We have started receiving b/l's with a clause on the front stating
"due to increasing instability in the Port Harcourt/Onne area of Nigeria, the carrier hereby reserves all rights to discharge and final delivery of the cargo to the nearest safe port or place at the carriers sole discretion"
If the L/C calls for shipment from a specific port of loading to a specific port of discharge - can we reject the B/L on the basis that although the port of discharge is evidenced on the b/l the discharge of the cargo may not actually be effected at that port due to the clause mentioned.
Appreciate any views and whether anyone else has come across this.
Thanks
Rob
[edited 6/13/2008 10:55:32 AM]
discharge port
discharge port
My view is that this is covered by the last sentence of 20(a)(v).
discharge port
Jim
Many thanks for quick response - I have always taken this clause to cover that fact that we as doc checkers do not have to concern ourselves with the terms and cond. on the reverse of the bill - as long as something is there or reference is made to where the t&c's are found - this clause has been either typed or stamped (depening on shipping line) on the front of the bill and therefore should come under scrutiny surely?
Many thanks for quick response - I have always taken this clause to cover that fact that we as doc checkers do not have to concern ourselves with the terms and cond. on the reverse of the bill - as long as something is there or reference is made to where the t&c's are found - this clause has been either typed or stamped (depening on shipping line) on the front of the bill and therefore should come under scrutiny surely?
discharge port
Rob,
I am not aware of any basis for drawing a distinction between T&Cs of carriage that happen to appear on the front of a BL and those that happen to appear on the reverse. I am also not aware of a requirement that banks read every word that appears on the front of a BL.
Jeremy
I am not aware of any basis for drawing a distinction between T&Cs of carriage that happen to appear on the front of a BL and those that happen to appear on the reverse. I am also not aware of a requirement that banks read every word that appears on the front of a BL.
Jeremy
discharge port
Rob,
see: Unpublished Opinions 1995-2004 (R576) p. 132,133. Not very helpful, I'm afraid. I wonder if there is a difference between terms and conditions of carriage and specific clauses for particular circumstances.
Regards
Daniel
see: Unpublished Opinions 1995-2004 (R576) p. 132,133. Not very helpful, I'm afraid. I wonder if there is a difference between terms and conditions of carriage and specific clauses for particular circumstances.
Regards
Daniel
discharge port
Daniel
Many thanks for your reply - in fact your answer was helpful in such that ICC agree (to a certain extent) that if t&c's are on the front "A bank is required to review the whole of the front of the bill of lading to ascertain information such as details of goods, journey, parties and applicable dates. In carrying out such a review, it may be difficult to distinguish letter of credit criteria from terms and conditions, unless this is clearly indicated within the layout of the text" - Accordingly as the addition on the B/L's does not specify the clause as a t&c then I feel that I am right in rejecting them on the basis that discharge port is effectively unknown!
Many thanks for your reply - in fact your answer was helpful in such that ICC agree (to a certain extent) that if t&c's are on the front "A bank is required to review the whole of the front of the bill of lading to ascertain information such as details of goods, journey, parties and applicable dates. In carrying out such a review, it may be difficult to distinguish letter of credit criteria from terms and conditions, unless this is clearly indicated within the layout of the text" - Accordingly as the addition on the B/L's does not specify the clause as a t&c then I feel that I am right in rejecting them on the basis that discharge port is effectively unknown!
discharge port
Daniel,
Again, very apposite.
R576 does seem a typical ‘Banking’ Commission opinion, i.e. ‘clear as mud’ as we say in English. It rightly notes that ‘The [UCP500] sub-Article makes no distinction as to whether the terms and conditions (or reference thereto) are to appear on the front or reverse of the document’. Therefore logically it makes no difference where the T&Cs of carriage appear.
However, it then goes on to say that ‘it may be difficult to distinguish letter of credit criteria from terms and conditions [that appear on the front], unless this is clearly indicated within the layout of the text’. However, UCP500 sub-Art. 23(v) is apparently drafted on the basis that banks must make such a distinction, as it is drafted in ‘black & white’ terms, i.e. ‘banks WILL not examine the contents’ [my emphasis]. Therefore, whether or not this is difficult is seemingly of no relevance and logically, as a consequence, one cannot refuse a document on the basis that one is not certain if wording in a BL is or is not part of the T&Cs of carriage.
Furthermore, it then says ‘It is not uncommon for the content of the terms and conditions to not be in compliance with the terms of a letter of credit’. However:
1. per UCP500 sub-Art. 23(v) T&Cs of carriage can never not be in compliance with the terms of a credit as banks are not allowed to read them.
2. it does not say what are the consequences of this supposed non-compliance, i.e. it does not say that this is or that is not a discrepancy.
To me this is just one more example of an opinion that ‘muddies the waters’, to give you another English metaphor.
Jeremy
Again, very apposite.
R576 does seem a typical ‘Banking’ Commission opinion, i.e. ‘clear as mud’ as we say in English. It rightly notes that ‘The [UCP500] sub-Article makes no distinction as to whether the terms and conditions (or reference thereto) are to appear on the front or reverse of the document’. Therefore logically it makes no difference where the T&Cs of carriage appear.
However, it then goes on to say that ‘it may be difficult to distinguish letter of credit criteria from terms and conditions [that appear on the front], unless this is clearly indicated within the layout of the text’. However, UCP500 sub-Art. 23(v) is apparently drafted on the basis that banks must make such a distinction, as it is drafted in ‘black & white’ terms, i.e. ‘banks WILL not examine the contents’ [my emphasis]. Therefore, whether or not this is difficult is seemingly of no relevance and logically, as a consequence, one cannot refuse a document on the basis that one is not certain if wording in a BL is or is not part of the T&Cs of carriage.
Furthermore, it then says ‘It is not uncommon for the content of the terms and conditions to not be in compliance with the terms of a letter of credit’. However:
1. per UCP500 sub-Art. 23(v) T&Cs of carriage can never not be in compliance with the terms of a credit as banks are not allowed to read them.
2. it does not say what are the consequences of this supposed non-compliance, i.e. it does not say that this is or that is not a discrepancy.
To me this is just one more example of an opinion that ‘muddies the waters’, to give you another English metaphor.
Jeremy
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Jeremy,
If we cannot trust an official opinion, what can we trust?-)
I am aware that these queries and opinions are not perfect and that 576 is somehow inconsistent. That is why I told Rob it was not very helpul. But here, my problem is: is there a difference between T&Cs and a specific clause for a specific circumstance and if so what do we do? Personally, I would be cautious.
Daniel
If we cannot trust an official opinion, what can we trust?-)
I am aware that these queries and opinions are not perfect and that 576 is somehow inconsistent. That is why I told Rob it was not very helpul. But here, my problem is: is there a difference between T&Cs and a specific clause for a specific circumstance and if so what do we do? Personally, I would be cautious.
Daniel
discharge port
Daniel
My thoughts are the same as yours - at present we are rejecting B/L's with this clause on the basis that discharge cannot be guaranteed at the port requested - it would be the same if the discharge port required was Onne Port and the B/L said Onne Port or substitute!
So far not one presenter has queried our decision.
Many thanks for all the input
My thoughts are the same as yours - at present we are rejecting B/L's with this clause on the basis that discharge cannot be guaranteed at the port requested - it would be the same if the discharge port required was Onne Port and the B/L said Onne Port or substitute!
So far not one presenter has queried our decision.
Many thanks for all the input
discharge port
Can I ask a question about the clause?
"due to increasing instability in the Port Harcourt/Onne area of Nigeria, the carrier hereby reserves all rights to discharge and final delivery of the cargo to the nearest safe port or place at the carriers sole discretion"
Was the clause above?
a) Part of the fine print pre-printed as part of the standard uncompleted document
Or
b) Was this a ‘clause’ or other form of additional data content superimposed onto the
document.
Svetlana
"due to increasing instability in the Port Harcourt/Onne area of Nigeria, the carrier hereby reserves all rights to discharge and final delivery of the cargo to the nearest safe port or place at the carriers sole discretion"
Was the clause above?
a) Part of the fine print pre-printed as part of the standard uncompleted document
Or
b) Was this a ‘clause’ or other form of additional data content superimposed onto the
document.
Svetlana