How To Resovle Clause 1 in Maersk BL

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21 May 2004
Mr. Gary Collyer, Technical Adviser and
Mr. Ronald Katz, Policy Manager
ICC Banking Commission
Paris
Dear All,
Although there is no specific sub-Article in the UCP 500 to establish the carrier's intent of "delivery without an original BL" as a discrepancy, yet in ISBP 645 Paragraph 43, last sentence, it states:
"The content of a document must appear to fulfill the function of the required document".
With this we may establish "delivery without an original BL" as not appearing to fulfill the basic function of a BL, particularly for a "To Order" BL which is supposed to be a document of title. Bernard Wheble said it very well, it is a "constructive delivery" of the goods. Without the need of involving an original BL makes the BL impossible to perform its function as a "constructive delivery" of the goods - handing over a BL is equivalent to handing over the goods.
Secondly, if the statement in a BL: "The carrier reserves the right to deliver without an original BL" is OK, then how about a DC stating: "The Issuing Bank reserves the right not to pay against compliant documents"? If such BL is OK, then should such DC be also OK?
Perhaps these thoughts may be helpful to the 8-officer group in drafting the "explanation for withdrawal of the ICC Officers' Statement about BL clauses" from the ICC website.
Best regards,
T. O.

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