ICC Digital Library Forum

Dear readers of this topic,

I would be very grateful if anyone could provide me answers and/or more information on the following case.

Case:
Upon request of a client of ours we have sent documents against acceptance of a draft to the bank of the drawee. Four days later, after sending the documents by courier, we did sent a swift message to the bank of drawee in which we amended the collection instruction in: Documents now to be released as follows: 25% by sight payment(D/P)and 75% against acceptance of the draft(D/A). After two months we received a swift message from the bank of drawee stating that the documents were released against 100% acceptance of the draft and that the bank of the drawee did not received our amended collection instruction.

We checked if our swift message was delivered to the swift queue of the bank of the drawee by using a swift retrieval message. The swift retrieval message confirmed us that our swift was delivered.

On maturity the draft remained unpaid and bank of drawee said that the are not responsible for not receiving our amended instructions.

We hold the bank of drawee responsible for not following our instructions.

I have the following questions:
- is there any ICC opinion regarding this case?;
- is a swift retrieval message sufficient to prove that the swift message was delivered?
- can the bank of drawee be held responsible for ignoring our amended instructions.

Your answers/information would be very appreciated.

Whether the Presenting Bank accepts responsibility for failing to accede to your requested change depends on a number of factors :
1. Can you prove that they received the message ? Ask SWIFT in Belgium for their opinion on SWIFT retrieved messages.
2. Can you prove that they received the SWIFT message before releasing the documents ?

I suggest that it is prudent for a bank when requesting such changes to ask for confirmation of receipt and acceptance of the instruction.

I also suggest that the change requested could not be achieved by SWIFT alone, as it would be necessary to replace the Sole acceptance B/E for a S/D plus acceptance draft in the amounts suggested. I am guessing that the absence of the two drafts may be the reason why the Presenting Bank seemed to ignore the instruction.

Laurence

I agree with Laurence. As your initial collection instruction accompanying the documents was sent by courier, did the collecting bank receive & advise the drawee prior to receiving your Swift message or after it? Did you receive an acknowledgement advice from the collecting bank?

For the acceptance part: If your Swift message did not include an instruction for the collecting bank to create a bill of exchange, the form and the wording of the financial document included (article 8), then you should have provided it.

Dimitri