At the request of the predecessor of the respondent Angelica‑Whitewear Ltd. ("Whitewear"), the appellant opened an irrevocable letter of credit in favour of a foreign supplier, Protective Clothing Co. ("Protective"), to cover the full invoice cost of men's industrial uniforms sold by Protective to Whitewear C.I.F. Montreal. The documents to accompany a draft under the letter of credit included an inspection certificate signed by one of the partners of Protective. The letter of credit was a negotiation credit that included an undertaking to honour drafts presented with conforming documents by a negotiating bank. The agreement between the appellant and Whitewear respecting the letter of credit incorporated the Uniform Customs and Practice for Documentary Credits (1962 Revision).
Whitewear took issue with the payment of two drafts which were presented for payment under the letter of credit by the negotiating bank, Shanghai Commercial Bank Ltd. ("Shanghai Commercial"), Protective's bank in Hong Kong. The first draft for Protective invoice SS/3 was paid by the appellant on July 26, 1974 and charged to Whitewear's account. On August 2, 1974, upon receipt of the documents that had been tendered with the draft, Whitewear informed the appellant that the signature on the inspection certificate accompanying the draft had been forged. A few days later, Whitewear drew the appellant's attention to certain "discrepancies" on the face of the documents accompanying the second draft for Protective invoice 0014, which had been negotiated by Shanghai Commercial on July 30. The discrepancies, which, according to Whitewear, constituted documentary non‑compliance with the terms and conditions of the letter of credit requiring the appellant to refuse payment of the draft for invoice 0014, were the following: (a) the inspection certificate referred to a letter of credit of Shanghai Commercial instead of the appellant's letter of credit; (b) the quantity of merchandise shown in the inspection certificate (1149‑11/12 dozen) did not correspond to the quantity shown in invoice 0014 (1144‑11/12 dozen); and (c) the bills of lading accompanying the draft for invoice 0014 called for freight prepaid delivery to Vancouver, whereas the letter of credit stipulated that shipment was to be C.I.F. Montreal. Whitewear also alleged that the appellant was informed before payment of the second draft that the prices in invoice 0014 had been fraudulently inflated. Despite being called on by Whitewear to refuse payment of the draft for invoice 0014, the appellant, after repeated demands for payment from Shanghai Commercial, paid the draft on October 30, 1974 and debited Whitewear's account.
In October 1975, the appellant instituted an action against both respondents (Angelica Corporation had guaranteed Whitewear's liabilities to the appellant) for the balance owing on a promissory note representing Whitewear's outstanding indebtedness to the appellant. In defence, Whitewear contended that the drafts had been improperly paid by the appellant and made a cross‑demand in damages. The damages consisted of the amount of the first draft and the amount by which the prices in invoice 0014 were allegedly inflated. The Superior Court maintained appellant's action and dismissed Whitewear's cross‑demand. Respondents then only appealed the portion of the judgment in respect of the alleged inflated price in invoice 0014. The Court of Appeal allowed the appeal. The Court upheld respondents' contention based on fraud, but did not deal with the contention based on documentary non‑compliance with the terms and conditions of the letter of credit.
Held: The appeal should be dismissed.
An issuing bank is obliged to honour a draft under a documentary letter of credit when it is accompanied by documents which appear on their face to be regular and in accordance with the terms and conditions of the credit. This obligation is independent of the performance of the underlying contract for which the credit was issued. The issuing bank agrees to pay upon presentation of documents, not goods. There is an exception to this rule: a bank should not pay where a fraud by the beneficiary of the credit has been sufficiently brought to its knowledge before payment of the draft or demonstrated to a court called on by the customer of the bank to issue an interlocutory injunction to restrain the bank from honouring the draft.
(1) The Fraud Exception
The fraud exception to the autonomy of documentary letters of credit should not be confined to cases of fraud in the tendered documents but should include fraud in the underlying transaction of such a character as to make the demand for payment under the credit a fraudulent one. The exception, however, should be limited to fraud by the beneficiary of a credit and should not extend to fraud by a third party of which the beneficiary is innocent. It should also not be opposable to the holder in due course of a draft on a letter of credit. Finally, a strong prima facie case of fraud would be a sufficient test on an application for an interlocutory injunction to restraint payment under a letter of credit on the ground of fraud by the beneficiary of the credit. But where, in a case like this one, no such application was made and the issuing bank has had to exercise its own judgment as to whether or not to honour a draft, it must be shown, to demonstrate that a draft was improperly paid by the issuing bank after notice of alleged fraud by the beneficiary, that the fraud was sufficiently established to the knowledge of the issuing bank before payment of the draft as to make the fraud clear or obvious to the bank.
In the present case, the respondents' contention based on the fraud exception to the autonomy of a documentary credit must fail. The evidence did not support a finding that the alleged fraud with respect to the prices in invoice 0014 was sufficiently established to the knowledge of the appellant before payment of the draft. The evidence adduced referred mainly to the discrepancies appearing on the face of the documents tendered with the draft and there was no specific reference to the alleged inflation of price in invoice 0014.
Appellant's knowledge of the fraud with respect to the prices or quality of the goods covered by invoice SS/3, as well as the forgery of the signature on the inspection certificate accompanying that invoice, had no bearing on the question whether it had knowledge of the alleged fraud with respect to invoice 0014. Whitewear had ample opportunity to inform the appellant of the alleged irregularities with respect to invoice 0014 and it took steps to do so. There was therefore no reason for appellant to make any inquiry or to act on any assumptions concerning the shipment covered by invoice 0014 by reason of what it had been informed concerning the prior shipment covered by invoice SS/3. It was entitled to assume that it had been fully informed of all the alleged irregularities with respect to invoice 0014.
(2) The Rule of Documentary Compliance
The rule of strict documentary compliance requires not only that the tendered documents appear on their face, upon reasonably careful examination, to conform to the terms and conditions of the letter of credit but that they also appear to be consistent with one another, particularly in the sense that they refer to the same shipment of goods. The rule of strict documentary compliance does not extend to minor variations or discrepancies that are not sufficiently material to justify a refusal of payment.
In the case at bar, the two discrepancies on the face of the inspection certificate were not grounds for concluding that the draft was improperly paid by the appellant. First, there was a sufficient indication on the face of the inspection certificate that it related to the same parcel or shipment of goods as that referred to in invoice 0014. Second, the inconsistency in respect of quantity between the inspection certificate and the invoice was not of sufficient materiality to justify a refusal of payment since the quantity specified in the invoice was the one for which the buyer was being charged.
The appellant, however, was not obliged and was not authorized to accept the documents and pay the draft for invoice 0014 because of the discrepancy with respect to prepaid freight and continuous documentary cover to destination on the face of the bills of lading. This was a documentary non‑compliance with the terms and conditions of the letter of credit that required the appellant to refuse acceptance of the documents and payment of the draft at the time they were tendered. The appellant was not relieved of this obligation by the fact that the goods may have been transported to destination at no additional charge to Whitewear. A documentary non‑compliance cannot be cured by the actual performance of the underlying contract.
The fact that Whitewear was not prejudiced by the discrepancy, in the sense that its loss in respect of the goods was not directly attributable to it, is immaterial. It is not necessary for the applicant for a documentary credit to show that he is prejudiced by a particular documentary non‑compliance with the terms and conditions of the credit, just as it is not for an issuing bank or the courts to question the necessity or reasonableness of a particular documentary requirement stipulated by the buyer.
The claim of Whitewear is for recovery of part of the amount debited to its account pursuant to the improper payment of the draft for invoice 0014. In the circumstances, it was not precluded from such recovery by its acceptance of the goods under protest and the disposal of them in order to minimize the loss. Nor was it obliged to reimburse the appellant for the payment of the draft by reason of an exemption clause in the agreement respecting the letter of credit.
Cases Cited
Considered: Edward Owen Engineering Ltd. v. Barclays Bank International Ltd., [1978] 1 All E.R. 976; United City Merchants (Investments) Ltd. v. Royal Bank of Canada, [1983] 1 A.C. 168; Sztejn v. J. Henry Schroder Banking Corp., 31 N.Y.S.2d 631 (1941); Guaranty Trust of New York v. Van den Berghs, Ltd. (1925), 22 Ll. L. Rep. 447; referred to: Intraworld Industries, Inc. v. Girard Trust Bank, 336 A.2d 316 (1975); New York Life Insurance Co. v. Hartford National Bank & Trust Co., 378 A.2d 562 (1977); First Arlington National Bank v. Stathis, 413 N.E.2d 1288 (1980); Foreign Venture Ltd. Partnership v. Chemical Bank, 399 N.Y.S.2d 114 (1977); Dynamics Corp. of America v. Citizens & Southern National Bank, 356 F. Supp. 991 (1973); NMC Enterprises, Inc. v. Columbia Broadcasting System, Inc., 14 UCC Rep. 1427 (1974); United Bank Ltd. v. Cambridge Sporting Goods Corp., 360 N.E.2d 943 (1976); Itek Corp. v. First National Bank of Boston, 511 F. Supp. 1341 (1981); Rockwell International Systems, Inc. v. Citibank, N.A., 719 F.2d 583 (1983); Malas v. British Imex Industries, Ltd., [1958] 1 All E.R. 262; Discount Records Ltd. v. Barclays Bank Ltd., [1975] 1 All E.R. 1071; R. D. Harbottle (Mercantile) Ltd. v. National Westminster Bank Ltd., [1977] 2 All E.R. 862; European Asian Bank A.G. v. Punjab and Sind Bank, [1983] 1 Lloyd's Rep. 611; Lumcorp Ltd. v. Canadian Imperial Bank of Commerce, [1977] C.S. 993; Aspen Planners Ltd. v. Commerce Masonry & Forming Ltd. (1979), 100 D.L.R. (3d) 546; C.D.N. Research & Developments Ltd. v. Bank of Nova Scotia (1980), 18 C.P.C. 62; Henderson v. Canadian Imperial Bank of Commerce (1982), 40 B.C.L.R. 318; Rosen v. Pullen (1981), 126 D.L.R. (3d) 62; Canadian Pioneer Petroleums Inc. v. Federal Deposit Insurance Corp. (1984), 30 Sask. R. 315; Phoenix Conveyer and Belting Systems Inc. v. Speed King Manufacturing Co. (1985), 37 Man. R. (2d) 84; Etablissement Esefka International Anstalt v. Central Bank of Nigeria, [1979] 1 Lloyd's Rep. 445; Urquhart Lindsay & Co. v. Eastern Bank, Ld., [1922] 1 K.B. 318; English, Scottish and Australian Bank Ltd. v. Bank of South Africa (1922), 13 Ll. L. Rep. 21; Equitable Trust Co. of New York v. Dawson Partners, Ltd. (1926), 27 Ll. L. Rep. 49; Gian Singh & Co. v. Banque de l'Indochine, [1974] 2 All E.R. 754; J. H. Rayner & Co. v. Hambro's Bank, Ld., [1943] K.B. 37; Davis O'Brien Lumber Co. v. Bank of Montreal, [1951] 3 D.L.R. 536; Bank of America Nat. Trust & Savings Ass'n v. Liberty Nat. Bank & Trust Co. of Oklahoma City, 116 F. Supp. 233 (1953); Moralice (London), Ltd. v. E. D. & F. Man., [1954] 2 Lloyd's Rep. 526; Soproma S.p.A. v. Marine & Animal By‑Products Corp., [1966] 1 Lloyd's Rep. 367; Margaronis Navigation Agency Ltd. v. Henry W. Peabody & Co. of London Ltd., [1965] 2 Q.B. 430; Midland Bank, Ltd. v. Seymour, [1955] 2 Lloyd's Rep. 147; Banque de l'Indochine et de Suez S.A. v. J. H. Rayner (Mincing Lane) Ltd., [1982] 2 Lloyd's Rep. 476, aff'd [1983] 2 Lloyd's Rep. 228; Bank of Montreal v. Recknagel, 109 N.Y. 482 (1888); Camp v. Corn Exchange Nat. Bank, 132 A. 189 (1926); Orient Co. v. Brekke & Howlid, [1913] 1 K.B. 531; Michael Doyle & Associates Ltd. v. Bank of Montreal (1982), 140 D.L.R. (3d) 596; Hansson v. Hamel & Horley, Ld., [1922] 2 A.C. 36; Holland Colombo Trading Society, Ltd. v. Segu Mohamed Khaja Alawdeen, [1954] 2 Lloyd's Rep. 45.
Statutes and Regulations Cited
Civil Code, art. 1073, 1074, 1075, 1140.
Uniform Commercial Code, s. 5‑114(2).
Authors Cited
Chitty on Contracts, vol. II, 25th ed. London: Sweet & Maxwell, 1983.
Davis, Arthur Geoffrey. The Law Relating to Commercial Letters of Credit, 2nd ed. London: Isaac Pitman & Sons, Ltd., 1954.
Ellinger, E. P. Documentary Letters of Credit. Singapore: University of Singapore Press, 1970.
Ellinger, E. P. "Fraud in Documentary Credit Transactions," [1981] J.B.L. 258.
Ellinger, E. P. "The Tender of Fraudulent Documents Under Documentary Letters of Credit" (1965), 7 Malaya L. Rev. 24.
Encyclopédie juridique Dalloz: Répertoire de droit commercial, t. II, 2e éd. Rubrique "Crédit documentaire". Paris: Dalloz, 1972.
Gutteridge, Harold Cooke and Maurice Megrah. The Law of Bankers' Commercial Credits, 7th ed. London: Europa Publications Ltd., 1984.
Harfield, Henry. Bank Credits and Acceptances, 5th ed. New York: Ronald Press Co., 1974.
Harfield, Henry. Letters of Credit. Philadelphia: American Law Institute‑‑American Bar Association, Committee on Continuing Professional Education, 1979.
Kozolchyk, Boris. Commercial Letters of Credit in the Americas. New York: Matthew Bender & Co., 1966.
Note. "Fraud in the Transaction": Enjoining Letters of Credit During the Iranian Revolution" (1980), 93 Harv. L. Rev. 992.
Pomerleau, Manon. "La fraude du bénéficiaire du crédit documentaire irrévocable‑‑étude comparative en droit commercial international" (1984), 44 R. du B. 113.
Sarna, Lazar. Letters of Credit: The Law and Current Practice, 2nd ed. Toronto: Carswells, 1986.
Stoufflet, Jean. Le crédit documentaire. Paris: Librairies Techniques, 1957.
Uniform Customs and Practice for Documentary Credits (1962 Revision), art. 3, 7, 8, 9.
Uniform Customs and Practice for Documentary Credits (1974 Revision), art. 7.
Uniform Customs and Practice for Documentary Credits (1983 Revision), art. 15.
Van Houten, Stephen H. "Letters of Credit and Fraud: A Revisionist View" (1984), 62 Can. Bar Rev. 371.
APPEAL from a judgment of the Quebec Court of Appeal, [1985] C.A. 718, 31 B.L.R. 155, allowing respondents' appeal from a judgment of Nolan J., allowing appellant's action and dismissing Angelica‑Whitewear Ltd.'s cross‑demand. Appeal dismissed.
Allan R. Hilton, for the appellant.
Mitchell Klein and Josée Gravel, for the respondents.
The judgment of the Court was delivered by
1. Le Dain J.‑‑This appeal involves a claim by a customer against a bank to recover an amount debited to the customer's account for the payment of a draft under a documentary letter of credit. The customer contends that the bank was not entitled to debit its account because the bank was not obliged to pay the draft, and should not have paid it, for two reasons: (a) the bank had notice prior to payment of the draft that the beneficiary of the credit had fraudulently inflated the prices in the invoice accompanying the draft; and (b) the documents tendered with the draft were not on their face in accordance with the terms and conditions of the credit. The issues raised by the appeal thus involve consideration of the fraud exception to the autonomy of documentary credits and the requirement of strict documentary compliance with the terms and conditions of a credit.
2. The appeal is by leave of this Court from the judgment of the Quebec Court of Appeal on March 3, 1983, [1985] C.A. 718, 31 B.L.R. 155, allowing an appeal from the judgment of the Superior Court for the District of Montreal on February 28, 1978 and maintaining, in an action on a promissory note by the appellant bank against the respondents, the cross‑demand of the respondent Angelica‑Whitewear Ltd. for damages in the amount of $19,045.57.
I
3. At the request of Whitewear Manufacturing Co. Ltd., the predecessor of the respondent Angelica‑Whitewear Ltd. (both of which will hereinafter be referred to as "Whitewear"), the branch of the appellant Bank of Nova Scotia ("the Bank") at St. Catherine and Peel Streets, Montreal, opened an irrevocable letter of credit No. 1/50021 dated November 13, 1973 in favour of Protective Clothing Company ("Protective"), a Hong Kong company owned in equal partnership by a Mr. Jack Davis and a Mr. Elmer Wong. The letter of credit was for a total amount of US $350,000 to cover the full invoice cost of men's industrial uniforms sold by Protective to Whitewear C.I.F. Montreal. Shipment was to be from Taiwan to Montreal. Third party shipment, partial shipments and transhipment were to be permitted. Drafts under the letter of credit were to be accompanied by the following documents:
1. Full set clean on board Ocean Bills of Lading to order of The Bank of Nova Scotia marked notify Whitewear Mfg. Co. Ltd., 1421 Montcalm St., Montreal 132, Quebec.
2. Commercial Invoice in three copies.
3. Canadian Customs Invoice in six copies, showing fair market value at the time and place of shipment in the currency of the country of export.
4. Insurance Policy or certificate in negotiable form in duplicate.
5. Inspection Certificate in triplicate signed by Jack Davis, B31 form with every shipment in excess of $10,000.
The letter of credit was a negotiation credit that included an undertaking to honour drafts presented with conforming documents by a negotiating bank. The agreement between Whitewear and the Bank respecting the letter of credit provided that the Uniform Customs and Practice for Documentary Credits (1962 Revision) (hereinafter referred to as the "Uniform Customs (1962)") were to be incorporated as part of the agreement and to apply to the credit.
4. Whitewear's claim arose out of the payment of two drafts which were presented for payment under the letter of credit by the negotiating bank, Shanghai Commercial Bank Ltd. ("Shanghai Commercial"), Protective's bank in Hong Kong: a draft in the amount of US $107,061.60 for Protective invoice SS/3 dated July 17, 1974 and a draft in the amount of US $67,480.85 for Protective invoice 0014 dated July 27, 1974. Shanghai Commercial had financed the purchase by Protective from its Taiwan supplier of the goods for sale to Whitewear, taking the Bank's letter of credit as security. In the case of the goods covered by invoice 0014 Shanghai Commercial had opened a back‑to‑back letter of credit D‑72519 in favour of the supplier. Upon receipt of the documents required by the Bank's letter of credit Shanghai Commercial credited Protective with the amount of its invoice to Whitewear and presented the draft for that amount, with the accompanying documents, to the New York agency of the Bank for payment.
5. Shanghai Commercial paid Protective the amount of US $107,061.60 for invoice SS/3 on July 18, 1974. The draft for that amount was paid by the New York agency of the Bank on July 26, and Whitewear's account was debited for that amount on July 29. Whitewear received the debit memo with the documents that had been tendered with the draft on August 2. On that day Mrs. Marion Stern, an officer of Whitewear, learned from Mr. Jack Davis of Protective that his signature on the inspection certificate accompanying invoice SS/3 had been forged, and she immediately informed Mrs. Carol Pichette, the assistant accountant at the St. Catherine and Peel Streets branch of the Bank. By cable the same day the Bank advised Shanghai Commercial with reference to the draft for US $107,061.60 as follows: ''SHIPMENT FRAUDULENT SIGNATURE FORGED ON CERTIFICATE OF INSPECTION PLEASE WITHHOLD FURTHER PAYMENTS....'' By telex on August 8, 1974 Shanghai Commercial advised the Bank that the draft for US $67,480.85 in respect of invoice 0014 had been negotiated on July 30. Shanghai Commercial further advised that it had been unable to contact Mr. Elmer Wong, the other partner of Protective.
6. In telephone conversations in early August with Mrs. Pichette and Mr. Fernand Montpellier, the manager of the St. Catherine and Peel Streets branch of the Bank, and in a meeting with the Bank's solicitor, Mrs. Stern drew the Bank's attention to certain "discrepancies" on the face of the documents accompanying the draft for US $67,480.85. Whitewear also alleges that the Bank was informed before payment of the draft that the prices in invoice 0014 had been fraudulently inflated by the amount of $19,045.57, but this allegation is denied by the Bank. The discrepancies on the face of the documents tendered with the draft for invoice 0014 which are said to be in breach of the requirement of documentary compliance with the terms and conditions of the letter of credit are the following: (a) the inspection certificate refers to the letter of credit D‑72519 of Shanghai Commercial instead of the Bank's letter of credit; (b) the quantity of merchandise shown in the inspection certificate (1149‑11/12 dozen) does not correspond to the quantity shown in invoice 0014 (1144‑11/12 dozen); and (c) the bills of lading accompanying the draft for invoice 0014 call for freight prepaid delivery at Vancouver, whereas the letter of credit stipulates that shipment is to be C.I.F. Montreal.
7. By letter dated August 8, 1974 the solicitors of Whitewear informed the Bank that Whitewear intended to hold the Bank liable for payment of the draft in the amount of US $107,061.60 for Protective invoice SS/3 and that it would hold the Bank liable if it honoured the draft in the amount of US $67,480.85 for invoice 0014. After repeated demands by Shanghai Commercial for payment of the draft for US $67,480.85, the Bank, acting on the advice of its own solicitors, instructed its New York agency on October 29, 1974 to pay the draft. It was paid on October 30, and Whitewear's account was debited for the amount of the draft on November 6.
8. On October 2, 1975 the Bank instituted an action against Whitewear and the other respondent, Angelica Corporation (which had guaranteed payment of Whitewear's liabilities to the Bank), for the balance owing on a promissory note representing the outstanding indebtedness of Whitewear to the Bank. In its plea to the action Whitewear contended that it had been improperly charged by the Bank for a total of $126,106.17 in respect of the drafts for invoices SS/3 and 0014, and it made a cross‑demand in damages for this amount. The total of $126,106.17 was made up of $107,061.60, the amount of the draft in respect of invoice SS/3, and the amount by which the prices in invoice 0014 were allegedly inflated, shown in the plea as $19,044.57, but in fact $19,045.57.
9. In the Superior Court Nolan J. (as he then was) maintained the Bank's action and dismissed Whitewear's cross‑demand with costs. He rejected both the contention based on fraud and the contention based on documentary non‑compliance with the terms and conditions of the letter of credit. Whitewear did not appeal from the judgment in respect of the amount of $107,061.60 for invoice SS/3, but only in respect of the amount of $19,045.57 for the alleged inflation of price in invoice 0014. The Court of Appeal (Turgeon, Kaufman and Monet JJ.A.) allowed Whitewear's appeal for this amount, or to be exact, for the amount of $19,045.50. Monet J.A., who delivered the unanimous judgment of the Court of Appeal, upheld Whitewear's contention based on fraud, but did not deal with the contention based on documentary non‑compliance with the terms and conditions of the letter of credit.
II
10. The fundamental principle governing documentary letters of credit and the characteristic which gives them their international commercial utility and efficacy is that the obligation of the issuing bank to honour a draft on a credit when it is accompanied by documents which appear on their face to be in accordance with the terms and conditions of the credit is independent of the performance of the underlying contract for which the credit was issued. Disputes between the parties to the underlying contract concerning its performance cannot as a general rule justify a refusal by an issuing bank to honour a draft which is accompanied by apparently conforming documents. This principle is referred to as the autonomy of documentary credits. It is reflected in general provision c. of the Uniform Customs (1962), which states: "Credits, by their nature, are separate transactions from the sales or other contracts on which they may be based and banks are in no way concerned with or bound by such contracts." It is further reflected in Article 8 of the Uniform Customs (1962), which reads: "In documentary credit operations all parties concerned deal in documents and not in goods." Article 3 of the Uniform Customs (1962) defines the obligation of the issuing bank to the beneficiary of the credit as follows: "An irrevocable credit is a definite undertaking on the part of an issuing bank and constitutes the engagement of that bank to the beneficiary or, as the case may be, to the beneficiary and bona fide holders of drafts drawn and/or documents presented thereunder, that the provisions for payment, acceptance or negotiation contained in the credit will be duly fulfilled, provided that all the terms and conditions of the credit are complied with." A bank's duty of verification with respect to documentary compliance is defined by Article 7 of the Uniform Customs (1962) as follows: "Banks must examine all documents with reasonable care to ascertain that they appear on their face to be in accordance with the terms and conditions of the credit." The general rule with respect to fraud is that a bank is not responsible for payment against forged or false documents which appear on their face to be regular, as indicated in Article 9 of the Uniform Customs (1962), which provides in part: ``Banks assume no liability or responsibility for the form, sufficiency, accuracy, genuineness, falsification or legal effect of any documents, or for the general and/or particular conditions stipulated in the documents....'' The same principles are embodied in the 1974 and 1983 revisions of the Uniform Customs and Practice for Documentary Credits.
11. An exception to the general rule that an issuing bank is obliged to honour a draft under a documentary credit when the tendered documents appear on their face to be regular and in conformity with the terms and conditions of the credit has been recognized for the case of fraud by the beneficiary of the credit which has been sufficiently brought to the knowledge of the bank before payment of the draft or demonstrated to a court called on by the customer of the bank to issue an interlocutory injunction to restrain the bank from honouring the draft. The scope and availability in practice of the fraud exception to the autonomy of documentary credits have turned on several questions, of which the most important would appear to be the following: (a) the kinds of fraud that should be recognized as falling within the fraud exception, or more specifically, whether the exception should be confined to cases of forged or false documents or whether it should extend to fraud in the underlying transaction; (b) the related question of the proof or demonstration of fraud that should be required to relieve an issuing bank of its obligation to honour a draft or to warrant the issue of an interlocutory injunction to enjoin it from doing so; (c) whether the fraud exception should be opposable to a holder in due course of a draft, that is, one who took the draft for value and without notice of the fraud; and (d) whether the fraud exception should be confined to fraud by the beneficiary of a credit, or whether it should include fraud by a third party which affects the letter of credit transaction but of which the beneficiary of the credit is innocent. Differences of view or emphasis with respect to these issues, particularly the kind of fraud and proof required, reflect the tension between the two principal policy considerations: the importance to international commerce of maintaining the principle of the autonomy of documentary credits and the limited role of an issuing bank in the application of that principle; and the importance of discouraging or suppressing fraud in letter of credit transactions. The potential scope of the fraud exception must not be a means of creating serious uncertainty and lack of confidence in the operation of letter of credit transactions; at the same time the application of the principle of autonomy must not serve to encourage or facilitate fraud in such transactions. The relative emphasis on the one or other of these two considerations tends to explain what have been characterized as the strict and more liberal approaches to the availability of the fraud exception, each of which has had its judicial and academic adherents. For an interesting analysis of the issues, reflecting an apparent change of view over a period of some fifteen years, see E. P. Ellinger, "The Tender of Fraudulent Documents Under Documentary Letters of Credit" (1965), 7 Malaya L. Rev. 24, and "Fraud in Documentary Credit Transactions," [1981] J.B.L. 258. I propose to make brief reference to American, English and Canadian cases which have considered these issues. Most of the cases have involved an application for a preliminary or interlocutory injunction to restrain an issuing bank from paying under a letter of credit or guarantee. Few, if any, have had to address the precise issue raised by this appeal: what the customer or applicant for the credit must show, where there has not been an application for injunction, to justify a conclusion that an issuing bank was not obliged to pay a draft under a letter of credit because of its prior knowledge of fraud by the beneficiary, and that its payment of the draft was therefore an improper or unauthorized one for which the customer was not obliged to reimburse the bank.
12. It is generally acknowledged that the fraud exception to the autonomy of documentary credits was first recognized by American courts and that the leading case is Sztejn v. J. Henry Schroder Banking Corp., 31 N.Y.S.2d 631 (S.C. 1941). There the question arose on a motion to dismiss a complaint to enjoin the issuing bank from paying a draft under a letter of credit on the ground that the complaint did not set forth a cause of action. The allegations of the complaint had therefore to be taken as established for purposes of the motion to dismiss. The fraud alleged was that instead of the goods ordered and described in the bill of lading and invoices accompanying the draft the seller beneficiary of the credit had shipped worthless material and rubbish. Shientag J. stated the principle of autonomy as follows at p. 633:
It is well established that a letter of credit is independent of the primary contract of sale between the buyer and the seller. The issuing bank agrees to pay upon presentation of documents, not goods. This rule is necessary to preserve the efficiency of the letter of credit as an instrument for the financing of trade. One of the chief purposes of the letter of credit is to furnish the seller with a ready means of obtaining prompt payment for his merchandise. It would be a most unfortunate interference with business transactions if a bank before honoring drafts drawn upon it was obliged or even allowed to go behind the documents, at the request of the buyer and enter into controversies between the buyer and the seller regarding the quality of the merchandise shipped.
He distinguished the case before him as one involving fraud by the beneficiary of the credit as follows at p. 634:
This is not a controversy between the buyer and seller concerning a mere breach of warranty regarding the quality of the merchandise; on the present motion, it must be assumed that the seller has intentionally failed to ship any goods ordered by the buyer. In such a situation, where the seller's fraud has been called to the bank's attention before the drafts and documents have been presented for payment, the principle of the independence of the bank's obligation under the letter of credit should not be extended to protect the unscrupulous seller.
It is not clear whether Sztejn was, or should have been, regarded by the court as a case of false documents or a case of fraud in the underlying transaction, although the latter is probably the better view. The bill of lading and invoices correctly described the goods called for by the contract of sale, but the fraud consisted of the failure to ship any goods of that kind. The bill of lading and invoices could, however, be regarded as false documents in that they misrepresented the goods that were in fact shipped. With respect to another issue bearing on the scope or availability of the fraud exception, Shientag J. held that despite conflicting opinion he preferred the view that the fraud exception could not be raised against a holder in due course of a draft on a letter of credit. On the allegations of the complaint, however, which had to be taken as true, the bank presenting the draft for payment was a mere agent for collection and not a holder in due course.
13. The fraud exception is now governed in the United States by § 5‑114(2) of the Uniform Commercial Code, which has been adopted, in some cases in a modified form, in almost every state. It applies to both "forged or fraudulent" documents and "fraud in the transaction". The issuer of a credit must honour a draft, despite notification of fraud, when it is presented with apparently conforming documents by one who is in the position of a holder in due course. In other cases of fraud of which the issuer has notice, the issuer has an option, which must be exercised in good faith, as to whether or not to honour the draft, but a court may enjoin it from doing so. There have been various characterizations of the nature of the fraud required to justify an issuing bank in refusing payment of a draft or a court in granting an injunction to restrain such payment. The exception for forged, and generally for false, documents is clear enough. The main area of uncertainty lies in the scope to be given to the exception for "fraud in the transaction". See H. Harfield, Bank Credits and Acceptances (5th ed. 1974), pp. 82‑83, and Letters of Credit (1979), pp. 84‑85, for the view that "fraud in the transaction" should be confined to fraud in the letter of credit transaction or a transaction so intimately related to the letter of credit transaction as to be an implied term of it; and the Note, " ‘Fraud in the Transaction.’: Enjoining Letters of Credit During the Iranian Revolution " (1980), 93 Harv. L. Rev. 992 for a critical evaluation of this view. The required fraud has been described in somewhat vague terms as fraud of sufficient seriousness to destroy the foundation of the letter of credit transaction. Thus in Intraworld Industries, Inc. v. Girard Trust Bank, 336 A.2d 316 (Pa. S.C. 1975), it was said at p. 324: "In light of the basic rule of the independence of the issuer's engagement and the importance of this rule to the effectuation of the purposes of the letter of credit, we think that the circumstances which will justify an injunction against honor must be narrowly limited to situations of fraud in which the wrongdoing of the beneficiary has so vitiated the entire transaction that the legitimate purposes of the independence of the issuer's obligation would no longer be served." In New York Life Insurance Co. v. Hartford National Bank & Trust Co., 378 A.2d 562 (Conn. S.C. 1977), at p. 567, it was said, quoting this passage from Intraworld Industries, that it would be only in "rare situations of egregious fraud" that the issuer of a credit would be justified in going behind "apparently regular, conforming documents". See also First Arlington National Bank v. Stathis, 413 N.E.2d 1288 (Ill. App. 1980), at p. 1295, where, in addition to quoting the above statements from the Intraworld Industries and New York Life Insurance cases, the court referred to the characterization, in Foreign Venture Ltd. Partnership v. Chemical Bank, 399 N.Y.S.2d 114 (App. Div. 1977), of the exception for "fraud in the transaction" as "a narrow exception". Dynamics Corp. of America v. Citizens & Southern National Bank, 356 F. Supp. 991 (N.D. Ga. 1973); NMC Enterprises, Inc. v. Columbia Broadcasting System, Inc., 14 UCC Rep. 1427 (N.Y.S.C. 1974), and United Bank Ltd. v. Cambridge Sporting Goods Corp., 360 N.E.2d 943 (N.Y.C.A. 1976), in which preliminary injunctions were granted to restrain an issuing bank from paying under a letter of credit on the ground of fraud by the beneficiary, are thought to reflect a less strict view of the fraud exception under § 5‑114. Cf. S. H. Van Houten, "Letters of Credit and Fraud: A Revisionist View" (1984), 62 Can. Bar Rev. 371 at pp. 380‑81. In granting a preliminary injunction to preserve the status quo in Dynamics Corp., the court acknowledged that the issue of fraud would be a difficult one to resolve at trial and said at p. 1000: "It appears to the court that plaintiff has at least a decent chance of winning this suit, and there is as much public interest in discouraging fraud as in encouraging the use of letters of credit." In NMC Enterprises, a preliminary injunction was granted to restrain an issuing bank from honouring a draft under a letter of credit on a prima facie showing of fraud in the "underlying transaction" of sale, which was said to be "tainted with fraud in its inducement." The buyer was induced to enter into the contract of sale by representations concerning the product which the seller knew at the time to be false. The court rejected the contention that the fraud exception recognized in Sztejn was confined to "fraud intrinsic to the documents" and did not extend to fraud in the underlying transaction. It held that if the sales contract was tainted with fraud in its inducement any document required by the letter of credit to be submitted with the draft to show entitlement to payment was equally tainted. In Cambridge Sporting Goods, the fraud, which consisted of the shipment of old, unpadded, ripped and mildewed boxing gloves instead of the new ones ordered by the customer, was similar to that in Sztejn and was held to fall within the words "fraud in the transaction" in § 5‑114. The court said at p. 949: "It should be noted that the drafters of section 5‑114, in their attempt to codify the Sztejn case and in utilizing the term "fraud in the transaction", have eschewed a dogmatic approach and adopted a flexible standard to be applied as the circumstances of a particular situation mandate." The court held that once fraud was shown the burden was on the holder of a draft to prove that he was a holder in due course and that the burden had not been discharged. In Itek Corp. v. First National Bank of Boston, 511 F. Supp. 1341 (D. Mass. 1981), one of the fraud exception cases arising out of the Iranian Revolution, a preliminary injunction was granted to restrain an issuing bank from paying under a standby letter of credit on a prima facie showing that the demand for payment was fraudulent. Rockwell International Systems, Inc. v. Citibank, N.A., 719 F.2d 583 (2d Cir. 1983), another of the Iranian cases, reflects a fairly broad view of what is encompassed by "fraud in the transaction". Referring to Sztejn and Cambridge Sporting Goods, the court said that it must look to the circumstances surrounding the transaction to determine whether there had been an "outright fraudulent practice". It said that it was fraud for a beneficiary of a credit who has acted in such a manner as to prevent the performance of the underlying contract to attempt to reap the benefit of the credit.
14. The English cases are regarded as having adopted a somewhat strict view of the fraud exception. There has been particular emphasis on the importance to international commerce of the principle of the autonomy of documentary credits, and it has been held that the alleged fraud of the beneficiary of a credit must be clearly established to justify a refusal by the issuing bank to honour a draft under the credit or to warrant an injunction to restrain it from doing so. See Malas v. British Imex Industries, Ltd., [1958] 1 All E.R. 262 (C.A.); Discount Records Ltd. v. Barclays Bank Ltd., [1975] 1 All E.R. 1071 (Ch. D.); R. D. Harbottle (Mercantile) Ltd. v. National Westminster Bank Ltd., [1977] 2 All E.R. 862 (Q.B.); and Edward Owen Engineering Ltd. v. Barclays Bank International Ltd., [1978] 1 All E.R. 976 (C.A.) In Malas and Discount Records, where what was complained of by the buyer was that the goods called for by the contract of sale had not been delivered, injunctions to enjoin an issuing bank from honouring a draft under a letter of credit were refused on the ground that fraud had not been established. In Discount Records, Megarry J. noted that Sztejn had been a case of "established fraud" because on the motion to dismiss the complaint for failure to disclose a cause of action the court had been required to assume the truth of the allegation of fraud. Megarry J. said that in contrast there was in the case before him a mere allegation of fraud, and he observed that it would ordinarily be difficult to resolve an issue of fraud in proceedings to which the seller was not a party. Noting also that in Sztejn the bank which presented the draft for payment was not a holder in due course, Megarry J. gave as an additional reason for refusing an injunction the possibility that the draft had passed into hands of a holder in due course. The clear implication is that he accepted this qualification of the fraud exception as applicable in English law. For further recognition that the fraud exception cannot be raised against a holder in due course of a draft see European Asian Bank A.G. v. Punjab and Sind Bank, [1983] 1 Lloyd's Rep. 611 (C.A.), at pp. 615‑19. In Harbottle, supra, in discharging an injunction to restrain a bank from performing its obligation under a performance bond or guarantee, which was held to be subject to a principle of autonomy similar to that which governs documentary credits, Kerr J. held that the case was not one of "established fraud" and that the courts would not interfere with the irrevocable obligations of banks except in "clear cases of fraud of which the banks have notice. "In Edward Owen Engineering, which also involved an unsuccessful application for an injunction to restrain a bank, on the ground of fraud, from paying under a performance guarantee, the expressions used to characterize the nature and proof of the fraud required to relieve a bank of its obligation under a letter of credit, to which a performance guarantee was likened, were "obvious fraud to the knowledge of the bank", "clear fraud of which the bank has notice", fraud that is "very clearly established" and fraud that is "obvious or clear to the bank." After referring to Sztejn, Lord Denning M.R. said at p. 982:
That case shows that there is this exception to the strict rule: the bank ought not to pay under the credit if it knows that the documents are forged or that the request for payment is made fraudulently in circumstances when there is no right to payment.
I would in this regard quote the words of Browne L.J. in an unreported case when he was sitting at first instance. It is Bank Russo‑Iran v. Gordon Woodroffe & Co. Ltd. ([1972] The Times, 4th October). He said:
‘In my judgment, if the documents are presented by the beneficiary himself, and are forged or fraudulent, the bank is entitled to refuse payment if the bank finds out before payment, and is entitled to recover the money as paid under a mistake of fact if it finds out after payment’.
In United City Merchants (Investments) Ltd. v. Royal Bank of Canada, [1983] 1 A.C. 168, the House of Lords reaffirmed the importance of the principle of autonomy and held that the fraud exception did not apply to fraud by a third party of which the beneficiary of the credit was innocent. In that case loading brokers for the carrier had, unknown to the seller and beneficiary of the credit, fraudulently misrepresented on the bill of lading the date on which the goods had been received on board for shipment, which was a material requirement of the letter of credit. Lord Diplock stated the fraud exception to the principle of autonomy as follows at p. 183: "To this general statement of principle as to the contractual obligations of the confirming bank to the seller, there is one established exception: that is, where the seller for the purpose of drawing on the credit, fraudulently presents to the confirming bank documents that contain, expressly or by implication, material representations of fact that to his knowledge are untrue." This statement of the fraud exception would appear to exclude fraud in the underlying transaction, although whether that was intended is not clear because the fraud in issue was clearly fraud with respect to one of the documents stipulated in the credit. See H. C. Gutteridge and M. Megrah, The Law of Bankers' Commercial Credits (7th ed. 1984), p. 183, for the opinion, without reference to authority, that "fraud in the transaction" is not recognized by English law as falling within the fraud exception to the autonomy of documentary credits.
15. Canadian courts have recognized the fraud exception to the independent or autonomous nature of a bank's obligation to the beneficiary of a letter of credit or a performance guarantee, with particular reliance on Sztejn and Edward Owen Engineering as authority for the exception. The earlier Canadian cases on the fraud exception, such as Lumcorp Ltd. v. Canadian Imperial Bank of Commerce, [1977] C.S. 993, and Aspen Planners Ltd. v. Commerce Masonry & Forming Ltd. (1979), 100 D.L.R. (3d) 546 (Ont. H.C.), in which injunctions were refused on the ground that there had been no proof of fraud, appear to have assumed that the appropriate test was that of clearly established fraud laid down in Edward Owen Engineering. Later cases, however, have on the whole adopted the test of a strong prima facie case of fraud applied by Galligan J. in C.D.N. Research & Developments Ltd. v. Bank of Nova Scotia (1980), 18 C.P.C. 62 (Ont. H.C.), and regarded as less onerous and more appropriate on an application for an interlocutory injunction than the test of clearly established fraud. The fraud exception has been held, citing the language of Lord Denning M.R. and Browne L.J. in Edward Owen Engineering, to apply to what amounts, in the particular circumstances of a case, to a fraudulent demand for payment, and it has been said that the exception should not be confined, as possibly suggested in United City Merchants, to fraud in the tendered documents. See Henderson v. Canadian Imperial Bank of Commerce (1982), 40 B.C.L.R. 318 (S.C.) It has been held that the fraud exception applies so long as the fraud has been brought to the knowledge of the issuing bank before the bank has paid under the letter of credit, whether or not it was brought to the knowledge of the bank before the demand for payment was made: Rosen v. Pullen (1981), 126 D.L.R. (3d) 62 (Ont. H.C.) As yet no Canadian court appears to have been called on to decide whether the fraud exception may be opposed to the holder in due course of a draft on a letter of credit. In Canadian Pioneer Petroleums Inc. v. Federal Deposit Insurance Corp. (1984), 30 Sask. R. 315 (Q.B.), there is a helpful review by Halvorson J. of the law with respect to the fraud exception, as it has been applied in Canadian decisions, which received the approval of the Manitoba Court of Appeal in Phoenix Conveyer and Belting Systems Inc. v. Speed King Manufacturing Co. (1985), 37 Man. R. (2d) 84.
16. I would affirm the fraud exception to the autonomy of documentary letters of credit as part of Canadian law, including the law of Quebec. There is in my opinion no reason in principle why the fraud exception should not be applied in Quebec on the same basis as it has been applied in common law jurisdictions. It rests on a principle that is common to both systems of law, which is usually expressed in the civil law by the maxim fraus omnia corrumpit and in the common law by the maxim ex turpi causa non oritur actio (cf. Lumcorp, supra, at p. 995, and United City Merchants, supra, at p. 184). The fraud exception has been recognized by French doctrine on the basis of fraus omnia corrumpit. See J. Stoufflet, Le crédit documentaire (1957), p. 327, no. 392, citing the implications of a decision of the Cour de cassation of March 4, 1953 and the note by P. Lescot: Com. 4 mars 1953, S.1954.1.121. To the same effect see J. Stoufflet in Encyclopédie juridique Dalloz: Répertoire de droit commercial (2e éd. 1972), t. II, "Crédit documentaire", no. 109, and M. Pomerleau, "La fraude du bénéficiaire du crédit documentaire irrévocable‑‑étude comparative en droit commercial international" (1984), 44 R. du B. 113 at p. 119. For a discussion of the opinion of Stoufflet and the case on which it is based, see B. Kozolchyk, Commercial Letters of Credit in the Americas (1966), pp. 296‑97. There is no doubt that there are important differences between the civil law and the common law concerning the rationale, in contract theory, for the legally enforceable nature of the issuing bank's obligation to the beneficiary under an irrevocable letter of credit. The general opinion appears to be that the obligation is of a sui generis contractual nature for which no completely satisfactory rationale has been found in the established categories of contract theory, but the judicial recognition of its legal enforceability is now beyond dispute. For a comparative analysis of the problems and the various theories with respect to what is now acknowledged to be an academic question, see particularly E. P. Ellinger, Documentary Letters of Credit (1970), chapters III, IV and V, and L. Sarna, Letters of Credit: The Law and Current Practice (2nd ed. 1986), chapter 2. But whatever be the differences between the two systems of law with respect to the best doctrinal rationale for the obligation of the issuing bank to the beneficiary of a credit, the effect of fraud on that obligation is essentially the same under the two systems. Thus, while there is a suggestion in the reasons of Monet J.A. in the Court of Appeal in the present case that the decisions on the fraud exception in common law jurisdictions may be of interest but not of relevance in Quebec, I can, with respect, see no reason of principle why they should not be applied in determining the scope and availability of the fraud exception to the autonomy of documentary credits under Quebec law. This is particularly so because of the desirability of as much uniformity as possible in the law with respect to these vital instruments of international commerce.
17. In my opinion the fraud exception to the autonomy of documentary letters of credit should not be confined to cases of fraud in the tendered documents but should include fraud in the underlying transaction of such a character as to make the demand for payment under the credit a fraudulent one. The Sztejn and Cambridge Sporting Goods cases, to which reference has been made, illustrate the difficulty of distinguishing in some cases between a case of false documents and a case of fraudulent shipment covered by documents which accurately describe the goods called for. Yet the English decisions, in which the fraud exception has been stated in terms of documentary fraud (cf. Etablissement Esefka International Anstalt v. Central Bank of Nigeria, [1979] 1 Lloyd's Rep. 445 (C.A.), at pp. 447‑48), clearly assume that the situation in Sztejn falls within the fraud exception as they have adopted it, in reliance on that case. Moreover, the words of Lord Denning M.R. in Edward Owen Engineering‑‑''the request for payment is made fraudulently in circumstances when there is no right to payment''‑‑suggest that it was not intended to limit the fraud exception to documentary fraud, strictly speaking. In my view the fraud exception to the autonomy of a documentary credit should extend to any act of the beneficiary of a credit the effect of which would be to permit the beneficiary to obtain the benefit of the credit as a result of fraud.
18. I agree with the view expressed in United City Merchants that the fraud exception should be confined to fraud by the beneficiary of a credit and should not extend to fraud by a third party of which the beneficiary is innocent. This appears to me to be a reasonable limit in principle on the scope of the fraud exception. I am also in agreement with the view that the fraud exception should not be opposable to the holder in due course of a draft on a letter of credit. While there is certainly something to be said for the contrary view, which is expressed in A. G. Davis, The Law Relating to Commercial Letters of Credit (2nd ed. 1954), pp. 165‑66, and in E. P. Ellinger, "Fraud in Documentary Credit Transactions", op. cit., at pp. 262‑64, I think it is preferable, in the interests of the uniformity that is so important in this area of the law, that we should follow the rule that was affirmed in Sztejn, after consideration of the conflicting opinion, adopted by § 5‑114(2) of the Uniform Commercial Code and apparently accepted by English decisions.
19. On the issue raised by this appeal, I would draw a distinction between what must be shown on an application for an interlocutory injunction to restrain payment under a letter of credit on the ground of fraud by the beneficiary of the credit and what must be shown, in a case such as this one, to establish that a draft was improperly paid by the issuing bank after notice of alleged fraud by the beneficiary. A strong prima facie case of fraud would appear to be a sufficient test on an application for an interlocutory injunction. Where, however, no such application was made and the issuing bank has had to exercise its own judgment as to whether or not to honour a draft, the test in my opinion should be the one laid down in Edward Owen Engineering‑‑whether fraud was so established to the knowledge of the issuing bank before payment of the draft as to make the fraud clear or obvious to the bank. The justification for this distinction, in my view, is the difficulty of the position of the issuing bank, in so far as fraud is concerned, by comparison with that of a court on an application for an interlocutory injunction. In view of the strict obligation of the issuing bank to honour a draft that is accompanied by apparently conforming documents, the fact that the decision as to whether or not to pay must as a general rule be made fairly promptly, and the difficulty in many cases of forming an opinion, on which one would hazard a lawsuit, as to whether there has been fraud by the beneficiary of the credit, it would in my view be unfair and unreasonable to require anything less of the customer in the way of demonstration of an alleged fraud.
III
20. It is necessary, then, to consider whether the alleged fraud in this case, which was the inflation of the prices in invoice 0014 by some $17 per dozen above those agreed to in the relevant sales contract, was sufficiently established to the knowledge of the Bank before payment of the draft to make it clear or obvious to the Bank. Fraud by the beneficiary of the credit of the kind which comes within the fraud exception was established by the evidence at trial. The sales contract covering the goods shown in invoice 0014 was No. S‑69‑H dated November 30, 1973 on the letterhead of Evergreen International Enterprises Co. Ltd., a company owned by Mr. Davis. It showed a price of US $42.59 per dozen for navy, green and brown uniforms and a price of US $40.94 per dozen for postman blue uniforms. The prices shown in invoice 0014 for these two categories were US $59.23 and US $57.55 per dozen respectively. Both Mrs. Stern and Mr. Davis confirmed in their testimony at trial that these prices represented an inflation of the prices agreed to in the relevant sales contract, and Mr. Davis accepted the characterization of what had taken place as a "swindle" by his partner Mr. Elmer Wong for which Protective was responsible. This was fraud of the kind that comes within the fraud exception, whether it be regarded as having made invoice 0014 a false document in so far as its representation of the applicable prices was concerned, or whether it be regarded as fraud in the performance of the underlying sales contract.
21. In so far as prior knowledge of the fraud by the Bank is concerned, counsel for Whitewear relied particularly on the words, "The fact that Defendant informed Plaintiff bank before the latter reimbursed Shanghai Commercial Bank that the price of the merchandise had been inflated by $19,044.57" in the following passages of the judgment of Nolan J. (as he then was) as constituting a finding of fact on this issue:
Turning next to invoice 0014 dated July 27, 1973 [sic] and the reasons advanced by Defendant in support of its contention that this invoice should not have been paid (listed on page 13 above), the Court wishes first to emphasize that when Shanghai Commercial Bank paid the invoice Plaintiff bank had no knowledge of the fraudulent nature of the earlier invoice SS‑3.
The fact that the Defendant informed Plaintiff bank before the latter reimbursed Shanghai Commercial Bank that the price of the merchandise had been inflated by $19,044.57 is of no consequence in the Court's opinion. The important fact is that the draft had been paid by the Shanghai Commercial Bank on the strength of L.C. 1/50021.
22. Because of the context in which the words relied on by counsel for Whitewear were used and the absence of any reference by Nolan J. to the evidence on this issue, which, as I shall indicate, is far from clear or conclusive, I am unable to conclude that these words could have been intended as a considered finding of fact on the basis of the evidence. In my view, Nolan J. was assuming, for purposes of his disposition of the fraud issue, the truth of Whitewear's allegation that the Bank had been informed of the fraud before payment of the draft by its New York agency. The point being made by Nolan J. was that, assuming this to be the case, the fraud exception could not be raised against Shanghai Commercial because it had paid Protective before the fraud was brought to the knowledge of the Bank.
23. It is not clear on precisely what basis Nolan J. came to this conclusion, but the words "before the latter reimbursed Shanghai Commercial Bank" and "The important fact is that the draft had been paid by the Shanghai Commercial Bank on the strength of L.C. 1/50021" suggest that he regarded Shanghai Commercial as a paying bank acting as the agent for this purpose of the issuing bank. That was clearly not the case. Shanghai Commercial was a negotiating bank that was not acting as the agent of the issuing bank when it paid Protective and negotiated the draft. In any event, counsel for the Bank did not attempt to support that basis for the disposition of the fraud issue in the Court of Appeal and expressly disclaimed any reliance on it in this Court. He conceded that Shanghai Commercial was in no better position with respect to the fraud exception than Protective.
24. It might have been argued in this case that Shanghai Commercial, as a negotiating bank, was a holder in due course of the draft against whom the fraud exception could not be raised. There is, however, no evidence in the record on which one could conclude that the burden of showing that Shanghai Commercial was a holder in due course had been discharged, and in any event, as I have indicated, that position was not taken in argument before us.
25. In the Court of Appeal, Monet J.A., who delivered the unanimous judgment of the Court, expressed his agreement with the following contention of counsel for Whitewear: "It is submitted that in the case at bar, Respondent made payment almost three months after receiving due notice of the seller's fraud, and cannot therefore be said to have acted carefully or diligently as provided for in article 7 UCP." Monet J.A. added that the Bank had been put on inquiry and ought to have sought confirmation from its customer before payment of the draft. As I read his reasons for judgment, Monet J.A. based the liability of the Bank essentially on the breach of a duty of care to take steps to inform itself sufficiently as to whether there had been fraud by the beneficiary of the letter of credit rather than on payment after such fraud had been established to the knowledge of the Bank. He would appear to have been of the view, as contended by Whitewear, that the Bank had been put on inquiry with respect to fraud affecting the shipment covered by invoice 0014 by the fraud that had been established with respect to the earlier shipment covered by invoice SS/3. With great respect, I do not think that the circumstances of this case gave rise to a duty on the part of the Bank to investigate whether there had been fraud with respect to the prices indicated in invoice 0014. Even if it be assumed, as is apparently conceded by counsel for the Bank in his factum, that the Bank was informed of the alleged fraud with respect to the quality or prices of the goods covered by invoice SS/3, as well as the forgery of the signature on the inspection certificate accompanying that invoice, the Bank would have had no reason to assume that it had not been fully informed by Whitewear of the alleged grounds for refusing payment of the draft covering invoice 0014 because Whitewear had had ample opportunity before payment of the draft so to inform the Bank and had taken steps to do so. There was no reason, in so far as knowledge of the alleged grounds for refusing payment were concerned, why the Bank should make further inquiry of Whitewear before deciding to pay the draft. Whitewear's understanding, according to the evidence of Mrs. Stern, that the Bank would advise it of what it intended to do may explain why Whitewear did not apply for an injunction to restrain the Bank from paying the draft, but it has no bearing on the issue whether or not the Bank was obliged to pay the draft in view of the fraud exception. It is important to bear in mind that an issuing bank does not, as a general rule, have a duty to satisfy itself by independent inquiry that there has not been fraud by the beneficiary of a credit when it is presented with documents that appear on their face to be regular. It is only when fraud appears on the face of the documents or when fraud has been brought to its attention by its customer or some other interested party that it must decide whether fraud has been so established as to require it to refuse payment.
26. In view of the basis on which the trial judge and the Court of Appeal disposed of the fraud issue, it is necessary for this Court to review the evidence in the light of the applicable test. In my opinion the evidence does not support a finding that the alleged fraud with respect to the prices in invoice 0014 was sufficiently established to the knowledge of the Bank before payment of the draft. It is necessary on this issue to distinguish between the evidence with respect to invoice SS/3 and the evidence with respect to invoice 0014. The evidence is in my opinion far from clear as to whether Mrs. Stern informed Mrs. Pichette of the alleged fraud with respect to the prices or quality of the goods covered by invoice SS/3 as well as the forgery of the signature on the inspection certificate accompanying that invoice. Mrs. Stern did not make this explicit in her testimony. Mrs. Pichette testified that Mrs. Stern informed her of the forgery of the signature on the inspection certificate. The cable of August 2, 1974 from the Bank to Shanghai Commercial with reference to invoice SS/3 contained the words "shipment fraudulent signature forged on certificate of inspection". The finding of the trial judge on this point was expressed as follows: "When Mrs. Stern of Whitewear Mfg. received the documents on August 2 and saw the amount of the debit note which was considerably higher than any previous drawing she became alarmed and immediately got in touch with Mr. Davis who happened to be back in Canada at that time. After inspecting the documents Mr. Davis informed Mrs. Stern that his signature on the inspection certificate was a for‑ gery. Mrs. Stern immediately called the bank to inform them of this." Counsel for the Bank, however, appears to have conceded in his factum that Whitewear had informed the Bank of the alleged fraud with respect to the prices or quality of the goods covered by invoice SS/3. As he put it, Mrs. Stern informed Mrs. Pichette "that a fraud allegedly had been committed with respect to Protective invoice number SS/3 in that the value of the goods was inflated and that the inspection certificate required under the documentary letter of credit agreement to be signed by Jack Davis was a forgery." But, for the reasons I have indicated, such knowledge with respect to invoice SS/3 can have no bearing on the question whether the Bank had knowledge of the alleged fraud with respect to invoice 0014. Whitewear had ample opportunity to inform the Bank of the alleged irregularities of which it complained with respect to invoice 0014 and it took steps to do so. There was no reason for the Bank to make any inquiry or to act on any assumptions concerning the shipment covered by invoice 0014 by reason of what it had been informed concerning the shipment covered by invoice SS/3. It was entitled to assume that it had been informed of all the alleged irregularities with respect to invoice 0014.
27. On the question of the Bank's knowledge of the fraudulent inflation of the prices in invoice 0014 counsel for Whitewear relied particularly on the following exchange in the course of Mrs. Stern's evidence with reference to the prices in invoice 0014 and the "discrepancies" in invoices 0012, 0013 and 0014:
A. Please note that the price charged there was fifty‑nine, twenty‑three (59.23) as opposed to forty‑two fifty‑nine (42.59) and the postman blue, charged at fifty‑seven, fifty‑five (57.55) as opposed to forty ninety‑four (40.94).
...Q. Now, did you have occasion to study these documents 0012, 0013 and 0014 when they were brought to your attention?
A. Yes, at great length and found discrepancies in all these three draws. Discrepancies in documentation.
...Q. And did you bring these discrepancies to the attention of the Plaintiff bank?
A. Yes, I did.
It is not clear in my opinion that, in her use of the words "discrepancies in documentation" in the above extract from her testimony, Mrs. Stern was referring to the inflation of the prices in invoice 0014 as well as the discrepancies appearing on the face of the documents, which, it was contended, constituted documentary non‑compliance with the terms and conditions of the letter of credit. Her other testimony with reference to the "discrepancies" strongly suggests that she was referring only to the latter. When asked by the trial judge what discrepancies with respect to invoice 0014 she brought to the attention of the Bank she said that the only ones were the reference in the inspection certificate to the Shanghai Commercial letter of credit D‑72519 and the difference in the quantities shown in the invoice and the inspection certificate. The New York agency of the Bank in a telex of August 9, 1974 to Shanghai Commercial acknowledged that the Bank had been informed by Whitewear of the prepaid freight discrepancy.
28. The letter of August 8, 1974 from the solicitors of Whitewear to the Bank, to which reference has been made above, made no mention of the alleged inflation of the prices in invoice 0014. The reasons given to justify a refusal to pay the draft covering that invoice were stated as follows:
The Inspection Certificate accompanying the same again bears the forged signature of Mr. Jack Davis and refers to another Letter of Credit, namely L‑C No. D72519. Moreover, the quantity of goods appearing on the accompanying invoice and accompanying Inspection Certificate do not match.
It was later determined that the signature of Mr. Davis on the inspection certificate accompanying invoice 0014 was genuine.
29. The Bank's cable of August 2, 1974 to Shanghai Commercial referred to the shipment covered by invoice SS/3 and the draft for US $107,061.60 as "fraudulent", but as appears from a letter of August 10, 1974 from Shanghai Commercial to the New York agency of the Bank, the latter's telex messages of August 8 and 9 to Shanghai Commercial, with reference to the draft for US $67,480.85 in respect of invoice 0014, referred only to the alleged discrepancies appearing on the face of the documents tendered with the draft, namely, the reference in the inspection certificate to Shanghai Commercial's letter of credit D‑72519, the discrepancy in the quantities shown in the invoice and the inspection certificate, and the discrepancy with respect to prepaid freight. Each of these discrepancies was addressed by Shanghai Commercial in its letter. There was no reference in the telexes or the letter to the alleged inflation of price in invoice 0014.
30. The only reference in the contemporary documents to the prices shown in invoice 0014 is to be found in the letter of August 9, 1974 from Mr. Montpellier, manager of the St. Catherine and Peel Streets branch of the Bank, to the New York agency of the Bank. That letter referred to three drafts for which payment was being withheld at the request of Whitewear, including the draft for invoice 0014, and contained the following passages:
4. We also confirm that you have had a conversation with Mr. Jack Davis today, who was in this office, at which time, he informed you that he will be in Hong Kong on Monday with the endeavour of rectifying the above mentioned drawings which you hold for payment.
5. You will note from our customer's lawyer's letter of August 8, 1974, page 2 (a, b, and c) that they claim that the signature of Mr. Jack Davis was a forgery, but Mr. Davis did assure us that it has his signature but that the amount claimed was not correct.
In its reply to this letter on August 14, 1974 the New York agency made no reference to the question of price in invoice 0014 but gave reasons why the Bank was not liable for payment of the earlier draft for US $107,061.60. Mr. Davis may well have been able to establish the fraud with respect to the prices in invoice 0014 so as to make it clear to the Bank, but it is impossible to conclude from the words "the amount claimed was not correct", in the Bank's letter of August 9, 1974 to its New York agency, that he did in fact do so. It is necessary, of course, to distinguish between a fraudulent increase or inflation of price and a question whether an increase of price was permitted under the agreement between the parties, such as was considered in Urquhart Lindsay & Co. v. Eastern Bank, Ld., [1922] 1 K.B. 318, and rejected as a ground for refusing payment under a letter of credit.
31. I am accordingly of the view that there is no evidence to support a finding that the alleged fraud in respect of invoice 0014 was brought to the knowledge of the Bank before payment of the draft in respect of that invoice by its New York agency, much less a finding that the fraud was sufficiently established to the knowledge of the Bank before payment so as to be clear or obvious to it, and that for this reason the contention of Whitewear based on the fraud exception to the autonomy of a documentary credit must fail. The judgment of the Court of Appeal allowing Whitewear's appeal cannot, therefore, be supported on the ground of fraud.
IV
32. It is necessary then to consider the alleged instances of documentary non‑compliance with the terms and conditions of the letter of credit. As I have indicated above, they are three: (a) the inspection certificate accompanying invoice 0014 referred to the Shanghai Commercial back‑to‑back letter of credit D‑72519 rather than the Bank's letter of credit No. 1/50021; (b) invoice 0014 showed the quantity of goods sold as 1144‑11/12 dozen, whereas the inspection certificate accompanying the invoice showed the quantity as 1149‑11/12 dozen; and (c) the bills of lading accompanying invoice 0014 specified delivery, freight prepaid, at Vancouver, whereas the Bank's letter of credit called for sale C.I.F. Montreal. The goods covered by invoice 0014 were in fact delivered to Montreal and accepted under protest by Whitewear, and there was no allegation nor proof that Whitewear was obliged to pay the freight from Vancouver to Montreal.
33. The documentary requirements under a letter of credit are determined by the terms and conditions of the credit, as supplemented by the Uniform Customs and Practice for Documentary Credits, which contain detailed rules respecting the requirements and interpretation of documents to be tendered with a draft.
34. The fundamental rule is that the documents must appear on their face, upon reasonably careful examination, to be in accordance with the terms and conditions of the letter of credit. This appears from Article 7 of the Uniform Customs (1962) which provides, "Banks must examine all documents with reasonable care to ascertain that they appear on their face to be in accordance with the terms and conditions of the credit", and from the second paragraph of Article 8, which provides, "Payment, acceptance or negotiation against documents which appear on their face to be in accordance with the terms and conditions of a credit by a bank authorised to do so, binds the party giving the authorisation to take up the documents and reimburse the bank which has effected the payment, acceptance or negotiation."
35. There must be strict compliance with the terms and conditions of the letter of credit. This rule has been laid down in a number of English cases and followed in Canada. In English, Scottish and Australian Bank Ltd. v. Bank of South Africa (1922), 13 Ll. L. Rep. 21 (K.B.), Bailhache J. used the words "exact compliance", "strict accord" and "strictly complied with". The case that is most often cited for the rule of strict documentary compliance is Equitable Trust Co. of New York v. Dawson Partners, Ltd. (1926), 27 Ll. L. Rep. 49, where, in a frequently quoted passage, Viscount Sumner said in the House of Lords at p. 52:
It is both common ground and common sense that in such a transaction the accepting bank can only claim indemnity if the conditions on which it is authorised to accept are in the matter of the accompanying documents strictly observed. There is no room for documents which are almost the same, or which will do just as well. Business could not proceed securely on any other lines. The bank's branch abroad, which knows nothing officially of the details of the transaction thus financed, cannot take upon itself to decide what will do well enough and what will not. If it does as it is told, it is safe; if it declines to do anything else, it is safe; if it departs from the conditions laid down, it acts at its own risk.
That statement was referred to by Lord Diplock in the Privy Council in Gian Singh & Co. v. Banque de l'Indochine, [1974] 2 All E.R. 754 at p. 759, as one that "has never been questioned or improved on." The case of J. H. Rayner & Co. v. Hambro's Bank, Ld., [1943] K.B. 37 (C.A.), in which it was held that a bill of lading referring to "machine‑shelled groundnut kernels" did not satisfy the requirement of one specifying "Coromandel groundnuts", is an often cited example of the application of the rule of strict documentary compliance, particularly because of its holding that in determining whether tendered documents appear on their face to be in accordance with the terms and conditions of a letter of credit an issuing or confirming bank cannot be assumed to have knowledge of the meaning given to particular terms or expressions in a particular trade. In Canada the rule of strict documentary compliance was expressly affirmed in Davis O'Brien Lumber Co. v. Bank of Montreal, [1951] 3 D.L.R. 536, where the Appeal Division of the New Brunswick Supreme Court unanimously upheld the judgment of Bridges J., who said at p. 550: "There is no question but that a party shipping goods under a letter of credit must strictly comply with its terms. See English, Scottish & Australian Bk. v. Bk. of South Africa (1922), 13 Ll. L.R. 21; Equitable Trust Co. of N.Y. v. Dawson Partners Ltd. (1926), 27 Ll. L.R. 49 and Rayner & Co. v. Hambros Bk. Ltd., [1942] 2 All E.R. 694."
36. The American courts appear on the whole to have adopted the rule of strict documentary compliance, often citing Equitable Trust (see H. Harfield, Bank Credits and Acceptances, op. cit., p. 73; Letters of Credit, op. cit., p. 36), but in several cases they have applied a rule of substantial compliance. See, for example, Bank of America Nat. Trust & Savings Ass'n v. Liberty Nat. Bank & Trust Co. of Oklahoma City, 116 F. Supp. 233 (W.D. Okl. 1953), where it was said at p. 243: "As mentioned previously, where a letter of credit is substantially complied with every reasonable effort should be made by the Courts to uphold its validity, particularly where the objections are technical in nature and made only in an effort to escape from the legal effect of a business bargain."
37. While the English and Canadian courts have not adopted a rule of substantial documentary compliance there has apparently been recognition that there must be some latitude for minor variations or discrepancies that are not sufficiently material to justify a refusal of payment. The rule of strict documentary compliance, as laid down in Equitable Trust, was held by McNair J. in Moralice (London), Ltd. v. E. D. & F. Man., [1954] 2 Lloyd's Rep. 526 (Q.B.), and Soproma S.p.A. v. Marine & Animal By‑Products Corp., [1966] 1 Lloyd's Rep. 367 (Q.B.), to involve the proposition that the de minimis non curat lex rule does not apply to documentary credit transactions. (Compare Margaronis Navigation Agency Ltd. v. Henry W. Peabody & Co. of London Ltd., [1965] 2 Q.B. 430 (C.A.), at p. 444, where, in a case not involving a letter of credit transaction in which the question was whether the de minimis rule could be invoked by a claimant or only in defence, Sellers L.J. said: "I think it is a rule of general application. It matters not whether it be a claim or a defence. It matters not the nature of the transaction.") In Moralice, the letter of credit required that the bill of lading and invoice show a shipment of 500 metric tons, but the documents tendered were for a shipment of 300 kilos less. In Soproma, there was a discrepancy of 0.5d<s F between the temperature called for by the letter of credit and the temperature stated in the bill of lading. McNair J. said that the discrepancy fell, strictly speaking, within the principle affirmed in Moralice, although he would have been reluctant to dispose of the case on that basis alone. Moralice and Soproma are cited in support of the following passage in Chitty on Contracts (25th ed. 1983), vol. II, p. 324, affirming the scope of the principle of strict documentary compliance:
If a tender of documents does not strictly comply with the requirements of the commercial credit, the banker is entitled to reject it. It does not matter whether the discrepancy is significant or minute. The rule de minimis non curat lex does not apply in commercial credit transactions. Moreover, the person to whom the documents are tendered is entitled to raise any lawful objections against the documents, even if in fact his objection is purely technical and the true motive for his rejection of the documents is to be found in a falling market. The fact that he does not, at the time of the rejection of the documents, raise all the defences available to him does not preclude him from setting up all of them at the trial.
38. In Gian Singh, supra, however, there appears to be recognition, in the following passage of the judgment of Lord Diplock at p. 759, that the rule of strict documentary compliance does not extend to minor variations or discrepancies that are not sufficiently material to justify a refusal of payment:
Before their Lordships leave was sought to rely also on minor variances between the wording of the description in the credit of the certificate required and the wording of the certificate actually presented; such as the insertion in the latter of the words ‘Built in wood’ as descriptive of the vessel, and the use of the singular ‘the specification’ instead of the plural "specifications" which appears in the credit itself. In their Lordships' opinion it is too late for the customer to take these new points for the first time now. The relevance of minor variations such as these depends on whether they are sufficiently material to disentitle the issuing bank from saying that in accepting the certificate it did as it was told. Their Lordships would not think it proper to decide issues of this kind without having the benefit of the opinion of the local courts on the significance, if any, which would be attached by those who transact business in Singapore to particular minor variations in the precise words used in their transactions.
39. The rather limited scope of this qualification of the rule of strict documentary compliance is suggested not only by the variations which Lord Diplock referred to as minor but by the statements of authors who have noted the qualification. L. Sarna, op. cit., p. 77 states: "Minor variations between the credit requirements and the documents tendered may relate to the use of words in the singular rather than the plural, superfluous adjectives descriptive of the goods, and numbers in sets rather than in totals." H. C. Gutteridge and M. Megrah, op. cit., p. 120, refer to the qualification in these terms: "The strict compliance to which Lord Sumner drew attention in Equitable Trust Co. New York v. Dawson Partners does not extend to the dotting of i's and the crossing of t's or to obvious typographical errors either in the credit or the documents."
40. The rule of documentary compliance requires not only that the tendered documents conform to the terms and conditions of the letter of credit but that they appear on their face to be consistent with one another. The requirement of documentary consistency was referred to in Midland Bank, Ltd. v. Seymour, [1955] 2 Lloyd's Rep. 147 (Q.B.), where the issue was whether the bill of lading had to contain as full a description of the goods as the invoice in order that there be documentary conformity with the description specified in the letter of credit. The court held that it was a sufficient compliance with the letter of credit if the documents as a whole contained the required description, but in the course of his statement of the general principle Devlin J. referred to the necessity of documentary consistency as follows at p. 153: "The set of documents must contain all the particulars, and, of course, they must be consistent between themselves, otherwise they would not be a good set of shipping documents. But here you have a set of documents which not only is consistent with itself, but also incorporates to some extent the particulars that are given in the other‑‑the shipping mark on the bill of lading leading to the invoice which bears the same shipping mark and which would be tendered at the same time, which sets out the full description of the goods." He indicated further what he understood to be the important aspect of the requirement of documentary consistency at p. 151, where he said: "All the documents are consistent with one another in the sense that they make up a set which is apparently referring to the same parcel of goods." The rule of documentary consistency was expressly provided for in the 1974 revision of the Uniform Customs and Practice for Documentary Credits by the addition to Article 7, as it appears in the Uniform Customs (1962), of the following sentence: "Documents which appear on their face to be inconsistent with one another will be considered as not appearing on their face to be in accordance with the terms and conditions of the credit." The same provision appears in the corresponding Article 15 of the 1983 revision of the Uniform Customs. H. C. Gutteridge and M. Megrah, op. cit., p. 121, quote the following statement by the Banking Commission of the International Chamber of Commerce concerning the meaning of the requirement of documentary consistency introduced into the Uniform Customs by the revision of 1974: ``...the notion of `consistency' referred to in Article 7 should be understood as meaning that the whole of the documents must obviously relate to the same transaction, that is to say, that each should bear a relation (link) with the others on its face, and the documents should not be inconsistent with one another.'' The requirement of linkage of the documents, or sufficient identification of the goods in the tendered documents to indicate unequivocally that the documents all relate to the same parcel or shipment of goods, was applied in Banque de l'Indochine et de Suez S.A. v. J. H. Rayner (Mincing Lane) Ltd., [1982] 2 Lloyd's Rep. 476 (Q.B.); [1983] 2 Lloyd's Rep. 228 (C.A.) The issue in that case was whether the bank was entitled to the return of money paid "under reserve" because of apparent inconsistency between the tendered documents or insufficient linkage between them. Counsel for the plaintiff beneficiary of the credit conceded that they were not on their face linked to one another. Parker J. in the Queen's Bench Division stated the applicable requirements as follows at p. 482: "I have no doubt that so long as the documents can be plainly seen to be linked with each other, are not inconsistent with each other or with the terms of the credit, do not call for inquiry and between them state all that is required in the credit, the beneficiary is entitled to be paid." He held that the documents were not on their face consistent with one another and that for this reason and the absence of linkage, which had been conceded, the bank was entitled to the return of its money. In the Court of Appeal, which dismissed the appeal from Parker J.'s judgment, Sir John Donaldson, M.R., said that he did not think that any of the documents was necessarily inconsistent with any other, but that there was an insufficient identification in some of them of the goods as the goods covered by the invoice. He accepted the submission of counsel for the bank that "there must be sufficient linkage to prove that the documents, if accurate, all relate to the parcel of goods which are the subject of the commercial invoice", and said at p. 233: "There is, in my judgment, a real distinction between an identification of ‘the goods’, the subject matter of the transaction and a description of those goods. The second sentence of art. 32(c) gives latitude in description, but not in identification .... But however general the description, the identification must, in my judgment, be unequivocal. Linkage between the documents is not, as such, necessary, provided that each directly or indirectly refers unequivocally to ‘the goods’." Referring to the terms of certain certificates called for by the letter of credit, he said on the same page: "Clearly these certificates could relate to the goods, but they do not necessarily do so. This will not do."
41. Another issue with respect to the requirement of strict documentary compliance, of particular relevance in this appeal, is the question whether a particular instance of documentary non‑compliance can be cured by actual performance of the underlying sales contract. An affirmative view on this question was suggested in obiter dicta in Bank of Montreal v. Recknagel, 109 N.Y. 482 (C.A. 1888), where Gray J. said at p. 488: ''But if Vogel & Co., in any material matter, failed to comply with those terms and conditions, the plaintiff's London agents accepted the drafts at their peril, and defendants could not be held liable unless there were, in fact, consignments of Manilla hemp ....'' To the same effect he said at p. 494: "The agreement of the parties called for a particular statement in the bill of lading to accompany the drafts, and that statement, or the existence of facts which would have authorized it, is a condition precedent to defendants' responsibility to respond to plaintiff's demand." That view was rejected in Camp v. Corn Exchange Nat. Bank, 132 A. 189 (Pa. S.C. 1926), where Kephart J. said at p. 191:
It has been suggested by way of dicta in a few cases that, if there has been a tender of goods called for by the contract between the vendor and vendee, a bank which has accepted a draft made thereon can recover in a suit against the purchaser, even though there was a variance between the description of the goods in the letter of credit and in the documents accompanying the draft. Bank of Montreal v. Recknagel, 109 N.Y. 482, 17 N.E. 217; Lamborn v. Lake Shore Banking & Trust Co., supra; National City Bank v. Seattle National Bank, 121 Wash. 476, 209 P. 705, 30 A.L.R. 347. This doctrine would set up the performance of the contract between the customer of the bank and a third party as a testing of the performance of the contract between the customer and the bank. Laudisi v. American Exchange National Bank, supra. It further depends upon facts not ascertained until after the bill has been accepted or rejected, and is thus opposed to the basic principles universally laid down in transactions of this nature.
A similar view was expressed on this question by Scrutton L.J. in Guaranty Trust of New York v. Van den Berghs, Ltd. (1925), 22 Ll. L. Rep. 447 (C.A.), where he said at pp. 454‑55:
But I desire to say that I do not accept the conclusion sought to be drawn from two passages in the case of the Bank of Montreal v. Recknagel, 109 New York 482, at pp. 488 and 494, both of which I think were obiter dicta to the effect that the issuing bank, to recover from the purchaser requesting the credit, may either show that the documents on which it has paid conform to the letter of credit, or that if they do not the goods when they arrive do so conform. The object of payment against documents before the goods arrive, as stated by Kennedy L.J., in his admirable judgment in Biddell v. Horst, [1911] 1 K.B. 934, at p. 958, subsequently adopted by the House of Lords, is to enable the purchaser to deal with documents representing the goods before the goods themselves arrive. To hold that the issuing bank might make the purchaser liable on documents which did not represent the goods, because at some time later the goods themselves arrived, seems to me entirely to defeat the commercial objects of the transaction.
This view receives support by implication, I think, from the decision in Orient Co. v. Brekke & Howlid, [1913] 1 K.B. 531, in which it was held that there is not a complete delivery under a c.i.f. contract by the tender of documents which do not include a policy of insurance, although the goods have in fact arrived safely at their destination. I would also note that in J. H. Rayner & Co. v. Hambro's Bank, Ld., supra, in which it was held that the bank was justified in refusing payment because the bills of lading referred to "machine‑shelled groundnut kernels" rather than "Coromandel groundnuts", as required by the letter of credit, "Coromandel groundnuts" were in fact delivered. Counsel for the bank is reported at p. 38 to have said in argument: "The judge appears to have been unduly influenced by the fact that the shipment was in fact Coromandel groundnuts. That fact is immaterial, because what the banker has to pay against is the documents specified by the letter of credit." In Michael Doyle & Associates Ltd. v. Bank of Montreal (1982), 140 D.L.R. (3d) 596, Taylor J. in the British Columbia Supreme Court, after quoting the passage from Chitty on Contracts respecting the rule of strict documentary compliance, which I have quoted above, said at p. 605: "So it appears that a banker is entitled to reject a document which does not on its face answer completely and strictly to the requirements of the credit, even though it is in fact the document called for." While this statement may have been essentially a rejection of a rule of substantial documentary compliance (see the further statement at p. 606, "Yet it remains the fact that the certificate is, in substance, the document which was called for"), it carries with it, I think, the implication that the obligation of an issuing bank to pay under a letter of credit is to be determined by whether the documents appear on their face to conform to the terms and conditions of the letter of credit and not by whether the requirements of the transaction have in fact been met by actual performance. For the reasons given by Scrutton L.J. in Guaranty Trust of New York I am in respectful agreement with the view expressed by him. Just as it is essential to the effective operation of letter of credit transactions that an issuing or confirming bank should not be required, in the absence of notice of fraud, to inquire beyond the apparent regularity and conformity of the tendered documents, so it is essential that its obligation to pay should not be subject to determination after the event by what actually transpired in the performance of the underlying contract. That is the other side of the principle of autonomy. The obligation of the issuing bank to the beneficiary of a credit must at all times be independent of the actual performance of the underlying contract. Thus I am of the view that documentary non‑compliance cannot be cured by the actual performance of the underlying contract.
42. In the light of these principles respecting documentary compliance I turn to consideration of the alleged discrepancies on the face of the documents accompanying the draft for invoice 0014. The two relating to the inspection certificate‑‑the reference to the Shanghai Commercial letter of credit and the discrepancy between the quantity shown in the inspection certificate and the quantity shown in the invoice‑‑may be conveniently considered together. The basic contention of counsel for Whitewear, as I understood his argument, was that while the Bank's letter of credit did not require a reference to the credit in the tendered documents and did not specify a particular quantity in its description of the goods, the reference to the Shanghai Commercial letter of credit in the inspection certificate and the discrepancy in respect of the quantities shown in the invoice and the certificate raised an uncertainty as to whether the inspection certificate was the one called for by the letter of credit, that is, was related to the goods covered by the invoice. Thus, as I understood the argument of counsel for Whitewear with respect to these discrepancies, he was essentially raising the issue of linkage or sufficient identification of the goods. On this issue I am of the opinion that there was a sufficient indication on the face of the inspection certificate that it related to the same parcel or shipment of goods as that referred to in invoice 0014. The inspection certificate, as did the invoice, referred to a shipment of "Men's Industrial Uniforms" from Kaohsiung to Montreal on board the EMMA JEBSEN on July 22, 1974. Moreover, since the greater quantity was shown in the inspection certificate, the latter appeared on its face to cover the whole of the quantity specified in the invoice, which was the quantity for which the buyer was charged. It thus satisfied the requirement of the letter of credit. In so far as there was a requirement in this case, beyond the question of linkage or identification of the goods, that the documents be consistent with one another, I am of the opinion that the inconsistency in respect of quantity between the inspection certificate and the invoice was not of sufficient materiality to justify a refusal of payment since the quantity specified in the invoice was the one for which the buyer was being charged. I would therefore reject the two discrepancies on the face of the inspection certificate as grounds for concluding that the draft was improperly paid by the Bank.
43. There remains the question of the alleged discrepancy on the face of the bills of lading accompanying invoice 0014. The letter of credit specified a sale "C.I.F. Montreal", as did the invoice, with shipment from Taiwan to Montreal. This meant that the goods were required to be shipped freight prepaid to Montreal. The bills of lading, while bearing on their face the words "FREIGHT PREPAID", specified the "Port of Discharge" as "VANCOUVER B.C." and the "Port of Delivery" as "VANCOUVER B.C. CFS OCF", with Montreal shown as "Final Destination (for the Merchant's reference only)". The letters "CFS" apparently mean "container freight station" and the letters "OCF" apparently mean "onward carrying point", but this has no bearing on the issue. The bills of lading provided that the goods were to be carried from the port of loading to "the port of discharge or the place of delivery shown herein and there to be delivered unto order or assigns." The bills of lading thus did not provide for carriage freight prepaid to Montreal and for the continuous documentary coverage from point of shipment to destination required under a c.i.f. contract. See Hansson v. Hamel and Horley, Ld., [1922] 2 A.C. 36 (H.L.), at pp. 44‑45; Holland Colombo Trading Society, Ltd. v. Segu Mohamed Khaja Alawdeen, [1954] 2 Lloyd's Rep. 45 (P.C.) at p. 53. This was a documentary non‑compliance with the terms and conditions of the letter of credit, appearing on the face of the bills of lading, that required the Bank to refuse acceptance of the documents and payment of the draft at the time they were tendered.
44. The Bank acknowledged at the time that this was a documentary non‑compliance with the terms and conditions of the letter of credit. The telex from its New York agency to Shanghai Commercial on August 9, 1974 concluded: "CANNOT INTERPRET AS FREIGHT BEING PREPAID TO MONTREAL ON BLADING". In its letter of August 10, 1974 to the New York agency of the Bank, Shanghai Commercial, while not conceding the view expressed by the Bank, offered to guarantee freight prepaid to Montreal. After the goods had reached Montreal Shanghai Commercial took the following position in a telex of September 17, 1974 to the Bank: "...SINCE SHIPMENTS ALREADY ARRIVED MONTREAL THE POINT OF INTERPRETING WHERE FREIGHT BEEN PAID TO AS RAISED BY YOUR NEW YORK AGENCY NO LONGER EXISTS". This was essentially the position later adopted by the Bank in resisting Whitewear's claim. It contended that there was no proof that the goods had not been delivered freight prepaid from Vancouver to Montreal, and, in any event, no proof that Whitewear had been required to pay the freight from Vancouver to Montreal. In his testimony, Mr. Montpellier, the manager of the St. Catherine and Peel Streets branch of the Bank, said he could not recall who paid the freight from Vancouver to Montreal. The Bank further contended that Whitewear had suffered no prejudice as a result of the prepaid freight discrepancy and that the discrepancy was a mere technicality that did not justify a refusal by the Bank to pay the draft. The trial judge appears to have been substantially of this view in rejecting the prepaid freight discrepancy. He said:
As to Defendant's sixth complaint, namely, that the bill of lading called for prepaid shipment to Vancouver although the invoice called for shipment to the Port of Montreal, there is no proof that Defendant had to pay for the carriage of the goods from Vancouver to Montreal. It seems likely that if it had had to do so it would have proven it. Moreover, Defendant accepted the goods which were shipped under invoice SS‑0014 albeit under protest. If they had been forced to pay the freight from Vancouver to Montreal before the goods were released to them this might have been a valid ground for their refusal to pay the draft unless the bank agreed to absorb this expense. The Court rejects this as a reason which would entitle Defendant to claim from Plaintiff the inflated amount of the draft.
45. For the reasons I have already indicated in my consideration of the law, I am of the opinion that the discrepancy on the face of the bills of lading could not be cured, or removed as a ground for refusing payment of the draft covering invoice 0014, by the fact, if such was the case, that the goods were eventually transported from Vancouver to Montreal at no additional charge to Whitewear. (The C.I.F. price in the invoice for which the draft was made out included, of course, freight to Montreal.) Whitewear was entitled, at the time of the tender, to receive shipping documents showing a shipment freight prepaid to Montreal. It is essential to maintain the principle that an issuing bank must decide promptly on the basis of what appears on the face of the documents whether or not to accept them and to pay the draft, without regard to the performance of the underlying contract of sale. As Lord Sumner put it in Hansson, supra, at p. 46: "These documents have to be handled by banks, they have to be taken up or rejected promptly and without any opportunity for prolonged inquiry, they have to be such as can be re‑tendered to sub‑purchasers, and it is essential that they should so conform to the accustomed shipping documents as to be reasonably and readily fit to pass current in commerce." An issuing bank cannot be permitted to wait until actual performance of the underlying contract of sale to determine whether it should accept the documents and pay the draft. Its obligation and authority to pay are determined at the time of the tender by what appears, upon reasonably careful examination, on the face of the documents. As indicated above, the principles of autonomy and strict documentary compliance require that the issuing bank disregard the facts concerning the performance of the underlying contract (except, of course, in the case of fraud of which it has notice), whether existing at the time of tender or afterwards. Payment is made for documents and not for goods, and the buyer is entitled to receive conforming documents before the actual arrival of the goods. Because of the discrepancy on the face of the bills of lading in this case the Bank was not obliged and was not authorized to accept the documents and pay the draft for invoice 0014 and by doing so some three months after the tender was in breach of its agreement with Whitewear. The fact that Whitewear may not have been prejudiced by the discrepancy, in the sense that its loss was not directly attributable to it, is immaterial. It is not necessary for the applicant for a documentary credit to show that he is prejudiced by a particular documentary non‑compliance with the terms and conditions of the credit. Just as it is not for an issuing bank or the courts to question the necessity or reasonableness of a particular documentary requirement stipulated by the buyer (see J. H. Rayner & Co. v. Hambro's Bank, Ld., supra, at p. 42, and Midland Bank, Ltd. v. Seymour, supra, at p. 151), so it has been held that the buyer's real reasons or motives for invoking documentary non‑compliance are immaterial: Guaranty Trust of New York, supra, at p. 455. See also Lord Sumner in Hansson at p. 42: "Why the respondents really refused the documents does not matter, nor does the case turn on the particular objection put forward by them at the time."
46. The claim of a customer against an issuing bank, where the bank has debited his account pursuant to an improper payment of a draft under a letter of credit, is an action for recovery of the amount of the debit. It is the amount of the debit that is sometimes referred to as the "damage". At civil law, the recourse is, as Monet J.A. said in the Court of Appeal, an action en remboursement de fonds, or répétition de l'indu, based on art. 1140 C.C. It is not an action governed by the rules respecting damages for breach of contract in arts. 1073, 1074 and 1075 C.C. The basis of the right of recovery is that the customer was not obliged to reimburse the issuing bank because the bank, by reason of the fraud exception, if it applied, or by reason of documentary non‑compliance with the terms and conditions of the credit, should not have accepted the documents and paid the draft.
47. The fact, as found by the trial judge, that Whitewear accepted the goods under protest, and, as Whitewear says, disposed of them in order to minimize the loss, does not in my opinion preclude Whitewear from claiming the amount awarded by the Court of Appeal on the basis that that amount was improperly paid and debited to its account because of the documentary non‑compliance with the terms and conditions of the letter of credit. Despite what might have been suggested by the reasons of the trial judge, Monet J.A. in the Court of Appeal concluded that the acceptance of the goods under protest did not constitute a waiver of the right to invoke irregularities affecting the documents accompanying the draft for invoice 0014. I agree with that conclusion. Indeed, the Bank did not assert this ground as a bar to recovery in its written and oral argument in this Court. It was apparently content that Whitewear had limited the amount of its recovery in respect of the debit for invoice 0014, as a result presumably of having been able to realize on the goods.
48. Before concluding something should perhaps be said about an exemption clause or exclusion of liability in the agreement between the Bank and Whitewear respecting the letter of credit on which the Bank relied to some extent, although I did not understand it to be strongly urged in this Court. It is clause 13 of the agreement, which is quoted in full in the judgment of Monet J.A. in the Court of Appeal, [1985] C.A. 718 at pp. 723‑24, and the pertinent parts of which read as follows: "All users of the Credit shall be deemed to be agents of the Undersigned and neither the Bank nor its agents or correspondents shall be responsible for the negligence or fraudulence of any user of the Credit... and the obligations hereunder of the Undersigned to the Bank shall not be in any way lessened or affected if any bill or document accepted, paid or acted upon by the Bank or its agents or correspondents is in any or all respects invalid, insufficient, fraudulent or forged or if any bill or document does not bear a reference or sufficient reference to the Credit or if no note thereof is made on the Credit." Monet J.A. held that clause 13 would not relieve the Bank of liability for payment of the draft if it had knowledge of fraud by the beneficiary of the credit. I agree, although it was not necessary to reach that point in view of my conclusion that the fraud exception was not applicable in this case. I am also of the view that clause 13 does not purport to exclude the Bank's liability, or oblige the customer to reimburse the Bank, for the payment of a draft that is accompanied by documents that are not in accordance with the terms and conditions of the letter of credit. Such an intention, contrary to the fundamental principle of documentary credits and to the terms of Article 8 of the Uniform Customs (1962) respecting the customer's obligation of reimbursement, which I have quoted above, would have to be much more clearly expressed.
49. For the foregoing reasons I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Clarkson, Tétrault, Montréal.
Solicitors for the respondents: Phillips & Vineberg, Montréal.
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