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This Starsin problem is not new to me. I
had realized such dilemma about 25 years ago when I did self-enhancement
studies on maritime transport, UCP and cargo insurance, as Jia Hao now
does. In the meantime, in DC Pro discussions and other magazines, I have
also written some articles to forecast and warn that problems similar to
the Starsin case would arise when bankers, carriers and insurers do not
meet often and talk to one and other. With the way legislations on
transport, banking (including UCP) and cargo insurance are drafted today,
such dilemma is bound and sure to happen. The matter is only WHEN! Now
I am glad that Jia Hao has found the Starsin case to provide a solid
evidence to support my forecast some 25 years ago.
For those who do not know me, I am familiar
with timber chartering trade that I had done about 25 years ago, shipping
cut logs or sawn timber from a range of Malaysian and Indonesian ports to
clients in Taiwan, Japan and Korea. There was no China trade at that time
because China was locked under the bamboo curtain and was closed to the
rest of the world. So I am familiar with the Starsin case trading
environment.
In a nutshell, the Starsin case dilemma
originates from the fact that the "Carrier" named in the bill of lading is
a time charterer.
I see more landmines here than those reported
by Jia Hao. Different judgments would be made depending on many
variables. That may also explain why the judgments from different levels
of English courts are different or even reversed. As the trial went along,
more and more information was made available that would turn over the
previous court judgments. This is one possibility but it may not be
true. It may be also possible that all three levels of courts are in fact
looking at the same set of evidences. I do not know.
According to the information provided
by Jia Hao, the unreported variables that may affect the judgment on the
party responsible for the damages (time charterer or the shipowners) are:
1 Whether the time charterer is a demise
charterer or not?
2 If the time charterer is a demise
charterer, is he also a bareboat charterer? In other words, who hires
the master mariner (official name of the "master" in UCP)? This makes a
lot of differences regarding who is responsible for the damages to the
cargoes (not "goods" as used in UCP 500/600 transport articles) because
the master mariner may be an agent of the shipowners, not an employee of
the time charterer.
2 According to the terms of the demise or
bareboat charter party, whether regular or routine checking/inspections
for seaworthiness and other maintenance duties are to be done by the demise
or bareboat charterer or the shipowners? From my experience in dealing
with charter party disputes, the damages to the cargoes may be due
to negligence in routine inspection and maintenance, rather than the
negligence or wrong doing of the master mariner or officers in ship
management?
4 There are nine kinds of shipowners
according to Lloyd's of London reports. So who are you talking about when
you mean shipowners"? the registered owner? the beneficial owner? the disponent
owner? the operating consortium owner? or.....???
So trust me, this Starsin case has a lot to
discover and discuss. It is not as simple as it appears on its face.
Talking about whether bankers could be made
competent to check the charter party bill of lading, I would say "Yes" as
a trainer. I have confidence to train them to be fully competent to check
the charter party bill of lading and other maritime transport document
after about a full week's training. I can guarantee that this is mission
possible. The problem is not whether bankers can be made competent to
deal with bills of lading. The trainer is here to offer a "No success
full refund" guarantee. The problem is that they do not want or resist to
know transport knowledge. Jia Hao, as a banker from Bank of China, is a
rare exception and I am very glad to offer him help and encouragement, when
he met me about two years in the cyberworld, as one of the subscribers to
my website
www.tolee.com. Yet I regret that I have not met him in person. And
I am very glad that I have finally found a young banker who is eager to
learn transport, cargo insurance and international trade laws and
conventions.
So "bankers cannot understand the
complicated transport issue" is not an excuse. The solution is here.
Whether bankers are required to check the
terms and conditions of a transport document? Let us forget about the
existing UCP requirements as reported by Soh Chee Seng. They have no
such requirements simply because they don't know how to begin.
For me, this issue depends on whether they
can be trained or not. If they cannot be trained, then there is only one
simple answer: "No". Bu if they wish to learn and can be trained, then the
answer would be "Perhaps". I think bankers should not compete on prices
alone. If one bank can provide checking on terms and conditions
of transport and/or insurance documents, I am sure that they can grap many
customers from other banks that do not provide such services. This is
leading edge competition - a new way of banking service excellence.
Lastly, I am glad to meet all of you in my
two hour presentation on bill of lading on 19th May 2006 in Vienna, to be
hosted by ICC Vienna as a special program after the ICC Banking Commission
meetings. I was told that about 100 participants have already registered.
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