ICC Digital Library Forum

An acceptance credit called for among other documents, a truck consignment note. Upon presentation of the documents by the confirming bank to the issuing bank, the latter raised the following discrepancy: “TCN not signed as carrier” and made reference to article 28(a) (i). The confirming bank’s response was that article 28(a) (i) pertained to transport documents and that a truck consignment note was not a transport document as defined in the articles 23-29 and had to be handled in accordance with article 21 instead.
The bank also made reference to the ICC Opinions R221 (Forwarder-type doc's. These doc’s are not carrier-type doc's; and they are therefore not subject to UCP 500 articles 23-28; they are rather covered by article 21) & R278 (Is an FCR a transport document?…FCR is not a transport doc. and is therefore not covered by the provisions of articles 23-29).

The document in question included the following details: Truck consignment note no., shipper, consignee, notify party, place of receipt, place of delivery, description of goods, truck license number, name of driver, name and address of carriers local agent, date of shipment, freight terms, L/C number. It was signed and stamped too. However, it did not appear on its face to indicate that it was signed as a carrier or an agent for or on behalf of a carrier.

From the unpublished queries of the ICC Banking Commission “Is a CMR acceptable under a letter of credit requiring the presentation of a document entitled ‘roadwaybill’?”
It clearly refers in its conclusion/analysis to article 28 of UCP 500, which covers the transportation of goods by road when talking about a CMR or a road waybill. Isn’t then the truck consignment note a road transport document too and therefore made subject to the same article? The members' opinions are sought.

Dimitri

IT IS THE CONTENT NOT THE NAME OF A DOCUMENT THAT COUNTS

One of the key concepts of UCP 500 is that the name of a document is not important. Its content is to determine whether a document, transport documents included, is compliant or not. So purely from for the name of a road transport document, whether a CMR, a road/truck consignment note, a road waybill, or something else, we cannot determine whether it is recognised as a transport document under UCP 500 Article 28 or not. We have to look at its content to decide this.

Also we cannot determine this from a banker’s perspective as it is related more to road transport than banking, particularly we do not have a profession called “road banking”.

THE DECIDING FACTOR IS THE INTERNATIONAL CARRIAGE OF GOODS BY ROAD OR OTHERWISE KNOWN AS THE CMR

From the transport perspective, road transport is governed by the Convention named International Carriage of Goods by Road, otherwise know as the CMR. Once we touch on the Convention, we cannot give a straightjacket answer to your query, whether a road/truck consignment note is a transport document or not.

As said at the beginning, the name is nothing. We have to look at the data content of this document in order to make our decision. For most of the cases, merely looking at the “face” (for bankers, it is the front side or page 1) of the document is not enough. We have to look at the terms and conditions of carriage at the backside of the document, particularly the definition part, which may give us some hints. If it is subject to the CRM, then it is a transport document under the CMR, where the rights and obligations of the parties, particularly the carrier, are defined.

This is basis of the ICC Banking Commission is to determine whether a document used to cover transport is a transport document under Article 28 or not.

THE MORE YOU KNOW, THE MORE YOU DON’T KNOW

However, the more you know, the more you don’t know. If you read on the Articles of the CMR, you will find that there are certain conditions that the CMR may not apply to a road transport document, although it is named as such.

To give an example, in the Lloyd’s authoritative international transport publication in our DC library, “Contracts for the Carriage of Goods”, it states:

“By a reservation in the Protocol of Signature, CMR does not apply to traffic between the United Kingdom of Great Britain and Northern Island and the Republic of Ireland. As regards (a) the Isle of Man; (b) any of the Channel Islands; (c) any colony; (d) any state or territory which is for the time being a protectorate or protected state for the purpose of the British Nationality Act 1948, section 9 of the Carriage of Goods by Road Act 1965 provided that the CMR may be extended to these places by Order in Council, subject to such exceptions, adaptations and modification as may be specified in the Order…” Better stop here or you may be more confused.

THE CONTENT WOULD DECIDE THE NATURE OF A DOCUMENT

To answer your query, we have no other alternatives but to examine both the front and back sides of the road/truck consignment note to warrant a correct answer.

Again, in order to determine whether or not a document to cover road transport is a transport document under Article 28 of the UCP 500 or not, bankers have to know something about the Convention. Otherwise there is no short cut. And Jeremy, you insist that bankers need not know transport basics, then we are afraid that you cannot play this game.

www.tolee.com

[edited 7/1/02 3:41:24 PM]

Dimitri

My personal view, without responsibility, is:

Based on sub-Art 28a, the question revolves around whether or not the credit specified ‘a road, rail or inland waterway transport document’; not the actual contents of the document subsequently presented. I cannot see how a credit that specified a ‘truck consignment note’ could be considered as other than specifying a ‘road (or possibly rail) transport document’ per sub-Art28a. Therefore, I regard the issuing bank as being in the right and the confirming bank as being in the wrong.

Jeremy

Jeremy,

You appear to take a literal approach but in our view this query is beyond that. The issues are not as straightforward as you may have thought.

THREE ISSUES

We have three issues here to resolve.

(1) By calling for a truck consignment note in the DC, are the parties intent to receive a transport document?

(2) Is the truck consignment note a transport document?

(3) What article of the UCP 500 should be used to examine this document?

ANSWERS TO ISSUES

(1) The intention of the parties is not clear as a consignment note may and may not be a transport document. To quote a famous comment used by Professor Jim Byrnes “It depends!” To give you an example, the air transport document that we are all familiar with, the air waybill, it is also known as “air consignment note”. If you look at some AWBs, you will find this second name in small prints side by side in the title of this transport document. So a read/truck consignment note may and may not be a transport document. It depends on its content and particularly those terms and conditions at the backside, which bankers do not need to examine.

Even if the bankers read these terms and conditions, they may not understand the jargons. This is the major cause of the problem.

If it is subject to CMR, it may still not be a transport document for reasons we have already pointed out in our previous posting. For a consultant, our experience tells us that things may be more complicated than one would have thought.

(2) To this Issue No. 2, our answer is the same as in (1).

(3) Only after determination of the nature of the truck consignment note that we can answer this question. If it is a transport document, then Article 28 is to be used. Otherwise Article 21.

www.tolee.com

T.O.,

Surprise, surprise, we are not quite in accord on this one. So for the avoidance of perpetual disagreement, I should say that I was also pleased Brazil beat Germany in the World Cup, as Brazil play the more entertaining football.

Adverting to the matter under discussion, I personally believe that, from their wording, whether Article 28 applies or whether Article 21 applies is based on what the credit stipulates, and not the actual document presented. Therefore, whether or not the actual document presented is or is not a ‘transport document’ is irrelevant in determining which of these two articles to apply. In other words, if the term ‘truck consignment note’ is ambiguous then this ambiguity cannot be resolved by reference to the document actually presented.

Therefore, if I am right in regarding the stipulation ‘truck consignment note’ as ‘call[ing] for a road, [or possibly] rail …… transport document’ Article 28 must be applied, irrespective of the document presented (e.g. forwarding agent’s cert of receipt). However, if I am wrong, Article 28 cannot be applied, irrespective of the document presented (for example a ‘CMR’ international consignment note).

Jeremy

I'm sure that, whilst the description 'truck consignment note' is somewhat unusual, most bankers would apply Art 28. To me, it would seem rather reckless to try and apply Art 21. I know that I'd rather defend the finding of a discrepancy under Art 28 than trying to justify the acceptance of the doc under Art 21

Jeremy,

DON’T BE CARRIED AWAY BY AN EXCITING ISSUE

Our ten years’ experience in resolving complicated problems as a consultant teaches us to stay cool in front of a dispute or a problem and don’t be carried away with the emotions of the customers or clients, like what the audience did in World Cup 2002 games. The more exciting the issues, the cooler we should be.

ALWAYS STAY COOL AND USE LOGIC TO TACKLE A PROBLEM

Please stay cool and use logic to analyse the problems before us and don’t try to jump to the conclusion too soon by assuming that the parties mean presentation of an Article 28 document. Before we can do anything else, we need to know the intention of the applicant, and may be also the issuing bank that has its basis in the issuance of the credit. Similar the confirming bank has its own bottom line in adding confirming to the credit. So the first question we have to ask ourselves is Issue No. 1 that we have already pointed out clearly in our previous posting, that is:

(1) By calling for a truck consignment note in the DC, are the parties intent to receive a transport document?

DO FIRST THING FIRST

If this issue is not clarified and you jump to the conclusion too soon and assume that the parties mean transport documents under Article 28, you appear to “rape” (sorry for this word but we do not find another word more lively to show our feelings) the applicant, or the issuing/confirming bank. They may and may not mean presentation of a document under Article 28.

A STORY ABOUT ZHUANG ZI

Let us share with you a famous story in Chinese philosophy. One fine day (a famous aria in the opera “Madame Butterfly” by Puccini), the guru philosopher Zhuang Zi was strolling in a garden with another philosopher. They noticed the fishes swimming leisurely in a large lily pond.

His friend alerted him: “My friend, look here! The fishes are very happy!”

“You are not a fish, then how do you know that the fishes are happy?” Zhuang Zi responded coolly.

His shrew friend then returned the challenge with a smile: “You are not me. Then how do you know that I do not know the fishes are happy?”

Hope this story would inspire you.

LOGIC IS WHAT DETERMINATION OF DISCREPANCIES IS ALL ABOUT

Logic is as important to a consultant as to a banker who has the duty to determine discrepancies.

www.tolee.com

[edited 7/2/02 4:44:05 PM]

Dear T.O.,

While I’m sure it is not your intention, I feel I should mention that I could see some taking your remarks regarding not being cool and lacking logic as being possibly condescending, if not disparaging. The danger is that such a misinterpretation could lead to even less coolness & logic.

As to the question at hand, if I understand you correctly you seem to be suggesting that the ACTUAL intention of the applicant and issuing bank need to be considered when interpreting a -possibly ambiguous- credit provision. I agree that if there is any doubt in a bank’s mind as to the meaning of a credit provision it should revert, before issue/advising, per Article 12 in the case of an advising bank. However, once the credit is issued and advised it is ‘irrevocable’. In other words, its provisions are frozen and therefore cannot be varied by the actual intentions of the parties, even if the credit provisions do not reflect those intentions.

As a consequence, whether or not the applicant or issuing bank wanted, or is happy to accept, a (non-) ‘transport document’, when they called for a ‘truck consignment note’ (tcn) is irrelevant. The question simply becomes, for a bank that has any doubt on the subject, one of what is the reasonable interpretation of the term, based on i.s.b.p., the credit provisions and any relevant information gleaned from day-to-day credit operations. If the bank believes the reasonable interpretation of tcn is a ‘road transport document’ Article 28 must be applied. If a bank believes the reasonable interpretation of tcn is other than a ‘road transport document’ Article 21 must be applied. In the event of any dispute, the courts will be more than happy to decide, without reference to the actual intentions of the parties, as I imagine your expert witness experience would confirm.

In the event of your not concurring with the above we shall just have to agree to disagree.

Jeremy

[edited 7/2/02 5:42:18 PM]

According to international standard banking practice, in my view, the request for truck consignment note is clear request for a transport document, to which art. 28 UCP500 applies. The deciding factor, in my opinion, is international standard banking practice, and not carriage of goods by road convention (CMR).

Best regards,

Pavel Andrle

Jeremy,

WE HAVE NO INTENTION TO MAKE OTHERS UNHAPPY

We have not any intention to make anybody unhappy here. Please do not read our English too seriously as it is not our mother tongue after all. We only try to explain clearly and may be a bit straight forward as we have a limited vocabulary.

DON'T MIX UP OUR INTENTION

Our real intention is not to argue what the DC calls for. Most probably the parties may or should call for a transport document. But this is not definite. Anything may happen these days.

What we intend to say is that what is the NATURE of the PRESENTED document, the truck consignment note, not what the DC calls for. It appears that you are kicking the ball towards the wrong goal.

BANKERS SHOULD STICK TO THEIR OWN ROLE

Would you let us know on what basis that a banker can determine that a truck consignment note is definitely a transport document? A banker is only trained for banking and not for transport. It is risky to jump to the conclusion for a document that a banker is not familiar with. Bankers should be prudent. Going out of one’s expertise field is dangerous.

We know some transport and yet we are not so sure about the nature of this truck consignment note presented in the query until we see the terms and conditions on the both sides of this very presented document.

ISBP CARES ABOUT CONTENT, NOT TITLE

We cannot over simplify the issue and determine the nature of this presented document solely relying on its title. This is certainly not ISBP that tells us the title is nothing and the content counts. We wonder your ISBP and ours are different.

WE HAVE TO BE PRUDENT BOTH INSIDE AND OUTSIDE THE COURTROOM

We should deal with the documents presented and the query from members more cautiously even though the DC Pro is not a courtroom.

As a court expert, we have to tell the Judge that we cannot determine the nature of this presented document, the truck consignment note, until we have the opportunity to see it, for both sides, and not before. The more we know, the more we don’t know.

A GOOD EXAMPLE TO ILLUSTRATE OUR POINT

As already pointed out by Laurence in a previous posting, in USA, we have a document called “road bill of lading”. What is it? A transport document under Article 23? 28? or 21? We do not know. This title is misleading. We have to look at its content to figure out its nature. Jeremy, can you easily determine which Article of the UCP 500 you should use to examine it? The title “bill of lading” suggests Article 23?

WHAT IS ISBP?

For those who are comfortable to determine a document, not only a transport document, such as an insurance document or a certificate, merely by its title, please go ahead. You have the freedom to do so. But please do not say it is according to ISBP!

www.tolee.com

[edited 7/3/02 4:33:58 AM]