Restrictive BL

[ZafarHassan]

Recently we were presented a BL showing shipment from Antwerp to Bundar Abbas.The face of the BL was stamped with the wording:
NOT PORTMARKED - WRONGLY PORTMARKED
SHIP NOT RESPONSIBLE FOR WRONG AND/OR NON-DELIVERY.
My colleague feels that the BL be rejected as it disowns the vessels responsibility to make delivery, hence defeats the purpose of a title documnet.
I however, feel that the document should be acceptable as this statement on the BL does not in any way restricts the negotiability of the BL. In my view what it indicates is a disclaimer on the part of the ship in respect of non delivery/wrong delivery owing to incomplete information provided to it by the shipper.(Although the BL shows complete about the load/discharge port,consignee/notify party/shipper)In my view the manifest provided to the ship may be missing some or all of this information prompting them to affix this stamp)
I would like to share the DC Pro Experts view on this.

[NigelHolt]

Firstly, I would stress I would not consider myself an ‘expert’, particularly when it comes to b/ls.

Secondly, my personal views, without responsibility, are:

According to sub-Article 13a a bank must examine documents to ascertain whether or not they appear, on their face, to be in compliance with the terms and conditions of the credit and UCP500.

Therefore, based on sub-Article 13a, I believe one ought to be able to identify which specific ‘term’ or ‘condition’ of the credit, or article of UCP500, has been breached in order to be able to declare a document discrepant.

Because of this, I am -with respect- struggling to see the relevance of you and your colleagues' different concerns regarding the b/l. To me, the question is: Which specific ‘term’ or ‘condition’ of the credit, or article of UCP500, IF ANY, has been breached?.

Based on what you have said, I might therefore be asking myself the question: ‘Does this b/l breach sub-Article 23a(iii)?’; but without seeing the b/l and the credit I would be reluctant to express an opinion.

Sorry I cannot be more specific, but trust this at least helps a little.

Finally, I imagine you have already searched to see if there are any relevant ICC opinions on the subject.

[edited 10/19/01 1:39:51 PM: punctuation]
[edited 10/19/01 1:40:58 PM: spelling]

[T.O.Lee]

WHAT IS "PORT MARK"?

First one should understand what is meant by "port mark" before one can determine whether or not this port mark stamp "NOT PORTMARKED, WRONGLY PORTMARKED - SHIP NOT RESPONSIBLE FOR WRONG AND/OR NON-DELIVERY" constitutes a discrepancy.

"Port mark" is an indication of DESTINATION painted or stencilled on a package of cargo to help the stevedores in correctly stowing the cargo. It is similar to, but not identical with, "shipping marks" which bankers are familir with.

"Shipping mark" can be a symbol, icon, words or any means of identification, not limited to port of discharge or destination (as in port mark which should be a port of discharge or an in-land destination). It may also indicate the port of loading, a DC No., a contract No. or even an export or import licence No.

The stamping "NOT PORTMARKED, WRONGLY PORTMARKED - SHIP NOT RESPONSIBLE FOR WRONG AND/OR NON-DELIVERY" in the bill of lading conveys a clear message to the parties that due to no, wrong, confusing or unclear "port of discharge or in-land destination marking" on the packages of the cargo, the carrier is not held responsible for wrong delivery, mis-delivery or non-delivery.

OTHER MARKINGS SEEN IN A BILL OF LADING

In our consultancy career, we have encountered a bill of lading marked "THIS ORIGINAL BILL OF LADING CANNOT BE USED FOR CLAIMING DELIVERY OF GOODS FROM THE CARRIER". It is issued at the request of the shipper to fulfill certain purposes.

PROVIDE HINTS RATHER THAN STRAIGHT JACKET ANSWERS

We leave it to the bankers to determine whether this stamp may be deemed as a discrepancy or not, and if so, against which Article of the UCP 500, as indicated by Jeremy?

After participating actively in the DC Pro Discussion Fourm for a long period of time, and to avoid being criticised for lecturing here, we think it is time for us to change our approach. Instead of giving a straight jacket answer, we would provide some clues for the members to voice their views. This fits the true purpose of the Discussion Forum more.

OUR REASONS TO REMAIN SILENT

For those issues that we remain silent, it may be due to the fact that we are handling a similar DC dispute and it is not appropriate for us to say anything here as this is not allowed by the instructing law firm.

http://www.tolee.com

[edited 10/19/01 4:56:12 PM]

[NigelHolt]

A most interesting response, from which I have learned something.

[ZafarHassan]

My apologies for not making my self clear, my contention is exactly based on what Jeremy has suggested i.e the documents is acceptable as it does not breach any provisions of UCPnor does it violates any terms & condition of the credit. I respect T.O.s professional constraint, but I feel that even in his hint he has made himself very clear.

[larryBacon]

As with most calls for a B/L, it is assumed that this L/C requires a clean B/L. The insertion of this clause clearly causes the B/L to fail to meet this requirement and is therefore discrepant.

Is there a spelling mistake in Zafar Hassan's original query ? I presume that the port in question should be Bandar Abbas and not Bundar Abbas. If such difference in spelling originated with the shipper, this may be the reason for the carrier protecting himself with such a clause.
[edited 11/5/01 5:44:22 PM]

[PGauntlett]

I can't see how you can interpret this as a 'clause or notation which expressly declares a defective condition of the goods and/or the packaging.'

[hatemshehab]

I would assume that Laurence is referring to sub-article 32c, which states:

"Banks will regard a requirement in a Credit for a transport document to bear the clause 'clean on board' as compiled with if such transport document meets the requirement of this Article and of Articles 23,..."

So in effect clean is not only confined to sub-article 32a

"which bears no clause or notation, which expressly declares a defective condition of the goods and/or the packaging. "

Therefore, the question is whether this superseding clause affects the requirement of article 23 or not?

[NigelHolt]

I take on board what Hatem Shehab has said above. Nonetheless, my sympathies lie with Phil when it comes to the meaning of the word ‘clean’ (sub-Article 32a), as opposed to the words ‘clean on board’ (sub-Article 32c). For this reason, I would not consider that the bill of lading breached sub-Article 32a, given that the annotation in question apparently relates to how the external packaging is marked.

However, like Hatem Shehab, to me the issue revolves around whether or not the bill of lading breaches Article 23, in particular sub-Article 23a(iii). On the one hand, if I understand correctly, the bill of lading ‘indicates …… the port of discharge stipulated in the Credit’. Therefore, I can see the argument for saying the bill of lading is compliant. On the other hand, the bill of lading indicates the goods may well not be unloaded at the port of discharge. Therefore, I can also see the argument that the bill of lading does not meet the terms of the sub-Article 23a(iii), on the basis the port of discharge quoted is ‘qualified’, rather than ‘absolute’.

Personally, I would not like to have to make a decision either way and I am glad that I do not have to (at least for the time being). To me, this query would form the basis of a very useful query to the ICC Banking Commission.

[larryBacon]

My apologies for the late response, but I have been out of the country for two weeks.

I have interpreted Article 32a "defective condition of the goods and/or packaging" to include not only evidence of damage, but also that the packaging will be defective if incorrectly port marked. Hence my earlier question as to the difference between Bandar Abbas and Bundar Abbas.