3 December 2009 - iccmex.mx

1 3 December 2009/TS/wj Document 470/1126rev Jordi Sellar s Vicesecretario Comit Espa ol de la CCI Avda. Diagonal 4525454 08006 Barcelona Spain 3 December 2009 Subject: Document 470 Dear Mr. Serra, We refer to our letter dated 12 May 2009 in respect of your query regarding ucp 600 . Please find below the opinion of the Banking Commission. QUOTE Our Group of Experts on Documentary Credits received a query from a Country S Bank which has been given number 158 in our files. A copy of a B/L is attached and the following questions are raised in respect to it. 1) In the attached document.

2 Can the signing party be considered to be duly identified? The right hand box on the lower part of the document has no pre5printed or added text, just a signature and the stamp of a company. The box immediately on top of that one (where it appears Barcelona 16/01/2009), the pre5printed text says place and date of issue . 2) Can it be considered that the carrier identification poses no doubt? The box on the upper right hand side where Masterline Logistics and their address appears, is different to the remainder of the document as it has no pre5printed text as an identifier of data for that box. In the box immediately on top of that one the following can be read: name of the carrier (text that can also be read on the bottom of that box and differently to all the other boxes of the document in which an explanation appears).

3 25 Document 470/1126rev NATIONAL COMMITTEE ANALYSIS Our Group of Experts unanimously agree that the analysis must take into account: Sub5article 20 (a) (i) of ucp 600 : A bill of lading, however named, must appear to: i) indicate the name of the carrier and be signed by: The carrier or a named agent for or on behalf of the carrier, or The master or a named agent for or on behalf of the master. Any signature by the carrier, master or agent must be identified as that of the carrier, master or agent. Any signature by an agent must indicate whether the agent has signed for or on behalf of the carrier or for or on behalf of the master.

4 Together with paragraph 94 of ISBP publication 681 concerning signing of bills of lading: Original bills of lading must be signed in the form described in ucp 600 sub5article 20 (a) (i) and indicate the name of the carrier, identified as the carrier. Some members of the Group include in their analysis the following references. The majority of the Group recognises that these materials enrich the debate but are not exactly relevant to analyse this case. They are included in this response in order to offer an insight on the debate within the Group. References are: Excerpt from the official commentary to the UCP600: Sub5article (a) (i) also goes on to describe what is required by way of signature.

5 The party signing the bill of lading must indicate whether it is signing as carrier, master or agent, and if the party is signing as agent, the name of that agent must be included, as well as the capacity in which it is signing. Therefore, a simple signature on the bill of lading does not suffice. The indication of the capacity of the one signing the bill of lading must also appear in the signature space. However, if the bill of lading shows the name of the issuing company together with the indication carrier , a simple signature in the signature box with the indication for and on behalf of [name of the issuing company] or for and on behalf of the carrier or a similar indication would be sufficient.

6 26 Document 470/1126rev Position Paper number 4 from 1994 (though the new ucp 600 expressly declare in its introduction that they are no longer to be applied). They are mentioned here as the texts referred to signature of bills of lading have no difference between UCP500 and UCP600 and it is argued that if it was valid in one case it should also be valid for the other one. Point 2 of Position Paper No. 4 said: Where the document is signed by the carrier, it is not necessary for the word carrier to appear again in the signature box when it has already been used on the front of the document to identify the party acting as carrier.

7 Comments from ICC Transport Commission included in opinion 470 rev. 2: One possible explanation would be that the carrier and the agent operate under the same name. Although the agent is normally a different entity to the carrier, it appears that it is not unusual for large container lines to own the local agency offices, which will operate as part of the main global brand. So, for example, the container line ABC Co. Ltd might own the agents ABC Co. (Hong Kong), who will be part of the main ABC Co. brand. In this case, if the agent sees themselves as being part of ABC Co. Ltd, rather than as a separate entity, then they might just identify themselves as ABC Co.

8 Ltd, without seeing the need to specify themselves as ABC Co. (Hong Kong). It could also be the case that a department of the carrier company acts as the agent. In this case, the department that is acting as the agent may sign the Bill of Lading as the agent, to denote its operational role in relation to the shipment, notwithstanding the fact that there is no legal distinction between itself and the department performing the operational role of the carrier. Another explanation is that, in the limited number of cases where the carrier signs the bill of lading itself, it may opt to complete the blank space for the 'agent' rather than revise the form or leave the agent space empty.

9 In this case, the signature would be aimed at binding the carrier as the carrier. NATIONAL COMMITTEE CONCLUSION Our Group of Experts unanimously agrees that the identification of the carrier poses no doubt. Thus the response to the second question is Yes . The carrier is clearly identified in the document. It is true that the pre5printed text of that document can lead to confusion (due to the box where the carrier is identified not including the text Name of the Carrier , but that text appears in the box above that one). The Group considers that there is no doubt that Masterline Logistics, is the 27 Document 470/1126rev name of the carrier and that it is indicated in the box immediately below the text Name of the carrier where it apparently has no other function.

10 The first question poses many more doubts and keeps the Group divided. Half considers that the signing party is perfectly identified in the document. This half of the Group interprets the rules requirement that the signing party must identify in what capacity he/she signs (as carrier, agent or master) does not mean that the identification is necessarily linked to the signature. Once identified in the document there is no need to repeat it any other time it appears. ANALYSIS First issue 5 can the signing party be considered to be duly identified? The name of the carrier has already been determined within the bill of lading (see the national committee and Banking Commission responses to the second issue).