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UCP transport related articles No. 23, 24, 26, 27 and 28 dells upon explaining the transhipment process and requirements. This is in contrary to article 25, which is silent on transhipment. If we look at sub article (25 a viii) it states that “ in all other aspects meets the stipulations of the credit”

There are banks that do prohibit transhipment in charter party L/Cs. In such cases what effect does this condition has, especially if there is a stipulation in the CPB/L stating that transhipment will take place OR carrier reserves the right to tranship.

What are the consequences if there are damages in the goods and the insurance company having been notified that transhipment is prohibited and later approached for a claim on damages due to transhipment?

This is not an area where I feel terribly confident; perhaps T.O. will give you the benefit of views his later in the day. Nonetheless, in an attempt to assist I shall in the meantime give you my personal thoughts, without responsibility:

My understanding is that in the case of a charter party bill of lading (CPBL), the charterer of the vessel -having control over its voyage- will logically arrange for the vessel to sail from the required port of loading to the required port of discharge. Therefore, the question of transhipment should not arise. Hence, the absence of any mention in Article 25.

However, should a credit require a CPBL and stipulate (to me, unusually) that transhipment is not allowed, I would have thought a statement in the CPBL that transhipment will take place would be a discrepancy (along the lines of sub-Article 23c), but that a statement that the carrier reserves the right to tranship would not be a discrepancy (along the lines of sub-Article 23d).

As to your last question, and here I am on even shakier ground, I would have thought the contract of insurance would be the relevant source that would answer this question, rather than the underlying contract or the credit terms.

[edited 9/26/01 11:49:25 AM]
[edited 9/26/01 11:49:57 AM]
[edited 9/26/01 2:15:55 PM: spelling error]

Just a simple note to viewers

1. The purpose of my query is not educational but rather to polish our practice towards CPB/L versus transhipment. At the same time I am not questioning the reasoning behind the absence of transhipment in CP

2. From my personal experience I found that some bankers treat it (trashipment)as a monster capable of destroying the whole transaction. Therefore some may unconsciously prohibit transhipment others may accept it simply because it is stated in the application to open an L/C and naively convey this prohibition to the insurance company.

Now to put things through the line

- When would the bank prohibit transhipment in CP?

- When would the bank allow transhipment CP?

- Why do we assume that always there will be no need for transhipment in CP?

- Why do we intimate the insurance company of this prohibition? Don’t we have a situation that the vessel might be in distress?

- What will be the effect of the insurance policy stating that transhipment is not allowed?


[edited 9/26/01 12:23:24 PM]

ICC Clauses A, for example, cover the insured for '...reshipment or transhipment and......arising from the exercise of a liberty granted to shipowners or charterers.......'

Furthermore, in my experience, C/P bl's contain hardly any conditions of carriage (since they are in the C/P Agreement itself)i.e. they are generally all short form b/l's.

An Article concerning C/P b/l's was speicifically inserted into UCP 500 as an acknowledgement that their unique characteristics should be addressed. One of those characteristics is that a C/P b/l pre-supposes only one vessel.

A high percentage of the b/l's checked by me over the past few years have been subject to a C/P and I have not come across any problems when checking them against the L/C and UCP

Hatem Shehab,

I find your 2nd posting most curious (in the strict sense of the word). This is because it talks about:

1. the ‘bank’ prohibiting/allowing transhipment (I would have thought this was a matter solely for the applicant), and;

2. ‘we’ (presumably the ‘bank’) ‘intimating’ information to an insurance company or worrying about the impact of a provision of the underlying contract/credit on the insurance cover (again, I would have thought this was a matter solely for the applicant).

Perhaps things are different in Saudi Arabia?

Jeremy.

Dear All,

OUR STANCE IN THE DISCUSSION FORUM

We are flattered by the invitation from Jeremy to give our views here.

However, our participation in the Discussion Forum is only for ORDINERY issues concerning DC operations.

Although we adore and encourage the thirst of knowledge from a banker like Hatem, we have to clarify our stance in the Discussion Forum. It is not suitable to provide responses to difficult and complex queries like this one from an aggressive (for knowledge and experience to be shared by others) banker, like Hatem.

As a Chinese, it is considered impolite if we do not do as our friend Hatem says for his first query of this sort. So we provide our views, not opinions, to avoid legal obligations, as to be frank, once chartering is touched, we cannot be 100% sure that this is the only answer or the correct answer. There may be so many variables and there are so many different versions of charter parties that one answer may not fit all.

FOUR STAGES IN THE LEARNING PROCESS

Sorry for the side issue, our friend Mr. Andrle, who always complains that our opinions are irrelevant, and not those the enquirer wants, you may leave here before your are upset again.

There are four stages of learning:

(1) I consider that I know nothing. I am very humble for this reason. I listen well and seldom argue with others.

(2) I consider that I know a lot of things already. I often argue with others to defend my views.

(3) I consider that I am an expert. I have no patience and don't listen. I think I am always right and others are always wrong. I play God to all. I am also spoiled by my disciples who may take my words without filtering.

(4) I consider that I know that there are lots of things that I do not know. So I am back to square one and become humble again. I seldom lose my temper when someone disagrees with me. I respect his opinions although I know he is the one who may be wrong. I tell myself each morning "You are not as good as you think you are" in order not to be spoiled by my disciples.

The word "I" used above is chosen just because it is the most effective word that I know to peach my doctrine. "I" does not mean "T. O. Lee" here. Frankly, I still have a lot of mileage to go before I can achieve such an enviable position.

TO JEREMY AND PGAUNLETT, OUR HEARTIEST CONGRATULATIONS

Now to provide our views for this issue of transhipment or "transshipment" that really matters, in C/P B/L and its impact on insurance.

Jeremy, although we do not encourage bankers to come out of their comfort zone to provide opinions on technologies outside banking, such as transport and insurance, yet for the first time in the Discussion Forum, we find the best opinions from you. And the first time that we agree on the same issue!

If we were a CDCS examiner, we would give you 99 marks for your answers (because there is no perfect answer in this world. All answers may be further improved, no matter how good they are) and a distinction in CDCS means 95% correct answers. You should have potential to be a good consultant when you retire.

For Mr. P. Gauntlett, you also have scored 90 marks, as your coverage is not as broad as Jeremy.

We have no intention to play God or assume the position of an adjudicator. We have no such authority. Giving marks is an easy way to convey our motivation message and to show our encouragement to them in a clear and precise manner. That is all.

OUR VIEWS ON TRANSHIPMENT IN A CHARTER PARTY

To summarize, let us quote words from the above two wise bankers, the issue of transhipment does not exist in marine chartering, due to the following reasons:

(1) If we charter a tanker to transport a special kind of hydrocarbon that may corrode the ship's hold (carrying cabin) unless the ship is specially fitted to combat such corrosion and with a valid certificate to this effect, such as licensed to carry IMO (International Maritime Organization) Class III Hazardous Goods and so on.

Can the chartering broker so easily find another vessel to do the transhipment?

How about if he did find such a ship being available, but it is two times bigger (e.g. chartering fees also two times more)?

Or it is at the far end of the world and it may take a long journey to come to the port of transhipment? And in the mean time the price of the commodity may drop drastically due to war or other threats unless a vessel is available in a nearby port?

What about the larger vessel cannot enter the port of transhipment due to having a draft (not a negotiable instrument here, Jeremy) of 25 feet whilst the nevigatable water in the harbour is only 20 feet deep.

So it is not an easy thing to find another vessel to do the transhipment under certain odd situations. We do not wish to continue here as these are already enough to convince members.

AIR TRANSPORT IS DIFFERENT FROM MARITIME TRANSPORT

(2) Having said that, the same comment cannot be valid for air chartering because, as Mr. Charles del Busto says, for some small islands, the airport runway is not long and big enough for a Boeing 747 to land or to take off. So transhipment by a smaller aircraft is necessary, such as two Boeing 707s.

So air transhipment is not only allowed automatically under the UCP 500, but it is also a necesity. Otherwise we are talking about mission impossible in DC. This is only simple common sense, as regarded by the late Master Bernard S. Wheble.

A CARRIER HAS NO OBLIGATION TO PROVIDE ANOTHER VESSEL

(3) According to a document which we received from "Dialogue Across Industries" organized before a ICC Banking Commission meeting, a document from the ICC Transport Commission, invited to give opinions on what constitutes "intended vessel" in the shipping industry, it is said that a carrier has no obligation to arrange for another vessel to complete her voyage if that named vessel fails to perform, such as in a force majeure situation. This is a risk that a shipper, a consignee, a holder of the BL or a charterer has to bear and has this risk covered by other means, such as cargo insurance, which is not the exclusive one.

PARTIES SHOULD NOT POLLUTE THE DC WITH MEANINGLESS WORDS OR TERMS

So those DC practitioners that put "transhipment allowed or not allowed" in the DC whilst at the same time asking for a C/P B/L is like putting "drinking and eating are allowed or not allowed" in the DC. This term is only good for the subway trains.

OUR VIEWS ON CARGO INSURANCE RELATED TO A CHARTER PARTY

Now come to the insurance issue. Since transhipment is not an issue in C/P, it follows logically that we do not have to deal with the second issue "Whether transhipment would affect insurance coverage or claims under a charter party shipment?"

THERE ARE OTHER KINDS OF ICC CLAUSES OTHER THAN THE WELL KNOWN ICC A, B, C.

Having said that, for certain products, the ICC (Institute Cargo Clauses) are not suitable, although 95% of the DC would all ask for these three ICC A, B or C. For example in shipment of frozen meat, we have tailored made ICC Clauses for them, such as Institute Frozen Meat Clauses harmonized with the IMTA (International Meat Trade Association Incorporated). For shipment of chilled meat, the storage temperatures as well as the terms and conditions may be different and we may have ICC Chilled Meat Clauses.

For commodity trades, even for one trade we may have a host of different clauses, such as

Institute FOSFA Trades Clauses (A), (B) or (C) agreed with the Federation of Oils, Seeds and Fats Association (FOSFA).

Institute War Clauses (FOSFA TRADES) also agreed with the FOSFA.

Institute Strikes Clauses (FOSFA TRADE)

Institue FOSFA Supplementary Clauses (1) (For FOSFA Trades Clause B),
(2) (For FOSFA Clause C),
(3) (Ship Navigation & Management under Clause B & C) and
(4) (Grade Clause).

Should we continue?

So if you ask us whether transhipment has any impact to cargo insurance, we would ask you what clauses you are referring to? The more you know, the more you don't know how to reply such a simple question. No wonder another definition for a consultant is "the one who makes a simple issue very complicated".

A SPECIFIC CHARTER PARTY AND A SPECIFIC CARGO INSURANCE FOR A SPECIFIC COMMODITY

For chartering, most of the products are commodity products and under special tailor made charter parties designed by the commodity trade associations with the BIMCO (Baltic and International Maritime Council, the "ICC"¨ in the shipping industry) to standardize all charter parties. The contents, terms and conditions, obligations for the parties, insurance included, are all different. So we cannot give a "one size to fit all" answer here. It would only mislead members if given. This is a consultancy task and we have to use our time efficiently to look for our rice and noodles.

OUR OPINIONS MUST BE SPECIFIC OR OTHERWISE WORTHLESS

Unless we are given a special commodity product and a specific charter party, we cannot go further, because all C/Ps are different. For example, some C/Ps used in carrying hydrocarbon goods have specific loading and unloading weather conditions laid down. If these conditions were not met, the insurance cover would be void.

EXAMPLES OF COMPLEXITIES INVOLVED

For obligations of the shipowners/carrier/demise charterer as one party of the C/P, please look at these terms and conditions quoted from control of pollution alone:

"Comply with the regulations of the prevention of pollution by noxious liquid substances in bulk (Annex II of MARPOL 73/78)",

"Noxious Liquid Discharge Control: Cat A: vessel speed + 7 knots, + 4 knots (non self-propelled), Discharge concentration refer to Annex II, Appendix II, Mini. 12 N. miles from shore, depth not less than 25 M".

So it is not easy to deal with chartering disputes.

THE DC IS NOT SOLELY A BANKING THING

That is why when I handled DC in my fifth year coming to work, I considered that the DC is not a banking thing alone and tried to cover other satellite technologies, such as transport, insurance, commercial law and conventions, Incoterms, mediation, arbitration and ADR (alternative dispute resolution) etc.

My original purpose is solely to protect myself from the bankers, carriers and insurers who may say No to my claims. Now I make use of it to earn a living, as I understand that a corporate has no heart. Your boss cannot protect you if the corporation is merged, or your boss has been promoted or transferred to another department or affiliated company and he cannot take you with him.

Therefore I have to armour myself so that I am sure that I control my own career. Tired of playing politics in the corporation is another reason to quit and be a self-employed.

DISCLAIMER:

Our statements expressed above are only personal views and not professional opinions. They are given just upon request and solely for discussion purpose. Viewers should not take our views too seriously and should not rely or act upon such views, which may be incorrect. We are not held responsible or liable for such reliance and actions. They should consult the maritime and insurance lawyers or consultants for their opinions.

Also all our statements published in the Discussion Forum must not be quoted or used without the written authorisation from the DC Pro or ourselves.

http://www.tolee.com

[edited 9/27/01 4:53:05 AM]

My query does not necessarily reflect the trend in Saudi Arabia only as my banking experience has been in another country as well.

My intention of posting this query is a number of observations regarding handling charter party L/Cs by bankers. The other thing is the insurance issue, which in many occasions are not dealt with in enlightening manner like Mr. Lee has done. Now I have seen that some banks would simply send the full text of the letter of credit to the insurance company to provide insurance cover thereto.

From my experience I consider L/C practitioners are very caution risk conscious or smart enough to argue for ages to defend their stance that certain UCP article has been violated, but at the time insurance people can be more aggressive in the approach to risk and could as well argue for ages and a day to prove that the insurance cover is void.

Therefore whether transhipment is applicable or not in charter party is an issue, it becomes important in view of the above for us (bankers) to know and to improve our practices in light of this knowledge.