ISSUING BANK’S LIABILITY UNDER THE SHIPPING GUARANTEE

QUESTION

Hi Mr. Old Man,

Could you please give your comments on the following:

1) The issuing bank has issued a shipping guarantee to enable the applicant to take delivery of the goods without presentation of original bills of lading. If the original bills of lading made to the order of the issuing bank are lost in transit, what are the issuing bank’s liabilities towards the shipping company? Can a person who picks the lost-in-transit bills of lading take delivery of the goods by falsifying the endorsement of the issuing bank?

2. Can the applicant who has taken delivery of the goods refuse to pay when he later receives a notice of discrepant documents from the issuing bank?
3. Must the issuing bank honour when it has issued the shipping guarantee?
4. Must the issuing bank honour when the issuing bank has sent a message to the presenter confirming that the applicant has waived the discrepancies?

Thank you.

PQ

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ANSWER

Hi,

1) The issuing bank’s liabilities under the shipping guarantee remain valid until a duly endorsed bill of lading is presented to the shipping company. Notwithstanding the original bills of lading lost in transit, the issuing bank will assume no liabilities unless there is a dispute with regard to the ownership of the goods.

Fraud is a matter of local law. Please note that only the holder in due course is the real owner of the goods. Any other person found guilty of fraud (falsifying the endorsement of the issuing bank to take  delivery of the goods), he shall be executed in accordance with the local law.

2) No. In order for the issuing bank to endorse the bill of lading or issue a shipping guarantee to enable the applicant to take delivery of the goods, the applicant must undertake (in his request for endorsement of bill of lading or for issuance of shipping guarantee)  to waive discrepancies if any.  Your described situation may occur when 1/3 set of original bills of lading made out to order blank endorsed or to the order of the applicant has been sent directly to the applicant. However, the applicant will certainly lose if the case is brought to court. Banks are wise enough not to issue LCs allowing  1/3 set of original bills of lading made out to order blank endorsed or to the order of the applicant to be sent directly to the applicant.

3) Yes.

4) The issuing bank will honour when it has RECEIVED AND ACCEPTED the applicant’s waiver.

Best  regards,

Mr. Old Man