Mutual Export Corporation v. Westpac Banking Corporation

983 F.2d 420, 1993 U.S. App. LEXIS 227, 1993 WL 2911

• Court: Court of Appeals for the Second Circuit
• Decided: January 8, 1993
• Docket: 320, Docket 92-7607
• Status: Published

Opinions

OAKES, Circuit Judge:

Westpac Banking Corporation (“West-pac”) appeals from a judgment of the United States District Court for the Southern District of New York, Whitman Knapp, Judge, granting Mutual Export Corporation (“Mutual”) summary judgment in a diversity case. The district court held that a $500,000 letter of credit issued to Mutual by Westpac did not contain the termination date that had been agreed to by prior contract and, therefore, ordered that the letter of credit be reformed to reflect the appropriate date. Mutual Export Corp. v. Westpac Banking Corp., 789 F.Supp. 1279 (S.D.N.Y.1992). For the reasons set forth below, we reverse, with directions. The law governing letters of credit requires that we strictly construe the letter issued by Westpac, and, therefore, it remains valid as written.

BACKGROUND

Refrigerated Express Lines (Australasia) Pty. Ltd. (“Refrigerated”), a wholly owned subsidiary of Reefer Express Lines Pty. Ltd. (“Reefer”), operated a shipping service between Australia and Papua New Guinea. As part of its shipping business, Refrigerated chartered two Japanese-owned container vessels, the Lakatoi Express (“Laka-toi”) and the Kumul Express (“Kumul”), from Mutual, another Reefer subsidiary and a Delaware Corporation with its principal place of business in New Jersey. Refrigerated was a regular customer of West-pac, an Australian banking corporation.

In June, 1985, Reefer decided to sell Refrigerated in two transactions, with one half of Refrigerated’s capital stock to go to a group led by managers of Refrigerated, and the second half to a quasi-governmental New Guinea agency. As a condition of the sale and to guarantee Refrigerated’s obligations under the charter parties, Refrigerated was to acquire a standby letter of credit from Westpac for the benefit of Mutual in the sum of $500,000; this would secure approximately one month’s payment on the charter parties of the Lakatoi and Kumul. Sometime around June 26, 1985, Reefer’s counsel sent Westpac a draft form of the letter of credit. The draft letter was in the amount of $500,000, to be drawn on by Mutual in the event of a default on the charter parties, and contained the following provision: “This letter of credit expires on [45 days after the later of the last possible day on which Kumul Express or Lakatoi Express charter may terminate].” The brackets surrounding the termination date were in the original.

On June 28, 1985, Roy Roach, a branch manager for Westpac, sent a report to his bank’s lending department requesting approval for the letter of credit. Roach’s request stated that the termination date of the letter of credit would be June 30, 1986. The request was accompanied by the draft letter of credit which had been provided by Reefer and that had been modified so that the bracketed termination date information was crossed out and a hand-written date of June 30, 1986 put in its place, along with other changes inconsequential here. After receiving authorization for the requested letter of credit from the lending department, subject to the approval of the legal department, Roach sent a letter to Reefer (the “June 28 Letter”) containing the following statement:

The Bank has approved at the request of Refrigerated Express Lines (A/Asia) Pty Ltd, the establishment of an Irrevocable Credit for USD $500,000 in favour of Mutual Export Corporation.

The Bank hereby undertakes to issue the credit in the draft form provided by your Company, or as mutually agreed upon between your Company and the Bank.

Westpac’s legal department then prepared the letter of credit in final form as well as a form Letter of Request and Indemnity for Refrigerated to sign accompanied by the final letter of credit bearing the June 30, 1986 termination date. On July 5, 1985, Refrigerated signed the Letter of Request and Indemnity and an acknowledgement on the letter of credit, also dated July 5, 1985, that it was the duplicate instrument referred to in the Letter of Request and Indemnity. After receiving copies of the letter of credit, however, Andrew Con-sentino, outside counsel for both Mutual and Reefer, and Virginia Pearce, counsel for Refrigerated, exchanged memos expressing concern about the language pertaining to Mutual’s making demand for payment, as well the termination date of the letter of credit. However, the issues were not raised with Westpac and nothing was done to modify the terms of the letter of credit. Neither Mutual, Reefer, nor Refrigerated ever indicated to Westpac that the letter of credit was unacceptable or that the expiration date was erroneous. Nor were any extensions or renewals ever sought. There is no indication that any fees were paid by anyone to Westpac for the letter of credit after June 30, 1986, though Mutual claims that this was due to clerical error on Westpac’s part.

In December 1988, Refrigerated informed Mutual that it would be defaulting on its charter payments due that month. Until this point, both parties had acted in certain instances as if the letter of credit were still in place. For example, Westpac sent a letter to Refrigerated, dated August 18,1987, which referred'to a “[cjontinuance of Bank guarantee in favor of Mutual Export Corp. USD 500,000.” An officer of Mutual retrieved the letter of credit from its files and noticed that the credit had expired on June 30, 1986. Nonetheless, Mutual sought confirmation from Westpac that the letter of credit had been extended and was still in place. Westpac responded that the letter of credit had expired. On October 3, 1989, Mutual made a formal request to Westpac that the bank pay it $500,000; this request was denied.

Mutual filed the present action on March 6, 1990, claiming that Westpac had breached its contract to provide a letter of credit with a termination date of 45 days after the last possible date of termination for the charter parties. The complaint stated that July 13, 1992, not June 30, 1986, was the proper termination date. The district court found that the June 28 Letter of Roach to Reefer was a contract as a matter of law. Therefore, the district court granted Mutual’s motion for summary judgment, denied Westpac’s cross-motion for summary judgment, and ordered that the letter of credit be reformed to reflect a September 13, 1993 termination date.¹

On appeal, Westpac seeks to have the district court’s judgment reversed with directions to grant its own summary judgment motion. We find Westpac’s arguments persuasive and reverse.

DISCUSSION

There is no dispute that Australian law controls in this case. Australian courts have not addressed letters of credit issues frequently, and, therefore, often look to decisions from foreign common law jurisdictions for authority bearing on letters of credit. See, e.g., Contronic Distribute. Pty. Ltd. v. Bank of New South Wales, 3 N.S.W.L.R. 110, 114-16 (Sup.Ct.1984); Westpac Banking Corp. v. Commonwealth Steel Co. Ltd., 1 N.S.W.L.R. 735, 740-42 (Sup.Ct.1983). In resolving this dispute, we are also guided by the Uniform Customs and Practices for Documentary Credits (Int’l Chamber of Commerce 1983) (the “U.C.P.”), by which both parties agreed to be governed in the letter of credit.

Letters of credit are unique commercial instruments. See generally John F. Dolan, The Law of Letters of Credit (2d ed. 1991). Traditional contract rules apply “only to the extent that contract principles do not interfere with the unique nature of credits.” Id. 11 2.02 at 2-5. In particular, letters of credit must be interpreted on their face, independent of other contracts and the underlying transaction. Article 3 of the U.C.P. provides:

Credits, by their nature, are transactions separate from the sales or other contract(s) on which they may be based, and banks are in no way concerned with or bound by such contract(s)....

See also KMW Int’l v. Chase Manhattan Bank, N.A., 606 F.2d 10, 15 (2d Cir.1979) (“As a matter of law, a bank’s obligation under a letter of credit is totally independent of the underlying transaction”).

The dispute in this case is whether the letter of credit issued by Westpac contained the appropriate termination date. The law in disputes such as this one is clear: The beneficiary must inspect the letter of credit and is responsible for any negligent failure to discover that the credit does not achieve the desired commercial ends. See, e.g., Corporacion De Mercadeo Agrícola v. Mellon Bank, 608 F.2d 43, 47 (2d Cir.1979) (“it is black letter law that the terms and conditions of a letter of credit must be strictly adhered to ...”); AMF Head Sports Wear, Inc. v. Ray Scott’s All-American Sports Club, Inc., 448 F.Supp. 222 (D.Ariz.1978) (despite the inequities, bank need not reform letter of credit where beneficiary was negligent in not discovering mistake in place of delivery).

The rule requiring the beneficiary to inspect the letter of credit serves an important purpose. The beneficiary is in the best position to determine whether a letter of credit meets the needs of the underlying commercial transaction and to request any necessary changes. As a leading commentator explains, “[i]t is more efficient to require the beneficiary to conduct that review of the credit before the fact of performance than after it, and the beneficiary that performs without seeing or examining the credit should bear the costs.” Dolan, supra, 116.03 at 6-9. Here, Mutual had ample opportunity to examine the letter of credit but failed to require that the expiry date be changed or even to seek extension. In fact, Mutual admits that “the ball was dropped by Mutual, Reefer, and its attorney.” Brief for Plaintiff-Appellee at 14, Mutual Export Corp. v. Westpac Banking Corp., No. 92-7607 (2d Cir.1992). We can find no reason to shift responsibility for Mutual’s error to Westpac that is consistent with the law and purpose of letters of credit.

The district court recognized that courts typically “refer exclusively to, and strictly construe, the letter in dispute, interpreting any error in it against the party responsible for the error.” Mutual Export Corp., 789 F.Supp. at 1284. However, the district court believed that it could resolve this dispute without reaching the law of letters of credit if it found that the June 28 Letter was a contract. As the court stated:

[t]hus unless the June 28 letter is found to be a contract binding defendant to issue to plaintiff the letter of credit in the form of the draft provided, none of the events that occurred or documents that were written in connection with the sale of Refrigerated are relevant to this action except the letter of credit as ultimately issued. In that case, the explicit June 30, 1986 termination date found therein would, as plaintiff has acknowledged, simply extinguish plaintiffs claim.

Id.

The district court improperly framed the issue in this case. A determination of whether the June 28 Letter was a contract is unnecessary. The letter of credit issued by Westpac subsumes any prior contract to issue a letter of credit, and this is as it should be for purposes of certainty in worldwide commercial dealings. We need look no further than the specific terms of the letter of credit and the absolute lack of any complaints from either Refrigerated, Mutual, or Reefer to Westpac concerning the expiry date in order to determine that Westpac fulfilled its obligations.

In deciding this case, we do not think it necessary to reach the issue whether a prior contract may bind an issuer of a letter of credit to a particular expiry date. Even if the June 28 Letter created a contractual obligation for Westpac to provide a letter of credit,² we believe that Westpac met that alleged obligation. The June 28 Letter called for a letter of credit “in the draft form provided” or “as mutually agreed upon” between the parties. West-pac included a termination date of June 30, 1986 in the final letter of credit and did not receive any complaints from Mutual or Refrigerated. In fact, Refrigerated gave its express consent to the letter of credit when Refrigerated signed it and the Letter of Request and Indemnity, and neither Mutual, Reefer, nor Refrigerated ever indicated to Westpac, prior to its expiration, that the signed letter of credit was unacceptable or that the expiration date was erroneous. Thus, according to the law concerning letters of credit summarized above—which requires a beneficiary to communicate to the issuer that there is a problem with the letter of credit—it is justifiable for us to conclude that Mutual and Refrigerated “mutually agreed” to the terms of the letter of credit as issued.

CONCLUSION

Accordingly, we reverse the judgment of the district court, with directions to grant Westpac’s motion for summary judgment.

1 . Apparently the evidence presented as to termination of the charter parties was different from that alleged in the complaint.

2 . We note that the June 28 Letter appears to be part of the initial dialogue to set up a letter of credit rather than an independent contract. The June 28 Letter does not specify what the terms of the letter of credit were to be but, instead, stated simply that the credit would be “in the draft form provided by your Company, or as mutually agreed upon between your Company and the Bank.” Furthermore, the draft letter itself did not set out a clear expiry date; rather it contained a bracketed reference to the Lakatoi and Kumul charter parties that needed to be replaced at some future date. The U.C.P. appears to address situations just like this one. Article 14 of the U.C.P. explicitly permits a bank to give preliminary notification to the beneficiary of a letter of credit without incurring liability. Article 14 reads as follows:

If incomplete or unclear instructions are received to issue, confirm, advise, or amend a credit, the bank requested to act on such instructions may give preliminary notification to the beneficiary for information only and without responsibility. The credit will be issued, confirmed, advised, or amended only when the necessary information has been received and only if the bank is then prepared to act on the instructions. Banks should provide the necessary information without delay.

U.C.P. art. 14 (Int’l Chamber of Commerce 1983) (emphasis added).