ASK RE LTD v. GRAIN MINERAL RESOURCES PTE LTD

HCA 278/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 278 OF 2012

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JUDGMENT

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1.  This action has arisen in consequence of the termination of an agreement, made between the plaintiff and the defendant, for the sale and purchase of 10,000 metric tons of tapioca chips (+/-10% at the plaintiff's option) (“the Goods”) for delivery to a port in China. The plaintiff was the Buyer in the transaction and the defendant the Seller, and they will be referred to as such below. I will refer to the sale contract as “the Agreement”.

2.  There is no issue between the parties as to the Goods per se, but difficulties arose in respect of the letter of credit payment arrangements.  There was, of course, a requirement for certain documents to be presented by the Seller to the bank to secure payment and in addition, certain documents were to be supplied directly to the Buyer. Issues arose regarding the documents and the Buyer purported to accept a repudiation on the part of the Seller on 14 February 2012.  The cargo was thus rejected by the Buyer, and the right to claim damages was reserved.  Chronologically this was met by a response on 16 February 2012 from the Seller in which the Seller also purported to accept a repudiation on the part of the Buyer with immediate effect.

3.  In summary, it is the Buyer’s case that the Seller repudiated the Agreement by three acts or defaults.  The first is by a failure to deliver certain original certificates to the Buyer; the second is by fraudulently misrepresenting that it had delivered the certificates to the Buyer by courier in documents presented to the bank for payment under the letter of credit; and thirdly by failing to deliver conforming documents for payment under the letter of credit. 

4.  The repudiation which the Seller alleges comprises a series of failures; to open a letter of credit that conformed to the Agreement; to accept documents that conformed to the Agreement; to authorise their bank to negotiate and waive certain discrepancies; and to procure an import licence and receive the Goods.

5.  The Buyer’s claim arising out of the alleged repudiation amounts to US$47,422.37 comprising US$45,728.95 in respect of loss of profit, and US$1,693.42 in respect of financing costs.  The Sellers claim is larger in monetary terms, unlike the Buyer’s claim exceeding the limit of jurisdiction of the District Court.  The Seller counterclaims US$247,540.02 as the “loss of price”, and US$84,600.00 in respect of demurrage, detention, and anchorage fee.

Background and Chronology

6.  An initial agreement was made between the parties on 1 December 2011 for the sale and purchase of tapioca chips which was premised on shipping being FOB, and the price being US$260 per metric tonne.  The parties subsequently agreed to vary that arrangement, with the shipping basis changing from FOB to CFR, and the price increasing from US$260 to US$283 per metric tonne.

7.  A purchase order was issued on 30 December 2012 (“the PO”) and this provided that payment would be by letter of credit (“L/C”) and included a term that “Documents will be sent by courier outside L/C within 10 days after shipment date…”.  The key documents to which reference was being made were a “Certificate of Origin (Form E) issued by Government Authority”; a “Phytosanitary Certificate issued by any Government Agency in 1 original and 4 copies”, and a “Fumigation Certificate issued by Vietnam Ministry of Agriculture Authority in Vietnam in 1 original and 4 copies; showing the cargo free from alive and the following harmful insects…”.

8.  The L/C was issued on 10 January 2012 by the Buyer’s bank (ICBC).  It provided an expiry date of 12 February 2012, and stated that the following documents were required for payment under the L/C:

(a)   a photocopy of Phytosanitary Certificate issued by Government Authority, showing “to order” as the declared name and address of consignee;

(b)   a photocopy of a Fumigation Certificate issued by the Vietnam Ministry of Agriculture Authority in Vietnam;

(c)   a photocopy of Certificate of Origin (Form E) issued by government authority; and

(d)   a Beneficiary’s Certificate certifying that 1 original and 3 copies each of the above certificates had been dispatched to the Plaintiff by courier within 5 days of the shipment date.

9.  The L/C stipulated the following conditions which were not contained in the PO:

(a)   “Except draft, invoice, beneficiary’s certificate for consent of amendment(s) and shipment advice, if any, all documents must not show”, among other things, “bank chop, name of any bank and name of any party except issuer”;

(b)   “Unless otherwise L/C specified, all documents except drafts and invoice must not be addressed to any particular party”.

10.  It was also specified that all documents were required to be presented within 12 days after shipment, but within the validity period of the L/C.

11.  Chronologically, the next event of significance was the loading of the cargo, which commenced on 13 January 2012.  The Seller communicated this fact to the Buyer by email on the same day.  The loading continued and a bill of lading in Congenbill form was issued on 15 January 2012.  The Buyer was also notified of the anticipated arrival date at the discharge port.

12.  On 17 January 2012 the Seller submitted a bundle of draft documents to the Buyer. These included the documents stated to be required by the Letter of Credit: a Certificate of Origin from Government Authority; a Phytosanitary Certificate; and a Fumigation Certificate issued by Intertek.  In addition, the Seller sent certificates and documents as to Quantity; Quality; a Draft Survey document; and draft Dispatch Certificates relating to the certificates of origin, phytosanitary, and fumigation.

13.  It is not in dispute between the parties that these documents were understood as being drafts, and were not for submission for payment.

14.  The Buyer, in the person of Jacky Tsui, who gave evidence at the trial on behalf of the plaintiff, sent an important email on 17 January 2012 at 3.38pm.  This email was as follows:

“Dear Mr. Lim,

We can not ready for arrange discharging the mentioned cargo in Zhenjiang due to CNY holiday. Please noted as per your guarantee, any demurrages or extra cost occurred due to this issue is not in our account.

PLEASE DO NOT SEND ORIGINAL C/O, FUMI AND PHYTO TO US BEFORE WE CONFIRMED THOSE ARE IN GOOD ORDER!

Best regards,

Jacky”

15.  The Buyer also responded in a separate email on 17 January to the draft documents that had been supplied, and raised concerns in regard to 3 aspects (and, the Seller stresses, 3 aspects only) of these documents. The first concern was as to the description of the goods; which was to be changed from “Tapioca Chips” to “Vietnamese Tapioca Chips” on all certificates “as L/C required”.  Secondly, a concern was expressed as to the Certificate of Quality which, it was said, should describe “Raw Fibre” and not “Fibre”, “as L/C mentioned”.  Thirdly the Certificate of Origin should be amended as regards the designation of the consignee.  In the fullness of time the Buyer amended this requirement.

16.  On 19 January the Buyer (by email) sent an update to the Seller regarding the arrival time of the vessel, this now being anticipated as 21 January 2012.  On the same day the Seller received an email from the Vietnamese Sellers of the cargo reporting that the Buyer did not have an import licence for the goods.  The gist of that message was repeated on 20 January and, on 21 January the cargo arrived at the discharge port.

17.  As had been presaged in the earlier exchanges between the parties, Chinese New Year holidays were to commence on 22 January 2012.  The port was effectively closed for a 7-day period until 28 January because of these important holidays.

18.  This of course prevented the unloading of the vessel which was therefore detained at the discharge port.  The holiday period also spanned over the date on which documents were due for presentation under the terms of the L/C; that is, 27 January 2012, being 12 days after the date of shipment.

19.  On or about 26 January 2012, the Seller submitted a “Request for Processing of Export Documents” to its bank, Raiffeisen Bank International AG, Singapore (“RBI”).  The document was dated 20 January 2012, and had appended to it various documents which included a signed Beneficiary Certificate, also dated 20 January 2012, which stated:

“We certified that 1 original and 3 copies each of Certificate of Origin (Form E), Phytosanitary Certificate and Fumigation Certificate have been dispatch to Applicant by DHL within 5 days after shipment date. The relative courier receipt is required for negotiation.”

20.  Also included was a DHL Air waybill, again dated 20 January 2012, ostensibly showing that a Certificate of Origin, a Phytosanitary Certificate and a Fumigation Certificate had been dispatched to the Buyer by DHL.

21.  It is not in dispute that those certificates referred to in the Beneficiary Certificate and the DHL Air waybill were never couriered to the Buyer.

22.  On 30 January 2012 the Seller emailed a set of revised documents to the Buyer which resolved the concerns that had been expressed as to the description of the Goods (now “Vietnamese Tapioca Chips”), and its quality (now “Raw Fibre”).  On the same day the Buyer sent an email to the Seller requesting that the original of the L/C documents be couriered to the Buyer and for the courier numbers for those documents and the documents sent to the bank.  This request was never answered.

23.  On the same day a Swift message was sent by RBI to ICBC in which RBI identified certain discrepancies in the documents presented by the Seller.  In particular, it was noted that the documents issued by Intertek Vietnam Ltd bore the stamp of Bureau of Accreditation; the Fumigation Certificate was issued by Intertek Vietnam Ltd instead of being issued by the Vietnam Ministry of Agriculture Authority; and the Phytosanitary Certificate stated the exporter to be the Vietnam National General Export Import Joint Stock Company, and was addressed to the Plant Protection organization of China, each of which matters were said to be contrary to the requirements of the L/C.

24.  RBI asked if ICBC was willing to negotiate the L/C notwithstanding the discrepancies.  The evidence was that the documents in question were all important in obtaining customs clearance in China however, and it appears there was little or no room for flexibility on the part of the Buyer.

25.  The Buyer itself also identified some errors in the documents, and requested the Seller to change the details of the consignee from that of the Defendant to “To Order”, so as to be consistent with the consignee details stated on the Bill of Lading. The Buyer allowed the Seller a period of three days to rectify the documents. On 31 January 2012 the Seller submitted a revised Fumigation Certificate thereby resolving that discrepancy.  The revised Certificate of Origin was “awaited”. 

26.  On 2 February 2012 ICBC refused to waive the discrepancies, and the Buyer wrote to the Seller alleging that:

“Without formal original C/O, Phyto and Fumigation certificates, we as the buyers and receivers are unable to arrange cargo discharge at Zhenjiang.” and that “We have no other choices but only can reject your bank cable negotiation sent on 1^st February. … we have the right to treat your company at default because delay in sending documents.” 

27.  The documents were therefore rejected, but the contract was not terminated. 

28.  The representatives of the parties continued to communicate, in part by an exchange of SMS messages and, in due course a meeting was arranged to take place at a hotel in Shanghai.  The Seller, represented at that meeting by Mr Lim Khong Shi had available original copies of compliant Certificate of Origin, Phytosanitary Certificate and Fumigation Certificate.  However, although these were handed over to the Buyer’s representatives for inspection, they were later handed back, and were taken away by Mr Lim at the end of the meeting.

29.  On 14 February 2012 the solicitors acting for the Buyer wrote to the Seller terminating the Agreement. On 16 February the Seller responded in kind. Subsequently the Seller arranged to sell the cargo to another buyer in China, albeit at a lower price.  The evidence shows that the market price of tapioca chips was falling at this time and, the Seller says, this was the best price achievable for this cargo.

The issues

30.  The issues that the Court has been asked to determine were summarised by Mr Douglas Lam SC on behalf of the Buyer as follows:

First, whether the agreement between the parties were reflected in the terms of the Revised PO and the L/C, or exclusively in the Revised PO.

Second, whether the Seller was in repudiatory breach of the Agreement in:

(1)  failing to deliver the original of the 3 documents (i.e. the Certificate of Origin, the Fumigation Certificate, and the Phytosanitary Certificate) to the Buyer within due time;

(2)  fraudulently misrepresenting to the bank that it had delivered the relevant original documents to the Buyer in due time;

(3)  failing to deliver conforming documents for payment under the L/C in due time or at all.

Third, whether the Buyer was itself in repudiatory breach of the Agreement by:

(1)  opening the letter of credit which contained terms different from or in addition to the terms of the PO;

(2)  refusing to accept documents which only conformed to the requirements of the PO but not to the L/C;

(3)  refusing to authorise its bank to negotiate the L/C and to waive the discrepancies where the documents conformed to the PO;

(4)  failing to procure an import licence and failing to receive the Goods.

Fourth, in any event, what is the appropriate quantum of damages to be recovered?

31.  The parties were largely in agreement that the case was, in most significant respects, documentary in nature.  Nevertheless the plaintiff Buyer called a director, Mr Prasad Attaluri and a manager, Mr Jacky Tsui Yan to give evidence and, in addition Mr Rong Song of China Meheco Corporation, the intended ultimate purchaser of the Goods.  A statement by Mr Zhou Yinghui was also tendered under an (unopposed) hearsay notice.

32.  For its part, the Seller tendered evidence from two directors, Mr Lim Khong Shee, and Mr Rudy Halim.  In addition a witness statement by an employee, Ms Vivien Lim was tendered under a hearsay notice which was, again, unopposed.

Was the L/C Agreed and / or Binding?

33.  This is the central feature of the dispute between the parties.  If there was no obligation on the part of the Seller to provide documents which complied with the “additional” requirements contained in the L/C, then the “discrepancies” in the documents and the failings asserted by the Buyer upon which it bases its termination of the Agreement largely fall away.  Conversely, if it is the case that the L/C provisions were binding and had to be complied with, then there is no real dispute but that the Seller failed to do so, within the relevant time period at least.

34.  There was no contemporaneous objection to the terms of the L/C made by the Seller at the time that the L/C was issued.  However, Mr Alder, counsel for the Seller submits that, at that time there were significant matters which were still to be agreed between the parties.  He pointed out in the course of cross examination, and in closing, that the Seller had been insisting on partial shipments being allowed, and submits that this had been reflected up to the 2^nd draft of the L/C.  However the final version of the L/C did not reflect that requirement for partial shipment, a change made without any consent or agreement by the Seller.  Mr Alder submits that this was an important point commercially; since the vessel had not at that time been loaded, the Seller could not be confident that no issue would arise in the course of loading requiring such a partial shipment.

35.  Moreover, it is submitted, the Plaintiff’s conduct was such as to give rise to an obligation on the part of the Buyer, either to ensure that the L/C imposed only obligations which were set out in the contract of sale, or to waive any discrepancy between the contract of sale and the terms of the L/C.  In effect it is suggested that the Buyer indicated what was required to achieve ‘sufficient compliance’ with the L/C by raising only three concerns (one of which did not relate to the L/C) when the non-compliant draft documents were presented to it.

36.  Mr Alder submits that, in these circumstances, an argument by the Buyer based on express consent is in consequence “a non-starter” and that, therefore, the Buyer can only rely on agreement by conduct on the part of the Seller.  However, submits Mr Alder, there was no act of acceptance by the Seller, and of course silence does not suffice.  In particular, it is submitted, shipping the Goods after the L/C was issued cannot evidence acceptance by conduct of the terms of the L/C because the Seller was at that time already committed to the vessel by a fixture note on 8 January 2012.

37.  I do not agree that the Seller’s conduct cannot be seen as an acceptance of the payment terms contained in the L/C.  Whatever the position in regard to the fixture note for the vessel, the Seller was supplied with details of the proposed L/C before loading commenced.  Had there been no L/C I have little doubt there would have been no loading either.  The only inference is that the Seller felt it to be safe to load precisely because there was a payment mechanism in place.  Not only did the Seller load the cargo, it subsequently applied for payment by submitting documents purporting to accord with the terms of the L/C to its bank.

38.  It can only be the case that the terms of the L/C were acceptable to the Seller.  There was no express issue taken with those terms.  This is not to suggest that the Seller was under some legal obligation to comment on the L/C; it is simply a matter of commercial common sense that, had there been an issue in regard to the terms of the L/C, it would have been expected to have been raised at the earliest opportunity.

39.  Mr Alder’s argument is that the onus lay on the Buyer to waive any term in the L/C that did not match the terms of the PO.  This runs contrary to the ‘usual’ practice of banks in L/C transactions, which look only for precise compliance with the terms of the documentary credit.

40.  The position is more than just a matter of commercial reality.  Mr Lam SC submits that a Seller who accepts a letter of credit without protest when that letter of credit does not conform to the terms of the contract of sale will be bound by the terms of the letter of credit when seeking payment for the goods sold.  He refers me to WJ Alan & Co. Ltd. v El Masr Export & Import Co. [1972] 2 QB 189 and Ficom SA v Sociedad Cadex Lda [1980] 2 Lloyd’s Rep 118.

41.  In WJ Alan the Court of Appeal viewed the acceptance by the Seller of an letter of credit which was at variance with the terms contained in the sale contract as being either a waiver (Lord Denning M.R.) or a variation (Megaw and Stephenson L.JJ) of the original sale contract.  In that case there were several discrepancies between the terms of the letter of credit and the sales contract, the most important of which, as matters transpired, was the currency in which payment was to be made.  The sellers were taken to have accepted the “offer” contained in the letter of credit by purporting to operate, it and claim payment pursuant to it.  They were therefore bound by its terms. 

42.  In Ficom Robert Goff J started from the premise that it was: “plain… that parties to a contract of sale, under which payment is to be made by means of a letter of credit, can, by subsequently agreeing to terms of the letter of credit which differ from those specified in the sale contract, thereby vary their contractual obligation under the sale contract…”. (at 131)

43.  Goff, J was, as he put it, concerned with a case in which the contract of sale did not define the terms of the letter of credit to be issued, and in which (unlike the present case) there was no pre-advice of the letter of credit terms, followed by negotiation and agreement of those terms.  In that case the buyer simply opened a letter of credit.  The seller not only did not object to its terms, but also rejected a proposed amendment to the terms, thereby demonstrating acceptance of the terms of the letter of credit.

44.  In the present case the L/C was issued, after a period of negotiation, on 10 January 2012, and the Seller was informed of its terms.  The Seller did not thereafter reject the terms of the L/C, nor did the Seller further insist on a “right” to partial shipment.  The cargo was loaded and shipped; documents seeking to comply with the terms of the L/C were drafted, and documents were presented to the bank by the Seller in purported compliance with the terms of the L/C.  In the circumstances I have no hesitation in concluding that the terms of the L/C were agreed between the parties.

Was the Seller in breach of the Agreement in any material respect?  

45.  To reiterate, the three relevant complaints are:

·  failing to deliver the original of “the 3 documents” (i.e. the Certificate of Origin, the Fumigation Certificate, and the Phytosanitary Certificate) to the Buyer within due time;

·  fraudulently misrepresenting to the bank that it had delivered the relevant original documents to the Buyer in due time;

·  failing to deliver conforming documents for payment under the L/C in due time or at all.

46.  There is no issue between the parties on the facts that there was no complete delivery of the originals of the “3 Documents” at all, much less within any period specified in the sales contract or the L/C.  There is an explanation as to why there was no delivery, partially dependent on the terms of the email of 17 January 2012, by which, the Seller says, its supply of the documents was put on hold pending confirmation from the Buyer that they were in order, and including the fact that, at the meeting in Shanghai, the Buyer was, according to the Seller, wrongly attempting to foist certain responsibilities on to the Seller. 

47.  The Seller’s case is that the requirement to submit the 3 documents “became fluid” following the issue of the 17 January email by which the Buyer told the Seller not to send the original certificates until it had been confirmed that they were “in good order”.  That email had been sent in the context of the Seller having supplied, earlier the same day, with a draft set of documents, and was followed by the Buyer’s further email on 17 January listing 3 issues with the draft documents.

48.  Two of those issues were promptly resolved and, the Seller says, the Buyer encouraged the Seller to continue with its efforts to secure a Certificate of Origin to meet the Buyer’s requirements “whether or not these requirements were contained in the sales contract”.  The Seller submits that, from 30 January 2012 the Buyer was strategising, encouraging the Seller to procure a satisfactory Certificate of Origin and maintaining the contract’s validity, while the Seller expended time and effort in so doing.

49.  The Buyer chased for the Certificate of Origin by emails sent on 1 and 4 February 2012.  Although the Buyer wrote on 3 February 2012 holding the Seller responsible for delay to that time, as Mr Jacky Tsui acknowledged in his cross examination, the Buyer was careful not to terminate the contract of sale at that time.  Consistent with the continuing validity of the contract, on 6 February 2012 the Seller informed the Buyer that the Certificate of Origin (and the other certificates) were now available, and it was agreed that these would be hand carried to Shanghai for a meeting on 9 February.

50.  It is contended by Mr Alder that these circumstances amount either to an implied extension of time for supply of the documents, or are such as to estop the Buyer from insisting on strict compliance with the terms of the PO.  The Seller acted to its detriment in that the Buyer’s representation, that the contract would be fulfilled if the Certificates were provided, meant that the Seller did not seek a mitigation sale sooner than it did, in a falling market, and did not avoid (some) demurrage and the expense of the visit to Shanghai.

51.  It is well established that an innocent party does not lose the right to accept a fundamental breach by the other party as bringing a contract to an end merely by inaction.  Such a right will be lost however if the innocent party, through some unequivocal act, affirms the continuing existence of the contract.  The competing considerations in the present case are, firstly, that the Buyer plainly called on the Seller to continue to perform its part of the contract, which it did, and secondly, that the Seller’s failure to supply documents was prima facie a breach that continued up to and beyond 9 February 2012.

52.  Up to that date the Buyer was indeed encouraging compliance by the Seller with the contract, and was seeking performance on the Seller’s part.  The evidence from the witnesses regarding the meeting on 9 February was consistent; the 3 certificates were available, and were understood to be compliant with the Buyer’s requirements but were not handed over to the Buyer except for inspection.

53.  It seems to be common ground that the meeting foundered primarily over the question of responsibility for the delay costs which had accrued.  The parties could not agree on responsibility for these costs, and in the end, the Seller’s representatives left the meeting still in possession of the originals of the 3 Certificates.  Mr Alder contends that the Buyer repudiated the Agreement at that meeting by not accepting the documents and the cargo.  There was no “acceptance” of such a repudiation until 16 February however, by which time the Buyer had itself accepted the Seller’s repudiation.

54.  In the circumstances, it seems to me, the Buyer did indeed affirm the contract and extend time for performance by the Seller to 9 February 2012.  There was no extension beyond that date however, nor did the Seller fulfil its obligation to deliver the 3 Certificates.  The Buyer could not, in those circumstances, contend that the failure to submit the certificates by the original due date was a breach.  But the continuing failure to deliver after the extended time for performance expired was, it seems to me, a breach by the Seller, a consequence of which was that the Buyer could not discharge the cargo.

55.  The issue that has caused me some concern is the allegation of fraud in relation to the presentation of documents to the bank.  The documents that were submitted by the Seller to its bank on 25 January 2012 included a Beneficiary Certificate and a copy of a DHL Air Waybill.  These two document were, ostensibly, evidence that the original set of the 3 Certificates had been submitted by the Seller to the Buyer on 20 January 2012.  That was, factually, plainly incorrect although the bank of course would have had no way of knowing this.

56.  The explanation offered for this incorrect submission lies in the written witness statement of Ms Vivien Lim.  She stated that a package of documents was prepared on 20 January 2012, before the Chinese New Year holidays, but this was not submitted to the bank on that day, because the revised Certificate of Origin had not then been received.  The package of documents was, she says, submitted to the bank on 25 January 2012 after she returned from the Chinese New Year holidays.  She stated that the fact that the courier package had not actually been despatched the previous week was “overlooked”.

57.  Ms Lim did not attend to be cross examined, and so her explanation was not further elaborated.  Even giving the benefit of any doubt however cannot result in a satisfactory explanation for the preparation and submission of these documents.  The DHL Waybill was not just partially completed ready to be finalised.  It was dated, and signed in the space reserved for the DHL courier although, self evidently, not signed by a courier collecting the documents.  The Beneficiary Certificate was also dated and signed.

58.  There was no suggestion that these were completed by mistake.  The mistake was said to have been their being sent to the bank.  The implication here is that there was no dishonesty involved, no intention to mislead the bank.  Whether or not the documents were sent in error Mr Alder submits that it was well understood by the Seller that the bank would not ‘pay’ based on the submitted documents because of the known discrepancies in some of the other documents.  Moreover, there was no prospect of the Buyer being misled.  The Buyer was fully aware that it did not have the originals of the certificates.  There was, in short, no real dishonesty at play.

59.  Mr Alder characterises the issue of the Beneficiary Certificate and the DHL receipt as being no different to the submission of non compliant documents of other sorts to the bank; something which, he submits, happens “every day of the week”.  Discrepant documents may be submitted frequently to banks.  I cannot say.  There is, it seems to me however a significant difference between sending a document known to be discrepant in some way with the requirements of the letter of credit and sending documents which have been created to show an untrue picture as I believe was the case here.  Banks must inquire into discrepancies on the face of documents submitted to them as part of a request for payment, but will not inquire, and have no reason to inquire, into the veracity of such documents.

60.  It is trite, and certainly not in dispute, that a fundamental principle of letter of credit transactions is that, subject to the fraud exception, the paying bank is obliged to pay provided only that the documents presented to it conform to the formal requirements of the letter of credit.  The bank is not concerned with any underlying dispute between the parties.  As was stated by Sir John Donaldson MR in Bolivinter Oil SA v Chase Manhattan Bank NA [1984] 1 Lloyd’s Rep 251(at 257):

“The unique value of such a letter, bond or guarantee is that the beneficiary can be completely satisfied that whatever disputes may thereafter arise between him and the bank's customer in relation to the performance or indeed existence of the underlying contract, the bank is personally undertaking to pay him provided that the specified conditions are met.”

61.  Any deception was a deception of the bank, not the Buyer.  The Buyer says therefore that there was an implied term in the contact of sale, the essence of which is that the Seller would not dishonestly produce, issue or submit documents or instruments required for payment under the Agreement.  Although this is not admitted in the Defence, there can be no sensible doubt about the implication of a term that both parties to a transaction involving payment by a documentary credit system will rely only on documents known or believed to be genuine.  The requirements for the implication of a term into a contract are not controversial between the parties and I have no hesitation in concluding that there was an implied term having the effect described above.

Was the Seller fraudulent?  

62.  The Buyer has made submissions on this, and in summary the contention advanced is that the Seller was seeking to obtain payment through the issue of the false documents.  The Buyer points to the fact that there was no retraction of the documents, and points also to the seeming evasion on the part of the Seller when asked for copies of the documents which had been provided to the bank.  The key documents were never disclosed by the Seller, they were only obtained by the Buyer on enquiry with the bank during the course of the litigation.

63.  The Seller’s evidence does very little to answer these allegations.  The Seller does not deny that documents were prepared and submitted which did not tell the truth, but relies only on an alleged inadvertence in the submission of these documents.  Fraudulent conduct is not to be alleged lightly, and while such an allegation is to be determined on the balance of probabilities, it is clear that the evidence is to be particularly carefully scrutinised.  Even applying that more rigorous approach however, it is the inescapable conclusion that the Seller intended to mislead the bank in the preparation and submission of these documents.

Was the Seller in Repudiatory Breach?

64.  Pausing at this point, I have concluded that the Seller was in breach of its obligation to deliver the originals of the 3 Certificates to the Buyer, and was in breach of the implied term not to rely on false documents in its dealings with the bank regarding the L/C.  In my judgment either of these is of sufficient gravity as to establish that the Seller was in repudiatory breach of the contract.  Taken together the position is all the more clear.  The Seller repudiated the contract and, as referred to above, the Buyer accepted that repudiation on 14 February 2012.

The Other Breaches

65.  In those circumstances it is not necessary for me to address further the (largely overlapping) complaint regarding the failure to deliver conforming documents for payment.  Nor is it necessary for me to address further the Seller’s allegations of breach on the part of the Buyer save to record that I reject the contention that the L/C which was opened by the Buyer constituted a breach by the Buyer.

66.  For completeness I will mention the contention that the Buyer (or more accurately its sub-buyer) did not have an import licence when the Goods arrived in China and could not, therefore, have discharged the cargo.  The evidence in support is thin, being two emails sent by the Master based on what he had been told by others.  The evidence against was given by Mr Rong of CMC, that a licence was obtained by the date of the February meeting.  On balance I accept Mr Rong’s evidence.

67.  In any event, the availability or otherwise of the import licence would be of significance only if the Seller had fulfilled its own obligations as to the supply of documents, which it did not.

Damages

68.  The Buyer seeks damages of US$45,728.95, comprising:

(1)  Loss of profits of US$45,728.95 and

(2)  Financing costs of US$1,693.42 incurred in opening the L/C.

69.  The loss of profits arises from the price difference between:

(1)  The Plaintiff’s sale contract with CMC dated 29 December 2011, under which the Plaintiff agreed to sell and CMC agreed to buy the Goods at the unit price of US$288/MT; and

(2)  The Revised PO, pursuant to which the Plaintiff agreed to purchase the Goods at the unit price of US$283/MT, the final shipping quantity being 9,145.79MT.

i.e. (US$288-US$283)/MT x 9,145.79 MT = US$45,728.95

70.  The Buyer’s evidence on quantum is not challenged, and I accept that the sums claimed are due.  There will be judgment for the plaintiff Buyer in the sums claimed.

Costs

71.  The Buyer seeks costs on an indemnity basis, on the premise that the Seller has contended throughout the litigation that the submission of the DHL receipt and the Beneficiary Certificate to the bank was an administrative oversight.

72.  While I have not accepted the contention that there was something accidental in the submission of those documents, I do not take the view that this issue has had any significant impact on the conduct of the trial, or the costs to which the parties have been put.  A variety of other issues and disputes have been canvassed, and most likely would have been canvassed whatever the position in regard to the bank documents.

73.  While the Buyer’s claim was of a low value, the Seller’s counterclaim, which ultimately has not succeeded, was more substantial in amount.  Accordingly, while I award the Buyer its costs, these are to be taxed and settled on the usual party and party basis.