ICC Banking Commission meeting in retrospect – part 2
The meaning
of ”by”
The English
language sometimes develops in mysterious ways. I guess there were many of us
that suddenly understood the word “by” in a whole new way during the recent ICC
Meeting in Vienna.
However –
Let’s start at the beginning:
As part of
the bundle of Draft ICC Opinions to be discussed at the mentioned ICC meeting
was TA791. The question was related to the signing of a bill of lading by an
agent.
The bill of
lading was signed as follows:
Quote
“Mitsui
O.S.K.Lines, Ltd. as Carrier” [this is a pre-printed text]
By Amity
Shipping Ukraine Ltd .
As
Agents
Unquote
This was
refused citing the following discrepancy:
“THE
SIGNATURE OF AGENT ON B/L NOT INDICATING ON WHOSE BEHALF IT IS SIGNING”
Now is that
correct?
The draft
answer said that there is no discrepancy.
The
argumentation was based on UCP 600 article 20(a)(i) which states:
Quote
a. 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.
Unquote
This answer
attracted a number of comments basically saying that the UCP 600 (and for that
matter ISBP 745) is quite clear: When an agent signs it must do so “for or on
behalf of” the carrier. In this case it does not say that.
Personally
I was torn: The UCP 600 is written in such a (ridged) way that there is little
room for interpretation. On the other hand, this way of signing is not uncommon
– and outside the LC industry I would think that it is well understood that the
agent in fact signs on behalf of the carrier….
So of
course I was curious as to what would happen with the Opinion ….
And here is
what happened:
Nothing! …
happened to the conclusion – this still stands: This is an acceptable way to
sign a bill of lading.
What is
really interesting is the analysis. Here a new passage was added – namely the
following:
Quote
ISBP 745
paragraph E5 (C) states that “When an agent signs a bill of lading for [or on
behalf of] the carrier, the agent is to be named and, in addition, to indicate
that it is signing as “agent for (name), the carrier” or as “agent on behalf of
(name), the carrier” or words of similar effect.”. In this particular example,
the word “By” means “For and on behalf of the above”.
Unquote
Read
carefully the last sentence: “In this particular example, the word “By” means
“For and on behalf of the above”
Hmmm – that
is new to me for sure. This is simply a new approach to the English language!
In recent
blog posts I have elaborated about the difference between “practice” and
“rules” … and as far as I can see, this “strange twist” comes from the fact
that the signing of transport documents should not be in the UCP 600 at all …
as this should only be changed after at least 10 years. Rather it should be pat
of the ISBP …. as a floating document – making it possible to “implement”
practice changes quite fast.
For a case
like this the right approach would have been to contact people from the
transport industry to enquire if this is an acceptable way of signing a bill of
lading. If the answer is yes – then the “practice” should be updated
accordingly ….
In any case
– for now the practice is that this is an acceptable way of signing a bill of
lading --- but do not forget the “by.”
If there
are transport people reading this blog, I ask kindly your feedback as to
whether or not it is fair to conclude that the word “By” means “For and on
behalf of the above …
Thanks in
advance – have a nice weekend and take care of each other and the LC…
Best
regards
Kim