ICC Digital Library Forum

Dear Discussion Forum Participants,

I am quite possibly missing the obvious, so apologies in advance if I am guilty of being a ‘right thicko’ (a distinct possibility).

Let us take for example sub-Article 20(a)(i) and 24(a)(i) which require a BL and ATD respectively to ‘indicate the name of the carrier’ and para’s 94 and 137 of ISBP681 which state a BL and ATD must ‘indicate the name of the carrier, identified as the carrier’. Do these two sub-Articles, as -in effect- elaborated by these two ISBP681 para’s require the word ‘carrier’ only to be used or do they permit synonyms (words or terms of same meaning) of the word ‘carrier’ to be used, such as -in my opinion- ‘vessel line’ in the case of a BL or ‘airline’ in the case of an ATD?

In other words, if:

1. a BL:

A. is signed:

‘For and on behalf of CMA CGM S.A. as vessel line’ or:

B. states:

‘Vessel line: CMA CGM S.A.’

or:

2. an ATD:

A. is signed:

‘For and on behalf of British Airways Plc as airline’ or:

B. states:

‘Airline: British Airways Plc’

does it meet the requirements of sub-Articles 20(a)(i) and 24(a)(i) (as appropriate) as elaborated by para’s 94 and 137 of ISBP681 (as appropriate)?

Common sense says to me that describing an entity as the ‘vessel line’ or ‘airline’ cannot mean other than that the entity concerned is the carrier and therefore these terms do meet the above-mentioned mentioned requirements.

What do others think please?

[edited 9/29/2009 10:55:11 AM]

Jeremy,

We are all guilty but you're not a thicko (first time I met this word), perish the thought.
The word "carrier" must appear.
"Vessel line" or "airline" cannot be a substitute for "carrier".
Southland Rubber Co Ltd v Bank of China:
"...to satisfy the requirements of art. 23a.i. (500 but still valid-Note of Daniel) the name of the carrier must appear as such, so that anything short of using the actual word "carrier" would not be sufficient to identify the party acting as carrier." As the story goes, it seems that using the word "line", as in your example, would not be enough to establish the capacity of "carrier".
But not everybody will agree. So are the times we live through.
Best regards
Daniel

Daniel,

I was not familiar with this Hong Kong case from 1997; thanks for bringing it to my attention (and for not thinking I am being a right thicko or -as you might say- un vrai cancre).

Having done a quick search of the internet, in ‘Discrepancies: Has UCP500 Wrought Any Improvement?’ by Richard Morris in HONG KONG LAWYER, DEC 1998, it is stated:

‘In the case of Southland Rubber v Bank of China [1997] 3 HKC 569, the document involved was the bill of lading, which did not contain anywhere the word 'carrier'. While there was a signature, the name of the vessel, the word 'master', and the name of the actual carrier, the 'magic' word 'carrier' was clearly absent’.

Part of the High Court(?) judgement quoted in the article mentioned above is:

'[t]he institution that has been presented with the bill of lading must not be placed in a position whereby they had to speculate or make an educated guess of the identity of the carrier. The key words 'the name of the carrier' must appear as such so that in my view anything short of the actual word 'carrier' to identify the party acting as carrier would not have complied with the provisions of Article 23(a)(i) of the UCP. I consider one of the fundamental principles in any transaction involving documentary credits to be that of certainty of the identity of the parties involved in the contract of carriage.'

I agree that ‘anything short of the actual word 'carrier' to identify the party acting as carrier would not have complied’ suggests that only the word ‘carrier’ will do, at least for this judge. However, I do think it needs to be borne in mind that the court was not asked to opine on a situation where -what could be considered to be- a synonym for carrier was used and therefore have to wonder if the judgment would have been so ‘black and white’ if it had. It hardly seems to me that it requires speculation or an educated guess to arrive at the view that a party described as the ‘vessel line’ or ‘airline’ is the carrier.

Once again thanks for your response.

Best regards, Jeremy

Anyone else have any views please?

In my opinion, the vessel line could also be an agent, and the transporter is not necessarily the carrier.
Rgds
Antoine Samaha