ICC Digital Library Forum

Dear colleagues, let me thank you for your answers on my previous question concerning non-negotiable copy of B/L.

Now the question is the following.
A credit was opened in B'favour asking among the other documents a MARINE/OCEAN BILL OF LADING. B/L was duly produced being named COMBINED TRANSPORT BILL OF LADING. The negotiating bank rejected such a B/L on the grounds that it was not titled MARINE or OCEAN B/L. The Bene tried to convince them that there was no dicrepancy because art.23 allow presentation of B/L "HOWEVER NAMED".Notwithstanding BENE' opinion the negotiating bank told that there was an additional wording (see my underlying words) to art.23 a) specifying:a. If a Credit calls for a Bill of Lading covering a port-to-port shipment, banks will, unless otherwise stipulated, accept a document, however named... . So the negotiating bank said that it had already been "STIPULATED" the name of B/L (i.e.Marine or Ocean).

The query is following: what does it really mean the wording "UNLESS OTHERWISE STIPULATED" to art.23.

Thank you.

"There are none so blind as those who will not see".

Regardless of the title used (including multimodal), a B/L which indicates a port to port shipment only, is a port to port B/L. In other words, the content is the distinguishing feature, not the title.

To use the American expression "if it walks like a duck, swims like a duck and quacks like a duck, chances are it is probably a duck". This applies also if the duck is unrecognisable in colour due to oil spillage ! In my duck allegory, for colour of duck read title of B/L.

Laurence

I would not add to the explanation given by Laurence on port to port bill of lading.

The "Unless otherwise stipulated in the credit" statement is used to connote any additional information required or certain restrictions EXPRESSLY stated in the credit in relation to the bill of lading. For example following conditions could appear in the LC:

1)the name of the bill of lading should only read as "Marine / Ocean Bill of Lading" no other title acceptable.
2)the bill of lading must be signed only by the master
3) the on board notation must be evidence on the bill of lading and must be dated.
4) article 23 (c) and 23 (d)doesn't apply
5) shipment to be effect by XYZ lines

Since these are EXPRESSLY stated in the credit they must be complied with. Condition number (1) above expressly excludes the "however named" stipulation from article 23(a) for this specific credit. Silence doesn't mean exclusion.
[edited 6/7/02 10:33:07 AM]

THE TERM "BILL OF LADING" IS SPECIFIC ENOUGH

The term "bill of lading" is specific enough to point to the transport document covering maritime transport. Terms like "marine/ocean/port-to-port" used to describe bills of lading are superfluous and would only lead to confusions. They add nothing to the nature of the transport documents that cover carriage by sea.

For example, can we have a bill of lading not "port to port"?

How about a "station-to station" rail waybill?

"Depot-to-depot/city-to-city" CMR?

"Start-to-finish" Grand Prix Circuit?

"Goal post-to-goal post/country-to-country/stadium-to-stadium" World Cup 2002?

"Turf Court World Cup 2002"?

or

"Umpire-to-player" yellow/red card that must be given "eyeball-to-eyeball"?

MISLEADING TERMS CREATED BY CERTAIN LAYMAN LAWYERS

There is a trade practice for the traders to ask their retainer lawyers for every problem they encounter in their trade. They are not aware that those lawyers are only good at ordinary commercial laws, such as law of contract, conveyancing law in buying and selling properties. They know little about letter of credit, cargo insurance or transport. But they must pretend that they know everything in front of their clients or they may lose the business to competitors.

To show off their "knowledge" about letter of credit and transport, as a result, a lot of misleading jargons are created by those "general practice" lawyers, such as "absolute, independent, callable, divisible, fractionable, indivisible, transmissible, assignable, with available funds" and the like are used in letter of credit environment and "marine, ocean, port-to-port" are used in bill of lading environment.

USE OF MISLEADING TERMS CANNOT BE DEEMED TO BE "EXPRESSLY STATED"

Hence, as already pointed out by Adbulkader and Laurence, using such misleading terms in a letter of credit cannot be deemed to be "expressly stated" or to activate the effect of "unless otherwise stipulated" in the UCP 500 Article 23 (a). These terms are of the same category with "third party documents allowed/not allowed" used in the letter of credit environment. These terms should not be used. If they are used, they should be disregarded, as the meaning is not clear.

WHAT WE ANTICIPATE IN UCP X00

In the UCP X00, we hope we do not see such terms again. "Bill of lading" is clear and precise enough. If any one wishes to be funny, we may give him more than three dozen different terms to describe a bill of lading in our maritime transport workshop, such as "inward, outward, option, liner, tramp, short form, long form, owner's, NVOCC, consolidated, memo bill, switched, Conlinebill, Visconbill, Combidoc" etc. etc.

THE UCP MUST HARMONISE WITH MARITIME LEGISLATIONS AND CONVENTIONS

From legal point of view, we do not see such terms in the Carriage of Goods by Sea Act of UK & USA, the Maritime Code of China, or the many maritime conventions. The terms used are either "bill of lading" or "sea waybill".

www.tolee.com

[edited 6/10/02 3:29:10 PM]

WHEN IS A B/L NOT A B/L ?

For the vast majority of cases, I would agree with T.O. that "Bill of Lading" is sufficient. However, this must be taken in context. If the content indicates otherwise, even if the document states "Bill of Lading", it should not be accepted as a B/L under UCP. An example is a transport document (not UCP transport document) issued in the USA covering inland transport titled "Bill of Lading". The fact that it indicates land transport only is sufficient for us to say that this is an exception to what we would normally accept as a B/L.

Laurence

My personal thoughts, without responsibility are:

Given the construction of the article, its heading (‘Marine/Ocean Bill of Lading’; which I believe cannot be ignored despite the introductory note to the ‘contents’ of UCP500) and its apparent aim (namely to remove as a possible discrepancy the heading of the document actually presented) I believe the issuing bank has signally failed to modify the terms of Article 23 and thus cannot reject the blading for the reason apparently given. In my opinion, in order to be able to reject for the reason given the credit must at least include an additional express provision that the blading must be headed accordingly.