QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
sitting as a Deputy Judge of the High Court
____________________
FORTIS BANK S.A./N.V. STEMCOR UK LIMITED |
Claimants |
|
- and - INDIAN OVERSEAS BANK |
____________________
for the Second Claimants
Sara Cockerill (instructed by Holman Fenwick Willan LLP) for the Defendants
Hearing dates: 14-16 February 2011
____________________
Crown Copyright ©
Mr Hirst QC :
Background and previous judgments
L/C ref: | L/C date: | L/C value (US$): | |
L/C1 | 585/LC/166/08* | 14 August 2008 | 1,160,000.00 |
L/C2 | 585/LC/170/08* | 18 August 2008 | 1,440,000.00 |
L/C3 | 585/LC/184/08* | 29 August 2008 | 2,625,000.00 |
L/C4 | 585/LC/171/08 | 13 August 2008 | 1,800,000.00 |
L/C5 | 585/LC/164/08 | 18 August 2008 | 1,240,000.00 |
(The letters of credit will be referred to below by the number in the first column in the above table. The asterisks indicate confirmation by Fortis).
1. DEFINITIONS
Merchant: includes the Shipper, Consignee, holder of this Bill of Lading, the receiver of the Goods and any Person owning, entitled to or claiming the possession of the Goods or of this Bill of Lading or anyone acting on behalf of this Person.
2. CONTRACTING PARTIES AND WARRANTY
The contract evidenced by this Bill of Lading is between the Carrier and the Merchant. Every Person defined as "Merchant" is jointly and severally liable towards the Carrier for all the various undertakings, responsibilities and liabilities of the Merchant under or in connection with this Bill of Lading and to pay the Freight due under it without deduction or set-off. The Merchant warrants that in agreeing to the terms and conditions in this Bill of Lading, he is the owner of the Goods or he does so with the authority of the owner of the Goods or of the Person entitled to the possession of the Goods or of this Bill of Lading.
3. CARRIER'S TARIFF
The terms and conditions of the Carrier's applicable Tariff are incorporated into this Bill of lading. Particular attention is drawn to terms and conditions concerning additional charges including demurrage, per diem, storage expenses and legal fees, etc. A copy of the applicable Tariff can be obtained from the Carrier or its agent upon request and the Merchant is deemed to know and accept such Tariff. In the case of any conflict or inconsistency between this Bill of Lading and the applicable Tariff, it is agreed that this Bill of Lading shall prevail.
16. FREIGHT AND CHARGES
16.1 Freight has been calculated on the basis of the Shipper's particulars and if such particulars are found to be erroneous and additional Freight is payable, the Merchant shall be liable therefore and also for any expense thereby incurred.
16.2 All Freight is earned and due upon receipt of the Goods by the Carrier, whether the Freight is prepaid or collect and the Carrier shall be entitled to all Freight due under all circumstances, ship and/or cargo lost or not lost or the voyage abandoned. All Freight shall be paid when due without any set-off, counter claim or deduction.
16.3 Every Person defined as "Merchant" in clause 1 shall be jointly and severally liable to the Carrier for the payment of all Freight and charges and for the performance of the obligations of each of them hereunder. Any Person engaged by the Merchant to perform forwarding services with respect to the Goods shall be considered to be exclusively the Merchant's agent for all purposes, and any payment of Freight to such Person shall not be considered payment to the Carrier in any event whatsoever. Failure of such third parties to pay any part of the Freight to the Carrier shall be considered a default by the Merchant in the payment of Freight.
17. CARRIER'S LIEN
THE CARRIER, ITS SERVANTS OR AGENTS SHALL HAVE A LIEN ON THE GOODS AND ANY DOCUMENT RELATING THERETO FOR FREIGHT AND FOR GENERAL AVERAGE CONTRIBUTIONS TO WHOMSOEVER DUE. THE CARRIER, ITS SERVANTS OR AGENTS SHALL ALSO HAVE A LIEN AGAINST THE MERCHANT ON THE GOODS AND ANY DOCUMENT RELATING THERETO FOR ALL SUMS DUE FROM THE MERCHANT TO THE CARRIER UNDER ANY OTHER CONTRACT. The Carrier may exercise its lien at any time and any place in its sole discretion, through the action of any servant, agent or Subcontractor, whether the contractual carriage is completed or not. The Carrier's lien shall also extend to cover the cost and legal expense of recovering any sums due. The Carrier shall have the right to sell any Goods liened by public auction or private treaty, without notice to the Merchant. Nothing herein shall prevent the Carrier from recovering from the Merchant the difference between the amount due to the Carrier and the net amount realised by such sale.
20. NOTIFICATION AND DELIVERY
20.1 Any mention in this Bill of Lading of parties to be notified of the arrival of the Goods is solely for information of the Carrier. Failure to give such notification shall not subject the Carrier to any liability nor relieve the Merchant of any obligation hereunder.
20.2 The Merchant shall take delivery of the Goods within the time provided for in the Carrier's applicable Tariff or as otherwise agreed. If the Merchant fails to do so, the Carrier may without notice unpack the Goods if packed in Containers and/or store the Goods ashore, afloat, in the open or under cover at the sole risk of the Merchant. Such storage shall constitute due delivery hereunder, and thereupon all liability whatsoever of the Carrier in respect of the Goods, including for misdelivery or non-delivery, shall cease and the costs of such storage shall forthwith upon demand be paid by the Merchant to the Carrier. |
20.3 If the Goods are unclaimed within a reasonable time or whenever in the Carrier's opinion the Goods are likely to deteriorate, decay or become worthless, or incur charges whether for storage or otherwise in excess of their value, the Carrier may at its discretion and without prejudice to any other rights which it may have against the Merchant, without notice and without any responsibility attaching to it, sell, abandon or otherwise dispose of the Goods at the sole risk and expense of the Merchant and apply any proceeds of sale in reduction of the sums due to the Carrier from the Merchant under or in connection with this Bill of Lading.
20.4 Refusal by the Merchant to take delivery of the Goods in accordance with the terms of this clause and/or to mitigate any loss or damage thereto shall constitute an absolute waiver and abandonment by the Merchant to the Carrier of any claim whatsoever relating to the Goods or the carriage thereof. The Carrier shall be entitled to an indemnity from the Merchant for all costs whatsoever incurred, including legal costs, for the cleaning and disposal of Goods refused and/or abandoned by the Merchant.
The other bills of lading contained materially identical terms.
L/C 1: $928,249.40 (in respect of 5 shipments);
L/C 2: $1,461,888.00 (in respect of 3 shipments);
L/C 3 : $2,633,904.00 (in respect of 7 shipments).
The documents presented in respect of each drawing under L/Cs 4-5 (in respect of which Fortis had not added its confirmation) were forwarded by Fortis to IOB.
"This is therefore to call upon you to take necessary steps to ensure that the foreign exchange is not released under the above stated discrepant documents. Despite this notice if any amount is released, my client will hold you and [IOB] responsible for such wrongful payments, costs and consequences."
(1) Having given a refusal notice, IOB was under an implied obligation to return the documents with reasonable promptness.
(2) IOB had failed to return the documents to Fortis/Stemcor with reasonable promptness.
(3) In consequence, IOB was precluded under Article 16(f) of UCP 600 from relying on the BCC discrepancy.
The Judge entered a further judgment against IOB for $4,232,074.75 in favour of Fortis and $1,594,104 in favour of Stemcor, plus interest in both cases. IOB paid the judgment debts promptly.
The claims in these proceedings
Delays at Haldia
1. LC no. |
2. Sale Contract no. |
3. B/L Date |
4. L/C Drawing Amount [$] |
5. Fortis or Stemcor |
6. B/L Number |
7. BCC issue |
8. Quantum category |
9. IOB notice (date and disposal status) |
10. Date of arrival in Haldia |
1 | 99 | 29/09/08 | 165,555.20 | F | SAFM526731650 | X | 2 | 4/11/08 – "RETURN" | 8/11/08 |
1 | 99 | 08/10/08 | 140,371.60 | F | MAEU526705011 | X | N/A[4] | 4/11/08 – "RETURN" | 18/11/08 |
1 | 99 | 14/10/08 | 195,425.20 | F | SAFM526749887 | X | 2 | 11/11/08 – "RETURN" | 26/11/08 |
1 | 99 | 14/10/08 | 263,070.60 | F | APLU704068424 | N/A[5] | N/A – no valid discrepancy alleged[6] | 26/11/08 | |
1 | 99 | 14/10/08 | 163,826.80 | F | SAFM526739904 | 2 | N/A – no valid discrepancy alleged[7] | 26/11/08 | |
2 | 110 | 4/10/08 | 281,790.72 | F | MSCUFX390542 | X | 1 | 4/11/08 – "RETURN" | 1/12/08 |
2 | 110 | 11/10/08 | 1,057,098.24 | F | MSCUFX405118 | X | 1 | 4/11/08 – "RETURN" | 25/11/08 |
2 | 110 | 18/10/08 | 122,999.04 | F | MSCUFX423004 | X | 1 | 19/11/08 – "RETURN" | 9/12/08 |
3 | 125 | 24/10/08 | 139,571.25 | F | MSCUFX411785 | X | 1 | 15/11/08 – "RETURN" | 9/12/08 |
3 | 125 125 |
18/10/08 24/10/08 |
155,988.00 160,676.25 |
F F |
MSCUFX427765 MSCUFX430017 |
X X |
1 1 |
26/11/08 – "HOLD" 26/11/08 – "HOLD" |
9/12/08 9/12/08 |
3 | 125 125 125 |
31/10/08 31/10/08 1/11/08 |
927,848.25 688,821.00 195,930.00 |
F F F |
MSCUFX428177 MSCUFX425033 MSCUFX444596 |
X X X |
1 1 1 |
26/11/08 – "HOLD" 26/11/08 – "HOLD" 26/11/08 – "HOLD" |
9/12/08 9/12/08 25/12/08 |
3 | 125 | 31/10/08 | 365,069.25 | F | MSCUFX426494 | 1 | 4/12/08 – "RETURN" | 9/12/08 | |
4 | 105 105 |
25/09/08 10/10/08 |
161,316.00 32,496.00 |
S S |
MSCUFX379636 SAFM526599391 |
1 2 |
N/A – No discrepancy alleged[8] N/A – No discrepancy alleged[9] |
14/11/08 10/11/08 |
|
4 | 105 105 105 105 105 |
15/10/08 04/10/08 30/09/08 4/10/08 23/10/08 |
573,576.00 302,124.00 587,832.00 113,952.00 16,620.00 |
S S S S S |
SAFM526565404 K+N 0020-9163-809-027 K+N 0020-9163-809-028 MSCUFX390476 SAFM526774274 |
X X X X X |
2 4 3 1 2 |
4/11/08 – "RETURN" 4/11/08 – "RETURN" 4/11/08 – "RETURN" 4/11/08 – "RETURN" 4/11/08 – "RETURN" |
05/11/08 31/10/08 23/11/08 01/12/08 29/11/08 |
5 | 98 98 |
13/09/08 12/09/08 |
335,990.40 909,130.80 |
S S |
MSCUFX3344797 MSCUFX343186 |
1 1 |
N/A – No discrepancy alleged[10] N/A – No discrepancy alleged[11] |
2/11/08 14/11/08 |
"We wish to inform you that the L/C opening bank has refused to accept the shipping documents as the same have not been submitted by the overseas supplier as per L/c terms. As such we are unable to accept the above cargo. We would request you to take the necessary action in this regard at your end"
SESA notified Samsara Shipping on 4 December 2008:
"We wish to inform you that our bank have refused to accept the shipping document as the same are not LC compliant and negotiating bank/shipper have been advised accordingly. As such we are unable to accept the cargo"
This was treated by Stemcor as amounting to a definite abandonment of the cargo. These messages were somewhat disingenuous – SESA and MSTC had been pointing out discrepancies and urging IOB not to make payment under the letters of credit.
"... we [MSC] will continue to invoice you [Stemcor] demurrage from 1st April to the date of empty return of MSC's equipment enabling you to recover this amount as part of your claim against IOB. The outgoing demurrage will be charged at the usual rate of $20 per day. MSC agree not to pursue Stemcor for the recovery of this charge in the event that your claim against IOB is unsuccessful. If successful however, then we agree to waive 50% of these charges you have recovered to offset your losses."
This latter part of arrangement does no credit to Stemcor or MSC, but it is fair to observe that no claim was maintained against IOB in relation to this aspect of the settlement with MSC. On 30 March 2009, MSC wrote to Stemcor to confirm the settlement and concluded:
"We wish to take this opportunity to thank you for your assistance in this very difficult situation. Your professionalism is exemplary and we look forward to a mutually beneficial business relationship in the future."
The $869,048 was duly paid by Stemcor to MSC.
The auction sales
The claim in damages
"Where a seller has suffered loss through delay in payment, he may recover that loss, subject to his satisfying the court that it is recoverable applying the ordinary rules of causation and damages"
Had it not been for IOB's breaches, IOB would have promptly taken up the documents and having then debited MSTC/SESA's account accordingly, forwarded the documents to MSTC/SESA. The documents would then have been taken up and the goods collected. No rational buyer that had had $8 million debited from its account was going to abandon the goods – it was as Mr Young put it something of a no-brainer. The result would have been that port and detention charges would not have been incurred or would have been paid by MSTC/SESA before they could take possession of the goods.
(1) As regards L/Cs 1-3, Stemcor had been promptly paid by Fortis as confirming Bank. There was no breach of contract by IOB vis-á-vis Stemcor. The breach by IOB was of its obligation to reimburse Fortis. Stemcor had no right to make a claim in damages in respect of breaches of contract by IOB of its obligations to Fortis.
(2) It was not proven on the balance of probabilities that, if IOB had paid under the L/Cs, this would have resulted in the chain of events forecast by Mr Young. In particular, MSTC and SESA were on strong ground in declining to pay for and take delivery of the goods to which the BCC point applied. It was only IOB's failure to return the documents with reasonable promptness that precluded IOB from maintaining what was otherwise a sound basis for rejection.
(3) In any event the loss did not naturally flow from a breach by IOB of its obligation to pay the amounts due under the L/Cs. She emphasised that the claim for damages was based on the failure to make payment, and not the failure to return the documents.
(4) Finally she made a number of points on mitigation and quantum.
(1) Was IOB in breach of contract vis-á-vis Stemcor
L/Cs 4-5
It is also clear from the evidence of practice to which I have referred that an issuing bank that elects to return documents is expected to do so promptly and without delay. Taking into consideration the necessity for the presenter to be able to deal with the documents, it is clear in my view that if the issuing bank elects to return the documents, it must do so with reasonable promptness. I accept that the notice under sub-article 16(c) has to be given within the specified time of 5 banking days and what is reasonable promptness does not produce an equivalent exact time. However, I cannot accept that interpreting the provision in this way is likely to give rise to any real uncertainty. It is likely to be very clear whether the issuing bank has acted with reasonable promptness.
"Notwithstanding the absence of a specific requirement or specific guidance in this regard, there is a market expectation that, consistent with the reading of Articles 13 and 14, international standard banking practice and the importance associated with possession of the documents, especially title documents, the timely return of dishonoured commercial documents requires priority processing, as delay in returning the documents may prejudice the beneficiary's rights and security.
While the Experts do not have the authority to establish such a standard concerning an exact time period to return the documents once notice is sent, the Experts agree that once the notice is sent stating that the documents are being returned, documents should be returned without delay and by expeditious means."
L/Cs 1-3
Article 7
Issuing Bank Undertaking
a. Provided that the stipulated documents are presented to the nominated bank or the issuing bank and that they constitute a complying presentation, the issuing bank must honour if the credit is available by:
i. sight payment, deferred payment or acceptance with the issuing bank;
ii. sight payment with a nominated bank and that nominated bank does not pay
...
c. an issuing bank undertakes to reimburse a nominated bank that has honoured a complying presentation and forwarded the documents to the issuing bank. ... An issuing bank's undertaking to reimburse a nominated bank is independent of the issuing bank's undertaking to the beneficiary.
Article 8
Confirming Bank Undertaking
a. Provided that the stipulated documents are presented to the confirming bank and that they constitute a complying presentation, the confirming bank must:
i. honour if the credit is available by
a. sight payment, deferred payment or acceptance with the confirming bank;
...
b. A confirming bank is irrevocably bound to honour or negotiate as of the time it adds its confirmation.
(2) Did non-payment by IOB cause the loss
(3) Causation
(4) Mitigation
(1) Stemcor should have got the containers moved to a cheaper storage area earlier so as to reduce the rate at which storage charges accrued and pushed for a sale of the goods as soon as possible.
(2) Stemcor's settlement with MSC was unreasonably generous and motivated by commercial advantage to Stemcor of doing a deal with MSC – this was rather evidenced by the congratulatory terms of MSC's letter dated 30 March 2009. Had a proper deal been negotiated it would have been possible to achieve a similar arrangement to that made with SAFM, with the result that in the end no loss was sustained.
(3) As regards the two shipments covered by L/C 5, on which IOB raised no valid discrepancies, Stemcor should have accepted IOB's breach as repudiatory, terminated the L/C contract and the sale contract, and taken delivery of the goods, with the result that the storage and demurrage charges would have been eliminated or reduced.
Restitution
(1) Recoupment – Stemcor had been compelled by law to discharge IOB's liability to pay the storage charges and the container demurrage. Citing Niru Battery Manufacturing Co. v. Milestone Trading Limited (No. 2) [2004] EWCA Civ 487; [2004] 2 Lloyd's Rep 319 at §66, Mr Young submitted that Stemcor had satisfied the three requirements of a claim in recoupment:
(i) It had been compelled, or was compellable, by law to make the payment;
(ii) It had not officiously exposed itself to the liability to make the payment;
(iii) The payment discharged a liability of IOB, benefitting it accordingly.
(2) Contribution – Stemcor is entitled to a 100% contribution from IOB for the common obligation it discharged, namely the costs for which Stemcor and IOB were jointly liable under the bills of lading. Mr Young cited the following passage from Rowlatt on Principal and Surety which was approved by Clauson LJ in Whitham v. Bullock [1939] 2 KB 81, 85:
"If, as between several persons or properties all equally liable in law to the same demand, it would be equitable that the burden should fall in a certain way, the court will so far as possible, having regard to the solvency of the different parties, see that, if the burden is placed inequitably by the exercise of legal right, its incidence should be afterwards adjusted."
Stemcor and IOB owed a common obligation as "Merchant" under the bill of lading to pay the relevant costs. Stemcor has discharged more than its proportionate share of the obligation and, given that the costs were incurred by reason of IOB's wrongful refusal to honour the L/Cs, it was equitable to apportion 100% of the costs to IOB: cf. Niru (supra) at §48.
(3) Subrogation – in the further alternative, Stemcor claims to be subrogated to the rights of the carriers to claim the costs from IOB under the relevant bills of lading so as to prevent IOB's unjust enrichment.
Recoupment and Contribution
"Compulsion is not enough to recover. He must also, by reason of compulsion, have paid money which the latter was primarily liable to pay so that the latter obtained the benefit by the discharge of his liability.
(emphasis as in text)
She submitted that this statement was well supported by authority and cited the judgment of Lord Wright in Brooks Wharf Ltd v. Goodman Bros [1937] 1 KB 534, 544:
"The essence of the rule is that there is a liability for the same debt resting on the plaintiff and the defendant and the plaintiff has been legally compelled to pay, but the defendant gets the benefit of the payment, because his debt is discharged either entirely or pro tanto, whereas the defendant is primarily liable to pay as between himself and the plaintiff. The case is analogous to that of a payment by a surety which has the effect of discharging the principal's debt and which, therefore, gives a right of indemnity against the principal."
IOB's liabilities as named consignees in the bills of lading
2.— Rights under shipping documents.
(1) Subject to the following provisions of this section, a person who becomes—
(a) the lawful holder of a bill of lading;
(b) the person who (without being an original party to the contract of carriage) is the person to whom delivery of the goods to which a sea waybill relates is to be made by the carrier in accordance with that contract; or
(c) the person to whom delivery of the goods to which a ship's delivery order relates is to be made in accordance with the undertaking contained in the order,
shall (by virtue of becoming the holder of the bill or, as the case may be, the person to whom delivery is to be made) have transferred to and vested in him all rights of suit under the contract of carriage as if he had been a party to that contract.
3.— Liabilities under shipping documents.
(1) Where subsection (1) of section 2 of this Act operates in relation to any document to which this Act applies and the person in whom rights are vested by virtue of that subsection—
(a) takes or demands delivery from the carrier of any of the goods to which the document relates;
(b) makes a claim under the contract of carriage against the carrier in respect of any of those goods; or
(c) is a person who, at a time before those rights were vested in him, took or demanded delivery from the carrier of any of those goods,
that person shall (by virtue of taking or demanding delivery or making the claim or, in a case falling within paragraph (c) above, of having the rights vested in him) become subject to the same liabilities under that contract as if he had been a party to that contract.
"Section 3 only applies where the requirements of section 2(1) of the Act are satisfied. The further limitation on the imposition of liabilities is directed primarily to ensure that banks or others with only a security interest in the goods are not saddled with the liabilities of the original shipper simply by virtue of being lawful holders of the bill to whom the rights of suit have been transferred. The underlying philosophy is that such persons should not be under liabilities under the bill of lading unless they seek to exercise or enforce their rights".
From the context in the Act and the purpose underlying section 3(1), it is clear that section 3 must be understood in a way which reflects the potentially important consequences of the choice or election which the bill of lading holder is making. The liabilities, particularly when alleged dangerous goods are involved, may be disproportionate to the value of the goods; the liabilities may not be covered by insurance; the endorsee may not be fully aware of what the liabilities are.
The parties to that contract are the issuing carrier, usually the shipowner although it may be a charterer, and the shipper or his principal. Where there is a named consignee it may be inferred that the contracting party is the consignee not the shipper: Dawes v. Peck (1799) 8 Durn & E 330 and the other cases cited by Brandon J in The Albazero [1977] AC 774, 786A-B.
"I will assume that it may be possible that TICC is to be regarded as the Hong Kong shippers' principal and thus as the true original party to the bill of lading contracts. It has to be said, however, that that is an unusual situation. The normal rule is that a party who procures a shipment for the ultimate benefit of a consignee does not thereby contract with the carrier as agent for the consignee. Thus a cif seller is not an agent for his buyer in procuring a contract of carriage. Moreover, it is difficult to think that [the Hong Kong shippers] are not themselves liable as principals on the bill of lading contracts and entitled to enforce rights under them, for, despite the direct contact between TICC and COSCO UK, there is nothing to suggest that [the Hong Kong shippers] have contracted only as agents without personal responsibility: see Perishables Transport Co Ltd v N Spyropoulos (London) Ltd [1964] 2 Ll Rep 379. TICC furthermore is named as the consignee and not as the shipper. I am therefore prepared to assume (I need not decide) that the Hong Kong shippers are principal parties under those contracts and that TICC, even though in other respects it may be their principal, is to be treated for the purpose of such contracts as a consignee and not as a shipper."
"Where goods are consigned on terms that property and risk are to pass upon shipment, and independently of the transfer of the bill of lading, it may sometimes be inferred that the shipper acts as agent for the named consignee. However, the general rule is that a party who procures shipment for the ultimate benefit of a consignee does not thereby contract with the carrier as agent of the consignee"
Subrogation
"These cases seem to me to show that it is a mistake to regard the availability of subrogation as a remedy to prevent unjust enrichment as turning entirely upon the question of intention, whether common or unilateral. Such an analysis has inevitably to be propped up by presumptions which can verge upon outright fictions, more appropriate to a less developed legal system than we now have. I would venture to suggest that the reason why intention has played so prominent a part in the earlier cases is because of the influence of cases on contractual subrogation. But I think it should be recognised that one is here concerned with a restitutionary remedy and that the appropriate questions are therefore, first, whether the defendant would be enriched at the plaintiff's expense; secondly, whether such enrichment would be unjust; and thirdly, whether there are nevertheless reasons of policy for denying a remedy."
Lord Steyn's analysis was the same, but he split the first question and said at p.227A-B:
"Four questions arise. (1) Has O.O.L. benefited or been enriched? (2) Was the enrichment at the expense of B.F.C.? (3) Was the enrichment unjust? (4) Are there any defences?"
Conclusion
Note 1 Numbered RMS0098, RMS0099, RMS00105, RMS00110 and RMS00125. [Back] Note 2 It has been produced as part of SESA’s claims against MSTC and IOB in the Calcutta High Court. [Back] Note 3 See Pal Choudhuri & Co’s letter to Sandersons & Morgans dated 1 April 2009. [Back] Note 4 No claim advanced in respect of this shipment. [Back] Note 5 See note 4 above. [Back] Note 6 Presentation to IOB was on 10 November 2008. On 19 November 2008 IOB rejected the documents on the grounds that they had been presented after the expiry of L/C1. IOB subsequently accepted that the documents had been presented in time. IOB also subsequently accepted that their further rejection notice stated to be sent “in supersession” to their first notice was precluded by Article 16(c) of UCP 600. See paragraphs 23 to 28 of the Re-Amended Particulars of Claim which IOB admit. [Back] Note 7 See note 6 above. [Back] Note 8 Presentation to IOB was on 17 October. [Back] Note 9 See note 8 above. [Back] Note 10 Presentation to IOB was on 30 September 2008. No IOB notice under Article 16(c) of UCP 600. On 3 October 2008 IOB SWIFT to Fortis stated that it was understood that the beneficiary had agreed to replace the documents with ones drawn in the name of SESA. On 7 September 2008 Fortis relayed Stemcor’s reply by which Stemcor agreed to replace documents with ones drawn in the name of SESA but only after receipt of payment against the then L/C complying documents. See paragraphs 68 to 69 of the Re-Amended Particulars of Claim which IOB admit. [Back] Note 11 See note 10 above. [Back] Note 12 See in particular §§6-17 of his second judgment. [Back] Note 13 Under the terms of the L/Cs and the Bills of Lading, there was at least 10 days freetime, so the initial port charges would have to be borne by the carrier. [Back] Note 14 Clause 16.3 of the MSC Bills and the equivalent clause in the others. [Back] Note 15 At one stage this involved the purchase of some of the containers, but ultimately they were re-sold to the port as part of the final deal. [Back]