International Commercial Law Series

First published at UniServe Law, Australian National University, Canberra


UCP 500
DOCUMENTARY CREDITS & TRANSPORT DOCUMENTS A commentary on UCP 500ICC Uniform Customs and Practice

John Levingston, February 1994, revised 08/03/94.


Table of Contents

INTRODUCTION

Comparative table

Background

Characteristics of the letter of credit

Bills of lading

Application of the ucp

Electronic data interchange (edi)

UCP 500

Article 23 - Marine/Ocean Bill of Lading

1. Name of Carrier and Signers

2. On-board requirements

3. Need for a signature or initials on the "On-board" notation

4. Intended Vessel

5. Intended Ports

6. Full set of bills of lading

7. Contract of Carriage

8. Compliance with other stipulations of the credit

9. Transhipment

Article 24 - Non-Negotiable Sea Waybill

Article 25 - Charter Party Bill of Lading

Article 26 - Multimodal Transport Document

Transhipment

Article 27 - Air Transport Document

1. Shipment date

2. Full set of originals

3. Transhipment

Article 28 - Road, Rail or Inland Waterway Transport Documents

Transhipment

Article 29 - Courier and Post Receipts

Article 30 - Transport Documents issued by Freight Forwarders

The Maheno [1977] 1 Lloyds Rep 81

Maurice Desgagnes [1977] 1 Lloyds Rep 290

General Electric-Kirby Appliance Ltd v Alltrans Freight Ltd & Union Steamship Company of New Zealand Ltd

Carrington Slipways Pty Ltde v Patrick Operations Pty Ltd [1991] 24 NSWLR 745

Comalco Aluminium Ltd v Mogal Freight Services Pty Ltd

Article 31 - "On Deck", "Shipper's Load and Count", Name of Consignor

Article 32 - Clean Transport Documents

Article 33 - Freight Payable/Prepaid Transport Documents

LETTER OF CREDIT CHECKLISTS

The Letter of Credit

1. Authenticity

2. Irrevocable

3. Payable

4. Deferred payment

5. Credit confirmed by advising bank

6. Conformity

7. Accuracy

8. Timing

9. Partial Shipments or Transhipment

BIBLIOGRAPHY

INTRODUCTION

Comparative table

UCP 500

UCP 400

 

 

23

26

24

None

25

None

26

25

27

None

28

None

29

30

30

25(D), 26©

31

28, 32, 33

32

34

33

31

Background

The Documentary Credit is an important part of the transactions in international trade:

1. Letter of Credit

2. Sale Agreement

3. Transport Documents

  • air waybill (air)
  • bill of lading (sea)
  • waybill (sea)
  • consignment note (rail/road)

4. Marine insurance policy

 

This paper is concerned only with documentary credits in the context of international transport.

The Uniform Customs and Practice for Documentary Credits (UCP 500) has been adopted by banking associations and individual banks in over 175 countries and came into effect by replacing UCP 400 on 1 January 1994.

UCP 500 represents changes over the past 10 years in the law and practice relating to documentary credit usage. These changes address developments in the transport industry and technological applications.

One of the developments in UCP 500 is to provide a detailed list of the elements of acceptability for each category of transport document.

Characteristics of the letter of credit

Letters of credit (documentary credits) are the most frequent method of payment for goods in the export trade. They have been described by Kerr LJ in RD Hardbottle (Mercantile) Ltd v National Westminster Bank Ltd [1978] QB 146,155 as "the life blood of international commerce."

Similar sentiments were expressed by Donaldson LJ and Ackner LJ in Intraco Ltd v Notis Shipping Corporation of Liberia. The Bhoja Trader [1981] 2 Ll R 256,257:

Irrevocable letters of credit and bank guarantees given in circumstances such that they are equivalent to an irrevocable letter of credit have been said to be the life blood of commerce. Thrombosis will occur if, unless fraud is involved, the courts intervene and thereby disturb the mercantile practice of treating rights thereunder as being equivalent to cash in hand.

 

The feature common to all types of letters of credit is that as a result of the underlying agreement between the seller and the buyer for the sale of goods, the buyer arranges for payment by a bank to the seller on presentation of specified documents. The letter of credit will usually require production of the transport documents as proof that the goods have been shipped, and the performance of other specified conditions.

On presentation of the documents the bank pays the purchase price under the terms of the credit, by sight payment, deferred payment, or by acceptance or negotiation of a bill of exchange drawn by the seller.

The essence of the letter of credit transaction is its documentary character independent of the physical goods. The goods are represented by the bill of lading which is a document of title and may often be used to finance the transaction. This was described by Lord Wright in TD Bailey, Son & Co v Ross T Smyth & Co Ltd (1940) 56 LTR 825,828:

The general course of international commerce involves the practice of raising money on the documents so as to bridge the period between the shipment and the time of obtaining payment against documents.

 

The documentary character of this type of bankers' credit which is used in international trade cannot be over-emphasised. The paying bank will pay the exporter because it holds the documents as collateral security and, if necessary, can take recourse to the issuing bank which, in turn can take recourse to the buyer as instructing customer.

The documentary credit is autonomous and constitutes a contract between the banker and the beneficiary which is independent of the other contractual relationships between buyer and seller. The issuing bank can not refuse to perform its obligations under an irrevocable credit on the grounds that the seller has shipped defective goods, and any dispute between the buyer and seller has to be resolved independently of the letter of credit transaction, Hamzeh Malas v British Imex Industries [1958] 2 QB 127.

There are two limited exceptions to this rule:

1. Where the bank knows that the documents tendered are forged or fraudulent, The American Accord [1982] 2 WLR 1039. The fraud must be proved conclusively and not merely alleged, Discount Records v Barclays Bank [1975] 1 Ll R 444, Tukan Timber v Barclays Bank [1987] 1 Ll R 171.

 

2. Where the underlying transaction is illegal, The American Accord [1982] 2 WLR 1039.

 

Where the transport documents consist of bills of lading, the bank invariably asks for the delivery of a full set of original bills. If it did not, a fraudulent shipper would be able to obtain payment under the letter of credit on one of them, and advances from another bank on the security of the other originals constituting the set.

 

Bills of lading

There is a close relationship between bills of lading and letters of credit.

When transport documents are tendered under a documentary credit the bank will scrutinise them to ensure they comply with the terms of the letter of credit. The bank owes a duty to its customer to refuse documents which do not strictly conform, and the beneficiary of the credit must comply with the terms of his contract with the issuing banker.

The bill of lading must satisfy a number of requirements:

1. It must be negotiable

2. It must be clean

Tokio Marine v Retla [1970] 2 Ll R 91

Canadian Sugar Co v Canadian SS Ltd [1947] AC 46

The Galatia [1979] 2 Ll R 450 (where condition was unknown)

3. Shipped

Westpac Banking Corp v South Carolina National Bank [1986] 1 Ll R 311

("Received for shipment" bill with 'shipped' notation)

The possession of an original bill of lading allows the holder to claim the goods from the carrier. The bill of lading transfers the right to claim the goods from the carrier, and the transfer of the bill of lading from one buyer to the next buyer and so on makes it a quasi negotiable document, Sale of Goods Act 1923 (NSW), s 50 a.

The right of the holder of the bill of lading to claim the goods from the carrier is a possessory and not a proprietary right. The contract of sale determines the transfer of the proprietary right, and where the contract is silent, the rules for ascertaining the intention for the transfer of proprietary rights are set out in the Sale of Goods Act 1923 (NSW), Section 23.

However, in some circumstances, a document may be used which resembles a bill of lading, but in fact is not, and is nothing more than a non-negotiable receipt, such as a sea waybill.

 

Application of the ucp

In principle, the UCP provisions apply only if the parties have embodied them into their contract. Article 1 of the UCP makes this clear.

In Australian law the UCP do not have the force of law or the status of a trade custom.

UCP provisions are normally incorporated into the contract by the bank, when contracting with its client, an overseas merchant or other banks. Consequently, the courts are familiar with the provisions of the UCP and have frequently interpreted them.

 

Electronic data interchange (edi)

EDI is outside the scope of this paper but is an increasingly important issue in international trade and has been dealt with by the ICC Uniform Rules of Conduct for Interchange of Data by Teletransmission (UNCID), ICC Publication No 452.

UNCID lays down minimum standards of professional care and behaviour for commercial parties engaged in trade transactions involving EDI by teletransmission. Like all other ICC codes, rules and guidelines, UNCID is a voluntary set of standards which provides the foundation on which commercial parties can establish a trade agreement or contract drawn up via computer transmissions with legally binding effect.

While there are many issues which are required to be addressed before EDI messages can be any real alternative to traditional documentation, there is now a strong trend towards 'paperless' systems for the settlement of international trade. It is in the interests of Australian exporters to become conversant with the EDI concept and its development.

 

UCP 500

Article 23 - Marine/Ocean Bill of Lading

This article deals with a Marine or Ocean bill of lading which is also referred to as the carrier's bill of lading, to be distinguished from a "House" or freight forwarders bill of lading which is issued by a third party who does not operate the carrying vessel.

There are a number of changes from UCP 400, which are summarised below:

1. Name of Carrier and Signers

Article 23(a)(i) requires the Marine Bill to indicate the name of the carrier and the parties that are acceptable as signers. It also addresses the manner in which an agent or person authenticating a Marine bill of lading must note his authority to act as an agent for the principal.

2. On-board requirements

Article 23(a)(ii) sets out in detail the "on-board" requirements of the letter of credit.

 

This issue arises from the growing use of combined transport or through bills of lading which are issued prior to the goods being actually shipped on-board the carrying vessel. Previously, bills of lading were issued as the goods were shipped on-board and this problem did not exist. No problem arises if the date of issuance of the bill of lading is deemed to be the date of loading on-board and the date of shipment, otherwise loading on-board a named vessel must be evidenced by a subsequent notation on the bill of lading giving the date on which the goods have actually been loaded on-board the carrying vessel.

3. Need for a signature or initials on the "On-board" notation

The requirement of a signature or initials on the on-board notation has not been implemented by UCP 500. Applicants may require that signatures or initials appear on the on-board notation, but banks have no duty to check for the validity or genuineness of such signatures or initials unless this is a specific requirement of the letter of credit.

4. Intended Vessel

Article 23(a)(ii) also requires proper execution of the on-board notation when the bill of lading presented indicates an "intended vessel". The wording requires the on-board notation to show explicitly that the on-board notation reflects the condition of carriage on-board the actual ocean vessel of a port to port carrier. This removes the burden on banks to decide whether the on-board notation relates to placing the goods on-board the "intended vessel" or the actual vessel.

This may pose a problem as the carrier may reserve the right to substitute the vessel at its discretion as a term of the bill of lading.

5. Intended Ports

The bill of lading must also show the port of loading and the port of discharge consistent with the letter of credit, and it is no longer sufficient for the carriers to refer to "intended" ports.

A notation on the bill of lading showing "intended port of loading" or "intended port of discharge" does not satisfy the stipulated condition of a port to port shipment and requires a definite declaration of carriage from the actual port of loading to the port of discharge.

This poses a problem as carriers may sometimes reserve the right in the bill of lading terms to carry from a different port. For example, goods are often carried overland from Adelaide to Melbourne.

6. Full set of bills of lading

Article 23(a)(iv) identifies a full set of bills of lading. This now accommodates the practice of using a sole original or a full set of originals where these are issued by the transport company.

7. Contract of Carriage

Article 23(a)(v) covers the possibility that a bill of lading might be presented which includes either all or only some of the terms and conditions of the contract of carriage. This arises because the bill of lading is regarded as only "evidencing" the contract of carriage, whilst some other terms and conditions may be contained elsewhere, such as in the carriers published tariff.

APSA and NSWSA believe this practice is unacceptable as all relevant terms should appear in the bill of lading itself. However Australian carriers have agreed to ensure their tariffs are available on demand. If a reader requests the tariff and it is not available they should advise APSA or NSWSA.

It is now clear that presentation of the bill of lading disentitles a bank to reject the bills of lading simply because they refer to some other source or document. In addition, a bank is not entitled to examine the contents of the terms and conditions of the bill of lading.

8. Compliance with other stipulations of the credit

Article 23(a)(vii) confirms that the transport documents must meet all other stipulations of the letter of credit.

9. Transhipment

Article 23(b) deals with transhipment which is defined as:

Unloading and reloading from one vessel to another vessel during the course of ocean carriage from the port of loading to the port of discharge stipulated in the credit.

Article 23 (c) provides that a bill of lading which allows transhipment will be acceptable unless transhipment is specifically prohibited by the letter of credit stipulations, and provided that the entire ocean carriage is covered by the one bill of lading.

Article 23(d) provides that even where the credit prohibits transhipment, a bill of lading will be accepted if the bill of lading incorporates clauses stating that the carrier reserves the right to tranship, or if it indicates that transhipment will take place so long as the cargo is shipped in containers, trailers or barges, again provided that the entire carriage is covered by the one bill of lading.

This reflects a practice in the transport industry arising from the use of a fleet of vessels from small ports to main ports.

It also reflects the right to tranship reserved to the carrier by the terms in the bill of lading. This is, of course, a matter over which the shipper has no control. However, it may be an important issue in respect of some cargo which may be particularly vulnerable to loss or damage if transhipped through some ports. In some cases the goods may even be subject to seizure, for example, transhipment through a port contrary to a UN resolution imposing a trade embargo.

 

Article 24 - Non-Negotiable Sea Waybill

The non-negotiable sea waybill has been introduced by the transport industry to avoid delay in handling the goods once they arrive at the port of discharge.

The sea waybill is not a traditional negotiable bill of lading or a document of title, as consignment and delivery of the goods is made to a nominated consignee upon proof of identity and not upon delivery of the original sea waybill.

A sea waybill is a mere receipt for the goods which provides evidence of the contract of carriage under which the goods are carried, but it is not negotiable and can not transfer title in the goods.

The greatest difference between a sea waybill and a bill of lading is that the sea waybill does not transfer rights of the shipper to the consignee, (refer to s.50A, Sale of Goods Act (NSW) and the Hague and the Hague-Visby Conventions do not automatically apply, thereby depriving the cargo owner of the rights and obligations which exist to protect cargo interests.

However, in the context of documentary credits, a bank may dictate the ways in which a sea waybill is used without losing the security and control which it otherwise has when a bill of ladingis used.

A method which has been adopted by banks in relation to air waybills is to have the document addressed to the bank. This procedure is also available in respect of sea waybills and, in addition, the shipper can assign its right of control to the consignee so that the consignee becomes the only party who can give delivery instructions to the carrier.

The shipper can include a "control clause" on the waybill which defines the moment when control of the goods voluntarily passes from the shipper to the consignee:

Upon acceptance of this Sea Waybill by a bank against a letter of credit transaction (which acceptance the bank confirms to the carrier) the shipper renounces any right to vary the identity of the consignee of these goods during transit.

 

Carriers are encouraging shippers to use sea waybills instead of bills of lading for a number of reasons, including the adoption of EDI facilities, and the current incompatibility between bills of lading and EDI.

Shippers and consignees should be aware of the distinct legal disadvantages they will suffer by allowing use of a sea waybill unless the carrier includes a term on the sea waybill making the carriage subject to the relevant international convention, as though the sea waybill was a bill of lading.

 

Article 25 - Charter Party Bill of Lading

This is a new article which did not previously appear in UCP 400, and contains a definition of a charterparty bill of lading.

Under a charterparty contract the applicant and the beneficiary arrange for the contract or hiring of the vessel to have the cargo delivered as required.

In those circumstances, both the applicant and the beneficiary will be aware of the terms of the contract of carriage, and it is therefore logical for them to explicitly state in the instructions to issue the credit that shipment must be made under the charterparty contract and that the credit allows for the presentation of a charterparty bill of lading.

In these circumstances, it is a burden on a bank to require it to scrutinise the charterparty contract terms.

Article 25(b) provides that if the charterparty contract is presented, the bank is not required to examine the contract, and is entitled to forward the contract without any responsibility on its part.

In addition, article 25(a)(iii) provides that unless the credit otherwise stipulates, the bank will accept the charterparty bill of lading regardless of whether it carries the name of the carrier.

Article 25 incorporates other terms and conditions in Article 23.

 

Article 26 - Multimodal Transport Document

There are two multimodal transport documents currently in use in the Australian export trade which have been negotiated between carriers and APSA under section 10.41 of the Trade Practices Act:

  • the AESC Combined Transport bill of ladingto European Ports
  •  
  • Columbus Line Through Transport bill of lading to North American Ports

Article 26 confirms that banks will accept a multimodal transport document (subject to the credit stipulations) covering the through movement of the goods and the transfer of those goods from one mode of transport to another.

The purpose of Article 26 is to help the parties to the credit differentiate between documents that cover a traditional ocean transport such as the marine or ocean bill of lading in a port to port shipment, and one that allows for the contract of carriage from a named place of receipt to a named place of delivery by more than one mode of transport.

In Article 26 the reference to "multimodal transport document" was chosen in preference to "combined transport" or "through transport" document for the sake of consistency with the terminology adopted by UNCTAD.

 

Transhipment

The multimodal transport document implies transhipment, and consistent with the multimodal context, Article 26(b) provides that when the credit calls for a multimodal transport document covering at least two different modes of transport, a bank will disregard conditions in the credit prohibiting transhipment provided that the entire carriage is covered by the one document. Banks are required to accept a multimodal transport document which contains a clause providing that transhipment may take place.

Again, for consistency the other terms and conditions follow the provisions in Article 23.

 

Article 27 - Air Transport Document

An air waybill has the same function in air carriage as a sea waybill for sea carriage. Neither document is a document of title.

Article 27 lists the air transport document requirements and the conditions for acceptance of an air transport document under UCP 500.

1. Shipment date

Article 27(a)(iii) deals with the issues of "on-board" or "shipment" in the context of air carriage. Unless otherwise stated in the credit, the date that the air transport document is issued is deemed to be the date of shipment. Where the credit calls for an actual date of dispatch, then a specific notation of the date is required, which is then deemed to be the date of shipment.

Article 27(a)(iii) clarifies the "boxes" which appear on the air transport document and are usually labelled "for carrier's use" setting out the flight number and/or flight date. The information contained in those boxes is for the carrier's internal control and is not part of the contractual information in the air waybill, nor does it satisfy the requirement in relation to a specific notation of a date of dispatch.

2. Full set of originals

Article 27(a)(v) provides that the only original acceptable for presentation under a letter of credit is the original issued for the consignor/shipper.

Air waybills are issued in a straight consigned manner and not to order (i.e they are non-negotiable) and upon arrival at the airport of destination the goods are released to the consignee upon proof of identity and not by surrender of the original air waybill.

3. Transhipment

Transhipment is dealt with similarly to Article 23, and is allowed. Where the cargo owner wishes to prohibit any type of transhipment under air carriage, such owner may override the provisions of Article 27© by explicitly excluding it as a stipulation in the credit.

There may be good reasons for prohibiting transhipment where it may increase the risk of loss or damage:

  • The transhipment airport may lack certain facilities such as a refrigerated warehouse where the goods are likely to suffer deterioration, e.g blood reagents;
  • Goods may suffer rain damage if left on the tarmac during the monsoon season, e.g computer equipment; pharmaceuticals;
  • The death of livestock due to heat exposure, e.g day old chicks left on the tarmac in high temperatures at a tropical airport.

 

Article 28 - Road, Rail or Inland Waterway Transport Documents

This deals with the particular form of transportation of the goods and the individual conditions associated with the issue of the transport document.

The basic features of this article are the identification of the carrier and consignor and the understanding that a full set of these types of transport documents are not used in the trade and are not issued by the carrier. The presentation of a sole original therefore fulfils the requirement of a full set of transport documents unless the document itself shows that more than one original has been issued.

These documents are not likely to be used in Australia, but are in common use in Europe. The CIM Railway Consignment Notes and CMR Truck Consignment Notes apply European Conventions for the carriage of goods by rail and road respectively across Europe.

An issue arises because those consignment notes do not indicate "...that the goods have been received for shipment, dispatch or carriage..." or wording to this effect within article 28(a)(ii), and therefore there is no compliance with the article by tender of one of those consignment notes.

However, all the rights and obligations of the parties are fully set out in the CIM and CMR conventions and a document issued under either of those conventions will be acceptable to a bank. If there is still a concern on this issue the applicant and issuing bank may indicate in their credit that the relevant document does not have to indicate that the goods have been received for shipment, dispatch or carriage.

Transhipment

Transhipment often arises under these modes of transport due to consolidation at central warehouses, and transhipment is dealt with in the same manner as Article 27 covering air transport.

 

Article 29 - Courier and Post Receipts

This article provides that courier documents and post receipts are transport documents.

Unless otherwise stipulated in the credit, a courier or expedited delivery service receipt issued by any courier or service will be acceptable. If the applicant wishes to have goods delivered by a named courier or service, then this must be stated in the credit.

The date of shipment or dispatch is defined as the date of pickup or date of receipt by the courier or service.

 

Article 30 - Transport Documents issued by Freight Forwarders

A freight forwarders transport document is now acceptable provided:

 

1. Authorised in the credit; and

 

2. Issued and signed by the freight forwarder according to the conditions of the UCP 500 transport articles.

 

Article 30 allows a bank to accept transport documents issued by an individual freight forwarding company or by any company which is a member of a freight forwarder's association such as FIATA, NVO or similar entities or associations, provided that the document indicates that the freight forwarder is acting as a carrier or a multimodal transport operator and that it is signed or otherwise authenticated by the freight forwarder as a carrier or multimodal transport operator.

Where the freight forwarder is acting as a named agent for the carrier or the multimodal transport operator, the document should indicate the name of the carrier or the multimodal transport operator and be signed or otherwise authenticated by the freight forwarder. The document must also comply with all the conditions of UCP 500.

The role of the freight forwarder and its relationship with the Hague Rules and the Hague-Visby Rules is a matter which has been a subject of considerable legal argument in recent years in a number of cases:

The Maheno [1977] 1 Lloyds Rep 81

This case was concerned with the issue of whether the contract entered into by a freight forwarder was to effect carriage or was merely to arrange carriage.

 

Maurice Desgagnes [1977] 1 Lloyds Rep 290

This case considered whether a transport document was a bill of lading within that meaning in the Carriage of Goods by Water Act 1970 (Can).

 

General Electric-Kirby Appliance Ltd v Alltrans Freight Ltd & Union Steamship Company of New Zealand Ltd

(Unreported: Supreme Court of Vi ctoria, Gray J, 24 October 1979)

In this case the issue was whether the freight forwarder acted as principal in relation to the carriage of goods, or merely as the seller's agent for arranging the carriage.

 

Carrington Slipways Pty Ltde v Patrick Operations Pty Ltd [1991] 24 NSWLR 745

Here, the question was whether a transport document issued by a freight forwarder was a bill of lading with that meaning in the Sea-Carriage of Goods Act 1924 (Cth) and held it was not. Note that this Act has been repealed and the current legislation is in the Carriage of Goods by Sea Act 1991 (Cth) (Cogsa)

 

Comalco Aluminium Ltd v Mogal Freight Services Pty Ltd

(Unreported: Federal Court of Australia Sheppard J, 18 March 1993 and affirmed by the Full Federal Court, 1 October 1993).

Here, a transport document which did not describe itself as a bill of lading was in fact a bill of lading within that meaning in the Sea Carriage of Goods Act 1924 (Cth).

 

Article 31 - "On Deck", "Shipper's Load and Count", Name of Consignor

This article combines UCP 400 Articles 28, 32 and 33 and consolidates them to facilitate the understanding by the parties to a documentary credit of a bank's authority to determine compliance or rejection of clauses or indications.

The article addresses the "on deck" situation during carriage by sea. An "on-board" document will indicate if the documents "are" loaded "on deck". Where there is a "taken in charge" or "receipt for shipment" transport document, it is likely to indicate that the goods will be loaded on deck if it is so intended.

Article 33(iii) confirms that unless otherwise stated in the credit, a document indicating a "third party" as the shipper is acceptable.

 

Article 32 - Clean Transport Documents

Where a transport document is presented bearing clauses or notations which expressly declare a defective condition of the goods or packaging, a bank will not accept that transport document unless otherwise authorised in the credit.

A bank is only charged with the knowledge of the banking industry practice and therefore a bank should not be placed in the position of interpreting market practice in other industries. If there is an industry practice which allows marginal clausing to be noted and which may mislead another party about acceptability, the applicant should declare that marginal clause as being acceptable by clearly stating that in the application for the credit.

Article 32 also clarifies use of the words "clean on-board" and provides that a transport document is regarded as being "clean on-board" if it complies with article 32, and articles 23-28, or 30.

Obviously, the goods are shipped "clean on-board" if the bill of lading does not carry a notation indicating a defect, i.e, it is not "claused".

 

Article 33 - Freight Payable/Prepaid Transport Documents

Banks will accept transport documents requiring that some transport charges remain to be paid. It appears that other additional transport charges other than freight charges may be incurred, such as for cleaning of containers and returning of containers. There is no reason why these charges should be regarded as a defect under the documentary credit.

In relation to courier charges, article 33(b) provides that if the credit is issued requiring courier charges to be paid or pre-paid or a similar designation, the courier document does not need to carry the traditional "freight pre-paid" notation. A bank will also accept an indication that the courier charges are for the account of a party other than the consignee as evidence that freight charges have been pre-paid.

 

LETTER OF CREDIT CHECKLISTS

The following checklists are concerned with the transport issues and do not deal with insurance, or commercial invoices.

The letter of credit is prone to discrepancies, and the following matters should be considered:

 

The Letter of Credit

1. Authenticity

If you are the seller, are you satisfied about the authenticity of the credit. If the buyer is not known to you or the credit has not been advised through the intermediary of an Australian bank, you should have the signatures confirmed before shipping the goods. The advising bank is required to take reasonable care to check the apparent authenticity of the credit.

2. Irrevocable

The danger of a revocable credit is obvious, as it provides no security for the seller.

3. Payable

If the letter of credit is not payable and is only available for negotiation the advising bank may only be prepared to handle the documents on a collection basis which may incur considerable delay.

4. Deferred payment

The possibility of more delay in payment as tis is a sale on credit and introduces the risk of non-payment by a foreign buyer.

5. Credit confirmed by advising bank

If your credit specified this requirement, has it been complied with?

6. Conformity

Care must be taken by the seller to ensure that the terms of the letter of credit do not conflict with the underlying contract of sale, and if they do, contact the opener of the credit to have it amended.

For example:

method of transport

means of settlement

date and place of dispatch or loading

date (caution) and place of delivery

charter party bills of lading where charter involved

"Shipped on Deck" specifically allowed (where containerised cargo)

description, quantity and price same as contract for sale

insurance available

all specified documents can be obtained within time

relevant certificates provided and contain information confirming goods within specifications, etc.

7. Accuracy

All names and addresses must be complete and correct.

Quantity or amount fixed or is a tolerance allowed by the use of the word "about" or "circa" (+/-10%).

Credit value fixed with stipulation of quantity by stated number of packing units or individual items.

8. Timing

Adequate time limits for shipping and presentation of documents.

9. Partial Shipments or Transhipment

Are these specifically prohibited? Transhipment is a particular problem for the seller as there is no control (and may be no recourse) against the carrier who carries out an unauthorised transhipment.

 

BIBLIOGRAPHY

Australian Institute of Export, Export Handbook (1991 14th Edition) Chapter 5

A E Branch, Import/Export Documentation Chapman and Hall, Chapter 5

P & O Containers The Merchants Guide European Edition, (1991 5th Edition)

ICC, "Documentary Credits: UCP 500 and UCP 400 compared - An Article by Article Analysis"

ICC UCP 400

ICC UCP 500

P McQueen ICC Uniform Customs and Practice for Documentary Credits (1993 Revision)
UCP 500.
Transport Documents. Ebsworth & Ebsworth (November 1993).

P Sacks and J Malbon, Longman Professional (1992) Australian Export Manual, Chapter 3

 

C Schmithoff The Export Trade, Stevens & Sons (9th Edition), Chapter 22