Статья посвящена анализу очень важного прецедента в английском праве, содержащемся в решении по делу Bulgrains & Co Limited -v- Shinhan Bank [2013] EWHC 2498 (QB).
Высокий суд разрешил несколько важных вопросов в решении по этому делу. Даже расхождение в названии компании, заключающееся в отсутствии знака “&”, в торговом счете-фактуре и аккредитиве послужило причиной отказа в оплате по аккредитиву. Поставщик зерновых и кормовых продуктов заключил с покупателем договор на поставку пшеничных отрубей ценой USD 824 495. Банк выпустил аккредитив на сумму USD 825 000 на условиях UCP 600. Представленные банку документы (счет-фактура) он не оплатил, поскольку ни название компании, ни предмет поставки не соответствовали указанным в аккредитиве, о чем сообщил свифтовкой исполняющему банку. Некоторые документы, представленные для оплаты были фальсифицированы. Судья разрешил вопросы о том, были ли соблюдены требования о сроках отказа в платеже и является ли различие в названии компании, заключающееся в значке “&”, существенным для ее идентификации. Среди прочих разрешенных судьей вопросов были следующие: было ли сообщение об отказе банка в платеже достаточно определенным для утверждения о документальных расхождениях; была ли подделка со стороны истца при представлении документов для оплаты по аккредитиву и если это так, то может ли банк избежать ответственности на основании такой подделки.
Решение по делу – полезное руководство для тех, кто имеет дело с аккредитивами по английскому праву, особенно в отношении конструкции и применения ст. 16 UCP 600.
Hill Dickinson has successfully represented Shinhan Bank of Korea in a recent action brought by a Bulgarian claimant under a letter of credit issued in its favour. In this case, the English High Court considered a number of interesting and subtle issues as to what may constitute a material documentary discrepancy and a compliant notice of rejection under UCP 600.
This judgment is of significant importance, as (amongst other reasons) it represents the first decision of the English court where it was recognised that, where an ‘&’ was present in the name of the beneficiary in either the commercial invoice or the letter of credit itself, but not in both of them, the absence of ‘&’ in one of them may constitute a material documentary discrepancy for the purpose of Article 16(a) of UCP 600 entitling the issuing bank to reject the documents presented by the beneficiary to obtain payment under the letter of credit.
The claimant was a Bulgarian company. It presented itself as a trader of grains and feed materials with 30 years of business experience. A Korean importer, Heungsung Feed Company, ordered 3000 metric tonnes of wheat bran pallets from the claimant under a sale contract worth US$824,395. Shinhan Bank issued a letter of credit for USD825,000 in favour of the claimant at the request of Heungsung, which incorporated the provisions of UCP 600 by reference. The letter of credit identified the beneficiary as ‘Bulgrains Co Ltd’ and contained a detailed description of the goods.
The claimant subsequently submitted certain documents (including the commercial invoice) to Shinhan Bank through a nominated bank in Bulgaria requesting payment under the letter of credit. However, Shinhan Bank notified the nominated bank by SWIFT messages that it was rejecting the documents on the grounds a) that the name of the purported beneficiary in the commercial invoice was ‘Bulgrains & Co Ltd’, a name different (due to the presence of ‘&’) from the name of the beneficiary stated in the letter of credit itself; and b) that the description of the goods in the commercial invoice did not correspond to that of the goods set out in the letter of credit itself.
Shinhan Bank raised a defence based on the documentary discrepancy and (relying on discoveries made during the proceedings) also argued (by way of further and alternative defences) that there was evidence that the claimant had lost title to sue by selling its rights under the letter of credit to the nominated bank, and that some of the documents submitted by the claimant for payment under the letter of credit had been forged.
It was common ground between the parties that, if Shinhan Bank was correct in its submissions on the documentary discrepancy issue, that would suffice to dispose of the claim in its favour.
In order to determine the documentary discrepancy defence, the judge (His Honour Justice Gore QC) considered the following questions: (i) did the presence of ‘&’ between ‘Bulgrains’ and ‘Co’ in the commercial invoice make the submitted L/C documents discrepant from the relevant requirements of the original letter of credit? (ii) did Shinhan Bank comply with Articles 14(b) and 16(c) of UCP 600 in giving a valid notice of refusal within the specified timeframe?
As to the first issue, the claimant alleged that there was no material discrepancy in respect of the name of the beneficiary because (i) the ‘&’ had only been omitted from the name of the beneficiary in the letter of credit itself due to the fact that (as admitted by Shinhan Bank) ampersands cannot be transmitted by SWIFT (the system which was used by Shinhan Bank to issue and send the letter of credit) and (ii) the correct address of the company and the director’s name in the commercial invoice had ensured that there could be no doubt as to the entity identified in the commercial invoice. Shinhan Bank submitted in response that, had the name of the beneficiary been stated in the letter of credit as (for example) ‘Bulgrains and Co Ltd’ (rather than ‘Bulgrains Co Ltd’), it would have accepted the name ‘Bulgrains & Co Ltd’ in the commercial invoice as compliant with the terms of the letter of credit.
In determining this issue, the judge held (following previous authorities) that the correct approach was that an error that was unmistakably typographical was not a material discrepancy, but anything that might not obviously be an inadvertent misspelling was. The bank did not have to assume the risk and responsibility of determining whether the discrepancy was material. The judge applied the reasoning of Tin J in United Bank Limited -v- Banque National de Paris [1992] 2 SLR 64 and held that ‘there was a discrepancy as to name that was not clearly and demonstrably simply a typographical error and was material, and it, together with the discrepancy as to description in the invoice, gave the defendant the right to reject the documents.’ The judge further commented (although, in our view, not as the fundamental basis of his finding referred to above) that, even if there was no facility to insert an ampersand in the SWIFT system, the word ‘and’ could have been used, and, in his judgment, should have been used in the letter of credit because the name of the claimant in the Cyrillic alphabet included the single letter which meant ‘and’ in English and the word therefore was properly part of the claimant’s name.
In relation to the second issue as to whether Shinhan Bank notified the nominated bank of its rejection of the letter of credit documents in time and in conformity with Articles 14(b) and 16(c) of UCP600, Shinhan Bank relied on two SWIFT notices, which the judge considered had all been served in time: namely, an MT999 SWIFT message (a free format SWIFT message) dated 6 May 2013, and an MT734 SWIFT message (a message in the format prescribed by the SWIFT system to serve as an Advice of Refusal) dated 7 May 2013.
The claimant made various allegations about these messages, including: (i) that the first notice of refusal in free format message MT999 was defective as (amongst other reasons) it did not comply with Article 16(c)(i) and Article 16(c)(iii) of UCP 600 in the sense that it neither expressly stated that Shinhan Bank was refusing to honour the letter of credit nor explained what Shinhan Bank was proposing to do with the supporting documents pursuant to Article 16(c)(iii), although it contained the words ‘Pls regard this msg as MT 734’ and ‘Notify, as per UCP 600 article 16(c)(iii)’; and (ii) the defendant was not entitled to rely on the second notice of refusal (i.e. the MT734 format notice).
However, the judge rejected these arguments recognising that MT734 is an accepted industry term denoting a notice of refusal, the meaning of which is clear to banks, and that even an implicit refusal might suffice for the purpose of Article 16(c)(i) of UCP 600. He went further and accepted that, as the relevant notices had been exchanged between banks in the present proceedings, there was no meaningful difference between an MT734 message and a free format MT999 message containing the words ‘Pls regard this msg as MT745’.
As to the issue relating to Article 16(c)(iii), the judge recognised that the word ‘Notify’ was also an industry term of art adopted by banks to avoid the need to repeat verbatim the wording of Article 16(c)(iii)(b) of UCP 600. Applying the reasoning in Fortis Bank SA/NV & Stemcor UK Limited -v- Indian Overseas Bank [2011] EWCA Civ 58, the judge held that the word ‘notify’ relating to the disposal of documents in the first and second notices of refusal was sufficient to indicate to the nominated bank that Shinhan Bank was holding the documents pursuant to Article 16(c)(iii)(b).
The judge also opined that, where a bank has served a notice of refusal to honour a particular letter of credit, if that notice is defective for the purpose of Article 16(c) of UCP 600, the bank would not be prevented from serving another notice of refusal in order to rectify the errors in the first notice, provided the second notice stated the same substantive reasons for refusal as the first notice of refusal. The judge therefore held that Shinhan Bank was also entitled to rely on the second notice of refusal (i.e. the MT734 notice).
There was a further issue as to whether the second notice of refusal had actually been received by the nominated bank in Bulgaria. The judge found it was probable that the second notice had actually been received but, in any event, he accepted Shinhan Bank’s submission that it could rely on that notice even if it had not actually been received by the nominated bank. The judge held that Shinhan Bank was supported by Article 35 of UCP 600, which provides that, for the purposes of the UCP, a bank assumes no liability or responsibility for loss in transit of messages or errors in their transmission.
The judge also had to consider (amongst other issues): (i) whether the notices of refusal served by Shinhan Bank contained sufficient particulars of the alleged documentary discrepancies; and (ii) whether there was fraud on the part of the claimant (as opposed to the underlying shipper) at the time of submitting the letter of credit documents for payment under the letter of credit and, if so, could Shinhan Bank avoid liability on the basis of such fraud.
The judge praised the ‘intellect and industry’ of the Hill Dickinson team at the trial, however, he was reluctant to find in the bank’s favour on that issue in the absence of opportunity to hear oral evidence from the primary witness of the claimant.
The decision in this case provides useful (and in some respects, new) guidance to those who deal with letters of credit governed by English law, particularly in respect of the construction and application of Article 16 of UCP 600.
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