When West is North - TA.796rev
I once ran orienteering, so believe me when I say that I know how hard it can be to determine North from West.
Apparently the LC world has the same challenge. This is illustrated by a – in fact – rather trivial case – or rather ICC Opinion: TA.796rev.
I previously discussed this one at the Blog Post “New Draft Opinions & North European Port & LC Radar”
Just to recap:
The basis for the ICC Opinion is an LC that calls for a bill of lading showing shipment from “Any North European Port.”
The presentation showed that the goods were shipped on board in Antwerp.
The issuing bank refused the presentation stating that Antwerp is not within the geographical area or range stated in the LC.
Defending the refusal the issuing bank referred to the Internet website www.mapsofworld.com which classifies Belgium as a Western Europe country.
In the Draft Opinion this view was endorsed – making the document discrepant.
The Draft Opinion concluded as follows:
“Belgium is in Western Europe, not Northern Europe. The document is discrepant.”
So apparently (from the Draft Opinion); whether or not Antwerp is a Northern or Western seaport is totally objective: It is Western!
It seems however that the ICC National Committees do not consider it as objective as the technical advisers of the ICC Banking Commission:
Of the ICC National Committees that commented on the Draft Opinions discussed in Dubai last month 14 agreed that Belgium is in Western Europe – whereas 16 ICC National Committees disagreed to the conclusion.
In fact this Draft Opinion attracted rather different comments from the ICC National Committees:
“Issuing bank has a duty to be more precise”
“The LC requirement is ambiguous – and such falls back on the applicant”
“ICC Should refrain from giving Opinions that are not strictly related to the rules”
“It is not up to the ICC to define the geographical area of Europe”
Based on these comments the conclusion was changed 180 degree; or rather “On 30 April 2014 West became North:”
First of all the Analysis makes reference to UCP 600 article 14(a): that a bank must examine a presentation on the basis of the documents alone.
Logically this means that a bank should not have to visit an external source in order to determine LC compliance. Therefore – the fact that www.mapsofworld.com classifies Belgium as a Western Europe country, cannot be used as an argument for the refusal.
Hmmmm. If I turn back time to somewhere in the 1970es; then I was at school, and the Internet was not there. www.mapsofworld.com was not there. Instead we did something rather unique: We learned things!
For example we had geography at school – and learned (again an example) where Belgium is …. This piece of information has been stored in my brain ever since.
So I ask: is my brain an external source? And if it is – then how can I examine any set of LC documents? All the information I have to do that task is in fact stored in my brain.
So – in general – refraining from accepting websites to support any fact (and I do mean “fact”) in an LC transaction is somewhat ambiguous and strange – because the same facts may well be – or may not be - “available” in the brain of the LC officers discussing a case like this one ….
That being said – I am indeed happy about the rest of the revised ICC Opinion:
The ICC Banking Commission makes in clear that it is not for them to define or determine geographical areas or ranges.
For this case – the LC requirement clearly is vague and clearly is ambiguous – and such do in fact fall back on the applicant. For that reason the document is not discrepant.
Although there is a somewhat logic breach in saying that “North European Port” is ambiguous (compasses and maps has been invented) – the mere fact that any issuing bank has the nerve to issue such refusal – and even to defend if – makes the answer feel good.
It is a bit sad that the Draft Opinion was so much “off track” – but that hopefully is soon forgotten – and we now have a good Final Opinion to throw at the bank that does this next.
So I thank you deeply ICC Banking Commission for taking care of the LC.
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