England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
THE HONOURABLE MR JUSTICE BEATSON
[2010] EWHC 3362 (Comm)

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/07/2011

Lord Justice Longmore:

Introduction

1. In this case the Buyers of dredgers being built by a Korean shipyard (known as HWS) became obliged to make advance payments of the purchase price of the vessels but also secured an Advance Payment Guarantee ("APG") from the appellant insurers, Meritz, that in the event of premature termination for any of the reasons set out in clause 17 of the contracts, such advance payments would be returned with appropriate interest. As it happens, the shipbuilding contracts were, without the knowledge or consent of either the Buyers or Meritz, transferred first to a company known as Buyoung and then to a third company known as Asia Heavy. Those contracts were found by Beatson J to be effective according to Korean law to discharge HWS from their obligations and require the Buyers to look only to Buyoung and/or Asia Heavy for performance of the contracts to build the dredgers. On the same day as the contracts were transferred, HWS was dissolved. The question is what effect that transfer has on the guarantees issued by Meritz. Meritz say that the guarantee was discharged on the day the transfer took place. The Buyers say that the guarantees continued to exist, so that if the substituted builders failed to perform and the Buyers were entitled to give notice of termination, Meritz had to re-pay the amount of the advance purchase price already paid by the Buyers.
2. Although there was much debate at trial (and some debate in this court) whether the APGs were to be categorised as Performance Bonds or On-demand guarantees on the one hand or "See-to-it" guarantees on the other, the question at issue on this appeal must be resolved primarily by reference to the words used by the parties to define their obligations.

Brief Facts

3. I can take these largely from the judgment.
4. Two of the APGs were issued to the first defendant, in respect of payments under two shipbuilding contracts ("HS1005" and "HS1006") both dated 10^th August 2006 with the Korean shipbuilding company, Huen Woo Steel Co Ltd (HWS"). The third APG was issued to the second defendant in respect of payments under a shipbuilding contract ("HS1007") which HWS entered into on 4^th April 2007. The terms of the three shipbuilding contracts are materially the same.
5. On 1^st September 2006 Meritz agreed with HWS that it would provide APGs for contracts HS1005 and HS1006. This was a commercial transaction for a fee. Clauses 5.11 and 5.12 of their agreement, the "Basic Agreement", provided that HWS were to pay Meritz "all costs, fees, taxes, charges and expenses" incurred in connection with the negotiation, preparation and execution of the APGs and any enforcement costs. Clauses 5.9 and 5.10 provided that, without Meritz's consent, HWS should not merge or consolidate with another corporation, that there be no change in its ownership, and that named persons be maintained as officers of HWS during the period of the APGs. By clause 3(d) and 4(g) HWS warranted that financial information it was required to provide to Meritz was true. On the same day Meritz executed the APGs in respect of those two contracts. Contract HS1007 was signed on 4^th April 2007 and the APG in respect of that contract was executed on 27^th April 2007.
6. On 26^th April 2007 HWS agreed to merge with Xxien Environmental Company ("Jacksien"). The shareholders' resolution approving the merger was passed on 27^th April, and notice to the public was given on 7^th May 2007. With effect from 8^th June, the company was re-named Buyoung Heavy Industries Co Ltd ("Buyoung"). On 16^th June Buyoung advised Meritz that "as of" 31^st May HWS "has been merged" with Jacksien. On 18^th June Buyoung informed the defendants of the merger. It stated that it replaced HWS "as of 1^st June" and that all HWS's rights and obligations under the three shipbuilding contracts "are to be transferred".
7. A few months later, on 10^th December 2007 Buyoung's board resolved that its shipbuilding business and its blockbuilding business be partitioned. Buyoung was to continue to undertake its traditional business but the shipbuilding business was to be transferred to a newly incorporated company, Asia Heavy Industries Co Ltd ("Asia Heavy"). The proposal was approved by the shareholders on 28^th December 2007 and was registered at the court on 5^th February 2008. The partitioning became effective on registration and Asia Heavy informed the defendants of it on 21^st March.
8. In letters dated 26^th November and 4^th December 2008 the defendants served notice of default under contract HS1007 and HS1005 on Asia Heavy, stating they reserved their rights to terminate the contracts. In a letter dated 9^th March 2009 the first defendant terminated HS1005 for delay and demanded that Asia Heavy repay the money paid by it under the contract with interest. In a letter dated 10^th March 2009 the second defendant terminated HS1007 for delay and demanded the repayment of all money paid. In a letter dated 2^nd April 2009 the first defendant terminated HS1006 on the ground that an item had been seized by a third party creditor. This letter stated it had been informed steel plates intended for use in construction of HS1006 had been sold. It also required the repayment of monies paid with interest. Asia Heavy Industries did not pay any of these demands. On 9^th April, the first and second defendants (whom I shall now call, collectively, "the Buyers") demanded payment from Meritz under the three APGs, stating that the demand was made in conformity with clause 17 (the termination clause) of the shipbuilding contracts.
9. Two expert witnesses gave evidence on Korean law at the trial. It was common ground that, under Korean law, on merger, Buyoung succeeded to all the rights and obligations of HWS. It was also common ground that, since Meritz were informed of the merger on 16^th June, they had an opportunity to annul it under Article 529(1) of the Korean Commercial Code. As they did not do so within the specified six month period, it was too late to do so, the merger was effective and Meritz were deemed to have consented to it.
10. As far as the partitioning was concerned, the experts agreed that, if Buyoung succeeded to all the rights and obligations of HWS under the shipbuilding contracts, Asia Heavy in turn also succeeded to those rights and obligations. They also agreed, in the light of the partitioning and the merger plan, that Buyoung remained jointly and severally liable in respect of those obligations. The parties before us agreed that the consequence of the expert evidence and the relevant English conflict of laws rule was therefore that English law recognised that HWS was succeeded as "the Builder" under the shipbuilding contracts, first by Buyoung, and then by Asia Heavy: see National Bank of Greece v Metliss [1958] AC 509, 525 and 528-9.

The contracts

11. It is only necessary to set out the relevant terms of the HS1005 contract. The termination clause reads as follows:-

"17.1 The Owner may immediately terminate the Contract by notice to the Builder if at any time before takeover of the Vessel:

a) The Owner demonstrates that the Builder is in delay on any one of the Milestones … by more than hundred and fifty (150) Days; or

…

d) The Builder has a receiver, administrator or administrative receiver, trustee, liquidator or like person appointed over any substantial part of its assets under any jurisdiction or law relating to the reorganisation, arrangement or adjustment of debts or the dissolution, administration or liquidation of corporation.

17.2 In the event of such termination of the Contract the Owner shall have the option - at its discretion – either (i) to take possession of the Vessel as it is constructed and to take over all the materials, equipments, design and services purchased by the Builder for this project and have it completed by a third party, whereby the Builders shall promptly repay the Owner all sums not used in the construction of the Vessel plus the extra costs incurred in the completion thereof up to the amount guaranteed under the [APG], [or] (ii) the Builder shall refund to the Owner the amount of all monies paid by the Owner under the Contract together with interest. …"

12. Clause 19.1 provided for the APG:-

"As soon as possible after the signature of this Contract, the Builder shall at its expense provide to the Owner through a First-Class Bank a Guarantee in the form as per Annex 3 to guarantee the faithful and timely performance of the Builder's obligations under the Contract."

13. Annex 2 contained the milestone programme and Annex 3 contained a Pro Forma APG.
14. The APG as issued for contract HS1005 was (as were the other APGs) in the following terms (the judge helpfully added the paragraph numbers for ease of reference):-

"[1] We hereby issue the irrevocable Advance Payment Guarantee (Letter of Guarantee Number …) in favor [sic] of [Jan de Nul NV/Codralux SA] … (hereinafter called "the Buyer") for the account of Heun Woo Steel Co Ltd, a shipyard organized and existing under the laws of the Republic of Korea … (hereinafter called ("the Builder") in connection with the shipbuilding contract … (hereinafter called ("the Shipbuilding Contract") made by and between the Buyer and the Builder for the construction [the Vessel is then identified by description and its Builder's Hull number] … (hereinafter called "the Vessel").

[2] If, in connection with the terms of the Contract, the Buyer shall become entitled to a refund of advance payments made to the Builder prior to the delivery of the Vessel, we hereby irrevocably and unconditionally guarantee the repayment of the same to the Buyer within Thirty (30) days after demand is made not exceeding the sum [specified] … together with interest …

[3] Under no circumstances shall the amount of this Advance Payment Guarantee (Letter of guarantee) exceed [the specific sum, being an amount equal to 20% of the total Contract Price in the case of HS1005 and HS1006 and 70% of the total Contract Price in the case of HS1007] plus interest thereon at the rate of Six percent (6%) per annum …

[4] The Buyer's demand for payment under this Advance Payment Guarantee (Letter of Guarantee) is payable upon our receipt of the Buyer's signed statement certifying that the Buyer's demand for refund is made in conformity with Clause 17 of the Contract and that the Builder has failed to make the refund.

…

[6] Notwithstanding the provisions hereinabove, in the event that within Thirty (30) days from the date of your claim to the Builder referred to above, we receive written notification from either you or the Builder stating that your claim for refund hereunder is disputed by the Builder and has been referred to arbitration in accordance with the provision of the Contract, we shall, under this Advance Payment Guarantee (Letter of Guarantee), refund to you the sum as per the award issued under such arbitration immediately upon receipt from you of a demand for the sum so adjudged together with a copy of the arbitration award, and not before.

[7] This Advance Payment Guarantee (Letter of Guarantee) [shall] become null and void upon receipt by the Buyer of the sum guaranteed hereby or upon acceptance by the buyer of the delivery of the Vessel in accordance with the terms of the Contract …

[8] This Advance Payment Guarantee (Letter of Guarantee) is valid from the date herein stated below until such time that the Vessel is delivered by the Builder to the Buyer in accordance with the provision of the Contract.

[9] This Advance Payment Guarantee (Letter of Guarantee) shall be governed by and construed under the substantive law of England and the undersigned hereby submits to the non-exclusive jurisdiction of the courts of England.

[10] **** This Advance Payment Guarantee (Letter of Guarantee) is subject to the Uniform Rules for Demand Guarantee of the International Chamber of Commerce (ICC), ICC Publication No. 458."

15. These Uniform Rules are of some importance. They were issued by the ICC in 1992 and replaced an earlier version (No 325) which were called Uniform Rules for Contract Guarantees and had been found to be in some respects unsatisfactory. The essence of the 1992 Rules is explained in the Introduction.

"… The Rules are intended to apply worldwide to the use of demand guarantees, that is, guarantees, bonds, and other payment undertakings under which the duty of the guarantor or issuer to make payment arises on the presentation of a written demand and any other documents specified in the guarantee and is not conditional on actual default by the principal in the underlying transaction.

Demand guarantees differ from documentary credits in that they are properly invoked only if the principal has made default. However, the guarantor, like the issuer of a documentary credit, is concerned not with the fact of default, but only with documents.

…

These Rules do not apply to suretyship or conditional bonds or guarantees or other accessory undertakings under which the guarantor's duty to pay arises only on actual default by the principal. Such instruments are widely used but are different in character from demand guarantees and are outside the scope and purposes of these Rules.

…

The Beneficiary

The beneficiary wishes to be secured against the risk of the principal's not fulfilling his obligations towards the beneficiary in respect of the underlying transaction for which the demand guarantee is given. The guarantee accomplishes this by providing the beneficiary with quick access to a sum of money if these obligations are not fulfilled.

The Principal

Whilst recognising the needs of the beneficiary, the principal can expect on the grounds of equity and good faith to be informed in writing that, and in what respect, it is claimed he is in breach of his obligations. This should help to eliminate a certain level of abuse of guarantees through unfair demands by beneficiaries.

The Guarantor

For these Rules to apply, the guarantee should not stipulate any condition for payment other than the presentation of a written demand and other specified documents. In particular, the terms of the guarantee should not require the guarantor to decide whether the beneficiary and principal have or have not fulfilled their obligations under the underlying transaction, with which the guarantor is not concerned. The wording of the guarantee should be clear and unambiguous.

The Instructing Party

The new Rules recognise the existing widespread practice whereby an instructing party may forward to the guarantor instructions received from or on behalf of the principal and counter-guarantee such instructions.

General

The ICC wishes to encourage good demand-guarantee practice which is equitable to all concerned, and believes that these Rules will result in a fair balance of interests, recognising the rights and obligations of all parties. Compared with the ICC Rules published in 1978, these Rules incorporate a major change in favour of beneficiaries in that they are no longer confined to guarantees which require the presentation of an arbitration award or other independent documentary evidence in support of any demand. However, guarantees which do require such evidence are still within the scope of these Rules. …

It is a characteristic of all guarantees subject to these Rules that they are payable on presentation of one or more documents. The documentary requirements specified in demand guarantees vary widely. At one end is the guarantee which is payable on simple written demand, without a statement of default or other documentary requirements. At the other end is the guarantee which requires presentation of a judgment or arbitral award.

Between these two extremes lie various intermediate forms of guarantee, such as guarantees requiring a statement of default by the beneficiary, with or without an indication of the nature of the default, or the presentation of a certificate by an engineer or surveyor. All these fall within the scope of the new Rules.

However, the interests of the beneficiary must be balanced against the need to protect the principal against an unfair claim on the guarantee. The ICC considers it reasonable to provide that in accordance with principles of equity and fair dealing a demand should be in writing and should at least be accompanied by a statement by the beneficiary that, and in what respect, the principal is in default, and Article 20 so provides. A party who wishes to avoid or alter even this requirement is free to do so but must take the deliberate step of excluding or modifying Article 20 by the terms of the guarantee. However, Article 20, when read with Articles 2(b) and (c), 9 and 11, also makes it clear that guarantors are not concerned with the adequacy of any statement of breach. The documents must, of course, appear to conform to the guarantee, so that where a non-conformity is apparent on the face of the documents the beneficiary is not entitled to payment. Moreover, these Rules do not affect principles or rules of national law concerning the fraudulent or manifest abuse or unfair calling of guarantees."

16. From this introduction it can be seen that the intention of the Rules (and of parties who incorporate the Rules into their guarantees) is that payment is to be made against documents without reference to the underlying contract between the Principal (here HWS) and the Beneficiary (here the Buyers). But if the parties expressly choose to make payment depend on the resolution of any dispute, they can agree (as Meritz and the Buyers did in paragraph 6 of the APG) that a relevant document against which payment is to be made can be an arbitration award.
17. A further important feature (apparently absent from the previous version) is that there has to be a statement by the beneficiary not only saying that the principal is in default of his obligations but also specifying the respect in which he is in default. This means that the beneficiary cannot just assert a claim to payment but must explain that there has been a default. The Buyers did make such a statement in the present case; the grounds in contracts HS1005 and HS1007 were that there had been a delay of more than 150 days of a relevant Milestone. The ground in HS1006 was that a relevant item of equipment (an Ejector) had been seized by a third party creditor.
18. These intentions are made good in the Rules themselves which provide inter alia:-

"Article 2

a) For the purpose of these Rules, a demand guarantee (hereinafter referred to as "Guarantee") means any guarantee, bond or other payment undertaking, however named or described, by a bank, insurance company or other body or person (hereinafter called "the Guarantor") given in writing for the payment of money on presentation in conformity with the terms of the undertaking of a written demand for payment and such other document(s) (for example, a certificate by an architect or engineer, a judgment or an arbitral award) as may be specified in the Guarantee, such undertaking being given

a) at the request or on the instructions and under the liability of a party (hereinafter called "the Principal"); or

b) at the request or on the instructions and under the liability of a bank, insurance company or any other body or person (hereinafter "the Instructing Party") acting on the instructions of a Principal to another party (hereinafter the "Beneficiary").

b) Guarantees by their nature are separate transactions from the contract(s) … on which they may be based, and Guarantors are in no way concerned with or bound by such contract(s) … despite the inclusion of a reference to them in the Guarantee. The duty of a Guarantor under a Guarantee is to pay the sum or sums therein stated on the presentation of a written demand for payment and other documents specified in the Guarantee which appear on their face to be in accordance with the terms of the Guarantee.

Article 20

a) Any demand for payment under the Guarantee shall be in writing and shall (in addition to such other documents as may be specified in the Guarantee) be supported by a written statement (whether in the demand itself or in a separate document or documents accompanying the demand and referred to in it) stating:

a) that the Principal is in breach of his obligation(s) under the underlying contract(s) …

b) the respect in which the Principal is in breach."

The Arguments

19. No notice of arbitration pursuant to either the shipbuilding contracts themselves or paragraph 6 of the APGs has ever been served. The Buyers have accordingly sought to invoke the APGs according to their terms and demanded the repayment of sums paid in advance under the contracts. One of Meritz's main arguments below was that the APGs were not like performance bonds in respect of which money was automatically due on the beneficiary's say-so but were traditional "see to it" guarantees pursuant to which the beneficiary had to prove that the principal debtor was truly liable to his counter party under the original contract. In the light of the incorporation of the Uniform Rules No. 458, which expressly state that the terms of the underlying contract are of no concern to the beneficiary and the guarantor, this argument is extremely difficult and was, in my view, rightly rejected by the judge. The main focus of the argument in this court depended, unsurprisingly, on the precise terms of the APGs and the effect of the novation which occurred on 8^th June 2007 as a result of the transfer of the rights and obligations under the shipbuilding contracts first to Buyoung and then to Asia Heavy.
20. Mr David Oliver QC for Meritz submitted:-

i) On the true construction of the APGs, Meritz had guaranteed the obligation of HWS to make the repayment and not the obligation of anyone else. Once the obligation of HWS had disappeared (whether by transfer to Buyoung or for any other reason), the APGs no longer had any application;

ii) No demand in conformity with clause 17 of the shipbuilding contract could be made, as required by paragraph 4 of the APG, once the Builder was no longer HWS but Asia Heavy;

iii) Commercial Bank of Tasmania v Jones [1893] AC 313 decided that, where a debtor has been released by novation, the guarantor is discharged.

21. Mr Iain Milligan QC for the Buyers submitted:-

i) On the true construction of the APGs, Meritz promised to repay the sums advanced if HWS did not. HWS had not paid and had therefore failed to pay within the meaning of paragraphs 2 and 4 of the APG;

ii) the contract documents had been presented and, in the absence of fraud (which is not suggested) Meritz are bound to pay;

iii) Commercial Bank of Tasmania was a case of a "see-to-it" guarantee and, in any event, only applied when the creditor/beneficiary was a voluntary party to the novation.

22. Mr Oliver responded by saying that the effect of the Buyer's argument was that the phrase "the Builder" in the APGs was to be construed not as being HWS (as the APGs required) but the Builder whoever that builder might be from time to time.

Discussion

23. It is fair to say that a novation of the shipbuilding contract by operation of law does give rise to problems of construction of the APGs which inevitably do, to some extent, depend on the existence of an underlying contract. But so could other events such as a frustration of the underlying contract or the dissolution of the shipbuilding company. I do not think it could be intended that the APGs would become a dead letter in either of those events unless the wording to that effect were clear; any beneficiary would expect that, in the latter events the guarantee would be available in respect of sums already paid to the Builder.
24. There is, on the other hand, much to be said for Meritz's submission that they took on the risk of HWS's defaults not the defaults of any persons who might be their successors, whose financial integrity or business acumen they would not have previously assessed. As against that there is the finding of the judge that under Korean law Meritz had 6 months after the transfer to Buyoung had taken place within which they could have objected to this merger with Buyoung and the transfer of the contracts. But they did not take that opportunity.
25. In these circumstances it seems to me that paragraph 2 of the APGs requires a literal construction on the basis that the APGs are to be operated against documents without regard to the underlying contract. The Buyers did make advance payments; they stated that they had terminated the contracts in accordance with clause 17 of those contracts; unless a notice of arbitration was served pursuant to paragraph 6, they became entitled to a refund of the advance payments; no notice of arbitration was served, so they were entitled to a refund of the advance payments; in the absence of that refund, the repayment has to be made by the guarantors. Mr Milligan submitted that the APGs were intended to operate on the basis that no refund had occurred not on the basis that the Builder had failed to make the refunds when it was obliged to do so. On the true construction of the APG as a whole, I agree with that submission.
26. The argument, that the Buyers were not able to make a demand in conformity with clause 17 of the shipbuilding contract in accordance with paragraph 4 of the APGs, ignores or overlooks the fact that the payment under the APGs is to be made against documents; there is no requirement that any assertion in the documents is correct in law. Paragraph 4 says that the Buyers' demands are payable upon receipt of the Buyers' signed statement certifying that the Buyer's

"demand for refund is made in conformity with Clause 17 of the Contract and that the Builder has failed to make the refund."

That is precisely what the signed statement of the Buyers did certify in respect of each of the shipbuilding contracts. It matters not whether there is a true liability to refund under clause 17, nor whether the Builder has, in fact, failed to make the refund. But since as a matter of fact no refund has been made it is, in any event, no abuse of language to say that the Builder has failed to make the refund. It may be that in the light of the novation HWS was not liable to make the refund but Asia Heavy was; it may be that in the light of the fact that HWS was dissolved on 8^th June 2007, HWS cannot make the refund. But neither of those facts matters. It has still "failed to make the refund" as envisaged by paragraph 4 of the APG.

27. It does not seem to me, for similar reasons, that the decision of the Privy Council in Commercial Bank of Tasmania v Jones can be dispositive of this appeal. In that case the principal debtor and the creditor had, after the date of the guarantee, agreed that the sum owed by the debtor was no longer to be regarded as owing by the debtor but by a third party. The Privy Council held that the guarantor was no longer bound because he had guaranteed that the principal debtor would pay and, once the debtor was no longer bound to pay, he was no longer under any obligation to pay so he had not failed in any of the obligations which the guarantor had guaranteed. Lord Morris said (page 316):-

"It may be taken as settled law that where there is an absolute release of the principal debtor, the remedy against the surety is gone because the debt is extinguished, and where such actual release is given no right can be reserved because the debt is satisfied, and no right or recourse remains when the debt is gone. Language importing an absolute release may be construed as a covenant by the creditor not to sue the principal debtor, when that intention appears, leaving such debtor open to any claims of relief at the instance of his sureties. But a covenant not to sue the principal debtor, is a partial discharge only, and, although expressly stipulated, is ineffectual, if the discharge given is in reality absolute. In this case, the acceptance of Marshall as full debtor, in room and stead of Wakeham, which constituted a complete novation of the debt, necessarily operated as an absolute release of Wakeham, and it is therefore in vain to contend that such novation merely amounted to a covenant not to sue the debtor for whom the respondent was surety."

This is an authority in relation to a traditional "see-to-it" guarantee in respect of which the guarantor can say that he is not liable if the principal debtor is not. But, as I have already said, questions whether the debtor is liable under the underlying contract are irrelevant to guarantees (such as the APGs) where payment is to be made against documents (whether certificates or awards or other documents). In such cases, if the documents are in order, the guarantor must pay.

28. I prefer to express no opinion on Mr Milligan's further argument that the novation in the Tasmania Bank case was a voluntary agreement between the debtor and the creditor, whereas the novation in the present case seems not to have been the result of any agreement between HWS and the Buyers. That is a difficult point which, in the view I take in this case, does not arise.
29. Nor do I think it strictly matters whether the word "Builder" in the APGs case can be construed to mean only "HWS" or "the Builder to whom the rights and obligations of the shipbuilding contract may be transferred". All that is necessary to say is that HWS did fail to make any refunds and that paragraph 4 of the APGs is, therefore, operative.
30. I therefore find myself agreeing with the much fuller judgment of Beatson J and would dismiss this appeal.

Postscript

31. The parties have sought, since the hearing of this appeal, to make fresh points by correspondence. For my part, I deprecate attempts to influence the court after the oral hearing is closed. In this country, unless the court otherwise orders, arguments are to be made orally in the face of the court where they can be tested; it is by disputation that the law is made known.

Lord Justice Etherton:

32. I agree.

Lord Justice Laws:

33. I also agree.