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:
“Mitsui O.S.K.Lines, Ltd. as Carrier” [this is a pre-printed text]
By Amity Shipping Ukraine Ltd .
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:
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.
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:
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”.
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…
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