perhaps coincidence or poetic justice to note that a Maersk vessel "Sealand Express" has recently run aground in South Africa !!!

Laurence