What to do with a confused bill of lading
There is such a case:
Bank A also negotiated two bills of the same beneficiary. The documents belonged to two letters of credit of different issuing banks, and the letters of credit were freely negotiated letters of credit. Since the export goods are the same and the bank manager is negligent, when the bill is sent to the issuing bank, the bills of lading are confusing each other, and only 2/3 of the bill of lading and 1/3 bill of lading of the other bill are included in each set of documents. A issuing bank will pay quickly, and B issuing bank will refuse to pay on the grounds of submitting 2/3 bill of lading. After the A bank learned that the customer had with the issuing bank to guarantee the delivery of goods, and then negotiated, and ultimately forced Bank B to pay.
Although the case was completed, there were many thoughts left to us.
I. The mistake of the issuing bank
In this case, the mistake of the issuing bank was that when the other party pointed out that the delivery guarantee was already in place, the performance was unsatisfactory and failed to insist on the payment. In fact, Article 14 of UCP500 gives the issuing bank the power to refuse to pay when the documents do not match. The documents submitted in this case have obvious discrepancies, so the refusal of the issuing bank is justified and unobjectionable.
Although according to the practice of the general bank, after the delivery guarantee for the applicant for the issuance of the certificate, even if there is any discrepancy between the documents, the foreigner cannot refuse to pay. The main reason is that once the beneficiary requests the return of the documents and requests the shipping company to return the shipment, the shipping company The transfer will be required to fulfill the obligations under the delivery guarantee, and the issuing bank may suffer double losses in economic and reputation. However, in this business, due to the mistakes of the negotiating bank, the 2/3 bill of lading submitted to the issuing bank counter, even if the beneficiary requested the return of the bill, it is not possible to return the shipping company to the shipping company with the 2/3 bill of lading. There is no need to worry about the license bank. On the contrary, insisting on refusing to pay will help the issuing bank to avoid the risk of fraud. According to the regulations of the State Administration of Foreign Exchange on the settlement and sale of foreign exchange, if the discrepancies caused by the lack of property rights documents, the issuing bank may not make external payments. This aspect is to prevent corporate evasion behavior, on the one hand, to prevent fraud.
As for the question of whether the payment guarantee has been made and whether the refusal has affected the creditworthiness of the issuing bank, the author believes that it may not be. The first delivery guarantee is a guarantee for the shipping company by the issuing bank, not a promise to the beneficiary. Although on the surface, the subject matter of the delivery guarantee is the goods under the letter of credit, it seems that the issuing bank issued the goods to the applicant under the letter of credit with the delivery guarantee, but the shipping company is essentially releasing the consignee. The cargo right, the delivery guarantee is a guarantee from the bank to the shipping company that is independent of the letter of credit. Second, the issuing bank processes the documents based on the letter of credit and UCP500. As long as the documents match, the issuing bank undertakes the payment business. If the documents do not match, the issuing bank is bound by Article 14 of UCP500. As long as the premise specified in the article is satisfied, the issuing bank has the right to refuse to pay and refuse to pay for legitimate reasons. Help to improve the credibility of the issuing bank. Third, the parties to the letter of credit deal with documents, not goods, services or other acts related to the documents. The issuing bank issues a delivery guarantee to allow the applicant to pick up the goods as “services related to the documents or other actsâ€. The parties to the letter of credit must deal with the business on a document basis, the documents do not match, and the issuing bank has the right to refuse payment.
However, in this case, the issuing bank also has the payment principle: According to Article 9A of UCP500, under the irrevocable letter of credit, if the specified documents are submitted to the designated bank or issuing bank and meet the terms of the letter of credit, That is, it constitutes the confirmation of the issuing bank, and when the beneficiary submits the document to the A bank, the documents are in conformity, which actually constitutes the obligation of the issuing bank to pay. As long as the negotiating bank can confirm that the documents are consistent and consistent in the receipt of the documents, the issuing bank must pay the amount of the letter of credit within a reasonable time.
Second, the negotiating bank's å°´å°¬
The misrepresentation of the documents is entirely caused by the negotiating bank. The negotiating bank shall bear the responsibility for correcting the mistakes and compensating for the losses caused by the mistakes. At this time, the negotiating bank's measures must weigh the pros and cons and be cautious.
(1) should be brave enough to admit mistakes.
According to Article 9 of UCP500, this ticket is matched by the beneficiary to the negotiating bank, which constitutes the payment commitment determined by the issuing bank. As long as the negotiating bank honestly tells the issuing bank the truth and provides evidence (such as a copy of the bill of lading) to prove that the documents are in line with their counters, the issuing bank is due. Of course, this kind of evidence is relatively difficult, and it is feasible in theory. It is necessary to make a clear statement about the matching of documents. In particular, most of the bills of lading issued by Chinese shipping companies are in triplicate (only part of them are ORIGI-NAL, DUPLICATE). , TRIPLICATE and other words), so even if all three copies can not prove to be a full bill of lading, and how to prove that this full set of bills has been submitted is also a problem. Only by means of a telegram, a telegram declares that the beneficiary has submitted a full set of bills when it is submitted, and it seems that it cannot convince the issuing bank to pay, or combines the following (2), frankly where a bill of lading is, and asks for the issuance of the bill of lading to prove It is easier for the issuing bank to accept.
(2) Carefully look for lost bills of lading.
Another set of documents with the same error in the case has been successfully paid, and the importer is not aware of the confusion of the bill of lading. The negotiating bank can ask the importer whether he can get the wrong bill of lading. It is a potential risk of taking the goods, so it is not easy to do so. However, if the issuing bank is contacted by another issuing bank to exchange the wrong bill of lading, the success rate is greater and it is easier to be accepted by the issuing bank. Moreover, the importer who mistakenly took the bill of lading was involved in the bank, and even if there were bad thoughts (such as taking the goods), he did not dare to implement it because of the relationship with the bank.
(3) Negotiating to the issuing bank on the grounds that the delivery guarantee has been processed.
This is the best policy, and in this case, it is a blessing for the negotiating bank to successfully recover the money from the issuing bank.
As analyzed above, the issuing bank can insist on refusing to pay for the discrepancies in the documents, which is justified by reason.
Third, the situation of the beneficiary
The beneficiary is the ultimate victim in this case: the goods have been sent and they are not at fault, but the purchase price is at risk of refusal. If the goods are taken over because of the loss of the bill of lading, it is more likely to fall into the trap of money and money because it cannot grasp the full bill of lading and cannot ask for the goods from the shipping company. Although this is due to the fault of the bank, it may be difficult for them to pursue the bank due to two reasons: (1) At present, when the customer submits the bill to the bank, the risk awareness is weak, and generally the bank does not sign, but there is a legal Who advocates the provisions of the evidence, which makes the beneficiary unable to prove that the bank is a full set of bills of lading when the receipt of the documents, the results of the prosecution is still difficult to predict; (2) even if the recovery is successful, the relationship with the bank for many years of operation often The breakdown, which makes the beneficiary worry when it comes to resolving decisions. Therefore, it is vital for the beneficiary to handle the matter properly and to behave in person.
(1) Apply pressure to the bank.
If the beneficiary has received payment from the negotiating bank and the payment is uncollectible due to the negligence of the negotiating bank, generally in accordance with international practice and mutual agreement, the beneficiary may not return the negotiable payment. The beneficiary can put pressure on the negotiating bank to push it to the forefront of negotiations with the issuing bank. If the beneficiary party only transfers the documents to the issuing bank as the delivery bank, or only handles the export bill (in general, according to the export bill agreement, if the money is not collected from the issuing bank, the beneficiary must send the remittance The item is returned to the bank. The beneficiary can use the bank’s negligence to demand that it be arguing for the transaction to negotiate with the issuing bank for the UCP500. This is the right way.
(2) The applicant is urged to pick up the goods as soon as possible.
Candidly explain the situation to the applicant (importer). Since the bill of lading is outside, the beneficiary cannot ask the shipping company for the goods to be issued to the issuing applicant. It can be recommended to pick up the goods through the bank delivery guarantee (such as the applicant in the case) and put it into the market as soon as possible— The acceptance of the goods is subject to consideration, which is the principle of international trade. Secondly, explain to the issuing applicant the importance of returning the delivery guarantee to the applicant, that is, once someone picks up the lost bill of lading, the shipping company will inevitably use the delivery guarantee to claim against the issuing bank, and the delivery guarantee is issued by the issuing bank. If the request is opened, the applicant will bear the final loss, so as to prompt the payment of the redemption order to the issuing bank as soon as possible. Then, one of the bills of lading is exchanged for the delivery guarantee. We know that after the original bill of lading is delivered, the other items are automatically invalidated and can no longer be used for picking up the goods. This avoids the risk of the goods being taken.
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