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Some Inconsistent or Unreasonable
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Some Inconsistent or Unreasonable
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Dear Mr. Lee,
I find some ICC opinions on some issues are indeed inconsistent or unreasonable as follows:
1. Issue of "on board notation"
Example: on bill of lading the relative boxes are filled in as follows:
pre-carriage: vessel A
place of receipt: port X
port of loading: port X
vessel voy(flag)/ocean vessel: vessel BICC R350 R352 R457 conclude that the on board notation should include: "on board vessel: vessel B, port of loading: port X and on board date", as they analyse that "named vessel" must relate to the vessel which leaves the port of loading and not any vessel which may appear in the pre-carriage box(R350) and reference to loaded on board or shipped on a named vessel therefore refers to the ocean vessel and not any pre-carriage vessel.(R352) and the drafting of a/m example indicates that vessel A never leaves Karachi, so the on board notation must be in respect of vessel B(R457).
However, ICC R220 analyse that the essential point is that the on board notation unambiguously indicates the name of the vessel on which the goods have been loaded at the port of loading.
ICC R227 concludes that the Marine b/l may indicate as the port of loading either the port where the goods have been loaded on board the ocean vessel or the port where the goods have been loaded on board the feeder vessel. ISBP paragraph 80 emphasizes that the named port of lading may be stated in the field headed "place of receipt" provided that the on board notation shows clearly goods are loaded on the vessel at the port stated under "place of receipt". It follows that the named vessel may also be stated in the field headed "pre-carriage" provided that the on board notation shows clearly goods are loaded on this vessel stated under "pre-carriage" at the port of loading. The on board notation is the last word.
There is evidently an inconsistency among those ICC opinions.
Effected by the points of ICCR220/227 and ISBP para 80, and also with common sense, I hold that the on board notation in the a/m example may be either "on board vessel A at the port of lading port X" or "on board vessel B at the port of lading port X" depending on the actual situation: it is vessel A or vessel that leaves from port of loading.
Additionally, ISBP para 81 is evidently superseding ICC R460 and ISBP para 78 is superseding ICC R284.
2. Issue of non-documentary condition
1) ICC R411 concludes that "shipment must be effected by/through ABC" is a non-documentary condition.
2) ICC R7 concludes that "merchandise must be shipped by conference liner vessel" is a non-documentary condition.
3) Whilst ICC R212 concludes that "shipment to be by seafreight vessel sailing to Maombasa port via Suez" is not a non-documentary condition as it can be clearly linked to b/l, and the b/l would show "via Suez".
It is hard for me to find the reason among the a/m ICC opinions to judge what is a non-documentary condition as it can not be clearly linked to some document. Based on a/m ICC opinions and/or common sense?
3. Issue of "who issues the document"
ICC R448 concludes that as to certificate of origin, a document issued on the letterhead of the beneficiary or any other party but within the body there is evidence of completion and/or signature of a chamber of commerce would not be seen to comply with a requirement of "issued" by a chamber of commerce.
ICC R291 concludes that a bank would be justified in rejecting a commercial invoice issued in the name of ABC division plus stamp Company T and signature where the named beneficiary in the credit is Company T., whilst ISBP para 184 stipulates insurance documents must appear on their face to have been issued and signed by insurance companies or underwriters or their agents. Then, para 185 stipulates that an insurance document is acceptable if issued on an insurance broker's stationery provided the insurance document has been signed by the insurance company or its agent or by the underwriter or its agent.
From para 184 and para 185 it can be deduced that an insurance document issued on the letterhead of broker but signed by insurance company can be deemed to be issued by insurance company.
There is evidently an inconsistency of the criteria applied to judge the issuer as to certificate of origin, invoice and insurance document.
4. Issue of "meaning/usage of within"
ISBP PARA 17 (a) stipulates that "within 2 days after" indicates a period from the date of the event until 2 days after the event. For example, "within 2 days after shipment date:2004.4.30" indicates a period from 2004.4.30 to 2004.5.2,that is, a period of 3 days.
PARA 17 (d) stipulates "within 2 days of "indicates a period 2 days prior to the event until 2 days after the event. For example, "within 2 days of shipment date:2004.4.30" indicates a period 2 days prior to 2004.4.30 until 2 days after 2004.4.30,that is, a period of 5 days.
Whilst para 18 stipulates "within" when used in connection with a date excludes that date in the calculation of the period. For example, "within 2 days after shipment date:2004.4.30" excludes the date 2004.4.30,that is a period of 2 days. "within 2 days of shipment date:2004.4.30" excludes the date 2004.4.30, that is, a period of 4 days:2004.4.28, 4.29, 5.1, and 5.2.(unreasonable)
There is evidently an inconsistency.
All the above are just for your reference and commentary.
Best regards,
J. H.
2004.4.30
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