Imposition of legal duty enjoins legal right
High Court Division
(Special Original Jurisdiction)
Md Ashfaqul Islam J
Md Ashraful Kamal J
February 23th, 2014.
Bangladesh Bank and others. Respondents
Constitution of Bangladesh, 1972
Writ of Mandamus-A writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the public bodies and there is a failure on the part of those public bodies to discharge their statutory obligations. The paramount function of a writ is to compel performance of public duties prescribed by statute and to keep public bodies exercising public functions within the limits of their jurisdiction. Therefore, mandamus may be issued to compel the public bodies to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. ..... (50)
Carriage of Goods by Sea Act (XXVI of 1925)
Section 7, Schedule III
Bill of lading can be treated as conclusive evidence as between the carrier and a receive and as at least prima facie evidence as between the carrier and the shipper, as to the number or weight or quantity and apparent order and condition of the cargo on loading. . ..... (34)
Queen vs Guardins of the Lewisham Union, (1897) 1 QB 498 ; Talekhal Progressive Fisherman Co-operative Society Ltd. vs Bangladesh, 1981 BLD (AD) 103 and National Engineers vs Ministry of Defence, 44 DLR (AD) (1992) 179 ref.
Masud R. Sobhan, Advocate with Fatema S.
Chowdhury, Advocate-For the Petitioner. (In WP No. 1322 of 2010. 6240 of 2009. 7831 of 2012. 7832 0f 2012, 7833 of 2012. 7834 0f 2012. 15665 of 2012, 6862 of 2011, 11135 0f 2013, 11136 0f 2013, 11137 0f 2013)
Tanjib-ul-Alam. Advocate-For the Petitioner. (In WP No 7318 0f 2010, 7316 0f 2010, 7317 of 2010, 7814 of 2012)
Dr AKM AU. Advocate with Habib-un-Nabi, Advocates-For the Petitioner (In WP No. 15367 of 2012. 15662 of 2012)
Forrukh Rahman. Advocate-For the Respondent. (In WP No. 1322 of 2010,7318 of 2010, 7316 of 2010, 7317 of 2010, 6240 of 2009, 7814 of 2012, 7831 of 2012, 7832 of 2012, 7833 0f 2012, 7834 0f 2012, 15367 of 2012, 15662 of 2012. 15665 of 2012.)
Shamim' Khaled Ahmed. Advocate-For the Respondents (In WP No. 6862 of 2011
SM Moniruzzaman. DAG with Khairun Nessa.
Promila Biswas. AAGs-For the Respondents.
Md Ashraful Kamal J: Since in these 17(seventeen) writ petitions, common questions of fact and law are involved, these are heard and disposed of by this single judgment.
2. In Writ Petition No. 1322 of 2010 a Rule Nisi was issued calling upon the respondents to show cause as to why the requirement that a Master Bill of Lading i.e. second Bill of Lading inserting the name of the bank as Authorized Dealer (AD) as consignee instead of the petitioner's or its designated agent's name as consignee being beyond the guidelines contained in Section 8(1) of Chapter 22 of the Guidelines for Foreign Exchange Transactions of Bangladesh Bank (Annexure-C) should not be declared to have been passed without lawful authority and is of no legal effect.
3. Brief facts, necessary for the disposal of these Rules, are as follows;
The petitioners are Freight Forwarders and have been engaged in freight forwarding business. They obtained licenses as per provisions of the Freight Forwarding Agents (Licensing and Administration) Rules 2008 pursuant to Section 207 of the Customs Act, 1969.
4. The petitioners as freight forwarding agents export goods to their destinations on behalf of the exporters and issues bill of lading known as house bill. The shipper issues master bill of lading on the basis of house bill prepared by a freight forwarding agent and endorsed by the bank.
5. At present, in Bangladesh, it is a mandatory provision that the house bill of lading issued by the freight forwarding agent and the master bill of lading issued by the carrier has to be endorsed by the concerned bank/authorized dealer.
6. Being aggrieved by and dissatisfied with the aforesaid mandatory requirement of the respondents with regard to the house bill of lading issued by the freight forwarding agent and the master bill of lading issued by the carrier and required to be endorsed by the concerned bank/authorized dealer, the petitioners preferred these writ petitions and obtained the present Rules.
7. In all the petitions it is the clear and specific claim of the petitioners that the respondents ought to give permission to them to ship consignment as agents of the exporters on the basis of bill of lading (house bill of lading) issued by the petitioners and endorsed by the bank/ authorized dealer and without endorsing the master bill of lading issued by the carrier.
8. Mr Masud-R-Sobhan, with Mrs Fatema S. Chowdhury, the learned Advocates appearing for the petitioners in WP No. 1322 of 2010, 6240 of 2009, 7831 of 2012, 7832 of 2012, 7833 of 2012, 7834 of 2012, 15665 of 2012, 6862 of 2011, 11135 0f 2013, 11136 0f 2013 and 11137 0f 2013, Mr Tanjib-ul-Alam, the learned Advocate appearing for the petitioners in WP No. 7318 of 2010, 7316 of 2010, 7317 of 2010 and 7814 of 2012, and Dr AKM Ali, with Mr Habib-un-Nabi, the learned Advocates appearing for the petitioners in WPNo. 15367 of 2012 and 15662 of 2012, submit that the house bill of lading issued by the freight forwarding agent endorsed by the bank would suffice and the consignment can be released by the freight forwarding agent on production of bank endorsed house bill and other shipping documents. The carrier can simply issue the master bill of lading against the consignment and inform the relevant parties about the particulars of the master bill of lading without bank endorsement which is known as telex release of the consignment.
9. They further submit that when a freight forwarding agent books a space for shipment of the consignment of the single importer absroad where a number of exporters are involved, then each exporter has to have two bills of lading endorsed by the banks/authorized dealer (AD) and the difficulties that are now being faced, in case of multiple exporters if all the shipment documents are not presented for delivery of the consignment at the destination part, the release of the entire consignment is held up.
10. Moreover, in respect of multi-shipment by several exporters to the same importer through one freight forwarding agent can be avoided if there is only one title document of the consignment, if only the house bill is treated as the title document for which the exporter and the agent would be fully responsible along with the carrier for the goods destination. The requirement to have the master bill of lading endorsed by the bank served no useful purpose and imposition of such a requirement violates the fundamental rights guaranteed under Article 40 of the Constitution of People's Republic of Bangladesh.
11. Finally, they submit that Section 8(i) of Chapter 22 of the Guidelines for foreign exchange transaction issued by the Bangladesh Bank does not require two bills of lading and the present requirement of endorsing both the bills of lading by the authorized dealer, which is beyond its own guidelines for foreign exchange transaction and is contrary to the practice of the international trade and as such a declaration is necessary that it is not a mandatory requirement and the petitioner is not bound by it.
12. Mr Shamim Khaled Ahmed, the learned Advocate appearing for the respondents in WP No. 6862 of 2011, Mr Forrukh Rahman, the learned Advocate appearing for the respondents in WP No. 1322 of 2010, 7318 of 2010, 7316 of 2010, 7317 of 2010, 6240 of 2009, 7814 of 2012, 7831 of 2012, 7832 of 2012, 7833 of2012, 7834 of 2012, 15367 of 2012, 15662 of 2012 and 15665 of 2012 submit that the circulation of two sets of bill of lading of which the further one (house bill of lading) is endorsed to the order of authorized dealer and the later one (Master Bill of Lading) is issued in favour of delivery agent not only violates the foreign exchange guideline but also creates confusion. There cannot be two bills of lading for same consignment for same mode of transport. This will encourage practice of fraud. Issuance of master bill of lading by carrier would make null and void any prior bill of lading. House bill received for shipment bill is applicable to transportation before shipment. For transportation by sea, the master bill of lading shall be applicable.
13. They also submit that the bill of lading/airway bill means shipped/on board bill of lading issued by carrier (ship-owner/airline), connotes a conclusive evidence of shipment. The freight forwarders cannot execute any contract of carriage by sea/air as they are not carrier for the purpose of transport by sea/air. The guideline is issued within the power vested in Bangladesh Bank under Section 20(3) of FERA 1947. Guideline is issued for ship-owner/airline as carriers for sea or air leg of transport. FCR (Forwarder cargo receipt) or HAWB (house airway bill) only relates to land leg of transport, it cannot cover sea/air, hence cannot be negotiable beyond shipment for not being a title document after shipment.
14. They further submit that due to faulty export documents particularly bill of lading, the importers or its nominated bank often reject goods and/or after receiving goods refused to make payment and due to the same faulty documents, mostly bill of lading, the cargo as exported often are lost in transit. Allowing carrier to issue master bill of lading to the delivery agent of freight forwarder or to its order would actually put the freight forwarder in control of the cargo and also make it the lawful owner of the cargo. This would pave the way for committing fraud and also create confusion to the parties involved, as the bank would be holding house bill of lading at the same time. believing that it is holding the true bill of lading. Hence two bills of lading cannot be in circulation at the same time. Issuance of separate master bill actually rescind the earlier bill for the same transport.
15. Moreover, the BGMEA informed the respondents that they received lots of complaints from its members against freight forwarders in that due to faulty export documents particularly bill of lading, importers refusal to make payment resulting in closure of many of the garments factory in Bangladesh. So, in order to protect the interest of the garments sector the master bill of lading has to be endorsed by the bank.
16. Finally, they submit that several news items have been published in several newspapers regarding the fraud and mal-practice committed by the freight forwarding. agents and foreign buyers causing failure to receive payment and foreign remittance in Bangladesh.
17. The present writ petitions have been hotly contested and the learned Advocates on both the sides have debated the points raised there in at sufficient length.
The issues before us;
(a) whether a house bill of lading issued by a Freight Forwarding Agent is bill of lading.
(b) whether the provision with regard to the house bill of lading issued by the freight forwarding agent and the master bill of lading issued by the carrier has to be endorsed by the concerned bank authorized dealer is beyond Section 8(i) of the Chapter 8 of the Guidelines for Foreign Exchange Transactions (GFET), 2009 (as of 31-5-2009).
18. Since the entire matter is relating to bill of lading, therefore, it is necessary to understand what bill of lading is.
Bill of lading is a document signed by a carrier (a transporter of goods) or the carrier's representative and issued to a consignor (the shipper of goods) that evidences the receipt of goods for shipment to a specified destination and person.
19. Carriers using all modes of transportation issue bills of lading when they undertake the transportation of cargo. A bill of lading is, in addition to a receipt for the delivery of goods. a contract for their carriage and a document of title to them. Its terms describe the freight for identification purposes; state the name of the consignor and the provisions of the contract for shipment; and direct the cargo to be delivered to the order '01' assigns of a particular person, the consignee, at a designated location.
20. BILL OF LADING is also a memorandum or acknowledgment in writing, signed by the captain or master of a ship or other vessel, that he has received in good order, on board of his ship or vessel, therein named, at the place there in mentioned, certain goods therein specified, which he promises to deliver in like good order, at the place therein appointed for the delivery of the same, to the consignee therein named or to his assigns, he or they paying freight for the same.
21. Bill of Lading (abbreviated to B/L) is one of the MOST important documents in the whole shipping and freight chain.
22. A bill of lading is the evidence of the contract of carriage entered into between the "carrier" and the "shipper or cargo owner" in order to carry out of the transportation of the cargo as per contract between the buyer and the seller.
23. A bill of lading is issued by the carrier or their agent to the shipper or the agent in exchange for receipt of the cargo. The issuance of the bill of lading proves that the carrier has received the goods from the shipper or their agent in apparent good order and condition, as handed over by the shipper.
24. Bills of lading originated as no more than documents issued to merchants by carriers to evidence receipt by the carriers, in good condition, of cargoes shipped on board their vessels. This receipt function remains a primary function of the "face" of most bills of lading (i.e. the side of the bill of lading in which information specific to particular cargoes, such as description and weight or volume of bulk cargoes or the dimension number and sell numbers of containers in the case of containerized cargoes is entered, generally in numbered boxes.)
(To be continued)