hand marking the photocopy

[berry]

Dear all,

ICC position paper uses the subjected term as follows

If, however, a photocopy appears to have been completed by the document issuer’s hand marking the photocopy, then the resulting document is treated as an original document unless it indicates otherwise.

could some one please explain me the meaning of hand marking?

[ajoy]

ICC position paper uses the subjected term as follows

If, however, a photocopy appears to have been completed by the document issuer’s hand marking the photocopy, then the resulting document is treated as an original document unless it indicates otherwise.

could some one please explain me the meaning of hand marking?
Dear all,

The paper states as below on on photocopies

Photocopies
Banks treat as non-original any document that appears to be a photocopy of another document. If, however, a photocopy appears to have been completed by the document issuer’s hand marking the photocopy, then, consistent with sub-paragraph (A) above, the resulting document is treated as an original document unless it indicates otherwise. If a document appears to have been produced by photocopying text onto original stationery rather than onto blank paper, then, consistent with sub-paragraph (B) above, it is treated as an original document unless it indicates otherwise.

Again (A) comes from :

. Banks treat as original any document bearing an apparently original signature, mark, stamp, or label of the issuer of the document, unless the document itself indicates that it is not original.
Accordingly, unless a document indicates otherwise, it is treated as original if it:
(A) appears to be written, typed, perforated, or stamped by the document issuer’s hand; or
(B) appears to be on the document issuer’s original stationery; or
(C) states that it is original, unless the statement appears not to apply to the document presented (e.g. because it appears to be a photocopy of another document and the statement of originality appears to apply to that other document).

So my interpreation/guess of the art you refer to is as below:

A photocopy is to be treated as an original if

1) it is marked as original by the issuer of the document
i.e completed by the issuer himself/herself/itself

(2)Completing of the photocpy refers to marking it as an original in some way.

(3) The marking may be by hand, foot , stamp, mark , label or anything which could concieveably be used to show the that the intent of the issuer of the document is for treating the photocpy as original.

( Doesnot mean that issuer can photocopy a currency note and mark it as original in any of the above ways to make it an original? And the same applies to say a BL..)

Honestly this whole subject of whether or not a document is/can be treated as original is controversial and some court judgements have contradicted each other.

An expert once told me that 'The key is intent of the issuer not so much the method of preparing the document.' If the issuer of the document intends it to be an original and does mark or produce it accordingly and it is apparent that the issuer alone has done so , we can/should treat the document as original. I try to survive with that.

Eagerly waiting for more views on this one...

Cheers

[ucp800]

Dear All,

Referring ICC Doc. no. 470/871rev

The determination of an "Original" document in the
context of UCP 500 sub-Article 20(b) – A Decision
prepared by the ICC Commission on Banking
Technique and Practice.
This Decision emphasizes the need to correctly interpret and apply
sub-Article 20(b) of UCP 500. Consequently, ICC national
committees and associated organizations are strongly urged to
distribute this Decision as widely as possible to help ensure the
correct interpretation in the evaluation of documents issued under
letters of credit. This Decision does not amend sub-Article 20(b) of
UCP 500 in any way, but merely indicates the correct interpretation
thereof which has been adopted unanimously by the ICC Commission
on Banking Technique and Practice on 12 July 1999.

1. Background
Over a period of several years there have been a number of queries
raised with the ICC Banking Commission as to the determination, by
banks, of what is an "original" document under a letter of credit and
the necessity, if any, for such a document to be so marked.
For ease of reference the text of sub-Article 20(b) reads:
"Unless otherwise stipulated in the Credit, banks will also accept as
an original document(s), a document(s) produced or appearing to
have been produced:
i.by reprographic, automated or computerized systems;
ii.as carbon copies;
provided that it is marked as original and, where
necessary, appears to be signed.
A document may be signed by handwriting, by
facsimile signature, by perforated signature, by
stamp, by symbol, or by any other mechanical or
electronic method of authentication."

2. Determination of Originality
In documentary credit operations, the document checker is faced with
a number of issues pertaining to originality including:


Apparent originality
Banks undertake to determine whether a document appears on its
face to be an original document, as distinguished from a copy. Except
as expressly required by a letter of credit including an incorporated
term – such as UCP 500 sub-Articles 23(a)(iv) or 34(b) – banks do
not undertake to determine whether an apparent original is the sole
original. Banks rely on the apparent intent of the issuer of the
document that it be treated as an original rather than a copy.
In this regard, a person sending a telefax or making a photocopy on
plain paper or pressing through carbon paper presumably intends to
produce a copy. On the other hand, a person printing a document on
plain paper from a text that that person created and electronically
stored presumably intends to produce an original. Accordingly,
documents bearing facsimile signatures or printed in their entirety
(even including the issuer’s letterhead and/or signature) from
electronically stored text are presumably intended by the document
issuer to be original and in practice are accepted by banks as
original.
Documents that appear to be original but are not
Banks do not undertake to determine whether a document is original
in fact. Under UCP 500 Article 15, banks are not responsible for the
genuineness or falsification of any document. If a document appears
to be original or to have been marked as original but is in fact not
original, then its presentation may give rise to exceptional defences,
rights, or obligations under the law applicable to forged or fraudulent
presentations and is beyond the scope of UCP 500.
UCP 500 requirements:
(1) The UCP neither requires nor permits an examination beyond the
face of a document to determine how the document was in fact
produced, unless the document was produced by the bank, e.g. on a
telefax, telex, e-mail, or other system that prints out messages
received by the bank. The "produced or appearing to have been
produced" language in sub-Article 20(b) does not override UCP 500
sub-Articles 13(a), 13(c), or 14(b), or other practice and law that
prohibit issuers and confirmers from determining compliance on the
basis of extrinsic facts.


(2) As indicated by inclusion of the word "also" (" ... banks will also
accept as original(s) ..."), sub-Article 20(b) is neither comprehensive
nor exclusive in its provisions that distinguish originals from copies.
For example, a document printed on plain paper from electronically
stored text is acceptable, without regard to 20(b), if it appears to be
an original.
(3) Sub-Article 20(b) does not apply to documents that appear to be
only partially produced by reprographic, automated, or computerized
systems or as carbon copies. In this regard, a photocopy ceases to
be "reprographically produced" within the meaning of sub-Article
20(b) when it is also manually stamped, dated, completed, or signed
by the issuer of the document.

Personal opinion: For example, a photocopied invoice manually signed by the issuer is considered to be partially produced by reprographic system and (considered to be) an original. Another example: a photocopied inspection certificate manually stamped by the issuer is considered to be partially produced by reprographic system and (considered to be) an original.
(4) The "marked as original" proviso in sub-Article 20(b) is satisfied
by any marking on a document or any recital in the text of a document
that indicates that the issuer of the document intends it to be treated
as an original rather than a copy.

Personal opinion: For example, a photocopied packing list will become original if the issuer (i) chops “ORIGINAL” or puts a statement in the body of the packing list that “THIS IS ORIGINAL or the like” in the packing list.
Accordingly, a document that
appears to have been printed on plain paper from electronically
stored text is "marked as original" under sub-Article 20(b) if it also
states that it is original or includes letterhead or is hand marked.
Sub-Article 13(a) of UCP 500 refers to compliance of the presented
documents being determined by international standard banking
practice as defined in the articles of UCP. International standard
banking practice in relation to determination of "original" documents
could be described as follows:






3. Correct Interpretation of Sub-Article 20(b)
3.1 General approach.
Banks examine documents presented under a letter of credit to
determine, among other things, whether on their face they appear to
be original. Banks treat as original any document bearing an
apparently original signature, mark, stamp, or label of the issuer of the
document, unless the document itself indicates that it is not original.

Personal opinion: Any document can be considered to be original if it is signed by the issuer. For example, an invoice is original if it is marked, say “ORIGINAL” by the issuer. Another example, an inspection certificate is original if it is labeled by the issuer. Further example: a B/L is original if it is stamped by the issuer (usually the carrier). As a general rule, if the document itself says that it is NOT original or that it is copy, then it is not original.
Accordingly, unless a document indicates otherwise, it is treated as
original if it:
(A) appears to be written, typed, perforated, or stamped
by the document issuer’s hand; or

Personal opinion: For example, an invoice is original if it is written by the issuer only manually. Note: An invoice does not require a signature unless otherwise required by the LC. Another example: A beneficiary’s certificate is original if it is (manually) typed by the issuer (i.e. the beneficiary)
(B) appears to be on the document issuer’s original
stationery; or

Personal opinion: For example, an invoice is original if it is written or typed on the issuer’s (i.e. the beneficiary’s) original stationery (i.e. letterhead). Note: An invoice does not require a signature unless otherwise required by the LC. Another example: A weight list is original if it is reproduced by a computer and printed on the issuer’s original stationery.
(C) states that it is original, unless the statement appears
not to apply to the document presented (e.g. because it
appears to be a photocopy of another document and the
statement of originality appears to apply to that other
document).

Personal opinion: If a document says it is original, then it is original unless, for example, an original B/L is photocopied. Then the photocopied B/L is NOT original although it also copied the mark “ORIGINAL” appearing on the original B/L.


3.2 Hand signed documents.
Consistent with sub-paragraph (A) above, banks treat as original any
document that appears to be hand signed by the issuer of the
document. For example, a hand signed draft or commercial invoice is
treated as an original document, whether or not some or all other
constituents of the document are preprinted, carbon copied, or
produced by reprographic, automated, or computerized systems.
3.3 Facsimile signed documents
Banks treat a facsimile signature as the equivalent of a hand
signature. Accordingly, a document that appears to bear the
document issuer’s facsimile signature is also treated as an original
document.

Personal opinion: A facsimile signature is not a signature transmitted via fax machine. Documents received via fax machine are copies and cannot be considered as originals.
3.4 Photocopies
Banks treat as non-original any document that appears to be a
photocopy of another document. If, however, a photocopy appears to
have been completed by the document issuer’s hand marking the
photocopy, then, consistent with sub-paragraph (A) above, the
resulting document is treated as an original document unless it
indicates otherwise.

Personal opinion: For example, an invoice is photocopied. The issuer signed in the photocopied invoice. It (the photocopied invoice) becomes original (unless the photocopied invoice indicates otherwise).
If a document appears to have been produced by
photocopying text onto original stationery rather than onto blank
paper, then, consistent with sub-paragraph (B) above, it is treated as
an original document unless it indicates otherwise.

Personal opinion: For example, some invoice data are typed in a blank paper. The issuer of the invoice photocopies the data onto its own original stationery (e.g. with the pre-printed name and address of company). The photocopied invoice becomes original unless it indicates otherwise. This photocopied invoice need not be signed unless otherwise required by the LC.




3.5 Telefaxed presentation of documents
Banks treat as non-original any document that is produced at the
bank’s telefax machine. A letter of credit that permits presentation by
telefax waives any requirement for presentation of an original of any
document presented by telefax.

Personal opinion: I have never seen presentation of documents via fax machine. But if it should happen, the documents so received are copies and not originals.
3.6 Statements indicating originality
Consistent with either or both of sub-paragraphs (A) and (C) above, a
document on which the word "original" has been stamped is treated
as an original document. A statement in a document that it is a
"duplicate original" or the "third of three" also indicates that it is
original.

Personal opinion: Subject to (A) & (C) above, a document stamped for example “DUPLICATE” or “TRIPLICATE” is also considered to be original.

Originality is also indicated by a statement in a document that
it is void if another document of the same tenor and date is used.
Personal opinion: For example, B/Ls usually say it was issued in 3 originals, if any one is presented, the other two become void. This sort of statement indicates that the documents themselves are originals.

3.7 Statements indicating non-originality
A statement in a document that it is a true copy of another document
or that another document is the sole original indicates that it is not
original.

Personal opinion: A certified true copy is still a copy and not an original.
A statement in a document that it is the "customer’s copy" or
"shipper’s copy" neither disclaims nor affirms its originality.

Personal opinion: A set of AWB usually contains a “shipper’s copy”. A set of courier receipt usually contains a “customer’s copy”. This does not mean it is either original or copy. Depending on different situations, they can be originals or copies.







4. What is not an "Original"?
A document indicates that it is not an original if it
a.appears to be produced on a telefax machine;
b.appears to be a photocopy of another document which has not
otherwise been completed by hand marking the photocopy or by
photocopying it on what appears to be original stationery;

Personal opinion: For example, an original B/L is usually marked “ORIGINAL”. If you photocopy this B/L, the output document (i.e. photocopied B/L) is a copy and not original.
or
c.states in the document that it is a true copy of another document
or that another document is the sole original.

Personal opinion: For example, a certified true copy of a certificate of origin is still a copy and cannot be considered as an original.
5. Conclusion
Based upon the comments received from ICC national committees,
members of the ICC Banking Commission and other interested
parties, the statements in clauses 3 and 4 above reflect international
standard banking practice in the correct interpretation of UCP 500
sub-Article 20(b).

My explanations and examples above are neither comprehensive nor exclusive. Please correct my opinion if I am wrong.

Regards