zanzijas 2008-3-24 18:44
UCP600及案例研讨培训班讲义-ICC OPINION
1、不符点交单给保兑行时，什么时候保兑行确定承诺不存在？单据交开证行放弃不符点时，保兑行是否还必须支付？
When documents are presented with discrepancies to the confirming bank, when does the definitive undertaking of confirming bank cease to exist?; when documents are sent to issuing bank on an approval basis and the discrepancies are waived, does the confirming bank have to pay with its resources (or accept drafts or incur a deferred payment undertaking)?
Official Opinion TA543rev2 - Unpublished
From UCP500- Sub-Article 9(b)
QUERY
We understand that a confirmed L/C means that the confirming bank assumes a definitive undertaking in addition to that of the issuing bank, provided that the stipulated documents are presented to the confirming bank and that the terms and conditions of the documentary credit are complied with, either to pay at sight, or to accept drafts and to pay them at their maturity, or to pay on a determinable date if there is a deferred payment.Our concerns are the following: (i) if documents are presented with discrepancies to the confirming bank, and this bank notifies the beneficiary/presenter of the discrepancies, does the definitive undertaking of confirming bank cease to exist?; (ii) if these documents are sent to issuing bank on an approval basis and the discrepancies are waived, does the confirming bank have to pay with its resources (or accept drafts or incur a deferred payment undertaking), or does it have to wait until it receives the funds from the issuing bank and then pay the beneficiary?
ANALYSIS/CONCLUSION
Analysis
Sub-Article 9(b) reads: "A confirmation of an irrevocable Credit by another bank (the 'Confirming Bank') upon the authorization or request of the Issuing Bank, constitutes a definite undertaking of the Confirming Bank, in addition to that of the Issuing Bank, provided that the stipulated documents are presented to the Confirming Bank or to any other Nominated Bank and that the terms and conditions of the Credit are complied with:i. if the Credit provides for sight payment - to pay at sight; ii. if the Credit provides for deferred payment - to pay on the maturity date(s) determinable in accordance with the stipulations in the Credit; iii. if the Credit provides for acceptance: a) by the Confirming Bank - to accept and pay at maturity Draft(s) drawn by the Beneficiary on the Confirming Bank and pay them at maturity, orb) by another drawee bank - to accept and pay at maturity Draft(s) drawn by the Beneficiary on the Confirming Bank, in the event the drawee bank stipulated in the Credit does not accept Draft(s) drawn on it, or to pay Draft(s) accepted but not paid by such drawee bank at maturity; iv. if the Credit provides for negotiation - to negotiate without recourse to drawers and/or bona fide holders, Draft(s) drawn by the Beneficiary and/or document(s) presented under the Credit. A Credit should not be issued available by Draft(s) on the Applicant. If the Credit nevertheless calls for Draft(s) on the Applicant, banks will consider such Draft(s) as an additional document(s)."
Conclusion
A confirmation of a letter of credit is, as you say, an undertaking from a bank in addition to the undertaking provided by the issuing bank. The UCP, in sub-Article 9(b), states that the undertaking (confirmation) is subject to complying documents being presented under the credit. Where documents are presented to the confirming bank, within the validity of their undertaking, and found to be discrepant, and the confirming bank provides a notice of refusal in accordance with the UCP, its undertaking would no longer exist in respect of that presentation (subject to the beneficiary being unable to correct the discrepancy(ies) within the credit timelines).If the documents, on instructions of the beneficiary, are subsequently sent to the issuing bank on an approval basis and the discrepancies are waived, the confirming bank has no obligation to make payment unless it has indicated its willingness to do so at the time of providing its notice of refusal. The presentation of discrepant documents to the confirming bank would end its obligation under the credit unless it has stated otherwise, and the fact that the issuing bank accepts a waiver of discrepancies would not further obligate the confirming bank. The Opinion stated in the preceding paragraph supersedes that given in R.14 of ICC publication No. 371.
2、支付部分款项是否意味着保兑行接受单据，并对最后部分的付款承担义务？一旦同票单据两期款项已支付，保兑行是否有权撤回其义务？
Does effecting (two) partial payments imply that the confirming bank accepted the documents and as a consequence remains liable for the last partial payment?; does the confirming bank have the right to withdraw its liability as confirming bank, once two partial payments have already been effected under the same documentary remittance?
Official Opinion TA530 - Unpublished
From UCP500- Article 14, sub-Articles 9(b), 14(c), 14(d)(ii) and 14(e)
QUERY
We thank you for giving your opinion on the following cases, whereby there is some discussion about the way documents can be considered as accepted when presented with discrepancies. Since two different issues arise in the same file, we present two different cases in order to avoid any confusion.
First, let us give the general description of the concerned file: On 26.10.2000 issuing bank (IB) advised a credit through the first advising bank, which confirmed the credit (CB) and advised through a second advising bank (nominated bank (NB)).The credit is available at the counters of NB by deferred payment in three parts:· 10% of invoice value against presentation of documents· 40% of invoice value after 180 days from issue date of the credit, i.e. 24.04.2001· 50% of invoice value after 360 days from issue date of the credit, i.e. 22.10.2001.The credit further stipulates under "Instructions to paying bank", "Upon receipt of documents fully complying with letter of credit terms we will reimburse you with 10 percent of invoice value as per your instructions in the covering schedule accompanying the documents. Subject to presentation of documents fully complying with credit terms and payment of the first part payment of 10 percent we CB, hereby undertake to effect payment of (40 and 50 percent as stated above)."The expiry date was 26.10.2001 and latest shipment date 28.02.01.Nine presentations of documents were made under the credit, amounting to the value of the credit. All presentations contained discrepant documents and were, as instructed by the beneficiary, sent by NB to CB for payment. CB provided notices of refusal in accordance with Article 14 of UCP.Since the first presentation was handled differently to the other eight, we submit hereafter two different queries:
Query 1- On 11.12.2000 a first set of documents was sent to CB for payment.- On 21.12.2000 documents were refused by CB in accordance with Article 14.Upon authority of the beneficiary and request of CB, the latter was authorized to contact IB. NB subsequently sent some reminders to CB, which responded to the effect of "having contacted IB and shall revert".- On 15.01.2001 CB sent a SWIFT payment advice to NB for 10% of the value of the documents less confirmation fee due for the first quarter. Advice stated "proceeds remitted as per your instructions". There was no mention made about the fate of the documents.- On 20.04.2001 a second SWIFT payment advice for 40% of the value of the documents was sent by CB to NB in the same format as the foregoing, less confirmation fee for the second quarter. There were still no remarks on the fate of the documents.- On 26.10.2001 NB informed CB that the balance of 50% remained unpaid on due date 22.10.2001. CB responded immediately, stating they have informed the issuing bank and will effect payment upon availability of funds. Afterwards an exchange of SWIFT messages followed with the following contents: NB argued that CB remains liable as confirming bank according to sub-Article 9(b) since payment for 10 and 40% was made without any remark, which implies that the documents have been accepted. By application of sub-Article 14(c), effecting payment would indeed imply that waiver of applicant was accepted. NB also stated that CB was in contradiction with sub-Articles 14(d)(ii) and 14(e) by making the first two payments without mentioning that documents were still unpaid and that documents were still at their disposal. CB responded that sub-Article 9(b) applies in so far those terms and conditions of the credit have been complied with. Furthermore the first two payments were only effected under authority of and receipt of proceeds from IB. Question: Does the fact of effecting (two) partial payments imply that CB accepted the documents and as a consequence remains liable for the last partial payment?
QUERY 2· The remaining eight presentations were sent to CB between 02.01.2001 and 20.03.2001. They were all rejected in accordance with Article 14.- On 17.04.2001, when responding to one of the several reminders of NB, CB informed that discrepancies were not yet accepted and that documents were held at disposal, also stating "We shall release documents against acceptance of discrepancies provided you do not advise us to the contrary prior to our release of documents."- On 03 and 04.07.2001 CB sent eight payment advices to NB, which received them on 04.07.2001, for 50% of the value of the documents, representing the first (10%) and second (40%) part of the payment. Payments were advised under value 05.07.2001.- On 05.07.2001, CB sent eight new SWIFT messages referring to the eight advices of payment stating "Kindly be informed that documents are still held at our counters and will only be released against full payment. In the circumstances remaining 50 percent payment will be effected upon availability of funds". NB only received these messages on 06.07.2001, thus after foreseen payment date.- On due date (22.10.2001) for the last payment of the remaining 50%, no payment was effected by CB. Here again, an exchange of SWIFT messages followed between CB and NB. NB stated that CB remained liable as confirming bank as per sub-Article 9(b) arguing that the message informing the withholding of the documents was sent after effecting payment for the two first partial payments. As per application of sub-Article 14(c) effecting payment would imply that applicant's waiver has been accepted. CB responded that sub-Article 9(b) did not apply as the documents did not comply with the terms and conditions of the credit. Payment of 10% and 40% was only made subject to availability of funds. Question: Is NB right to state that effecting payment can be considered as an acceptance of the discrepant documents? Has the CB the right to withdraw its liability as confirming bank, once two partial payments have already been effected under the same documentary remittance?
ANALYSIS/CONCLUSION
In both queries the confirming bank has rejected documents and these seem to have been accepted by the nominated bank. The issues raised in the two queries are similar and the response below would apply to both scenarios. Having rejected the documents and sought approval from the issuing bank, the confirming bank, in its advice of refusal to the nominated bank, should have conveyed its position regarding settlement should the issuing bank agree to take up the documents. Effecting the first of the two-stage payments without comment that such payments were subject to their receipt of funds indicates the confirming bank's agreement to honour on the stipulated due date(s). In the absence of any prior notification, a nominated bank, having received payment advices for the first two payments, would be entitled to believe that the confirming bank is willing to continue with its confirmation despite the fact that discrepant documents were presented. Where a credit has not expired, it is incumbent upon a confirming bank to advise a presenter when it is not willing to honour documents that have been accepted by an issuing bank. Having settled the first of the two-stage payments, without comment as to the status of the credit, the confirming bank cannot arbitrarily withdraw its confirmation. The confirming bank should honour the final drawing.It is interesting to note that the confirming bank later advised that it was still holding documents, despite having received funds from the issuing bank and effecting settlement for the first of the two-stage payments. This would indicate an agreement with the issuing bank regarding the retention of documents until funds for the final drawing were received. This agreement would, again, seem not to have been made public at the time the first of the two-stage payments was made.
3、运输代理人签发提单
Questions concerning bills of lading signed by forwarders
Official Opinion TA572 - Unpublished
From UCP500- Sub-Article 23(a), 23(a)(i) and 26(a)(i); Articles 26 and 30
QUERY
This letter is to seek the opinion of the Banking Commission on two questions relating to bills of lading relating to freight forwarders. It is confirmed that both are based on actual cases experienced by banks in Country U on whose behalf the questions are submitted. UCP 500 sub-Article 23(a) stipulates: "a If a Credit calls for a bill of lading covering a port-to-port shipment, banks will, unless otherwise stipulated in the Credit, accept a document, however named, which: i. appears on its face to indicate the name of the carrier and to have been signed or otherwise authenticated by: - the carrier or a named agent for or on behalf of the carrier, or - the master or a named agent for and on behalf of the master. Any signature or authentication of the carrier or master must be identified as carrier or master, as the case may be. An agent signing or authenticating for the carrier or master must also indicate the name and capacity of the party, i.e. the carrier or master, on whose behalf the agent is acting." UCP 500 Article 26 makes equivalent stipulations for multimodal transport documents. UCP 500 Article 30 states: "Unless otherwise authorised in the Credit, banks will only accept a transport document issued by a freight forwarder if it appears on its face to indicate: i. the name of the freight forwarder as a carrier or multimodal transport operator and to have been signed or otherwise authenticated by the freight forwarder as carrier or multimodal transport operator, or ii. the name of the carrier or multimodal transport operator and to have been signed or otherwise authenticated by the freight forwarder as a named agent for and on behalf of the carrier or multimodal transport operator. "
Issue no.1 A documentary credit called for clean on board bills of lading and stipulated separately, "Transport document issued by Freight Forwarder not acceptable". The transport document subsequently presented was titled "FBL BIFA Negotiable FIATA Multimodal Transport Bill of Lading" and signed by the issuer, "as carrier". The transport document was refused for the reason that the express condition of the credit "Transport Document issued by freight forwarder not acceptable" overrode UCP Article 30 (which itself envisages overriding provisions in a credit by commencing "Unless otherwise authorised in the Credit"). Therefore the issuing of the transport document apparently by a freight forwarder, albeit in the capacity of carrier, contravened the express condition of the credit. We would welcome the Commission's confirmation that the bank was correct to refuse the transport document for the reason given and as a general principle, wherever there appears to be conflict between an express term of a credit and a provision of UCP, the express term of the credit shall prevail.
Issue No.2 From time to time, transport documents are presented under credits that call for bills of lading covering port to port shipments (or multimodal transport documents) which appear on their face to have been issued by a freight forwarder and signed by that forwarder in the capacity of forwarder. (In these cases, the credits are silent about the issuance of transport documents by freight forwarders.) Does the Commission agree that transport documents issued and signed in this way fail to satisfy the requirements of UCP sub-Article 23(a)(i) (or where applicable, UCP sub-Article 26(a)(i) and are also disqualified by UCP Article 30 whether or not the freight forwarder appears to be a member of FIATA? In other words, the FIATA status of a forwarder makes no difference in this respect.
ANALYSIS/CONCLUSION
Issue no.1 The terminology "Transport document issued by Freight Forwarder not acceptable" is an ambiguous term that does not clearly define the type of document that would be acceptable. For example, it is not clear whether the credit is seeking to remove the ability for a freight forwarder to issue a bill of lading that would be acceptable under UCP 500 Article 30 or whether it extends to the manner in which the bill of lading would be signed. In regard to this enquiry, the bank would be obliged to accept a bill of lading that was signed "as carrier" irrespective of any knowledge they may have as to the capacity of the issuer.
Issue no. 2 In line with the conclusion given in Banking Commission Opinion R 225, the only occasion where a bill of lading may be signed by the forwarder in the capacity as forwarder is where the letter of credit specifically states "Forwarders Bill of Lading acceptable" or similar. Unless the letter of credit includes such a condition, a bill of lading must be signed in accordance with sub-Article 23(a)(i) (for marine/ocean bills of lading) and, where applicable, sub-Article 26(a)(i) (for multimodal transport documents) or Article 30, no matter the capacity or status of the issuer.
4、是否已装船批注日期，如有，应认作提单日，无论其早于或晚于B/L出具日期
Whether the date of an on board notation, if any, should be considered the "B/L date" irrespective of whether the date of the on board notation is later or earlier than the date of issuance of the bill of lading
Official Opinion GE64 - Unpublished
From UCP500- Sub-Article 23(a)(ii)
QUERY
The issue is to clarify the meaning of the expression "B/L date". This query concerns a draft drawn at 90 days after "B/L date". Confusion has arisen because there were two dates on the B/L presented. One date is Feb. 18, 1996, written just below the "Loaded on-board" notation, and the other date is Feb. 21, 1996, written in the box for date of issue. The question is, which of the two dates is the B/L date?
ANALYSIS/CONCLUSION
Analysis As a matter of fact, under certain circumstances the expression "B/L date" may prove to be an unclear term. This is the case where a bill of lading bears, in addition to the date of its issuance, an on board notation which gives the date on which the goods have been loaded on board, both dates being different from each other. That such a situation will arise is usually not known beforehand when the credit is issued. In a situation as described above, the date of the on board notation is mostly later than the date of issuance.
However, nothing is unusual in an on board notation pre-dating the issuance date of the bill of lading. The date on which the goods have been loaded on board may be advised to the B/L issuing office and an intervening week-end, or pressure of work, might cause the bill of lading to be issued and dated some days later, though also showing the actual, and earlier, date on which the goods have been loaded on board.
In this context, it has also to be realized that in practice for stipulating the tenor of a draft quite often the expression "X days after shipment date" instead of "X days after B/L date" is used, and that under UCP 500 sub-Article 23 (a)(ii) the date of issuance of the bill of lading will be deemed to be the date of shipment, unless the bill of lading requires an on board notation, in which case the date of the on board notation will be deemed to be the date of shipment. Under these circumstances there is justification for saying that in a situation where the bill of lading bears an on board notation, the date of the on board notation is to be considered the "B/L date".
Conclusion For the purpose of fixing the maturity date of a draft to be drawn under a credit which stipulates such draft to be drawn "X days after B/L date" the date of the on board notation, if any, should be considered the "B/L date" irrespective of whether the date of the on board notation is later or earlier than the date of issuance of the bill of lading.
5、一张面函下多套单据，公路运单
Where multiple presentations are made on the same day under the same L/C; where more than one complete presentation of documents is made under one cover letter or schedule for the full amount of all the presentations; whether a distinction is made in any of the UCP Transport Articles as to the capacity or type of carrier; whether Article 28 implies that a transport document can only be issued by a party other than the beneficiary?
Official Opinion TA581rev - Unpublished
From UCP500- Sub-Article 14(b), Article 28
QUERY
When operating DC transactions with European banks, our bank sometimes comes across some problems which we believe may be caused by different interpretations of international banking practice, in particular with regard to the provisions of sub-Article 14(b) and Article 28 of UCP 500. In this respect we face the following questions:
1. Under a L/C that permits partial shipment, the beneficiary presented several sets of documents identical in form. All the documents were presented simultaneously, i.e., under one cover letter. Is it permissible for the nominated bank to refuse one set of documents as discrepant and pay the other sets as compliant? In case the documents have been presented in consecutive drawings, is it still a normal practice to pay the first drawing and refuse another one? (一张面函下多套单据)
2. The beneficiary presented a truck waybill issued on the CMR form and meeting all of the requirements of Article 28 of UCP 500. This document shows the beneficiary as carrier of the goods. Is such a truck waybill inconsistent with international banking practice (namely, for the reason that the goods are at the disposal of the beneficiary)? Does Article 28 imply that a transport document can only be issued by a party other than the beneficiary? (The L/C does not prohibit the beneficiary from being the carrier.)
3. The L/C covering shipment of goods did not indicate any specific mode of transport to be used, since at the time of its issue the parties did not know by what means the transportation would be effected. Nor did the credit indicate the places of dispatch and destination. The requirement of the transport document was as follows:
"Transport document consigned to (the name of consignee)".
The beneficiary presented a document issued on plain paper and appearing to have been printed on the computer. The document was entitled "Transport document" and contained the following information: date of issue of the document, sender's and consignee's names and addresses, the description of the goods, the reference to the L/C, truck and tractor number plates, gross and net weights. Besides, the document contained the phrase: "The goods have been accepted for the transportation" and was signed by the carrier, indicating its name and capacity.
Is such a document acceptable as a valid document in accordance with the provisions of Article 28?
ANALYSIS/CONCLUSION
Analysis Sub-Article 14(b) reads: "Upon receipt of the documents the Issuing Bank and/or Confirming Bank, if any, or a Nominated Bank acting on their behalf, must determine on the basis of the documents alone whether or not they appear on their face to be in compliance with the terms and conditions of the Credit. If the documents appear on their face not to be in compliance with the terms and conditions of the Credit, such banks may refuse to take up the documents."
The pertinent sections of Article 28 read:
"a. If a Credit calls for a road, rail, or inland waterway transport document, banks will, unless otherwise stipulated in the Credit, accept a document of the type called for, however named, which: i. appears on its face to indicate the name of the carrier and to have been signed or otherwise authenticated by the carrier or named agent for or on behalf of the carrier and/or to bear a reception stamp or other indication of receipt by the carrier or a named agent for or on behalf of the carrier.
Any signature, authentication, reception stamp or other indication of receipt of the carrier, must be identified on its face as that of the carrier. An agent signing or authenticating for the carrier, must also indicate the name and the capacity of the party, i.e. carrier, on whose behalf that agent is acting, and
ii. indicates that the goods have been received for shipment, dispatch or carriage or wording to this effect. The date of issuance will be deemed to be the date of shipment unless the transport document contains a reception stamp, in which case the date of the reception stamp will be deemed to be the date of shipment, and
iii. indicates the place of shipment and the place of destination stipulated in the Credit, and
iv. in all other respects meets the stipulations of the Credit."
Conclusion
1. Where multiple presentations are made on the same day under the same L/C, a presenter would be well advised to create individual schedules in order to avoid any potential delays in situations where some presentations comply and others do not.
Where more than one complete presentation of documents is made under one cover letter or schedule for the full amount of all the presentations, the presenter should be advised of the discrepancies in respect of the presentation(s) that do not comply. An issuing bank or nominated bank may request the beneficiary or presenter to provide agreement for the settlement of individual amounts for those presentation(s) that do comply. This does not negate the issuing or confirming bank's obligation to honour the presentation(s) of documents that do comply
In response to the second question, the independent nature of each complete presentation of documents has been covered by the ICC in Opinion R 473, which included the following statement in the conclusion thereto: "Each drawing under a credit is considered to be independent of any other."
2. In all of the Transport Articles of the UCP requiring the naming of the carrier, including Article 28, no distinction is made as to the capacity or type of carrier. The requirement specified in Articles 23, 24, 26, 27 and 28 is " ... appears on its face to indicate the name of the carrier ... ". Whilst it is not common for the carrier to be the beneficiary, it is not unusual for certain beneficiaries to utilize their own vessels, aircraft or vehicles to transport goods to their destination. None of the Articles mentioned above imply that the carrier must be a party other than the beneficiary.
3. It goes without saying that such a credit should not be issued nor accepted by an advising bank or beneficiary. Where there is a clear indication that a shipment of goods is to be made, the credit must include the requirements for the relative transport document and the place of taking in charge, shipment or dispatch and place of final destination.
Under the terms of the credit that you have outlined, a bank would not be in a position to refuse such a document under Article 28.
6、保险单据是否保LC规定险别，直接与一险种联系的除外责任
Whether the insurance document covered the risks stated in the credit and whether an exclusion clause was directly linked to one of the risks to be covered. Whether the transaction in question was the one contemplated in ISBP paragraph 186
Official Opinion TA576 - Unpublished
From UCP500- Sub-Article 13(a); Article 36; ISBP paragraph 186
QUERY
We received an export L/C issued by a reputable bank in Country H for shipment of chemical products stating: Insurance Policy/Certificate covering Marine Institute Cargo Clauses (A), Institute War Clauses (Cargo) and Institute Strike Clauses (Cargo) for full invoice value plus 10 percent. The beneficiary presented a certificate of marine insurance stating the above clauses as per the L/C together with the additional clauses - Institute Radioactive Contamination Exclusion Clause- Institute Cyber Attack Exclusion Clause if applicable. The issuing bank refused the documents due to the following discrepancy: Insurance Certificate showing exclusion clause which is not permitted under paragraph 186 of ISBP. Our arguments were:- ISBP is not to be cited as a ground for rejection for discrepancies. - The lnsurance certificate shows the risk coverage as called for in the L/C. Radioactivity is one of the exclusions contained in Institute Cargo Clause (A). Therefore, the Institute Radioactive Contamination Exclusion Clause should not have been treated as unacceptable. The issuing bank's counter argument was as follows:- Paragraph 186 of ISBP refers to 2 separate sets of circumstances. First, where the credit is explicit with regard to the insurance clause to be covered that there must be no exclusions even where one of those clauses may be Institute Cargo Clauses (A). - Second, where the credit merely states covering all risks presentation of an insurance document covering Institute Cargo Clauses (A), this will be accepted as evidence of an all risks clause or notation (as mentioned in Article 36 of UCP 500.), even if there are exclusions mentioned. Our questions:- Is the issuing bank justified in its grounds for refusal of documents? - Would your decision be different if L/C called for insurance against "all risks" instead of Institute Cargo Clauses (A).
ANALYSIS/CONCLUSION
Analysis ISBP paragraph 186 reads: "The insurance document must cover the risks defined in the credit. If a credit is explicit with regard to risks to be covered, there must be no exclusions referenced in the document with respect to those risks. If a credit requires "all risks" coverage, this is satisfied by the presentation of an insurance document evidencing any "all risks" clause or notation, even if it is stated that certain risks are excluded. An insurance document indicating that it covers Institute Cargo Clauses(A) satisfies a condition in a credit calling for an 'all risks' clause or notation."
Conclusion In answer to the question "Is our understanding correct that discrepancies should not be pointed out on the basis of ISBP?" posed in an Opinion under reference TA. 562 (approved May 2004), the ICC Banking Commission responded: "The ISBP outlines international standard banking practice, in other words, how the Articles of the UCP should be applied by practitioners. Discrepancies are discrepancies and should be stated as such, i.e., this represents no change to existing practice. Documents are discrepant because they fail to comply with one or more terms and conditions of the credit or UCP. If another party fails to understand why a document is discrepant; it would be appropriate to refer them to the UCP and, failing further understanding, to refer them to the relevant paragraph of the ISBP. There is no harm in explaining to another party which ICC Opinion, DOCDEX Decision or paragraph of the ISBP supports a particular position the Banking Commission has taken in applying the UCP." International standard banking practice under documentary credits dictates that banks examine documents to ascertain whether or not, on their face, they are in compliance with the terms and conditions of the credit (sub-Article 13(a)). Document checkers are not expected, nor required, to be experts in transport or insurance practices. The fact that you are aware that radioactivity is one of the exclusions already contained in Institute Cargo Clauses (A) is a fact that may or may not be known to a document checker and in reviewing an insurance document would not necessarily be relevant. The credit required "Insurance Policy/Certificate covering Marine Institute Cargo Clauses (A), Institute War Clauses (Cargo) and Institute Strike Clauses (Cargo) for full invoice value plus 10 percent". The document checker's responsibility is to ensure that on its face the Insurance Policy or Certificate indicated that those risks were covered. ISBP paragraph 186 outlines the requirement that there should be no exclusions in relation to a specifically requested clause, i.e., an insurance document that stated "Institute Cargo Clauses (A) excluding ... " would be deemed to be discrepant under UCP. However, where the insurance clauses are stated as in the credit, but the document contains reference to certain exclusions and these are not directly linked to a specific insurance clause (as described in the preceding sentence), the document would not be discrepant. From what is stated in the query, the exclusion clause in relation to Institute Radioactive Contamination is not directly related to one of the required risks to be covered. The exclusion clause in relation to institute cyber attack is stated to be "if applicable", and it is not for a bank to determine its applicability. It should therefore be ignored. In summary, the insurance document covers the risks stated in the credit. The exclusion clause is not directly linked to one of the stated clauses. The situation that has occurred in this transaction is not the one contemplated in ISBP paragraph 186 (for reasons stated in this conclusion). In answer to your specific questions:1. The issuing bank is not justified in refusing documents for the discrepancy stated. 2. Based on the facts of this case, the answer would not be different. It must be further clarified that if the credit had merely stated that the insurance coverage was to be against "all risks", any exclusion clause(s) would be acceptable provided the insurance document contained any "all risk" notation or clause (Article 36) which would include coverage subject to Institute Cargo Clauses (A) (ISBP paragraph 186). It should also be borne in mind that insurance documents showing exclusion clauses such as Institute Classification Clause, Cargo ISM Endorsement Clause, Institute Radioactive Contamination, Chemical, Biological, Biochemical and Electromagnetic Weapons Exclusion Clause, Institute Cyber Attack Exclusion Clause and Termination of Transit Clause (Terrorism) are now insurance industry standard requirements and are acceptable.
7、保险条款按LC要求在保险单据上说明，但除外条款不构成保险条款中一部分
Where the insurance clauses are stated in the insurance document exactly as required in the credit, but the exclusion clause does not form part of that insurance clause
Official Opinion TA577 - Unpublished
From UCP500- Sub-Article 35(b); ISBP paragraph 186
QUERY
We received a request from one of our members seeking clarification from the ICC Banking Commission to a controversial practice among banks towards insurance documents. We would like to submit their query as quoted below to the Banking Commission for consideration and will be glad if you can provide us your kind support in this matter.
The query reads: "There appears to be a conflict between the approved ICC opinion R360 and ISBP paragraph 186. This has been made even more confusing given the 'unpublished' Opinion on DC-PRO, which is also in conflict with ISBP paragraph 186. A number of banks are taking it as discrepancy where the Insurance Policy covered ICC (A) with 'inherent vice' exclusions which is deemed to be acceptable as per ISBP paragraph 186."
Analysis Opinion R. 360 reads: "An irrevocable documentary credit was issued. After shipping the goods, the beneficiary submitted the documents, including an insurance policy, which in his opinion complied with the terms and conditions of the credit.
However, the negotiating bank refused to accept the documents, claiming that there was a discrepancy on the insurance policy, which stated 'Excluding rust, oxidization & discolouration unless directly caused by stranding, sinking, burning, collision and/or heavy weather only'. The requirement in the credit, for the insurance document was: 'Insurance policy/certificate endorsed in blank for 110% of invoice value covering Institute Cargo Clause (A)/Institute Strikes Clause (cargo)/Institute War Clauses (Cargo) with claims payable in Country S'.
As we well know, sub-Article 35(b) of UCP 500 clarifies definitely that 'Failing specific stipulations in the Credit, banks will accept insurance documents as presented, without responsibility for any risks not being covered.' In this case, is the stance of the negotiating bank correct or not?
ANALYSIS/CONCLUSION
Sub-Article 35(b) applies where the letter of credit is not specific in the insurance cover required for that specific transaction. The letter of credit in question detailed the insurance requirements and therefore this sub-Article does not apply.
The exclusion of certain risks would be grounds to reject in the circumstances that have been outlined above."
ISBP paragraph 186 reads: "The insurance document must cover the risks defined in the credit. If a credit is explicit with regard to risks to be covered, there must be no exclusions referenced in the document with respect to those risks. If a credit requires 'all risks' coverage, this is satisfied by the presentation of an insurance document evidencing any 'all risks' clause or notation, even if it is stated that certain risks are excluded. An insurance document indicating that it covers Institute Cargo Clauses(A) satisfies a condition in a credit calling for an 'all risks' clause or notation."
Reference is made in the query to an unpublished query appearing on the DC-PRO website. This opinion is TA. 555 and the relevant part of that query (and analysis and conclusion thereto) reads as follows: "
Query 2 We refer to R.360 of Publication 613 which says that when the L/C specifically requires the cover for risks of 'Institute Cargo Clause (A), Institute Strikes Clause (Cargo) and Institute War Clauses (Cargo)', sub-Article 35(b) will not apply and insurance documents containing any exclusion clause(s) will be discrepant.
The last two sentences of paragraph 186 of ISBP, following the spirit of Article 36 of UCP 500, state that 'If a credit requires 'all risks' coverage, this is satisfied by the presentation of an insurance document evidencing any 'all risks' clause or notation, even if it is stated that certain risks are excluded. An insurance document indicating that it covers Institute Cargo Clauses (A) satisfies a condition in a credit calling for an 'all risks' clause or notation."
[emphasis added]
In other words, since ICC (A) already satisfies the 'all risks' requirement (as mentioned in paragraph 186 of ISBP above), and the fact that the existence of 'any all risks' notation would allow the appearance of any exclusion clause in an insurance document, an insurance document bearing any exclusion clause(s) (such as a Termination of Transit Clause (Terrorism)) would be acceptable under an L/C calling for ICC (A), Institute Strike Clauses (Cargo) and Institute War Clauses (Cargo). The requirement for Institute Strike Clauses (Cargo) and Institute War Clauses (Cargo) should be treated as additional risks to be covered instead of treated as specific requirement of the L/C.
Again, please confirm whether our interpretation is correct or not."
Conclusion "Query 2 Paragraph 186 of ISBP refers to two separate sets of circumstances: first, where the credit is explicit with regard to the insurance clauses to be covered, that there must be no exclusions EVEN where one of those clauses may be Institute Cargo Clauses (A); second, where the credit merely states 'covering all risks' (A) will be accepted as evidence of an 'all risks' clause or notation (as mentioned in Article 36 of UCP 500), even if there are exclusions mentioned. The fact that there is reference to exclusions being acceptable in the circumstance where an insurance document is presented covering Institute Cargo Clauses (A) is limited to the occasions where the credit is not specific as to the clauses to be covered and specifies 'covering all risks' or similar."
Conclusion
As pointed out in TA.555, it must be understood that paragraph 186 of ISBP covers two distinct sets of circumstances. One is where the credit indicates the coverage that is required to be evidenced in the insurance document and one where the credit is less specific and makes reference to insurance covering "all risks".
In circumstances where the credit provides details of the insurance clauses that are required, the document checker's responsibility is to ensure that on its face the insurance policy or certificate indicates that those risks are covered.
ISBP paragraph 186, in the 1st sentence, speaks of a requirement that the clauses stated in the credit must be reflected in the insurance document, but that there must be no exclusions referenced in the document with respect to those risks. (emphasis added)
Opinion R. 360 talks of the specific circumstance, referenced in the 1st sentence of ISBP paragraph 186, whereby a stipulated insurance clause is required and this is stated on the insurance document, but there is a specific reference thereafter to an exclusion clause, e.g., Institute Cargo Clauses (A) excluding rust, oxidization & discoloration unless directly caused by stranding, sinking, burning, collision and/or heavy weather only. This Opinion, which stated that the document was discrepant, is perfectly in line with the statement given in the 1st sentence of paragraph 186 of ISBP.
However, where the insurance clauses are stated in the insurance document exactly as required in the credit, but the exclusion clause does not form part of that insurance clause, i.e., when it is stated elsewhere in the document, the document would not be discrepant. It is not for a document checker to determine the status of an exclusion clause stated in this manner nor its effect on a stated clause that was required by the credit.
Where the credit requires insurance to cover "all risks", Article 36 of UCP 500 categorically states that banks will accept an insurance document that contains any "all risks" notation or clause, whether or not bearing the heading "all risks", even if the insurance document indicates that certain risks are excluded, without responsibility for any risk(s) not being covered. This position is confirmed in the 2nd sentence of paragraph 186 of ISBP. The 3rd sentence of ISBP further clarifies that an insurance document that covers Institute Cargo Clauses (A) will be deemed to be an "all risks" notation or clause.
It should also be borne in mind that insurance documents showing exclusion clauses such as Institute Classification Clause, Cargo ISM Endorsement Clause, Institute Radioactive Contamination, Chemical, Biological, Biochemical and Electromagnetic Weapons Exclusion Clause, Institute Cyber Attack Exclusion Clause and Termination of Transit Clause (Terrorism) are now insurance industry standard requirements and are acceptable.