В статье исследуется недавнее решение английского суда по делу “ERIN SCHULTE”, причем особое внимание уделяется индоссированию коносамента. Автор рекомендует грузовладельцам обращать особенное внимание на передаточные надписи на коносаментах. Вероятно, главным уроком, который можно извлечь из упомянутого решения, является то, что банк имеет право требования из исполнения договора перевозки, если коносамент индоссирован в его пользу. Если же банк не воспользуется таковыми полномочиями, то передачу прав можно считать альтернативной, то есть при индоссировании коносамента возникает альтернативное обязательство.
Stuart Armstrong summarises the recent case of “ERIN SCHULTE”, and the issues surrounding indorsements on a bill of lading.
Bills of lading were issued naming the consignee as ‘to the order of Société Générale, Paris’. Those bills of lading were indorsed in favour of Standard Chartered Bank (SCB), the claimant in this Admiralty Court case.
The bills of lading, along with other documents, were presented to SCB for payment under a letter of credit which had been confirmed by SCB. SCB retained possession of the bills of lading, but did not immediately honour the letter of credit. By the time SCB did so, the cargo had already been discharged without presentation of the bills of lading (against an indemnity provided to the shipowner by the party named as shipper in the bills of lading).
The main issue for the Court of Appeal was whether SCB had title to sue under the Carriage of Goods By Sea Act 1992 (COGSA 1992) as lawful holder of the bills of lading. The shipowner maintained that SCB never became the lawful holder, because its failure to accept the presentation of documents as compliant with the terms of the letter of credit meant that it still held the bills of lading as agent for the presenter (i.e. the shipper).
Decision
The Court of Appeal held that for SCB to become the lawful holder of the bills of lading as indorsee, there had to be not only voluntary and unconditional transfer of possession by the presenter but also an unconditional acceptance by SCB. The shipowner was right that that did not occur on initial presentation of the documents. However, when the shipper, as beneficiary under the letter of credit, later commenced legal proceedings against SCB and SCB paid what was due under the letter of credit, unconditional transfer and acceptance then occurred and SCB became the lawful holder (and could sue for mis-delivery). It did not matter that by that time the cargo had already been discharged. The transfer and acceptance, although prompted by the shipper’s legal proceedings, had been pursuant to a ‘contractual or other arrangement’ (i.e. the letter of credit) entered into before discharge.
Comment
This decision serves as a reminder to those representing cargo interests that the indorsements on a bill of lading should always be checked. If a bill of lading has been consigned to, or indorsed, in favour of a bank and, as sometimes happens, that bank has not further indorsed the bill of lading either in blank or in favour of a named receiver, it may well be the bank that has title to sue under the bill of lading contract (irrespective as to who might have been the owner of the cargo or who might have suffered the loss). In such a situation, the authority of the bank to pursue a claim in the bank’s name must be obtained in advance of the one year time limit so that any extension of time which might be granted will be to the benefit of the bank as well. If the bank is reluctant to provide an authority, then an assignment of rights can be considered as an alternative.
Автор: Stuart Armstrong
Источник: http://www.hilldickinson.com/publications/marine,_trade_and_energy/2015/july/Standard_Chartered_Bank_v_Do.aspx