Transferable Letter of Credit: Is It Really "Transferable?"

Letter of credit can be qualified in a number of ways and it is well recognized that a transferable credit is no different from any other apart from the fact that it enables the beneficiary of the credit to “transfer” the benefit to a third party. Where the credit itself is not stated to be transferable, no transfer of the credit is permitted because to do so would defeat the purpose of the credit.

The transferable credits are commonly used where the beneficiary contracts with a third party in order to obtain goods which are necessary to fulfill his obligations to the issuing bank’s customer. In such a case, the beneficiary will often be required to transfer the benefit of the credit to the third party in order to fulfill his obligations to that party.

Article 54 of UCP 400, Article 48 of UCP 500 and Article 38 of UCP 600, incorporated the relevant provisions relating to the transfer of a letter of credit. However, its interpretation has long troubled bankers, particularly with regard to the obligations placed upon the issuing or confirming banks.

A decision of the Privy Council considered this issue, and held that, although a beneficiary had the right to instruct the bank, which issued a transferable letter of credit, to make the credit available to one or more third parties, by Article 54(c) of UCP 400, no bank asked to transfer the credit was obliged to do so except to the extend and in the manner to which the bank expressly agreed. Furthermore, the designation of a letter of credit by the issuing bank as transferable was insufficient to constitute consent to a subsequent transfer request by the beneficiary.

The brief facts of the case were that Lariza (Singapore) Pte Ltd had agreed to sell crude palm oil to Bakrie Brothers (Singapore) Pte Ltd. It was a term of the contract that payment for the oil was to be made by means of a transferable irrevocable sight letter of credit to be opened in favour of Lariza, the opening of which was to be advised through the Bank of Canton Limited. In order to fulfill its agreement with Bakrie, Lariza entered into an agreement with Ban Lee oil Mill Co for the purchase of a corresponding quantity of crude palm oil which would be passed on to Bakrie. Payment of the Ban Lee contract was also to be made by an irrevocable sight letter of credit opened in their favour.

On 27 February 1980 (UCP 400 was in forced), a transferable irrevocable sight letter of credit was opened by Bank Negara Indonesia in favour of Lariza for the account of Bakrie and in due course Lariza requested Bank Negara Indonesia to transfer part of the letter of credit to Ban Lee, but the bank persistently refused to effect the transfer. As a result Lariza failed to perform its obligations under its agreement with Ban Lee and were sued by Ban Lee for damages for breach of contract.

Lariza subsequently brought an action against Bank Negara Indonesia claiming damages for breach of contract arising from the issuing and opening by the bank of the letter of credit. That claim was resisted by the bank, which contended that it was not under any obligation to effect the transfer of the letter of credit as requested by Lariza.

The case eventually reached the Privy Council , which held that under Article 54 of UCP 400, a bank which issued a transferable letter of credit could not, without more, be taken to have consented in advance to any request by the original beneficiary to transfer the credit to a third party. The consent contemplated by paragraph (c) of Article 54 was held to be a consent to effect the transfer to the particular extend in issue, and in that particular manner. Such a consent cannot be given in blanket form in advance, so as to apply to any request for transfer which may subsequently be made, whatever its extend or manner may be. Any consent given by the issuing bank must be an express consent which is made after the request by the beneficiary and it has to cover both the extent and the manner of the transfer requested.

It is submitted that if the view of the Privy Council is correct the whole purpose of the transferable letter of credit is effectively destroyed. A transferable credit should be transferable at the instance of the beneficiary and neither the issuing nor confirming bank should be able to refuse to transfer the credit, for otherwise the commercial purpose of such instruments would be defeated. Such restriction clause which appeared in UCP 400 and UCP 500 is still maintained in UCP 600 today.

Bank Guarantee: Part 2

Bid Bond (Tender Bond)
This guarantee is required in connection with public tenders. If a company participates in such a tender, it must submit a bid bond together with its offer. Bid Bonds therefore secure payment of the guarantee amount:

1. in the event of withdrawal of the offer before its expiry date
2. if the contract, after being awarded, is not accepted by the tenderer
3. if the bid bond, after the contract has been awarded, is not replaced by a performance bond

As a general rule, the guarantee amount is normally within 1% to 5% of the amount of offer. The validity period of the guarantee is until the signing of the contract or the issue of a performance bond, usually between three and six months.

Performance Bond
The bank undertakes, at the request of the seller, to pay the beneficiary the guaranteed amount in the event the supplier has not met or insufficiently fulfilled his contractual delivery obligations. The guarantee amount usually 10% of the contract amount. The bond remains valid for the full amount until complete performance of the contract. Where contracts for works and materials are concerned, this generally includes the warranty period for the correct functioning of a machine or system. The period of validity of performance bonds may be two years or longer.

Advance Payment Guarantee (Letter of Indemnity)
The terms of payment for major export orders generally stipulate that the buyer pays an installment for the purchase of raw materials and for the cost of production. However, such a down payment will only be agreed to by him after receipt of so called advance payment guarantee which ensures repayment of the advance by the seller in the event of non-performance of his contractual obligations. The amount guaranteed is 100% of the advance payment. In contrast to the performance bond, the advance payment guarantee should stipulate that the guaranteed amount be automatically reduced in proportion to the value of any partshipments made. A utilization of the related documentary credit is usually recognized as avidence of delivery. The validity of the advance payment guarantee should be limited in such a way that it expires on the date the covered performance is made.

The advance payment guarantee must usually be issued before prepayment is made, but should enter into force only after receipt of such payment. Therefore a clause to this effect should be included in the guarantee whenever possible.

Bank Guarantee

In international trade, it is difficult for the buyer to accurately assess the professional ability and financial position of a supplier or seller. The situation is worst when both parties are domiciled in different countries. The buyer therefore, quite rightly, demands that the seller’s ability to perform be secured and for this purpose a Bank Guarantee (BG) is arranged. In general, the use of the BG as an instrument for securing payment is restricted in international trade to non-payment guarantees used for the “open account” mode of payment.

A BG may be defined as the "irrevocable obligation of a bank to pay a sum of money in the event of non-performance of a contract by a third party". Similar to Letter of Credit, the guarantee is a separate obligation independent of the principal debt or the contractual relationship between the creditor and the principal debtor. Under the terms of the guarantee, the bank has to pay on first demand provided that the conditions contained in the guarantee are fulfilled. Guarantees are, as a rule, subject to the laws of the country of the issuing bank. Meaning to say, when a BG is issued by a bank in Malaysia, it is governed by the Malaysian laws. Under Swiss law, the parties are free to determine the contents and form of a guarantee. Generally, the contents of a BG more or less is standardized to suit to the issuing bank’s laws. However, minor adjustment is permissible subject to approval of the issuing bank. Issues or clauses not provided for would be adjudicated on basis of Article 111 of the Swiss Code of Obligations.

There are few example of related guarantees for securing performance or payment namely, the ‘simple’ guarantee (Swiss Code of Obligations, Art 495) and the ‘Joint and several’ guarantee (Swiss Code of Obligations, Art 496); by the contract of guarantee, the guarantor is obligated to make payment if the principal debtor becomes insolvent and goes bankrupt. The contract of guarantee presupposes a valid principal debt and also become void if the principal debt ceases to exist. In Switzerland, contracts of simple and/or joint and several guarantees are used almost exclusively for securing claims of domestic creditors.

The confirm payment order (Swiss Code of Obligations, Art 468); As in case of the guarantees, the irrevocable confirmed payment order includes an irrevocable, not accessory obligation to pay. Payments under this instrument can be subject to the fulfillment of the special conditions of this order. The documentary credit is an important case of application of the irrevocable, confirmed payment order.

As in the case of the documentary credit and the documentary collection, the International Chamber of Commerce in Paris has issued ‘Uniform Rules for Contract Guarantees’. But these guidelines issued in 1978 have not been generally accepted.

Red Clause Credit

The purpose of red clause in a documentary credit is to enable the beneficiary to obtain pre-shipment advances from the advising or confirming bank, at the expense of the beneficiary, but under the responsibility of the issuing bank. This red clause is so termed because it is usually printed in red on the credit to draw attention to this special feature of the credit terms.

Red clause has been used traditionally, in certain countries where goods, such as wool, cotton, meat, rubber etc, need to be purchased by a beneficiary who requires advances in order to pay for goods either directly or at auctions. Under the terms of the credit, an intermediary bank is authorized by the issuing bank to make advances to the beneficiary so that he may pay in this way. When in due course the goods are shipped and complying shipping documents presented, the proceeds are used to liquidate the pre-shipment advances, proportionate interest being taken or claimed.

Advances are usually made in local currency to avoid any fluctuation in exchange rates between the time of the advance and the time payment or negotiation is effected. If the credit is expressed in a currency other than local currency, it should stipulate for whose account any exchange difference will be.

If a red clause credit is available for negotiation rather than payment, it need not be restricted to the intermediary bank responsible for providing the advances as long as the eventual proceeds of the credit are made available to that bank. There are two main types of red clause:

1. The unsecured or clean red clause, under which the advances are authorized against the beneficiary’s statement that they are required to pay for pre-shipped goods.

2. The secured or documentary red clause, under which advances are made against presentation of warehouse receipts or similar documents together with the beneficiary’s undertaking to deliver the bill of lading and/or other documents required upon shipment (The warehouse receipts are usually returned to the beneficiary in trust so that he may then obtain the bill of lading). Here, the beneficiary may also be required to insure the goods while they are in store.

In the event of subsequent default by the beneficiary, including failure to present documents in compliance with the terms and conditions of the credit, the intermediary bank has the right to claim refund of its advances, together with interest and any other charges, from the issuing bank.

There is a third type of clause which may be used, the ‘receipt and undertaking’ or ‘invoice and undertaking’ clause, which differs from both the above in that the intermediary bank makes advances against the beneficiary’s receipt or invoice together with his undertaking to refund the advance in the event of failure to present complying documents under the credit.Advances under the ‘receipt and undertaking’ clause are not normally made from the intermediary bank’s own fund but against immediate reimbursement from the issuing bank, with the beneficiary being responsible to the issuing bank in the event of default.

Clean red clause:
"As the accredited may have to pay for the wool before shipment, kindly grant him advances to enable him to make such payments agaisnt his statement that the money is required for the purpose of the aforesaid. We accept responsibility for the repayment of anticipatory advances granted by you within the credit limits."

Documentary red clause:
"As the accredited may have to pay for the goods before shipment please grant him advances for the purpose of making such payments against Warehouse Receipts or other documents evidencing the right to claim possession of the goods and the undertaking to deliver the relative Bills of Lading in due course. Such Warehouse Receipt or other documents may be entrusted to the accredited in exchange for his acknowledgement that the documents are held by him as trustee for you and as your agent to obtain for you in exchange the relative Bill of Lading. The goods, whilst in the warehouse pending shipment are to be insured by......................... . We accept responsibility for the repayment of anticipatory advances granted by you within the credot limits."

Invoicing and undertaking clause:
"As the accredited will have to pay for the goods, processing and ancillary charges before shipment, negotiation may be made to the beneficiary against invoices evidencing firstly cost of goods and/or processing and ancillary charges and the beneficiary's undertaking to produce the relative shipping documents in due course. We accept responsibility for meeting such payments under the terms of the credit."

Revolving Letter of Credit

A revolving credit (RC) is one that is available for an amount that remains constant for a given period of time so that whenever it is drawn upon, it becomes available again for the full amount, either immediately or as soon as advice is received from the issuing bank that earlier presentations are acceptable to them. Alternatively, it may be made available for a reducing sum during a given period of time, to become automatically available again for the original sum at the end of the period. If the renewal of amount is not automatic but subject to reinstatement instructions after each drawing, it is not strictly a true RC but rather one of fixed amount which has to be increased by means of amendment.

RC may be renewable as to amount and time as follows:

· RC may be available for up to, say USD10,000 at any one time, and as soon as a drawing is made the amount drawn immediately becomes available gain. Often there is no limit to the number of drawings that may be made of up to USD10,000 each, except perhaps a qualification as to how much may be drawn per day; such RC continues to be drawn upon and reinstated until it expires.

· RC may be available for up to USD10,000 per week or per month. The amount is automatically available each week or month irrespective of whether any sum has been drawn during the previous week or month. This can be on a cumulative or non-cumulative basis, cumulative being more common, i.e. un-utilized amounts are carried forward and added to the total amount available for the following week or month.

RCs that revolve around amount, as in the first example, are rarely confirmed since it is virtually impossible to establish the total liability that may be incurred during the life of the RC. RCs that revolve around time (example 2) are more likely to bear confirmation since the overall amount of liability is ascertainable.

RCs should not be confused with LCs available by instalments. If an LC has an overall limit as to amount and validity and permits specified drawings or quantities of goods to be shipped at appointed periods of time during that validity, it is an LC that is available by instalments and as such is subject to UCP 600 article 32, “if a drawing or shipment by instalments within given periods is stipulated in the credit and any instalment is not drawn or shipped within the period allowed for that instalment, the credit ceases to be available for that and any subsequent instalment.”

Shipping Guarantee: Part 2

In international trade, banks deal with documents and not with physical goods although these documents represent goods and movement of goods. The regulatory and commercial requirements of international trade have resulted in the use of many and varied documents. It is not unusual to see exports department and imports department staff of banks buried under huge mass of documents. You will appreciate that due to this inherent characteristic of international trade shipping documents through delays, losses in the mail and bureaucratic procedures may arrive after the goods have reached their destination. Non-arrival of shipping documents may result in the importer facing a loss should he not be able to take delivery of goods and sell them especially if they are perishable goods. To assist the importer to take delivery of the goods a Shipping Guarantee (SG) is issued in favour of the carrier of the goods.

In general, SGs only relate to bills of lading that have been delayed, lost, mislaid, stolen or destroyed.

SG is an indemnity given by the consignee to which the bank jointly indemnifies the carrier of goods so that the consignee so named can take delivery of the goods without production of the relevant bills of lading. The consignee and the bank jointly undertake to indemnify the carrier against all liabilities relating to the delivery and undertake to surrender the bill of lading duly endorsed to the carrier on receipt of it.

On receipt of notice of arrival of ship bearing the goods, the consignee will ascertain whether the bank has received the relevant shipping documents, particularly the bill of lading. If the shipping documents are not on hand, the consignee will then request the bank to issue a SG.

The normal prudent consideration for a banking facility is applied. If the consignee is someone who is not known to the bank or who has had minimal dealings with the bank, a deposit varying in amount up to the full invoice value of the imports normally required by the bank. This deposit is commonly known as a margin and provides the requisite security should the consignee turn out to be someone who is not entitled to the goods. A counter indemnity is also taken whereby the consignee undertakes to indemnify the bank against all losses, damages and expenses in relation to the issue of the SG and at the same time undertake to deliver the bill of lading duly endorsed on receipt or obtain a discharge of the bank’s liability under the indemnity. Having satisfied that all precautions have been taken the bank will then issue the SG and forward it to the carrier or his representative for the goods to be released.

On receipt of the shipping documents, the bank will extract the bill of lading and after having obtained the required endorsements forward it to the carrier to redeem the SG.

Commercial Invoice

Commercial Invoice is a bill for the goods shipped to the buyer. It is the accounting document for seller’s claim on the buyer for goods sold to the buyer. Commercial Invoice would normally contain the following information:

1. Names and addresses of the buyer and the seller
2. Date of invoice, sale contract or firm order, reference number, date and etc
3. Unit prices, if any, final sum claimed, shipment terms
4. Settlement terms viz sight, tenor, DA/DP and etc
5. Shipping marks and numbers
6. Weight/quantity of the goods
7. Name of the vessel, port of embarkation etc

In addition to these particulars, the following details are generally given in the commercial invoice to facilitate customs clearance in the importing country:

1. Country of origin of the goods
2. Ports of loading and discharge
3. Details of freight and insurance charges (where applicable)
4. Commissions payable to an agent
5. Seller’s certification under signature certifying value of goods and relevant particulars to be correct

When an invoice is to be tendered under terms of the LC, care must be taken to comply with the following requirement:

1. Invoice – made out to the seller – beneficiary (exception to transferable LC)
2. Must be addressed to the opener or such other party as specified in the LC
3. Description of goods must exactly correspond with description in the LC
4. Quantity must agree with that stated in the LC – subject to tolerance limits permitted under UCP
5. Price and price basis must be specified and agree with the LC terms
6. Signed, if expressly stated in the LC
7. Identifying marks, numbers, gross/net weight, number of packages etc agree with all other

8. relevant documents e.g. BL, insurance etc
9. Only permitted items of costs included
10. License number etc specified when stipulated
11. Amount should not exceed LC amount subject to the provision of UCP

There are variations of invoices which are used for various purposes either as a substitute or along with commercial invoice. Such widely used documents are:

1. Certified Invoice
2. Legalized Invoice
3. Combined Certificate of value and origin
4. Visaed invoice

Standby LC and Principle of Autonomy

The traditional LC for import and export transaction is issued to provide the exporter with a guarantee of payment when performance has occurred by submitting documents in accordance with the terms and conditions of the LC. However, the standby LC (SBLC) for import and export transaction is issued to provide the exporter with a guarantee which is only activated in the case of non-performance of another pre-arranged activity. The development of SBLC took place in the United States where the banks do not have the power to issue performance bonds and first demand guarantee.

SBLC can be issued in lieu of performance guarantee in construction contracts, as a guarantee to loan repayment or as a guarantee to a seller as a back-up to some other pre-arranged method of finance. In transactions involving the manufacturing and the sale of goods, SBLC can also be used to secure payment of the price; the payment of liquidated damages for faulty performance; and to cover a deposit repayable in the event of the non-performance of the underlying contract. Losses which could be incurred in a take-over of a company and arising from the non-payment of a promissory note, the payment of rental and the payment of an amount can be, likewise, secured by SBLC.

The beneficiary can usually draw under the SBLC on the basis of providing a certificate or statement that a specific agreement has not been complied with. Given that specified documentation is presented, the bank called upon will be required to pay, regardless as to whether or not the applicant of the LC considers he has performed. Just as in the case of commercial LCs, the payment of a SBLC is subject to the tender of a fully complying set of documents by beneficiary.

The autonomy of a SBLC leads to certain problems. As the bank’s undertaking frequently assumes the form of a promise to accept a bill of exchange accompanied by a default certificate or statement, the beneficiary, who executes the two documents, is in a position to abuse the rights conferred on him.

For example, in the case of Intraworld Industries Inc vs Girard Trust Bank, a SBLC was issued by a bank in order to cover annual rentals due under a lease of a hotel. Payment was to be effected against the beneficiaries’ sight draft, accompanied by their written statement confirming the non-payment of the rent. As the account party (the lessee) mismanaged the hotel to such an extent as to seriously damage its international reputation, the beneficiaries cancelled the lease. They made a demand under the SBLC in order to recover an amount of liquidated damages due under the terms of the lease in lieu of rent.

The account party brought an action for an injunction to restrain the bank from paying. He alleged that the beneficiaries’ demand for fraudulent because it did not involved a genuine claim for rent, as represented in the default notice, but a “stipulated penalty”. Dismissing this action, the Supreme Court of Pennsylvania observed that the circumstances which would justify the granting of an injunction were limited to situations of fraud in which the “wrongdoing” of the beneficiary had vitiated the entire transaction.

In another case, Bossier Bank & Trust Company vs Union Planters National Bank, the Circuit Court of Appeals emphasized that an injunction could be granted only if the alleged fraud related to the relationship between the issuing bank and the beneficiary and not the underlying contract between the beneficiary and the account party.

Shipping Guarantee

Shipping Guarantees are issued by banks to enable importing customers to effect clearance of goods in circumstances where the bill of lading covering the cargo has not come forward or may be missing. In doing so, the bank incurs liability in respect of the goods. Also, of course, it may involve loss of control of the goods, the documents for which the bank has been entrusted to handle.

Shipping guarantees are only issued in respect of missing bill of lading where the guarantees relate to documents which are definitely expected to come forward through the bank. In the absence of already approved credit facilities under which a shipping guarantee may be issued, all applications for shipping guarantees are subject to a credit appraisal of the applicant. Where the standing of an applicant does not justify clean credit facilities, a cash margin (normally 100%) is taken. In all cases, it is essential that banks satisfy themselves from appropriate and reliable documentation regarding the value of the cargo prior to the issue of the guarantee. Shipping guarantees may not be issued in respect of cargo under lien to another bank.

Upon clearance of goods, the guarantee must be returned to the issuing bank for cancellation. It should not remain outstanding for more than one month from the date of its issuance. It is customary, where bank would initiate an enquiry into the reason for its non-return immediately after expiry date of the guarantee.

Proforma Invoice

Proforma Invoice is a form of quotation by the seller given to a potential buyer. It is identical to a commercial invoice in appearance except that words ‘Proforma Invoice’ prominently appear on it.

Proforma invoice is used as an invitation to the buyer to place a firm order based on prices quoted in it. Many a time local regulations make it obligatory for the buyer to have proforma invoice which forms the basis for obtaining an import license and/or an exchange permit.

The proforma invoice would normally show the terms of trade and prices. The buyer is encouraged to fill in the quantity and total amount which is treated as an ‘offer to buy’ or ‘tender’. This, when accepted by the seller, forms a firm sale contract. In other words, proforma invoice is the simplest form of a sale contract.

Accepted proforma invoice is conclusive evidence of the terms agreed upon. Details from this are transposed verbatim to the commercial invoice in due course when goods are ready for delivery. Often the seller is required to certify on the commercial invoice that goods are in accordance with the proforma invoice no….dated….

Proforma invoices are also used in the following situations where settlement is not directly linked to the movement of goods e.g:

1. Advance payment i.e. before shipment of goods

2. Consignment sales; goods are exported to an agent who concludes firm sale contracts with the buyers and renders account of these sales to exporter from time to time. Proforma invoice acts as a guide for prices to be obtained from the buyers

3. Tender sales; proforma invoice is used to support a tender for a sale contract.

Nomination Without Obligation

The word ‘available’ as used in LC operations, ranks high on the list of terms that confuse exporters. An LC should clearly specify how it is available; by sight payment, deferred payment, acceptance or negotiation [article 6(b), UCP 600]. It is preferable for exporters that LCs be advised available with a local bank, or at least with a bank in the exporter’s own country. For instance, if the LC is available at the counters of a local advising bank by sight payment, deferred payment, acceptance, where confirmation is added, then the exporter will, in the normal course of events, receive payment or have a bank acceptance or a deferred payment commitment a few days after presenting documents complying with the terms of the LC. Such commitments are definitive and without recourse to the exporter. However, if LC is not confirmed, such advising bank may decide not to pay, accept or issue a deferred payment commitment at the time documents are presented, even if they are presented in order [article 12, UCP 600]. There can be many reasons for this, but the most common is that the advising bank where the LC is available is not satisfied with the bank risk or country risk.

If on the other hand, the LC was confirmed, such advising/confirming bank would have no option but to take up documents which comply with the terms and conditions of the LC and honour its commitment to the exporter.

Negotiation deserves a special mention. Negotiation is a term which regularly confuses exporters and perhaps even some bankers. If an LC is available by negotiation with an advising bank and not confirmed, that bank has the option to pay to the exporter, remit the documents and claim payment from the issuing bank. The exporter must realize that the final decision as to whether or not documents meet the terms and conditions of the LC, and consequently as regards payment, rests with the issuing bank. The negotiating bank will request repayment from the beneficiary (with interest) if payment is not received from the issuing bank. Negotiation without confirmation is with recourse.

An LC available by negotiation and confirmed by the negotiating bank means that the negotiating bank has no option but to negotiate documents presented complying with the terms and conditions of the LC. Such negotiation under a confirmed LC is without recourse. Where an LC is only available by negotiation and not confirmed, many banks which have been nominated as negotiating banks are not prepared to take the risk of paying the exporter for fear they may not get reimbursed. Exporter should appreciate the service provided by a bank when it negotiates documents, and also understand why a bank is not always prepared to negotiate.

Transport Document

Most of the discrepancies discovered in LC operations are associated with the transport document. It is largely because LC stipulates a type of document which is not appropriate to the mode or modes of carriage which will be used. Some traders, particularly new traders, are not well versed with what transport document to follow with which trade term. Terms such as FOB, CFR and CIF are only meant for carriage by sea or waterway only where Bill of Lading or Non-Negotiable Seaway Bill should be stipulated in the LC. Terms such as Ex-work, FAS, CIP, CPT and etc where one mode of transport are used should be followed with a multimodal transport document.

Generally, the details on the transport document should include the following information:
1. An indication that it has been issued by a ‘named carrier or his agent’
2. A description of the goods in general terms not conflicting with description in the LC
3. Identifying marks and numbers
4. The name of the carrying vessel in the case of a Marne Bill of Lading, or the name of the intended carrying vessel in the case of a multimodal transport document including sea transport
5. An indication of dispatch or taking in charge of the goods or loading on board, as the case may be
6. An indication of the place of such dispatch or taking in charge or loading on board and the place of final destination
7. The name of shipper, consignee (if not made out ‘to order’) and the name and address of any ‘notify’ party
8. Whether freight has been paid or still to be paid
9. The number of originals issued to the consignor if issued in more than one original
10. Date of issuance of the transport document

The date of issuance of the transport document is very important and critical, firstly, to show whether the goods have been shipped in time, if the LC stipulates a latest date for shipment.

Secondly, it is important to meet the requirement that the documents must be presented for payment, acceptance or negotiation, as the case may be, within the validity of the LC and within 21 days from the date of issuance of the transport document unless the LC stipulates some other period of time.

Another importance is to determine the acceptability of the insurance document which, unless otherwise stipulated in the LC, or unless it appears it appears from the insurance document that the cover is effective at the latest from the date of shipment of the goods, must be dated not later than such date of shipment (loading on board or dispatch or taking in charge).

Traders are also to scrutinize and ensure that if a transport document bears a superimposed clause or notation which expressly declares a defective condition of the goods and/or the packaging, it will not be acceptable unless acceptance of such clause is authorized in the LC. A transport document specifically stating that the goods are or will be loaded on deck is also not acceptable unless expressly authorized in the LC.

Scope of Cargo Insurance Coverage

The type of coverage that the insured can obtain ranges from the minimum cover provided by the basic policy commonly termed as S.G. Policy (Ships and Goods Policy) to the maximum protection of “All risks whatsoever”. The S.G. Policy covers the loss or damage to goods (total or partial) arising from the perils of the sea. As the goods in transit are exposed to other extraneous perils such as theft, pilferage, leakage, shortages, etc, the scope of the cover provided under the S.G. policy has to be enlarged by introducing a number of Institute Cargo Clauses (ICC) such as Free from Particular Average (FPA), With Average (WA) and All Risks (AR). Furthermore, certain types of cargo require special clauses, commonly termed as trade clauses e.g., Rubber Clause, Raw Sugar Clause and Timber Trade Federation Clause.

The All Risks Clause provides coverage for all perils, excluding losses or expenses proximately caused by delay, inherent vice or nature of the cargo. The coverage for shipments by air is as per the Institute Air Cargo Clauses (All Risks) (excluding sendings by post), which differs from the other clauses to cater for the particular need by the mode of transport. The important things to note is that these clauses are so designed as to provide cover supplemental to the basic cargo insurance policy (S.G. Policy).

It should be pointed out that due to difficulties encountered by the commerce and trade in the interpretation of the archaic wordings of the S.G. Policy, the Lloyd’s Underwriters Association, in consultation with the Institute of London Underwriters and other interested parties, has replaced the S.G. policy with a simple document and a corresponding set of a new Institute Cargo Clauses – ‘A’, ‘B’ and ‘C’ in place of ‘All Risks’, W.A. and F.P.A. Clauses.

Clause A covers all risks of loss or damage to the assured matter subject to the following exclusion:

Willful misconduct of the Assured; ordinary leakage, loss in weight or volume, wear and tear; unsuitable packing; inherent vice; delay; insolvency or financial default of owners, managers, charterers or operators of vessel; atomic weapons of war and radioactivity.

Clause B covers loss or damage to the assured matter reasonably attributable to the following risks:

Fire; explosion; stranding; sinking; grounding; overturning; derailment of land conveyance; collision or contact of vessel with any external object other than water; discharge of cargo a t pot of distress; general average sacrifice; jettison; washing overboard; entry of sea, lake or river water into vessel, craft, hold, conveyance, lift van or place of storage; total loss of package lost overboard or dropped during loading or unloading; and earthquake, volcanic eruption or lightning.

The exclusions under B clause are similar to those of Clause A with the addition of deliberate damage to or destruction of assured matter.

Clause C covers loss or damage to the assured matter reasonably attributable to the following risks:

Fire; explosion; stranding; grounding; capsizing of vessel; overturning; derailment of land conveyance; collision or contact of vessel with any object other than water; discharge of cargo at port of distress; general average sacrifice; and jettison.

The exclusions under C clause are identical to those of Clause B. In addition, the losses arising from the following risks are not covered:

1. Earthquake, volcanic eruption or lightning
2. Washing overboard
3. Sea, lake or river water damage
4. Total loss of any package lost overboard or dropped whilst loading on to or unloading from vessel.

The loss or damage caused by war and strikes, riots and civil commotion (SRCC) is also excluded under all the three clauses mentioned above. However, traders can obtain cover against losses arising from war and SRCC risks on payment of an additional premium.

It is important to remember that war risks are covered only when the cargo is water-borne that is it is not in force whilst the cargo is on land. The cover starts only when the cargo is loaded on board the vessel and ceases as soon as it is discharged from the vessel at the final port or after the expiry of 15 days counting from the midnight of the day of arrival of the vessel at the final port of discharge, whichever is earlier.

Basic Principle of Cargo Insurance

Cargo insurance plays an important part in facilitating trade transactions. Through cargo insurance, the financial losses suffered by traders on account of damage to goods in transit resulting from various hazards such as fire, storm, collision, stranding, theft, sinking, explosions etc, are transferred to insurance underwriters. By providing protection cargo insurance enables all those engaged in overseas trade to expand their operations.

There are five basic principles governing cargo insurance:
1. Insurable interest. Two conditions should be fulfilled to establish insurable interest, namely:
a. The person should have a legally enforceable financial interest in the property being insured.
b. He should be exposed to suffer a financial loss if the insured property is lost, damaged or destroyed.

2. Indemnity. This principle states that the assured should be restored as nearly to the same position after the loss, as he occupied immediately preceding it. However, in cargo insurance, it is a common practice to issue “agreed value” policies, e.g. 10 cases of milk powder valued at $5,000.00. This implies that all losses are settled on the basis of agreed value irrespective of market value. However, claims for repairs or partial replacements are paid on the basis of actual cost of repair or replacement subject to the limit of the sum assured.

3. Utmost Good Faith. Utmost good faith is the cardinal principle of all types of insurance. The assured must disclose and truly represent all material facts regarding the subject-matter of insurance, which he knows or should know in the ordinary course of business.

4. Subrogation Rights. This is the right of the insurer to take over the privileges of the insured to recover the loss from those who are wholly or partly responsible for it. For example, if the loss is caused by the negligence of the carrier, the insurer, under subrogation rights, is entitled to recover the loss from the carrier in the name of the insured.

5. Contribution. Where an insurable interest of property is insured by two or more underwriters covering the same risks, each has to contribute in the same proportion as the sum insured under his respective policy to the total amount of the loss. The insured may claim the total loss from any one of the insurers and the insurer, who pays more than his ratable proportion, can claim a contribution from the other insurers.

Common Misinterpretation of C-Terms

C-terms or ‘Main carriage paid by the seller’ are terms frequently used by traders in trade. There are two groups of C-terms, one is intended to be used when the goods are carried by sea; CFR and CIF, the other group can be used for any mode of transport, including sea and multimodal transport; CPT and CIP.

Unlike F-Terms, the place mentioned after the abbreviations under C-terms is an indication of a place at destination instead of place of origin or shipment. For instance, “CIF Port Klang” or “CFR Busan” is an indication that Port Klang and Busan Port are respectively the ports of discharge at destination. It is not to be read as ports of shipment or port of loading. This is the opposite of F-terms where “FOB Port Klang” or “FOB Busan” indicates that Port Klang and Busan Port are respectively the ports of shipment or port of loading.

There are two “critical points” that traders need to understand when applying C-terms in a trade, one is the point of shipment and the other one is the point of destination. C-terms are normally used in the event where contracting and arranging for the main carriage in the country of the seller is not possible for the buyer where it would be much faster and convenient if it is left to the seller to arrange. Therefore, to ensure the goods reached the buyer, the seller has two main obligations to be discharged under C-terms:

1. to make a delivery which is to take place in his country either by placing the goods on board the vessel nominated by him at the port of shipment or by handing over to a carrier nominated by him at any place on land and;

2. to undertake to arrange and pay for the main carriage with the addition of insurance under CIF and CIP up to a named point determined by the buyer in the country of the buyer.

It is for the second reason why the ‘destination’ point is required to be determined by the buyer and to be indicated after the abbreviations. The buyer must first determine a named place for the goods to be discharged in his country. The seller than, contracts and pays for the main carriage on behalf of the buyer in his country up to that named point determined by the buyer.

Secondly, the insurable interest to the goods while in transit under C-terms lies on the buyer. The risks are transferred from the seller to the buyer at the point of delivery in the country of the seller. Therefore, buyer is the party who is responsible to procure for insurance in his country to cover the risks from point of delivery up to point of discharge under CFR and CPT. However, under CIF and CIP, the seller is to procure for the insurance for the benefit of the buyer.

So, under C-terms, seller is responsible to contract and pay for the main carriage similar to those in D-terms and buyer has to bear the risks similar to those in E-term and F-terms.

Other duties and responsibilities of buyer and seller are explained in the LC guidelines & checklists.

Trade terms: Point of delivery in the country of the buyer

As mentioned in the earlier post, there are various methods and ways of making a delivery. Besides making a delivery in the country of the seller, it can also be made in the country of the buyer. Generally speaking, the responsibility and obligation of the seller increased when delivery is to be made in the country of the buyer. The seller is not only obligated to arrange and contract for the carriage but also to ensure safety of the goods while in transit. The points of delivery vary in accordance with the trade terms agreed upon by the contracting parties.

Similar to the delivery that take place in the country of the seller, the delivery in the country of the buyer may take place either at the seaport, airport, country border or at any named place where goods are customarily being loaded and unloaded. When this is done, buyer is said to haven taken the delivery and the obligation of the seller in making a delivery is completed.

The responsibility and obligation of the buyer becoming lesser if delivery is agreed to take place in the country of the buyer. To accommodate this advantage to the buyer, the appropriate term to be incorporated in the sales contract is either DAF, DES, DEQ, DDU or DDP.

Under these terms delivery is made by placing the goods at the buyer’s disposal on the arriving vehicle.

Trade Terms: Points of delivery in the country of the seller

One of the most important aspects of trade terms is point of delivery, that is the moment when the goods are either handed over to a carrier or place on board the collecting vehicle for onwards shipment to the buyer. As of this moment, the seller is said to have completed his obligation with regards to the delivery and the buyer is said to have taken the delivery of the said goods.

Whatever risks the goods may be exposed to or costs incurred from this point onwards are to be borne by the buyer. The trade terms are therefore be the important factor in determining the point of delivery. The point of delivery can either be in the country of the seller or in the country of the buyer. It may take place at the seller’s premises; at the factory, workplace or warehouse. It may also take place at the seaport, airport, country border or at any place where goods are customarily being loaded and unloaded.

When delivery is to be made in the country of the buyer, the goods may be collected at the seaport, airport, country border or at any named place.

Terms such as Ex-work, FCA, FAS, FOB, CFR, CIF, CPT and CIP are terms where the point of delivery is to take place in the country of the seller. There are three different methods of making a delivery by the seller when the delivery is to take place in the country of the seller.

Firstly, by having the goods ready at the buyer’s disposal by placing the goods at the seller’s premises as mentioned above. Under this condition, buyer is therefore responsible to arrange and to contract for the carriage to the final destination. This type of arrangement is represented by Ex-work term.

Secondly, by handing over to the carrier where the forwarding agent will come and collect the goods at the seller’s premises or at any named place. This type of arrangement is represented by terms such as FCA, FAS, CPT and CIP. There are two conditions apply under FCA; if the goods are to be handed over to a carrier at a named place other than the seller’s premises, buyer is responsible to unload the goods. On the other hand, if the handing over of the goods is taking place at the seller’s premises, the seller is responsible to load the goods onto the collecting vehicle. The term FCA requires the buyer to arrange and to contract for the carriage. Whereas the arrangement for transport under CPT and CIP is the obligation of the seller.

Finally, by placing the goods on board the vessel at the port of shipment. The seller must ensure that the goods are actually on board the vessel. This is where the terms FOB, CFR and CIF are used. Under the term FOB, the buyer is the party who is responsible to arrange and to contract for the transport. On the other hand, such obligation is transferred to the seller under the terms CFR and CIF.

INCOTERMS

Once the LC is issued and received by the seller, the next event to take place is the movement of the goods. The seller is liable and responsible to ensure that the goods ordered by the buyer are delivered and received by the buyer at the agreed place and within the agreed time. The delivery process requires engagement of a third party where risks and costs are inherent.

Firstly, transport. Goods can be moved using variety modes of transport such as vessel, truck, barge, airplane and train. Regardless of the modes of transport, the inherent factor here is cost.

Secondly, safety of the goods or cargo. The goods, while waiting to be loaded on the carrying vehicle or while in transit may be exposed to the risks of damage or loss to the goods.

In some cases, the goods are required by the regulations of the exporting or importing country where pre-inspection must be carried out to ensure compliance and conformity. Besides, it is customary that custom clearance must be obtained by both, importer as well as exporter. That means custom duty is to be incurred.

All these duties, obligations and costs may form ground for disputes between buyer and seller of different countries as there bound to be trade practice differences, political policies differences, restriction on foreign currencies and other uncontrollable trade limitations.

Therefore, it is imperative that a uniform understanding should be established to enhance the process of trade between trading parties of different countries. This understanding should be able to be applied internationally regardless of geographical locations. Finally, it should form a rule where it is binding on all parties involved in international trade, particularly buyer and seller. Henceforth, International Commercial Terms or INCOTERM comes into picture.

INCOTERMS expressly spells out clear guidelines on the distributions of risks and costs between buyer and seller. The obligations of each party are also expressly stated as to how the delivery should be made by the seller, who should arrange for transportation, who should bear the costs of insurance, transportation, import and export duties and so on. This rule is specifically applicable to the sales contract between the buyer and the seller. The current INCOTERMS applied worldwide which is published by the International Chamber of Commerce (ICC) is known as INCOTERM 2000.

SWIFT Format: Field 78

Field 78 (Instruction to the paying/accepting/negotiating bank) is an optional field where Issuing Bank will indicate instructions regarding sending of the documents, method of reimbursement and other related instructions such as:

+AMOUNT OF NEGOTIATION MUST BE ENDORSED AGAINST THIS CREDIT

+ALL DOCS TO BE AIR COURIERED IN ONE LOT TO ISSUING BANK, ZEALOT BANK LTD, NO 47 & 49 JALAN BAHAGIA, TAMAN TUN DR ISMAIL, 60000 KUALA LUMPUR, MALAYSIA

+UPON RECEIPT OF DOCS IN STRICT COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS CREDIT, WE SHALL REMIT PROCEEDS AS PER YOUR DISPOSAL INSTRUCTION

These instructions are meant for the Paying Bank or Accepting Bank or Negotiating Bank such as where the documents should be sent to and how the reimbursement is going to be paid.

SWIFT Format: Field 49

Field 49 (Confirmation instruction) is a mandatory field. This field must present in every LC issued. This field contains instruction regarding confirmation of the LC where it must contain one of the following codes:

1. CONFIRM – The receiver is requested to confirm the LC
2. MAY ADD – The receiver may add its confirmation to the LC
3. WITHOUT – The receiver is not requested to confirm the LC

However, if a bank (receiver) which is authorized or requested by the issuing bank to confirm the LC (CONFIRM) is not prepared to do so, it must inform the issuing bank and may advise the LC to the beneficiary without confirmation.

When the field is indicated by the code ‘MAY ADD’, the receiver may or may not add its confirmation. Should the receiving bank wishes to add its confirmation, it must also inform the issuing bank prior to adding its confirmation and advise the same to the beneficiary.

When the code “WITHOUT’ is indicated and the receiving bank wishes to add its confirmation at the request of the beneficiary, it must also notify the issuing bank to obtain approval before adding its confirmation.

When confirmation is added to the LC, the confirming bank is acting as a second issuing bank in the country of the seller.

SWIFT Format: Field 48

Field 48(Period for presentation) is an optional field where the time limit within which the presentation of the shipping documents should be made to the issuing bank or nominated bank by or on behalf of the beneficiary/seller.

As a general rule, this time period starts from the date of shipment which is indicated in the transport documents i.e. Bill of Lading, Multimodal transport documents, Air Waybill etc.

Secondly, in any event or when this field is not present or where there is no express indication in this field, the presentation should be made not later than 21 calendar days after the date of shipment but not later than the expiry date of the LC. In this case, the expiry date of the LC is deemed to be an expiry date for presentation.

The number of days indicated in this field should accommodate the seller a comfortable time period to enable him to obtain certain documents issued by third party (Insurance document, Transport document, Certificate of origin, inspection certificate etc), to prepare other documents, to vet through all the documents, to collate and to make presentation to the bank.

Buyer may indicate any number of days, for example, 7 days, 12 days, 14 days or 21 days. The number of days is calculated from the date of shipment indicated in the transport document.

SWIFT Format: Field 71B

Field 71B (Charges) is also an optional field. This field is meant for the following charges:

1. Agent’s commission (AGENT)
2. Commission (COMM)
3. Our Correspondent’s commission (CORCOM)
4. Commercial discount (DISC)
5. Insurance premium (INSUR)
6. Postage (POST)
7. Stamp duty (STAMP)
8. Teletransmisson charges (TELECHAR)
9. Wharfing and warehouse (WAREHOUS)

This field is accommodated for 35 characters (alpha numeric) per line subject to a maximum of 6 lines. By indicating either one or combination of some of the charges above, the proceeds received by the seller is the net amount after deducting the said charges.

As a general rule as well as to avoid disputes, in most cases, all the charges incurred in the country of the buyer will be paid by the buyer and those charges incurred in the country of the seller is to be paid by the seller. Therefore, this field is normally indicated as follow:

‘all charges outside Malaysia (country of the buyer) is for the account of the beneficiary’.

Having indicated as such, the seller would be able to account his actual cost up to delivery (handing over to carrier / on board the vessel) of the goods and buyer on the other hand would know his actual cost before selling the goods.

SWIFT Format: Field 47A

Field 47A (Additional conditions) is also another optional field. This field is normally used by issuing bank or the buyer to lay down other important instructions and requirements.

This is where issuing bank indicates among others, discrepancy fee is charged for the account of the seller should there is any discrepancy in the presentation. Buyer may make use of this field to provide instructions to the seller to request additional performance for example, to fax Bill of Lading, invoice or other performance deemed necessary. But bear in mind, all these additional performance must be accompanied by a simple written confirmation to certify that such performance has been discharged and the written confirmation must be submitted to the bank to form a presentation.

To illustrate this, assuming the additional condition is worded as follow:

‘…Seller is to fax a copy of Bill of Lading upon shipment to buyer at 603-56784535. A certificate to this effect is required for negotiation’

In this case, first, the seller must fax a copy of B/L to the buyer upon shipment of the goods. Secondly, the seller must also prepare a certificate or written confirmation (letterhead) addressed to the buyer to confirm that the B/L has been faxed. This ‘certificate’ or written confirmation must also be submitted to the bank.

Other than this, buyer may also include requirements such as appointment of transport, inspection of goods, conditions for delivery or other additional performance. All these performance must be accompanied with a written confirmation.

SWIFT Format: Field 46A

Field 46A (Documents required) is also another optional field. However, in most commercial LC, this field is always presents. This is where all the documents required pertaining to that particular trade described in the LC should be expressly indicated.

This includes type of documents, number of copies as well as photocopy or original piece. As a general rule, at least one original of each document stipulated in the LC must be presented (Article 17(a), UCP 600). Documents are categorized as financial documents, commercial documents, transport documents, insurance documents and official documents.

Drafts or Bills of Exchange (B/E) are example of financial documents. These documents are normally provided by the bank, signed by the seller and drawn on the nominated bank or the issuing bank. B/E is a negotiable instrument and transferable in principle. The reason why this document is used in trade is simply because it provides a second legal protection to the acceptor or bona fide holders. In the event of default, the holder shall pursue legal action based on the B/E alone. This is also one of the reasons why freely negotiable LC is becoming so popular worldwide.

Commercial invoice on the other hand is not negotiable but only serves as an accounting document where details descriptions of the goods are indicated. This document normally is prepared by the seller. Packing list is another document prepared by the seller where it indicates how the goods are packed, weight of packaging, number of items per package and marks and numbers.

There are various types of transport documents which largely depend on the mode of transport engaged in moving the goods from the point of origin to the final destination. Multimodal transport is increasingly important in this modern world with the introduction of containerization. Goods can be picked up at the seller’s premise and move on using a combination of different mode of transports. In this case, multimodal transport document is required to be presented. Port to port shipment or inland waterways where goods are moved using vessel require Bill of Lading or Sea Waybill. If goods are transported by air, Air Waybill is required and so on. All these documents are issued by the transport operators.

It is also important to note that while in transit, the goods are exposed to risks, damage or loss. In this instance, insurance coverage against damage or loss to the goods should be procured and should be expressly indicated in the LC.

It is sometimes required by the law of the importing country to declare certain goods of their content, substance or origin to ensure compliance. Therefore, official documents such as analysis certificate, inspection certificate, quality certificate or certificate of origin may be required to be indicated in the LC.

It is worth to remember that only documents related to the trade of the goods should be requested because it will implicate the ability of the seller to prepare, obtain and to present all the documents to the bank to claim for payment.

State clearly what are documents required, how many copies, how many original and how many photocopies. If, documents such as analysis certificate, inspection certificate or quality certificate is required, state clearly who should issue and who should sign them.

SWIFT Format: Field 45A

Field 45A (Description of goods and/or services) is another optional field. However, in commercial LC, this field is always presents. This is where the goods purchased by the buyer are described as well as indication of trade term used.

The description of goods should not be so excessive and complicated. Although this field provides 100 lines with 65 characters (alpha numeric) per line, but traders are always encouraged to describe the goods as brief as possible.

LC does not guarantee the buyer will receive the goods he ordered. This is not the function of the LC, in short, LC does not guarantee the goods. It serves no purpose at all by excessively describe the goods to the last details.

For example, if buyer is buying cell phone parts of various models and colors for various brands, they need not necessarily be described model by model, color by color or brand by brand in the LC. It is sufficient to indicate for example, ‘…cell phone parts as per pro-forma invoice no 1234 dated 4th February 2008’.

The trade term used or agreed upon by both parties must also be indicated in this field e.g., FOB, CIF, CPT.

SWIFT Format: Field 44C (Latest Date of Shipment)

Field 44C (Latest date of shipment) is also another optional field. This field may or may not present. If it does not present, the shipment must be made within the validity of the LC.

If this field present, the shipment must be made within the date indicated in this field. The date indicated in this field is the limit within which the shipment must be made by the seller. This date should not exceed the expiry date of the LC.

Evidence of shipment is indicated in the transport documents like multimodal/combined transport document, Bill of Lading, Non-Negotiable Sea Waybill, Charter Party Bill of Lading, Air Transport Document, Road, Rail or Inland Waterway Document, Courier Receipt, Post Receipt or Certificate of Posting.

The date indicated on those documents is deemed to be the date of shipment and it should be within the date indicated in field 44C.

SWIFT Format: Field 44A (Place of taking in charge...)

Field 44A (Place of taking in charge / dispatch from.. / Place of receipt) is an optional field. This is a field where a place or a point of handing over the goods to the carrier should be indicated. The place or point is depending on the trade terms used e.g. Ex-Work, FCA, FAS, FOB, CFR, CIF, CPT, CIP, DAF, DES, DEQ, DDU or DDP.

Field 44A is appropriate for multimodal transport where the place or point of handing over is any place on land.

Field 44E (Port of loading / Airport of Departure) on the other hand is most appropriate to be used where mode of transport is determined by vessel or aircraft.

Field 44F (Port of discharge / Airport of destination) is also an optional field where a place of actual physical delivery of the goods should be made in the country of the buyer. The same case applies to field 44B (Place of final destination / For transportation to… / Place of delivery).

The appropriate trade terms and fields to be used will be discussed in the coming post.

LC SWIFT Format: Field 43T (Transshipment)

Field 43T (Transshipment) is an optional field. It may present or it may not present.

Transshipment is shipment of goods in a single journey, from the point of origin to the final destination using a combination of different mode of transport.

Whether or not transshipment is to be allowed or permitted, it is largely depends on the type and nature of the goods and the trade terms used; E term, F terms, C terms or D terms.

Containerized goods are subject to transshipment because they are normally delivered to the carrier at the seller’s premise or at a named place prior to loading on board the vessel. The goods will be transported by a trailer/lorry by road to the port and later loaded on board the vessel at the port of shipment. In this case, transshipment is to be allowed.

On the other hand, petroleum, grains, liquid cargo and other loose products normally will be delivered directly from the depot at the port of loading and on board the vessel. In this instance, transshipment is prohibited. However, this does not mean the transshipment will not take place. The goods may be unloaded and loaded onto another vessel.

Under this field, either ‘ALLOWED’ or ‘NOT ALLOWED’ is to be indicated.

LC SWIFT Format: Field 43P (Partial Shipment)

Field 43P (Partial Shipment) is an optional field. The presence of this field would depend on the trade agreement between buyer and seller. Partial shipment is, in simple words, delivery of an order in two or more consignments, if allowed and mutually agreed upon by both parties, buyer and seller. The seller has the advantage to ship any quantity or amount lesser than the original order or as indicated in the LC in few shipments until fully delivered to the buyer.

For example, if the amount indicated under field 32B (Currency Code, Amount) is USD10,000.00, the seller may ship the goods worth of USD 3,000.00 in the first shipment, second shipment, USD5,000.00 and third shipment USD2,000.00.

Seller should always request that the LC specify whether partial shipment is allowed in order to avoid unexpected problems. In case partial shipment is allowed, the validity of the LC will not be affected even if a problem arises in meeting the delivery date. The total shipment of USD10,000.00 must be fully delivered within the expiry of the LC.

Under this field, either one of these words:

‘ALLOWED’ or
‘NOT ALLOWED’

should be indicated. If ‘NOT ALLOWED’ is indicated, the seller is to ship the whole order in one shipment only. The word ‘PROHIBITED’ sometimes is used instead of ‘NOT ALLOWED’.

LC SWIFT Format: Field 42C (Drafts at...)

Field 42C (Drafts at…) is an optional field which means it can present or it may not present depending on the availability of the credit, either by Payment, Acceptance, Deferred payment or Negotiation (Field 41a).

Field 42C should present if the availability of the LC is made by Acceptance or Negotiation (Field 41a). On the other hand, if the LC is made available by payment or Deferred payment, field 42C would not present.

When field 42C presents, field 42D (Drawee) must also present. The Draft must be drawn by the drawer either on the issuing bank or the confirming bank, if any. Therefore, field 42D must present to indicate the Drawee bank. If the LC does not require confirmation by a confirming bank, the Draft must be drawn on the issuing bank. Again, the Drawee bank can either be indicated by full name and address or by indicating the SWIFT address or BIC.

The use of Draft or Bills of Exchange in trade is widely practiced by banks worldwide. The Draft can be drawn at sight or at a determinable future time (tenor/time). Further information on Draft will be posted later.

LC SWIFT Format: Field 41D (Available with...by...)

Field 41D (Available with…by…) is a mandatory field which must present. ‘Available with’ refers to the bank which is a nominated bank, in the country of the seller, authorized by the issuing bank to make payment to the seller. The name of this bank must be expressly indicated either by indicating its’ Bank Identifier Code, which is the SWIFT address or the full name and address of that particular bank. In most cases, this bank is the correspondent bank of the issuing bank and normally an advising bank. However, it could also be the issuing bank which is in the country of the buyer.

For example, the nominated bank is Citibank N.A. London. It can be identified as CITIGB2L, which is the SWIFT address of Citibank, London. This is option ‘a’ for field 41 (41a).

The other option is to indicate the nominated bank under this field by expressly indicates the name of the bank with the full address. For example,

Citibank N.A.,
No 88, The Strand,
London WC2R 0DW.

This is option ‘D’ for field 41 (41D).

In the case where the LC is made available by ‘freely’ negotiation or ‘non-restricted’ negotiation, the nominated bank would not be named. This field will be indicated with ‘any bank’. This wording, ‘any bank’ refers to any bank in the country of the seller which is willing to take up the documents and negotiates. Seller may present the documents to any bank of his choice in his country. If the seller decides to present the documents to Union Bank of California, New York instead of his other bank, Chase Manhattan, New York, The Union Bank of California, New York is deemed to be the nominated bank (Article 2, UCP600).

The word ‘by’ here refers to the availability of the LC, either by payment, acceptance, deferred payment or by negotiation. If the LC is made available by payment, acceptance, deferred payment or ‘restricted’ negotiation, the name of the nominated bank must be expressly indicated under this field either using option ‘a’ or option ‘D’.

One of the following codes must be indicated under 'by...':

BY ACCEPTANCE

BY DEF PAYMENT

BY MIXED PYMT

BY NEGOTIATION

BY PAYMENT

LC SWIFT Format: Field 50, 59 and 32B

Field 50 (Applicant) is another mandatory field which requires bank to expressly indicate the name of the applicant or buyer together with the address. (Sample of LC issued: SWIFT Format).

Field 59 (Beneficiary) is also a mandatory field where the the name of the buyer is to be indicated with full address.

Field 32B (Currency Code, Amount) is where the amount of the credit should be indicated. The currency code used in this field is ISO approved codes such as GBP (Great Britain Pound), USD (United States Dollar), MYR (Malaysian Ringgit), NLG (Netherland Guilder), FRF (French Franc), HKD (Hong Kong Dollar), SGD (Singapore Dollar), EUR (Euro) etc. This field is a mandatory field.

LC SWIFT Format: Field 31D (Date and Place of Expiry)

Next field is field 31D (Date and place of expiry). As I mentioned in the earlier post (SWIFT Format: part 3), the date format is written as yy/mm/dd. For example, the date is indicated as 070424, the date is read as April 24th, 2007.

The additional information here is, the name of the country where the LC is to expire must also be indicated, for example, Malaysia, United Kingdom, United States of America etc. It is only the name of the country should appear in this field, name of district should not be indicated.

It is a practice in international trade, where the place of expiry is normally in the country of the seller. This is so because, it provides some cushion to the seller where seller has longer time frame to prepare the goods for shipment, obtain related documents, conduct pre checking of the document to ensure consistency and present them to his bank.

There are also cases where the place of expiry is in the country of the buyer. But this is very rarely. This would shorten some time for the seller to get things ready and present the documents. In this case, the LC must reach the issuing bank which is in the country of the buyer before the expiry of the LC. The time taken for the documents to travel by air courier to the final destination is an additional factor to be considered.

Whereas, if the LC is to expire in the country of the seller, the documents must reach the nominated bank in the country of the seller before the expiry of the LC.

Today, to keep up with the vast global development in trade, most LCs is issued available with any bank by negotiation and place of expiry is always in the country of the seller.

LC SWIFT Format: Field 40E (Applicable Rules)

The next mandatory field is field 40E (Applicable Rules) which must present in every LC issued. This field is customarily indicated by the issuing bank which corresponds to the type of the LC issued, either commercial LC or standby LC. This field must contain one of the following codes:

EUCP LATEST VERSION

The documentary credit is subject to the version of the supplement of the ICC Uniform Customs and Practice for Documentary Credits for Electronic Presentations, International Chamber of Commerce, Paris, France, which is in effect on the date of issue.

EUCPURR LATEST VERSION

The documentary credit is subject to the version of the supplement of the ICC Uniform Customs and Practice for Documentary Credits for Electronic presentations and the version of the Uniform Rules for Bank-to-Bank Reimbursements.

ISP LATEST VERSION

The standby letter of credit is subject to the version of the ICC International Standby Practices, International Chamber of Commerce, Paris, France, which is in effect on the date of issue.

OTHR

The credit is subject to any other rules.

UCP LATEST VERSION

The documentary credit is subject to the version of the ICC uniform Customs and Practice for Documentary Credits, International Chamber of Commerce, Paris, France, which is in effect on the date of issue.

UCPURR LATEST VERSION

The documentary credit is subject to the version of the ICC Uniform Custom and Practice for Documentary Credits and the version of the Uniform Rules for Bank-to-Bank Reimbursements.

The incorporation of either of the codes mentioned above into the LC forms the text of the LC and therefore governs the LC primarily, but of course not solely. Such incorporation will also form a parol of evidence rules in the court of law. Courts and arbitration tribunals applies the UCP because it is the most universally followed set of customary documentary credit rules. However, it does not prevent a court from applying its country’s national law.

For the purpose of this example, which refers to commercial letter of credit, the appropriate code to be incorporated is UCPURR LATEST VERSION or to indicate the full narration only instead of the code.