England and Wales High Court (Commercial Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/12/2016

Mr Justice Cranston:

Introduction

1. This is a claim by MUR Joint Ventures BV ("MUR") for US$500,000 plus interest under a demand guarantee ("the Guarantee") issued by the defendant, Compagnie Monegasque de Banque, a private bank based in Monaco ("the Bank"). The Guarantee was issued pursuant to a joint operations agreement between MUR and a company called Monaco Seatrade SAM ("Seatrade") for the chartering and operations of a Handysize/HandyMax bulk carrier. MUR alleges that sums fell due under the joint operations agreement and were not paid by Seatrade. Hence it made demand under the Guarantee. The first demand was made on 18 August 2015; the second on 14 September 2015.
2. The Bank denies liability, alleging that neither demand complied with the requirements of the Guarantee. The demands contained what they had to under the Guarantee but the Bank contends that they did not include the requisite authentication or authorisation of the power of the person who signed them on behalf of MUR. Further, the first demand failed because it was not sent by registered post as required by the Guarantee.

Background

3. The Guarantee was dated 17 September 2012. It provided:

"1. We, Compagnie Monegasque de Banque, 23 avenue de la Costa, BP 149 MC 98000, Monaco, Principality of Monaco, registered under no RCI 76 S 1557 hereinafter referred to as "the BANK" hereby guarantee to pay to MUR (hereinafter referred to as "the beneficiary") any and all sums up to a maximum amount of US$500,000 (United States Dollars five hundred thousand) hereinafter referred to as "the Guaranteed Amount") as far as these sums are due and payable by Seatrade to MUR (the "Guaranteed Payments" or as the case may be a "Guaranteed Payment") under or pursuant to the Seamur Agreement provided that the Bank's obligation under this Guarantee to make a Guaranteed Payment shall arise forthwith upon written demand sent to the bank by way of registered mail to the above mentioned bank's address. Such demand must be signed by duly authorised legal representatives of MUR certifying in writing that the Charterer has defaulted in its obligation to make the Guaranteed Payment concerned; that the amount claimed under this guarantee is due.

2. For the purpose of identifying the Legal authorised representatives, the Beneficiary shall provide to the Bank, together with the request for payment, certified copies of MUR's Extract of Registry and the passport of the signatory signing the request for payment; the request of payment should be authenticate as well as representative's powers of MUR by a notary and duly apostilled..."

4. The Guarantee was limited to a maximum amount of US$500,000, including interest, fees and accessories: clause 4. It was to operate as an indemnity: clause 5. Under clause 6(a) the Guarantee was valid for up to three years i.e., 17 September 2015. Any demand had to be received by the Bank on or before that stated expiry date: clause 8. The Guarantee was governed by English law with exclusive jurisdiction being in the English courts: clause 12.
5. The first demand, with a covering letter dated 18 August 2015, was signed by a director of MUR, Adriaan J Veltema. It was sent by courier, fax and email (not registered post) to the Bank (attention Mr Limiti and Mr Roby). It was received by the Bank. Various documents were included. There was a demand letter from MUR dated 11 August 2015 and signed by Mr Veltema on the subject of the outstanding payment under the joint operations agreement. Also included was a copy of the Guarantee and a copy of the accounts under the joint operations agreement. These recorded that the sum of US$876,305 was due. MUR confirmed that the amount was due and unpaid and requested payment to the designated MUR account with ABN AMRO Bank.
6. The demand letter was notarised and apostilled. The notarisation read that Robrecht Anton Frits Timmermans, a civil law notary, acting as a substitute of Paul Theodorus Framciscus Deloo, civil law notary officiating in Amsterdam, declared that the signature of the attached document (i.e., the demand letter) was the signature of Mr Adriaan Jan Veltema with passport No. […]. It added:

"This statement explicitly contains no judgment as (i) to the contents of the attached document and the authority and/or (ii) the competence of the signatory of the attached document. The undersigned has not informed the signatory of the document of the contents of the attached document and the consequences which will result from the contents of the attached document. Any and all liability of the undersigned and Buren N.V. shall be excluded".

7. As to apostilliation, the demand bore the stamp of Mr Deloo, and the allonge of the Rechtsbank Amsterdam. In accordance with the requirements of the 1961 Hague Convention abolishing the requirement for legislation for foreign public documents ("the 1961 Hague Convention"), it read:

"APOSTILLE

Convention de La Haye du 5 octobre 1961

1. The country: THE NETHERLANDS.

This public document 2. Has been signed by Mr RAF Timmermans 3. Acting in the capacity of candidate notary of Amsterdam 4. Bears the seal/stamp of: Mr PThF Deloo

Certified 5. At Amsterdam 6. On 12 augustus 2015 7. By the clerk of the Court of Amsterdam 8. No 36360 9. Seal/Stamp 10. Signature mw S.H.M. van Breene."

8. Along with the demand was a notarised and apostilled copy of Mr Veltema's passport. The notarisation and apostilliation followed substantially the same form as with that for the demand letter.
9. There was also a notarised and apostilled Extract for MUR from the Netherlands Chamber of Commerce Commercial Register (in Dutch and English). It was signed by Mr Hankel Van Baarsbank. The Extract stated that MUR was a private, limited Dutch company with its sole shareholder being MUR Ship Holdings BV, Amsterdam. It then identified four board members of MUR, including Mr Veltema. The Extract read for each director "Powers – Authorised jointly (with other board member(s) see articles)". The Extract bore the required apostillisation allonge of the Rechtsbank Amsterdam.
10. The Bank passed the first demand to Seatrade. On behalf of Seatrade, the solicitors, Ince & Co Monaco SARL, wrote to the Bank on 20 August 2015 raising various defects in the demand. These included clause 1 of the Guarantee requiring that the demand be signed by "duly authorised legal representatives of MUR". Only one had signed, wrote Ince & Co, and it threatened the Bank that Seatrade would seek any loss suffered should the Bank pay under the Guarantee. The Bank did not pay.
11. On 27 August 2015 solicitors for MUR, Lax & Co, wrote a letter before claim to the Bank on behalf of MUR. On 9 September 2015 Charles Russell Speechlys, solicitors for the Bank, wrote to MUR that the demand was defective for some or all the reasons given by Seatrade's solicitors, Ince & Co. It offered to place the guaranteed amount in escrow until the dispute was resolved. In his Witness Statement Mr Roby, head of credit at the Bank, describes the difficult position it was in facing with competing demands. He states that "…MUR was pressuring us to meet the demand under the Guarantee" and "sent another purported demand".
12. That second demand letter was dated 14 September 2015. It sought to meet the points Ince & Co had made. It was signed by its director, Mr Veltema, and sent by courier, fax and registered mail to the Bank, attention Mr Limiti and Mr Roby. It was received by the Bank. It attached a copy of the Guarantee and a copy of the updated accounts, recording that the sum of US$1,197,117 was due. MUR confirmed that that sum was due and unpaid and requested payment to the designated MUR account with ABN AMRO Bank.
13. The demand letter was notarised and apostilled along the same lines as with the first demand letter. The notarised and apostilled copy of the passport of Mr Veltema was the same as used with the first demand letter. Likewise, the apostilled copy of the Extract of the Netherlands Chamber of Commerce Commercial Register was the same as used earlier.

The evidence

14. There was witness evidence from Mr Tsim Wharton, the group general counsel for MUR Shipping Holdings BV and Mr Laurent Jean-Claude Roby, head of credit at the Bank and formerly head of its legal department. There was no cross-examination.
15. Of note in Mr Roby's evidence was the assertion that since the Bank is a Monegasque bank, and since its lawyers (including him) are Monegasque and French qualified, they had no knowledge of Dutch law at the time of providing the Guarantee. Nor did the Bank have operations in the Netherlands. The debate at the time of the Bank giving the Guarantee, he explained, was whether its proper law should be English law (urged by MUR) or Monegasque law (urged by the Bank).
16. There was expert evidence on Dutch Law. That was sought because the authority of Mr Veltema to sign the demands on behalf of MUR raises an issue of Dutch law as the law of the place of MUR's incorporation: see Haugesund Kommune v. Depfa ACS Bank [2010] EWCA Civ 579; [2012] QB 549 and Integral Petroleum SA v. SCU-Finanz AG [2015] EWCA Civ 144; [2015] 1 Lloyd's Rep 545. Mr Michiel Van Leeuwen was instructed by MUR's solicitors, and Mr Frans Overkleeft was instructed by the Bank's solicitors. Both are experienced practising lawyers in the Netherlands.
17. For present purposes their opinions revolved around relevant provisions of the Dutch Civil Code, MUR's articles of association and the meaning of the extract from the Chamber of Commerce register.
18. In English translation, Article 2:240 of the Dutch Civil Code provides:

"1. The management represents the company to the extent that the contrary does not follow from the law.

2. The representative authority shall also vest in every director but, notwithstanding the foregoing, the articles may provide that it shall vest only in one or more directors concurrently with the management. In addition, the articles may provide that the director may represent the company only with the cooperation of one or more other persons.

3. The representative authority vested in the management or in a director shall be unrestricted and unconditional to the extent that the contrary does not follow from the law. Any restrictions in or conditions in respect of the representative authority permitted or prescribed by law may only be invoked by the company…"

19. A reading of this provision suggests that a company director, acting alone, may have the power to represent the company with only the company being able to challenge his lack of authority. Any difference (if there was) between the experts about this has disappeared, since in its Rejoinder the Bank admitted that under Art 2.240(3) a restriction on the power of a director, acting alone, to represent MUR can only be invoked by MUR; that MUR had ratified Mr Veltema's actions by signing the first and second demand; and that as a matter of Dutch law Mr Veltema's actions in signing the first and second demands were legally valid.
20. As to the ratification of a director's acts, the joint memorandum of the experts records that Mr Van Leeuwen's opinion is that the clear provision in the Civil Code that only the company itself may invoke a lack of authority makes it unnecessary to apply any rule of ratification. Ratification is unnecessary, indeed impossible, he opines, where a company, being the only party that can invoke a lack of authority, does not do so.
21. There was a difference between the experts about the implications of MUR's articles of association. Article 14 reads:

"The company shall be managed by a Board of Managing Directors consisting of one or more managing directors… In the event of the absence or inability to act of one or more managing directors the remaining managing director or managing directors shall temporarily be charged with management…"

Article 16 of those articles provides:

"The Board of Managing Directors shall represent the company. In the event that the Board of Managing Directors consists of two or more persons, aside from the Board of Managing Directors, only two managing directors who act jointly are authorised to represent the company…The General Meeting of Shareholders is authorised to appoint one or more other persons to represent the company at all times."

22. The joint memorandum of the experts records that Mr Overkleeft's view is that if a single board member acts alone, when MUR's articles of associations provide that only two board members acting jointly are authorised,

"both the company [MUR] as well as the party to which the act of representation was directed [the Bank] would be bound by the act of representation on behalf of a company such as [MUR] by a single board member, acting alone, but that this act of representation would be regarded as potentially null and void vis-à-vis the company in the sense that the legal act of representation would become null and void vis-à-vis the company if and when the company would invoke the restriction within the meaning of section 2.240 subsection 3 DCC…"

23. As to the meaning of the phrase in the extract from the Chamber of Commerce register, that the powers of each of the MUR's directors were "authorised jointly (with other board member(s), see articles)", Mr Overkleeft's opinion is that it is a reference to the restrictions on the director's powers set out in article 16.1 of MUR's articles of association. As regards this point, Mr van Leeuwen has written:

"In another sense I can see it might be said that there is a "restriction", but it is only in a nuanced and relative sense. The restriction is that if a director acts alone without getting the support of a co-director, the company itself might take the position, towards any party that regarded the act of a sole director as done in his capacity of company representative, that in fact the company was not validly represented, since that other party could have known – by consulting the Registry – that the company could only be represented by two directors."

Legal framework

24. Both sides agreed that the principles of construction of contractual terms in English law applied to the demand guarantee in this case. These rules were summarised by the Supreme Court in Arnold v. Britton [2015] UKSC 36; [2015] AC 1619. The basic principle is that the language of the provision is to be given its natural meaning, save in exceptional circumstances. Lord Neuberger (with whom Lord Sumption and Lord Hughes agreed) said:

"[17] First, the reliance placed in some cases on commercial common sense and surrounding circumstances (e.g. in Chartbrook [2009] AC 1101, paras 16-26) should not be invoked to undervalue the importance of the language of the provision which is to be construed. The exercise of interpreting a provision involves identifying what the parties meant through the eyes of a reasonable reader, and, save perhaps in a very unusual case, that meaning is most obviously to be gleaned from the language of the provision. Unlike commercial common sense and the surrounding circumstances, the parties have control over the language they use in a contract. And, again save perhaps in a very unusual case, the parties must have been specifically focussing on the issue covered by the provision when agreeing the wording of that provision."

25. A separate issue is the application of the doctrine of strict compliance to demand guarantees. That doctrine applies with letters of credit, where the issuing or confirming bank can refuse payment under a letter of credit if the documents required under it do not comply strictly with its terms. It is hallowed law that payment can be refused under a letter of credit for what may seem to the presenter to be trivial or insignificant. "[T]here is no room for documents which are almost the same, or which will do just as well", as Lord Sumner said in Equitable Trust Co of New York v. Dawson Partners Ltd [1927] 27 Lloyd's Rep 49, at p52.
26. The principle of strict compliance does not necessarily apply to demand guarantees. In I E Contractors v. Lloyd's Bank [1990] 2 Lloyd's Rep 496, Staughton LJ said that, generally speaking, demand guarantees were conditional on the presentation of documents rather than upon the actual existence of the facts those documents asserted, since bankers can check documents but do not have the means or inclination to check facts. He continued at pp 500-501:

"The question is 'What was the promise which the bank made to the beneficiary under the credit, and did the beneficiary avail himself of that promise?' The degree of compliance required by a performance bond may be strict, or not so strict. It is a question of construction of the bond."

27. In that case under a demand guarantee a bank undertook to pay, unconditionally, an amount on demand, "being your claim for damages brought about by the above-named principal". Staughton LJ said he could not read the demand guarantee as requiring strict compliance so that the demand had to contain those precise words. Buckley LJ agreed and added (at p503):

"I am in entire agreement with the proposition that to discover what the parties intended should trigger the indemnity under the bond involves a straightforward exercise of construction, or interpretation, of the bond to discover the intention of the parties in that respect."

28. Teare J quoted these passages from I E Contractors v. Lloyd's Bank and applied them in Sea Cargo v. State Bank of India [2013] EWHC 177 (Comm); [2013] 2 Lloyd's Rep 477. That involved a refund guarantee for each contractual stage in the construction of a ship. The relevant trigger under it for repayment was a statement that delivery of the vessel had been delayed by more than 270 days according to Article IV(E) of the cancellation clause in the construction contract. There was delay of that length and cancellation of the contract. Teare J held that the bank had been entitled to refuse payment under the demand guarantee since the demand was not as required. It did not have to repeat the precise words in the refund guarantee, he held, but it was necessary that the demand contain a statement that there had been 270 days delay as set out in Article IV(E) so that the bank could see on its face that it was a compliant demand (at p 485).

Arguments and analysis

29. The arguments at the hearing focused mainly on the meaning of clause 2 of the Guarantee and what the demand had to contain. Both parties accepted that there were errors of grammar and syntax, but both also agreed that this did not mean the clause was incomprehensible.
30. In Ms Kagan's submission, clause 2 could be broken down so that the second part read as a requirement, "authenticate as well as representative's powers of MUR by a notary and duly apostilled". She contended that these words meant that there was a requirement that the demand be accompanied by an authentication of the powers of the signatory of the demand, Mr Veltema, to act on behalf of MUR. That was a Dutch law question which, as Mr Roby explained in his witness statement, the Bank as a Monegasque bank with no presence in the Netherlands was in no position to resolve for itself.
31. In Ms Kagan's submission what this meant in practice was that MUR had to provide with its demand a statement by a Dutch notary that he had undertaken a factual investigation and, in the light of it, Mr Veltema was, as a matter of Dutch law, authorised in fact to act on behalf of the company. Read in that way the authentication requirement in clause 2 served an objective and readily comprehensible purpose as the mechanism by which the Bank, which had no presence in the Netherlands, could be assured that it could properly pay out under the Guarantee. The purported demands did not contain such authentication. Indeed, Ms Kagan highlighted, they were accompanied by a statement from a notary that confirmed that it "explicitly contains no judgment as to … the authority and/or the competence of the [demand's] signatory". Thus, in her submission, the demand was non-compliant with the Guarantee.
32. In my view Ms Kagan misconstrues clause 2. Clause 1 requires the demand for payment under the Guarantee be signed by a duly authorised legal representatives (sic) (plural) of MUR. The first part of clause 2 requires MUR to provide the Bank, together with the request (demand) for payment, certified copies of (1) MUR's Extract of Registry and (2) the passport of its signatory signing the request for payment, in this case Mr Veltema. The second part of clause 2 goes on to require that a notary "authenticate" and duly apostillise "the request for payment", "as well as representative's powers of MUR."
33. The stated purpose of clause 2 is the narrow one of "identifying" the duly authorised person or persons. Moreover, what the notary has to do is to "authenticate" and duly apostillise. I accept Mr Young's submission that "authenticate" is a term appropriate to documents qua documents and their authenticity, in other words, being what they purport to be and faithful copies of originals. "Identifying" and "authenticate" are not appropriate terminology for a judgement about contents or substance. Therefore, my interpretation of the second part of the clause is that all that is required is that there should be a notarisation and apostillisation of the demand letter, the Netherlands Chamber of Commerce Commercial Register extract, and the signatory's passport.
34. As a general principle the terms for demanding payment under a demand guarantee should be clear and precise. If an instructing party or a bank requires the beneficiary to present certain documents on making demand, they should ensure that the guarantee makes that clear. In this case, if the Guarantee had required a legal opinion under Dutch law as to Mr Veltema's powers to make the demand on MUR's behalf, it should have said so expressly. It did not, and in its absence I do not think that there should be a strained interpretation of the second part of clause 2 to produce that result.
35. There were assertions in argument about whether Dutch notaries gave legal opinions about the power of company directors to act, and whether given the clear provisions of the Dutch Civil Code it was necessary. Ms Kagan suggested that Dutch notaries could and did perform what she characterised as a task which was neither complex nor time-consuming. Even if she were wrong and it was unusual for them to do this, she contended, that had no bearing on what the second part of clause 2 demanded. In her submission this was one of those cases mentioned in Arnold v. Britton where commercial common sense should not be invoked to undervalue the importance of the words of the Guarantee.
36. There was no evidence about notarial practice in the Netherlands. All we have is the statement in notarised documents in the case that no judgment was being made as to the authority and/or the competence of the demand's signatory. In any event the key question is what the words mean in the eyes of the reasonable reader. For the reasons already given, the reasonable reader would not read the second part of clause 2 as requiring any legal opinion as to Dutch law about the contents of any of the documents. That Ms Kagan's interpretation was never raised by the Bank until litigation began is some evidence of how Mr Roby and others in the Bank, as reasonable bankers, interpreted it.
37. A further issue about Mr Veltema's signature of the demand is a point the Bank raised in its defence about the extract from the Netherlands Chamber of Commerce Commercial Register. That stated that Mr Veltema was a director of MUR but was "[a]uthorised jointly (with other board members)". Insofar as Mr Veltema acted alone, went the Bank's case, the demands were defective on their face because they were not signed by duly authorised representatives of MUR acting jointly.
38. The Dutch law experts opined on the statement in the Registry extract. The Bank's expert, Mr Overkleeft, regarded the statement in the extract as a restriction on Mr Veltema's power since he had to act jointly. MUR's expert, Mr Van Leeuwen, agreed to an extent, although in the passage quoted earlier he is clear that it has no effect given the provisions of the Dutch Civil Code. While acknowledging that the Dutch Civil Code meant that only the company, and not a third party like the Bank, could raise this restriction on Mr Veltema's authority, Ms Kagan submitted that this was not a material consideration since the real issue was what the extract from the Register meant to the reasonable reader.
39. In my view this issue has no traction. First, the Bank's own expert, Mr Overkleeft, accepted in a passage quoted earlier that as a matter of Dutch law the signature of Mr Veltema was binding when making the demand under the Guarantee on behalf of MUR. Secondly, in its Rejoinder the Bank accepted that Mr Veltema had authority to make the demand. Thirdly, and this goes to the way Ms Kagan advanced the point – what the reasonable reader would take the demand documents to mean – the reality is that there was never any doubt that MUR was demanding payment under the Guarantee. Seatrade through Ince & Co plainly understood that a demand was being made under the Guarantee; Lax & Co emphatically asserted that MUR was making demand; and when the Bank's English solicitors, Charles Russell Speechlys came on the scene before the second demand was made, they were in no doubt that MUR was making demand.
40. Fourthly, no one of the many persons reading the demand documents at the time for the Bank or Seatrade ever raised the point. That is perhaps unsurprising when this was a simple demand under a Guarantee, not the entry of a contract by MUR where issues of the authority of its legal representatives to act would have been very much in the foreground. Finally, if there had been reference to Dutch law as the governing law of the Chamber of Commerce Registry (as well as the law of MUR's place of incorporation), any doubt as to Mr Veltema's powers, given the way they were expressed in the extract, would have dissipated.
41. A footnote to this issue is the point that Ince & Co did raise in their letter of 20 August 2015, that in clause 1 the demand letter was to be signed by "representatives" (plural) and only Mr Veltema signed. As both sides accepted, the Guarantee is internally inconsistent as to whether it is a necessary requirement that there be multiple signatories. Clause 2 speaks of "the passport of the signatory signing the request" (singular) and then of "representative's powers of MUR" (likewise singular). In my view the number of signatories was not a matter of importance on the face of the Guarantee and without more, for example language that the demand should be signed by "not less than two" of MUR's legal representatives, cannot be interpreted as an essential formal requirement requiring strict compliance. What mattered was that demand be authorised by MUR and, as I have concluded, the two demands are properly read as such.
42. Finally, there was the point that the first demand was not sent by registered mail, as required by clause 1 of the Guarantee. Ms Kagan submitted that this was a condition precedent to the first demand taking effect. It was not met and therefore the first demand was not a valid demand. End results, she said, are nothing to the point.
43. In my view this requirement in clause 1 is directory, not mandatory. That is because the guiding principle is one of effective presentation of a demand. The first demand and all its attachments were sent by a variety of means, including couriering. The importance of registered mail is that the communication in question is signed for by the recipient and signature precludes any suggestion that it was not received. In this case there is no question but that the demand and its attachments were received by the Bank. Presentation of the first demand was effective.

Conclusion

44. For the reasons I have given there must be judgment for MUR.