I have always found UCP 500 art 23 ii (place of receipt different) a bit strange. To start with 23 a iii a should have been put before the paragraph "If a B/L indicates a place of receipt..." I wondered why the notation "on board" should include the name of the vessel and the port of loading as, in my opinion, if a B/L is required, the notation "on board" refers to the sea transport and not to the pre-carriage which may be effected by road, rail, air. Is there something as goods "shipped on board" a truck.
So when I first read the new article 20, I was pleased . That was "simplification" and "clarification" as UCP seemed to acknowledge, in my opinion, the fact that an "on board" notation could only apply to a sea transport and that this notation automatically applies to the vessel and the port of loading stated in the B/L (and the credit) and not to the pre-carriage effected may be by road, rail, ... as in the example: "place of receipt: Brussels". For road, rail or air, UCP use other words such as :
"accepted for carriage", "received for " and so on... but not "on board". It could be argued that the pre-carriage could also be effected by sea, but in does not change the philosophy of article 20.
Now it seems that article 20 has not been simplified and clarified after all. The "place of receipt" issue has just be moved to the Commentary that nobody has seen yet and to a not yet approved query.
(I agree with Jeremy that UCP should not have been released without the Commentary).
If previously there has not been dissenting viewpoint, there is one now.
So I think that the (sea) transport industry should be contacted again about this matter. If they say the the notation "on board" should state port of loading and name of vessel, the UCP will have to be amended (that will be a first). If not, the commentary and the query will have to be amended. Shipping companies could also amend their forms which are not very clear.
Regards
Daniel Devahive
ARTICLE 20
ARTICLE 20
Gary,
Thank you for taking the time to respond to the points I have made. I appreciate you have now withdrawn from the field of battle but as I have not here are my own thoughts, following your numbering:
1. (A) As I’ve already stated, I cannot see it is of any concern of the Banking Commission that the wording in UCP 500 sub-article 23 (a) (ii) was seen as encouraging a multimodal type shipment within the confines of a bill of lading. Perhaps someone else could explain?
(B) The shared view of both the Drafting Group and the ICC Transport Commission representatives was not, as far as I know, communicated to the NCs and it most certainly should have been.
(C) Unless the Drafting Group communicated in writing to NCs that the reference to “covering a port-to-port shipment” was subsequently removed following a number of comments from ICC national committees (which it may have done and in which case I have obviously forgotten), I do not know how one is supposed to have known this. More to the point, I do not see how it is relevant to the question at issue, i.e. does the revised wording of the ‘opening sentence’ of 600 20(a)(ii) have the same effect as the last para of 500 23(a)(ii).
(D) I have to say I am a little confused by what you are saying with respect to your example and your statement ‘Remembering that in the example quoted … you have an indication as to whom the on board statement refers’. My impression is that you are saying in that particular instance a separate OBN would not be necessary. However, this would seem to run counter to your apparent assertion that the position is unchanged.
Certainly, in the example you give, i.e.:
I) DC requires shipment from Rotterdam.
II) BL:
a) shows place of receipt: Brussels
Port of loading: Rotterdam
Vessel: Sunshine
b) bears a pre-printed statement “Shipped on board in apparent good order and condition ……………….”,
I cannot see what grounds the document examiner has for asking themselves the question ‘does the on board statement refers to the vessel Sunshine leaving Rotterdam or the conveyance that is transporting the goods from Brussels to Rotterdam?’ in the absence of there being reference to a pre-carriage vessel or an indication that carriage from Brussels to Amsterdam was by ship. On its face, the bill of lading appears to suggest that the goods were loaded on board the vessel Sunshine at Rotterdam. (In other words, I do not see any grounds for considering that there is any ‘ambiguity that it could relate to [the] place of receipt’.) Therefore, the requirements of 600 20(a)(ii) would seem to me to have been fulfilled, UNLIKE the requirements of 500 23(a)(ii) last para.
2. I do recall the session on transport documents at the ICC UK event was not covered by a member of the Drafting Group. My point is that IF the intention was to communicate that notwithstanding the significant drafting changes to the replacement to UCP 500 23(a)(ii), its last para still remained in force (so to speak), this was a very poor means to do so. On the other hand, if it was thought that the communication of this matter was a discretionary matter for the Drafting Group then this seems to be very poor indeed.
3. I agree that under 600 20(a)(ii) a document examiner is required to determine that the BL ‘indicate that the goods have been shipped on board a named vessel at the port of loading stated in the credit’ but am at a loss to see how an indication that pre-carriage has taken place AUTOMATICALLY creates doubt as to this (in the absence of a 500 23(a)(ii) last para OBN), as you appear to suggest.
4. (A) I can only assume the ICC national committees were acting for ‘their own account’ and not on behalf of those of their members that were banks. (Was this also not the case when the NCs -as opposed to their ‘banking’ committees- called / voted for 500 to be revised?)
(B) I agree the commentary is not an official publication of the ICC (although I note it is nonetheless quoted in draft Opinion TA632 and moreover that the part quoted DOES appear to contradict 600) etc. However, it does not alter the fact that courts will most likely be influenced by it, in the same way that they have been by del Busto’s UCP400/500 Compared (if not more so given its purported -I assume- collective authorship). Given this, and the fact that the draft Opinion TA365 will no doubt be approved with respect to query 3, it would be a brave man indeed that examined a BL under UCP600 20(a)(ii) on any other basis than 500 23(a)(ii) was still in force.
5. Noted. I just wish we, in the UK, had been given an opportunity to dissent.
On a different matter, I am left wondering what substantive benefits banks -as opposed to certain other ‘parties’- have actually gained from 600.
Regards, Jeremy
Daniel,
I too made the naïve mistake of thinking that the Drafting Group was trying to make banks’ lives easier -and the DC less unattractive to beneficiaries- by removing a potential (and common) discrepancy. How silly of me.
Regards, Jeremy
[edited 10/10/2007 5:06:34 PM]
Thank you for taking the time to respond to the points I have made. I appreciate you have now withdrawn from the field of battle but as I have not here are my own thoughts, following your numbering:
1. (A) As I’ve already stated, I cannot see it is of any concern of the Banking Commission that the wording in UCP 500 sub-article 23 (a) (ii) was seen as encouraging a multimodal type shipment within the confines of a bill of lading. Perhaps someone else could explain?
(B) The shared view of both the Drafting Group and the ICC Transport Commission representatives was not, as far as I know, communicated to the NCs and it most certainly should have been.
(C) Unless the Drafting Group communicated in writing to NCs that the reference to “covering a port-to-port shipment” was subsequently removed following a number of comments from ICC national committees (which it may have done and in which case I have obviously forgotten), I do not know how one is supposed to have known this. More to the point, I do not see how it is relevant to the question at issue, i.e. does the revised wording of the ‘opening sentence’ of 600 20(a)(ii) have the same effect as the last para of 500 23(a)(ii).
(D) I have to say I am a little confused by what you are saying with respect to your example and your statement ‘Remembering that in the example quoted … you have an indication as to whom the on board statement refers’. My impression is that you are saying in that particular instance a separate OBN would not be necessary. However, this would seem to run counter to your apparent assertion that the position is unchanged.
Certainly, in the example you give, i.e.:
I) DC requires shipment from Rotterdam.
II) BL:
a) shows place of receipt: Brussels
Port of loading: Rotterdam
Vessel: Sunshine
b) bears a pre-printed statement “Shipped on board in apparent good order and condition ……………….”,
I cannot see what grounds the document examiner has for asking themselves the question ‘does the on board statement refers to the vessel Sunshine leaving Rotterdam or the conveyance that is transporting the goods from Brussels to Rotterdam?’ in the absence of there being reference to a pre-carriage vessel or an indication that carriage from Brussels to Amsterdam was by ship. On its face, the bill of lading appears to suggest that the goods were loaded on board the vessel Sunshine at Rotterdam. (In other words, I do not see any grounds for considering that there is any ‘ambiguity that it could relate to [the] place of receipt’.) Therefore, the requirements of 600 20(a)(ii) would seem to me to have been fulfilled, UNLIKE the requirements of 500 23(a)(ii) last para.
2. I do recall the session on transport documents at the ICC UK event was not covered by a member of the Drafting Group. My point is that IF the intention was to communicate that notwithstanding the significant drafting changes to the replacement to UCP 500 23(a)(ii), its last para still remained in force (so to speak), this was a very poor means to do so. On the other hand, if it was thought that the communication of this matter was a discretionary matter for the Drafting Group then this seems to be very poor indeed.
3. I agree that under 600 20(a)(ii) a document examiner is required to determine that the BL ‘indicate that the goods have been shipped on board a named vessel at the port of loading stated in the credit’ but am at a loss to see how an indication that pre-carriage has taken place AUTOMATICALLY creates doubt as to this (in the absence of a 500 23(a)(ii) last para OBN), as you appear to suggest.
4. (A) I can only assume the ICC national committees were acting for ‘their own account’ and not on behalf of those of their members that were banks. (Was this also not the case when the NCs -as opposed to their ‘banking’ committees- called / voted for 500 to be revised?)
(B) I agree the commentary is not an official publication of the ICC (although I note it is nonetheless quoted in draft Opinion TA632 and moreover that the part quoted DOES appear to contradict 600) etc. However, it does not alter the fact that courts will most likely be influenced by it, in the same way that they have been by del Busto’s UCP400/500 Compared (if not more so given its purported -I assume- collective authorship). Given this, and the fact that the draft Opinion TA365 will no doubt be approved with respect to query 3, it would be a brave man indeed that examined a BL under UCP600 20(a)(ii) on any other basis than 500 23(a)(ii) was still in force.
5. Noted. I just wish we, in the UK, had been given an opportunity to dissent.
On a different matter, I am left wondering what substantive benefits banks -as opposed to certain other ‘parties’- have actually gained from 600.
Regards, Jeremy
Daniel,
I too made the naïve mistake of thinking that the Drafting Group was trying to make banks’ lives easier -and the DC less unattractive to beneficiaries- by removing a potential (and common) discrepancy. How silly of me.
Regards, Jeremy
[edited 10/10/2007 5:06:34 PM]
ARTICLE 20
The following are comments I made to our National Committee a month ago on this topic.
Last Friday, I found the comments regarding, what appears to be Gary ________opinion regarding the On Board notation, extremely upsetting and conflicting with the comments which I have heard since the first draft of
UCP 600 until now . It has been my understanding that the change in UCP 600 Article 20 from Article 23 UCP 500 was to eliminate the need for the On Board Notation to include the name of the Vessel and the Port of Loading
when the Place of Receipt is different than the Port of Loading (i.e. this topic has been hot on DC Pro and most subscribers agree with my position).
To reference the wording in Article 20:
Article 20 a ii
Indicate the goods have shipped on board a named vessel at the port of
loading stated in the credit by:
Printed wording, or
an on board notation indicating the date on which the goods have been
shipped on board
The date of issuance will be deemed to be the date of shipment unless the
bill of lading contains an on board notation indicating the date of
shipment, in which case the stated on board notation will be deemed to be
the date of shipment.
If the bill of lading contains an intended vessel or similar qualification
in relation to the name of the vessel, an on board notation indicating the
date of shipment and the name of the vessel is required.
If you now refer to Article 23 UCP 500:
Article 23 a ii
Indicate the goods have been loaded on board or shipped on a named vessel
Loading on board or shipment on a named vessel may be indicated by
preprinted wording on the bill of lading that the goods have been loaded on
board a named vessel or shipped on a named vessel, in which case the date
of issuance of the bill of lading will be deemed to be the date of loading
on board and the date of shipment.
In all other cases loading on board a named vessel must e evidenced by a
notation on the bill of lading which gives the date on which the goods have
been loaded on board, in which case the date of the on board notation will
be deemed to be the date of shipment.
If the bill of lading contains the indication "intended vessel" or similar
qualification in relation to the vessel, loading on board a named vessel must be evidenced by an on board notation on the bill of lading which in addition to the date the goods have been loaded on board also includes the
name of the vessel on which the goods have been loaded even if they have been loaded on the vessel named as the "intended vessel".
It then goes on with the paragraph regarding the place of receipt being
different than the port of loading which is not in UCP 600.
When you read these two Articles it is clear that the wording is virtually identical with the exception of the language regarding the place of
receipt. Saying that, I question why under UCP 500 we only required the name of the vessel and the port of loading included in the On Board notation when the place of receipt was different would anyone think the
meaning remained the same when that language was deleted?
Furthermore , even going back to UCP 400, which indicated The Goods Have Been Loaded On Board or Shipped On Board a Name Vessel and went on to say
that a Bank would NOT REJECT a Document which Indicates a Place of Receipt Different than the Port of Loading seems to add support to my argument.
Whether we are talking about the UCP 222, 290, 400, 500 or now 600 Banks have always treated the ON BOARD notation to be understood to mean that the
goods were on On Board the Vessel unless that notation or something in the wording indicated otherwise (e.g. On Board Rail).
This issue needs to be addressed immediately by the ICC if this truly is their opinion and at least a few questions need to be answered:
1. If the place of receipt is different than the port of loading what does the On Board Notation need to include? Would just the name of the Vessel be acceptable?
2. Is an On Board Notation which indicates the words On Board and a Date, when the transport document only evidences a port of loading and discharge
as indicated in the credit be acceptable or must there be additional evidence on the bill of lading that the wording On Board refers to the named Vessel?
If any of my comments/opinions are not clear please do not hesitate in contacting me.
Last Friday, I found the comments regarding, what appears to be Gary ________opinion regarding the On Board notation, extremely upsetting and conflicting with the comments which I have heard since the first draft of
UCP 600 until now . It has been my understanding that the change in UCP 600 Article 20 from Article 23 UCP 500 was to eliminate the need for the On Board Notation to include the name of the Vessel and the Port of Loading
when the Place of Receipt is different than the Port of Loading (i.e. this topic has been hot on DC Pro and most subscribers agree with my position).
To reference the wording in Article 20:
Article 20 a ii
Indicate the goods have shipped on board a named vessel at the port of
loading stated in the credit by:
Printed wording, or
an on board notation indicating the date on which the goods have been
shipped on board
The date of issuance will be deemed to be the date of shipment unless the
bill of lading contains an on board notation indicating the date of
shipment, in which case the stated on board notation will be deemed to be
the date of shipment.
If the bill of lading contains an intended vessel or similar qualification
in relation to the name of the vessel, an on board notation indicating the
date of shipment and the name of the vessel is required.
If you now refer to Article 23 UCP 500:
Article 23 a ii
Indicate the goods have been loaded on board or shipped on a named vessel
Loading on board or shipment on a named vessel may be indicated by
preprinted wording on the bill of lading that the goods have been loaded on
board a named vessel or shipped on a named vessel, in which case the date
of issuance of the bill of lading will be deemed to be the date of loading
on board and the date of shipment.
In all other cases loading on board a named vessel must e evidenced by a
notation on the bill of lading which gives the date on which the goods have
been loaded on board, in which case the date of the on board notation will
be deemed to be the date of shipment.
If the bill of lading contains the indication "intended vessel" or similar
qualification in relation to the vessel, loading on board a named vessel must be evidenced by an on board notation on the bill of lading which in addition to the date the goods have been loaded on board also includes the
name of the vessel on which the goods have been loaded even if they have been loaded on the vessel named as the "intended vessel".
It then goes on with the paragraph regarding the place of receipt being
different than the port of loading which is not in UCP 600.
When you read these two Articles it is clear that the wording is virtually identical with the exception of the language regarding the place of
receipt. Saying that, I question why under UCP 500 we only required the name of the vessel and the port of loading included in the On Board notation when the place of receipt was different would anyone think the
meaning remained the same when that language was deleted?
Furthermore , even going back to UCP 400, which indicated The Goods Have Been Loaded On Board or Shipped On Board a Name Vessel and went on to say
that a Bank would NOT REJECT a Document which Indicates a Place of Receipt Different than the Port of Loading seems to add support to my argument.
Whether we are talking about the UCP 222, 290, 400, 500 or now 600 Banks have always treated the ON BOARD notation to be understood to mean that the
goods were on On Board the Vessel unless that notation or something in the wording indicated otherwise (e.g. On Board Rail).
This issue needs to be addressed immediately by the ICC if this truly is their opinion and at least a few questions need to be answered:
1. If the place of receipt is different than the port of loading what does the On Board Notation need to include? Would just the name of the Vessel be acceptable?
2. Is an On Board Notation which indicates the words On Board and a Date, when the transport document only evidences a port of loading and discharge
as indicated in the credit be acceptable or must there be additional evidence on the bill of lading that the wording On Board refers to the named Vessel?
If any of my comments/opinions are not clear please do not hesitate in contacting me.
-
KimChristensen
- Posts: 404
- Joined: Fri Apr 05, 2019 5:21 pm
ARTICLE 20
Dear Larry,
Thanks for sharing – really thorough analysis. Highly appreciated.
I would like to elaborate a bit on the two points made at the end of your posting.
For starters there are two scenarios:
a) That the Banking Commission agrees that practice under UCP 600 is 100% identical to that of UCP 500 on this particular issue.
b) That the Banking Commission agrees that this rule has effectively been taken out of the rules – hence does not apply any more.
If the conclusion is eventually a) mentioned above – then no problem – we will all just cut the relevant lines out of UCP 500 and glue into UCP 600 (there is actually room for this in the book version of UCP 600 – on page 34 and page 36). We then all know how to handle this case.
If however the conclusion is b) mentioned above then the prevailing practice does not apply anymore – and your good questions (point 1 and 2) comes into play – and we need to agree on the “new” practice.
As has already been seen from this string of postings at least Jeremy and myself does not agree 100% of what will be the correct practice – based on the new wording – given that the prevailing practice does not apply any more.
So in case of b) it does not stop here. Thanks for reminding us
Best regards
Kim
[edited 10/13/2007 2:01:07 PM]
Thanks for sharing – really thorough analysis. Highly appreciated.
I would like to elaborate a bit on the two points made at the end of your posting.
For starters there are two scenarios:
a) That the Banking Commission agrees that practice under UCP 600 is 100% identical to that of UCP 500 on this particular issue.
b) That the Banking Commission agrees that this rule has effectively been taken out of the rules – hence does not apply any more.
If the conclusion is eventually a) mentioned above – then no problem – we will all just cut the relevant lines out of UCP 500 and glue into UCP 600 (there is actually room for this in the book version of UCP 600 – on page 34 and page 36). We then all know how to handle this case.
If however the conclusion is b) mentioned above then the prevailing practice does not apply anymore – and your good questions (point 1 and 2) comes into play – and we need to agree on the “new” practice.
As has already been seen from this string of postings at least Jeremy and myself does not agree 100% of what will be the correct practice – based on the new wording – given that the prevailing practice does not apply any more.
So in case of b) it does not stop here. Thanks for reminding us
Best regards
Kim
[edited 10/13/2007 2:01:07 PM]
ARTICLE 20
Is anybody able to say, please, if draft Opinion TA365 was approved at the ICC ‘Banking’ Commission meeting with respect to query 3?
ARTICLE 20
Jeremy,
I guess you meant TA 635 which is relevant to this post. Yes , it was approved. Actually the wording of the conclusion is exactly the same within the Commentary on UCP600.
Regards,
Yahya
I guess you meant TA 635 which is relevant to this post. Yes , it was approved. Actually the wording of the conclusion is exactly the same within the Commentary on UCP600.
Regards,
Yahya
ARTICLE 20
If it is so, it is disappointing. Let alone wrong and unfair.
Daniel Devahive
Daniel Devahive
ARTICLE 20
Yahya,
I did & thanks.
Jeremy
I did & thanks.
Jeremy
-
KimChristensen
- Posts: 404
- Joined: Fri Apr 05, 2019 5:21 pm
ARTICLE 20
Dear Daniel,
No use crying over spilled milk
Looking forward this does however raise a few issues.
One is that the lesson learned here is that that one can have the best arguments in the world – but if it is not possible to convince the national committees to actively support you – it does not matter at all.
The other is related to the practice going forward. I made a somewhat bold statement in my 13 October posting to the effect that if this opinion was approved – we could just use the UCP 500 wording. From listening to the answers given at the meeting in the Banking Commission I am not sure it is so simple. I do not (unfortunately) have this on tape – but I feel convinced that to a comment (I think by Ms. Nicole Keller) – Gary opened up for the possibility that there could in fact be examples where this “extended on board notation” would NOT be necessary even where there would be a place of receipt prior to the port of loading; i.e. create a result different from the UCP 500 practice. If anyone attending the meeting has a clear memory on this – I would be glad to hear.
The last part is related to the fact that we are to explain this to the customers – and this is easiest done if we understand it ourselves. In that respect no one has (as far as I know) given any kind of explanation as to why ISBP (2003) paragraph 82 was not carried forward to ISBP (2007). To me at least this is a vital point in the understanding of this – and it would indeed be fruitful if someone could clarify.
Thanks and best regards
Kim
No use crying over spilled milk
Looking forward this does however raise a few issues.
One is that the lesson learned here is that that one can have the best arguments in the world – but if it is not possible to convince the national committees to actively support you – it does not matter at all.
The other is related to the practice going forward. I made a somewhat bold statement in my 13 October posting to the effect that if this opinion was approved – we could just use the UCP 500 wording. From listening to the answers given at the meeting in the Banking Commission I am not sure it is so simple. I do not (unfortunately) have this on tape – but I feel convinced that to a comment (I think by Ms. Nicole Keller) – Gary opened up for the possibility that there could in fact be examples where this “extended on board notation” would NOT be necessary even where there would be a place of receipt prior to the port of loading; i.e. create a result different from the UCP 500 practice. If anyone attending the meeting has a clear memory on this – I would be glad to hear.
The last part is related to the fact that we are to explain this to the customers – and this is easiest done if we understand it ourselves. In that respect no one has (as far as I know) given any kind of explanation as to why ISBP (2003) paragraph 82 was not carried forward to ISBP (2007). To me at least this is a vital point in the understanding of this – and it would indeed be fruitful if someone could clarify.
Thanks and best regards
Kim
ARTICLE 20
‘place of receipt/port of loading’
The UCP 600 rules no longer has the rule or requirement::
‘If the bill of lading indicates a place of receipt or taking in charge different from the port of loading’
So it would appear to anyone using the new LC’s rules in any capacity that this UCP 500 rule or requirement has been removed.
The Commentary on the UCP 600 rules also has a very precise bullet point on page 89:
‘Deletion of the requirements when a bill of lading states a place of receipt or taking in charge different from the port of loading’
I can not imagine how there could be any other conclusion other than that the ‘place of receipt/port of loading’ rule requirement has been deleted.
Kim, to the best of my recollection I opened up this point at the recent Paris Banking Commission Meeting when I spoke out on the consensus of views from ICC UAE, which is the following:
‘Pre-Printed wording on the Bill of Lading - SHIPPED ON BOARD means shipped on board the VESSEL in the VESSEL BOX at the PORT OF LOADING in the PORT OF LOADING ..BOX’
We believe we have the right answer but regardless –
---------------- the bottom line is that this rule or requirement has been deleted from the UCP 600 rules
Vin
The UCP 600 rules no longer has the rule or requirement::
‘If the bill of lading indicates a place of receipt or taking in charge different from the port of loading’
So it would appear to anyone using the new LC’s rules in any capacity that this UCP 500 rule or requirement has been removed.
The Commentary on the UCP 600 rules also has a very precise bullet point on page 89:
‘Deletion of the requirements when a bill of lading states a place of receipt or taking in charge different from the port of loading’
I can not imagine how there could be any other conclusion other than that the ‘place of receipt/port of loading’ rule requirement has been deleted.
Kim, to the best of my recollection I opened up this point at the recent Paris Banking Commission Meeting when I spoke out on the consensus of views from ICC UAE, which is the following:
‘Pre-Printed wording on the Bill of Lading - SHIPPED ON BOARD means shipped on board the VESSEL in the VESSEL BOX at the PORT OF LOADING in the PORT OF LOADING ..BOX’
We believe we have the right answer but regardless –
---------------- the bottom line is that this rule or requirement has been deleted from the UCP 600 rules
Vin