Is a Duplicate a Duplicate or an Original or???
For this Friday BlogPost I have decided to take a “detour”
from the paradigms.
Earlier this week I attended a meeting in ICC Denmark, where
we discussed the draft ICC Opinions to be discussed at the next meeting in the
ICC Banking Commission – to be held this April in Lisbon. There were a couple
of “good” ones, which attracted quite some discussion. One of those has been
stuck in my mind since the meeting – and I want to share my thoughts on that
one. It is number TA781, and in fact the situation is extremely simple and
straightforward:
The LC called for a truck waybill, and such was presented.
It was issued on the original letterhead of the carrier and was manually signed
by the carrier. In addition to that it was marked “Duplicate.”
Any problems so far?
The issuing bank thought so – and refused because they
deemed the truck waybill to be a copy.
Now why would they say that? The answer to that can be found
in UCP 600 article 24(b)(ii), which reads:
“A rail transport document marked "duplicate" will
be accepted as an original.”
Now you may argue that the document in question is a TRUCK
waybill – where 24(b)(ii) deals with a RAIL transport document.
However the “tricky” part is that this is an allowance for
RAIL waybills and not for TRUCK waybills. So since no such allowance is made in
the UCP 600 for truck waybills, the addition of the word “duplicate” makes it a
copy – in the mind of the issuing bank.
Now; can you really argue like way? That because one thing
is “allowed” for one document, means that is it NOT allowed for another
document. In my mind this makes no sense. No sense at all.
The presenter referred to ISBP, Publication 681, paragraph
28, which states:
“Documents issued in more than one original may be marked
"Original", "Duplicate", "Triplicate",
"First Original", "Second Original", etc. None of these
markings will disqualify a document as an original.”
But for some reason this paragraph (according to the
analysis in the draft Opinion) does not apply here because UCP 600 defines what
is to be considered as an original truck waybill. This means that the “general”
practice regarding original documents does NOT apply to the transport documents???
Hmm that one is new to me. Of course it applies – and of course paragraph 28
applies! In fact the “Commentary on UCP 600” says that (Article 24 – page 118 –
bottom):
“The basis on which they will be considered to be original
is if they comply with sub-articles 17 (b) and (c) …”
Those are the ones that are qualified e.g. by ISBP paragraph
28.
So in my view it is simple:
A truck waybill – that is issued:
1: according to UCP 600 article 24(b)(i)
(In this case it does not indicate for whom it has been
prepared, which is aceptable.)
2: on the original letterhead of the carrier
(Which is the case here)
3: manually signed by the carrier
(Which is the case here)
4: is marked “duplicate”
(Which is the case here)
IS an original!
However – there is an interesting “snag” to this (not dealt
with in the draft Opinion) – namely in UCP 600 article 24(c), which states:
“In the absence of an indication on the transport document
as to the number of originals issued, the number presented will be deemed to
constitute a full set.”
This means that if you can tell from the presented transport
document (in this case the truck waybill) how may originals has been issued,
then all of them must be presented. Now – if you have an original (that clearly
is an original – as is the case here) that is marked “Duplicate” then you can
argue that this is “original number 2.” I.e. there is also an “original number
1” which should be presented also.
This is true – but true because of the “limitations” in the
UCP 600. Actually – if you think about it, then article 24(c) makes only little
sense.
Truck waybills are usually issued in fanfold style – each
copy serving its own purpose. One truck waybill may, for example, consist of
the following carbon copies:
RED - sender’s copy
BLUE - consignee’s copy
GREEN - carrier’s copy
WHITE WITH BLACK BORDER - administration copy
In other words – when the red copy (an original that is) has
been presented, then there are other originals – but those are not required, as
it would make no sends at all.
So since the truck waybill does not expressly state in how
many originals it has been it has been issued, then the presentation on 1 (one)
marked “Duplicate” will do – and in my mind the presented truck waybill comply!
The basis for this “trouble” is the best of intentions from
the UCP 600 drafting group. They have tried their best to capture the practice
of how truck and rail waybills are being issued.
However;
1) this may not be the “full” truth, and
2) practice change over time.
This brings me back to an “old” article of mine titled “The
UCP -v- ISBP an odd couple” basically arguing that all the “practical stuff”
should not be in the UCP 600, but rather in the ISBP … Read it if you like …
So a few references for you:
The article “The UCP -v- ISBP an odd couple.” Page 106 in my
book “From Beginning to Beginning – Trade Finance Articles from 2003 to 2011”
Much more about truck and rail waybills in my book “UCP 600
Transport Documents”
All for now – have a great weekend, and take care of each
other and the LC!
PS. The magic number IS …. 745
Kim