ICC Digital Library Forum

Now that the issue with the Maersk’s B/L is over, I thought I would throw this one up.

P&O Container line (POCL) have a statement on their B/L that reads: "If the Carrier so requires, before he arranges delivery of the Goods one original Bill of Lading, duly endorsed, must be surrendered by the Merchant to the Carrier at the Port of Discharge or at some other location acceptable to the Carrier." Ready it a few times. "If the carrier so requires". To me that means: if POCL feel like it, they require the original B/l to release cargo. But then again, they may not require the original B/L. This statement means exactly the same as the Maersk B/L but POCL have been smart about it and worded it in a different way.

What does everyone else think? Is it that same as the Measrk B/L stament?

Mark from Melbourne

Mark,

Assuming that the B/L you have seen was a negotiable B/L, i would say "yes" - i do share your opinion !

Did you have (or do you still have) a chance to look at the "back side" ??

P&O publishes their B/L clauses on their website:

http://www.ponl.com/topic/home_page/
language_en/about_us/useful_information
/bill_of_lading_clauses

You may find there under par. 20 "notification and delivery" the clause no. 7

" This Bill of Lading shall not be a negotiable document of title unless consigned 'to order', 'to the order of '..' or ' to bearer'. If not so consigned but instead consigned directly to a nominated party, this shall be a 'Straight' Bill and, at the sole discretion of the Carrier, delivery may be made to the nominated party only upon proof of identity, as if this Bill of Lading were a Waybill. Such delivery shall constitute due delivery hereunder."

Did they amend this wording ??

Kind regards from Vienna

Karl

[edited 10/16/03 10:01:28 AM by LeoCullen (Moderator): edit link]

Mark,

to me, this is a "stealth" version of the Maersk clause. At least Maersk were very clear in trying to escape their responsibilities !
My thanks to Karl for pointing out the clause on the back of the B/L. This corroborates the view that P&O are similarly trying to shirk their responsibilities.
Again I would reject P&O Bs/L issued with such clauses.

Laurence

I do not believe that this wording casts sufficient doubt over whether b/l is a doc of title in order for it to be considered as discrepant. Furthermore there is no mention that any delivery without b/l is without risk to the carrier.
I will continue to accept such b/l's

Phil
[edited 10/16/03 3:19:04 PM]

I'm still thinking about this one!

I have at last had one of these BLs referred to me. My personal opinion is that given the clarification of ‘If the carrier so requires’ given in para 20(7) on the reverse, (namely that it only applies to a straight consigned BL), the BL could not be considered discrepant where it is an ‘order’ BL.

In the case of a straight consigned BL, there is the possibility that goods will be released without production of a BL to the ‘nominated party … upon proof of identity, as if this Bill of Lading were a Waybill’. I agree with Phil there is no mention that any delivery without a BL is without risk to the carrier, unless where a document is a Waybill ‘reasonable’ proof of identity only is required and there is no liability to a carrier that releases goods to the wrong party against such reasonable proof (I simply do not know the position). Nonetheless, whatever the position, I still cannot see that this provision does other than undermine the ‘document of title’ role of the BL and poses a risk -for example- to a nominated bank where, for some reason, settlement has not been effected by the issuing bank (e.g. discrepancies missed by the nominated bank and documents refused by the issuing bank & applicant) and the nominated bank wishes to prevent the straight consignee obtaining the goods so that the nominated bank may sell them to defray its loss (lets set aside the problem of a third party getting the goods off the carrier on a straight consigned BL).

Finally, I do recommend reading the case of J I MACWILLIAM CO INC v MEDITERRANEAN SHIPPING COMPANY S.A. (16 April 2003) in the Court of Appeal available on www.bailii.org as it examines if a SCBL is, in principle, a ‘document of title’. Rix LJ answers in the affirmative (but on the face of it ‘only’ as obiter dicta) and states in paragraph 137 with respect to a SCBL:

“ … the shipper AND HIS BANKERS and insurers need the same protection as the shipper under a classic bill;” [emphasis added]

[edited 10/21/03 4:04:07 PM]

I agree with the thrust of what Jeremy has to say about the loss of function as a document of title. I would add to the example he has given that a beneficiary may, in similar circumstances, wish to retrieve title to the goods. With a "proper" original set of B/L in his hands, this would not be problematic, but with the clause under discussion, he could not be certain of retrieving such title, nor of successful litigation against the carrier for release of the goods without presentation of an original B/L.

Laurence

I am surprised that this topic of P&O B/Ls hasn't raised more reaction than it has. Are they still being rejected? Have P&O made any contacts or changes to their B/Ls?
Fortunately we have very few B/Ls which are not to the order of the issuing banks, on the export side, so we haven't been directly concerned.
Judith

Judith,

We would only refuse if straight consigned. I’m not aware of any contact with P&O.

Incidentally, ICC UK has submitted a request for an opinion -for consideration at the ICC December meeting in New Delhi- on the subject of B/Ls as dox of title. We are awaiting the outcome to decide what long term policy position we are going to adopt.

Jeremy

Jeremy,

The Banking commission statement concerning terms and conditions on the face of Bills of Lading is now available
at:

http://www.iccwbo.org/home/statements_r ... ents/2004/
terms_and_conditions_on_bills_of_lading.asp

In light of the view they have taken there, "that a bank does not take notice of such terms and conditions"
and "these Bills of Lading are to be honoured as compliant", i have to open this topic again.

I cannot understand why the Banking commision " as a whole" (??) supported this
view and undermines the fundamental function of a Bill of Lading as a document of title.

Does it mean that we should forget to finance commodities by taking security through Bills of Lading or should we also give up to believe that a doc.cedit collateralised by Bills of Lading would be interpreted as self-liquidating letter of credit (see "The New Basel Capital Accord") ??

Form the standpoint of document checkers it might make life easier,but i can hardly believe that this is the solution you expected to see ??

Acc. to Par. 43 of ISBP the content of a
document must appear to fulfill the function of the required document, but now it seems that i have lost certainty
what the function of a negotiable Bill of Lading is ?

Looking forward to read what you think about this new "unexpected result related to Bills of Lading.

Greetings from Vienna

Karl
]