High Court Upholds Decision in Chrome Ore Payment Case

OUTCOME: Dismissed

High Court of Australia Dixon C.J. McTiernan and Menzies JJ. [NAME] v [NAME] [1958] HCA 50

ORDER Appeal dismissed with costs.

Cur. adv. vult.

[ADDRESS] delivered the following written judgment:—

Nov. 14 Dixon C.J., McTiernan and Menzies JJ.

The respondent [NAME] (the plaintiff) sued the appellant [NAME] (the defendant) for £5,919 15s. 4d., the price of chrome ore sold and delivered by the plaintiff to the defendant, and the action was tried in the Supreme Court of New South Wales as a commercial cause. There were points of claim and points of defence which are not before this Court because upon the trial the differences between the parties were reduced to two issues the second of which was stated in alternative ways. These issues were as follows: (i) Did the plaintiff agree with the defendant that unless payment came from letter of credit no. 35/80069 for the ore the plaintiff was not to be entitled to any payment at all? (ii) As stated for the plaintiff: [redacted] defendant: [redacted]

It is necessary in the first place to set out as shortly as possible the somewhat complicated facts of the case.

In July 1955 [COMPANY]. Japan agreed to buy 2,000 long tons of manganese ore from [COMPANY]., an English company carrying on business in Sydney, and chartered the ss. [NAME] to carry this cargo from New Caledonia to Japan. To meet its obligations under its contract [COMPANY]. agreed to buy 2,000 tons of manganese ore from [COMPANY]. of Sydney. The burden of any dead freight as between [COMPANY]. and [COMPANY]. and as between [COMPANY]. and [COMPANY]. lay in each case with the vendor. By the end of July it seemed likely that 2,000 tons of manganese ore would not be available for loading into the [NAME] and to mitigate its position and that of [COMPANY]. Ltd., [COMPANY]. was pressing [COMPANY]. to buy 700 tons of chrome ore to be carried on the [NAME] from Noumea. This was eventually arranged at a price of about 24 dollars per long ton and on 16th August the [COMPANY]. upon the instructions of [COMPANY]. opened through the [COMPANY] of Australia, Sydney, an irrevocable and assignable letter of credit no. 35/80069 in favour of [COMPANY]. or their assignees for 18,480 U.S. dollars covering 80 per cent of the provisional invoice cost of 700 dry long tons (5 per cent more or less allowed) of chrome ores in bulk f.o.b. Noumea per ss. [NAME]. This letter of credit provided for sight drafts on [NAME], Noumea Branch, accompanied by the following documents: (i) a commercial invoice indicating the import licence no. IL(5-2)-F(8)-00109; (ii) full set of clean on board ocean bills of lading marked "freight collect" made out to the order and blank endorsed; and (iii) certificate of weight and analysis. It is to be observed that upon its face the letter of credit was not intended to cover the full price of the chrome ore but only 80 per cent of the provisional invoice cost. There was, however, an instruction that accompanied the letter of credit which contained the following provision: "Final payment of any balance under this credit due and allowable to [NAME] after final determination of weight and analysis to be available by [NAME]'s final invoice and a cable from [NAME] confirming the amount of final payment". On the same day the charter-party was altered to provide for the [NAME] to be loaded with about 700 tons of chrome ore at Noumea and manganese ore not less than 500 tons at Gatope. Some time prior to 16th August the defendant had entered into the picture. In July he was in Noumea and had negotiated with one [NAME] who represented the plaintiff for the purchase of 700 tons of chrome ore at round about 22 dollars a ton. The defendant returned to Sydney and on 12th August cabled [RESPONDENT] as follows: "Will you accept 21 dollars ton chrome 45 per cent bonus 60 cents penalty 90 cents unit other conditions same tonnage 700 cable reply", and on the next day [RESPONDENT] cabled "We accept". On 13th August the defendant wrote to [RESPONDENT]. referring to previous correspondence and discussion (as to which the evidence is silent) confirming the offer of 700 tons of chrome ore and at least 500 tons of manganese ore and saying that both offers were subject to suitable letters of credit. On 17th August 1955 [RESPONDENT]. assigned to the defendant letter of credit no. 35/80069 and the defendant acknowledged that he received "the abovementioned assigned letter of credit". Notification of this assignment was given to the [COMPANY] of Australia and to [NAME], Noumea. On or about 17th August the defendant visited Noumea again and between 17th and 20th August he had a conversation with [NAME] about the purchase of the chrome ore in the course of which [RESPONDENT] requested the defendant to open an account in a [COMPANY] in Noumea for the purchase price. The defendant said he could not do that and that the only way he could buy the chrome was from the proceeds of the letter of credit. [RESPONDENT] admits that the defendant showed him the letter of credit no. 35/80069 but says that he saw it only fleetingly. This the defendant did not dispute. Shortly after this conversation and because of difficulties that it was anticipated would be encountered by the defendant as a foreigner in obtaining a licence to export the chrome from New Caledonia, a letter which was antedated to 28th July was prepared. This letter from the plaintiff to the defendant was intended to put on record the terms of [RESPONDENT] earlier offer to sell chrome ore to the defendant. So far as material it was as follows:

Following our conversations we offer you, subject to confirmation:

Chrome 45% Grade: CR203 = 45% basis (refusal point 44%) Tonnage: 700 tons (5% more or less) Price: For 45% grade = U.S. %5B22 per metric ton f.o.b. Noumea Bonus: 60 cents per unit above 45% Penalty: 60 cents for 44% grade Payment: by opening a letter of credit with the [NAME] = 80% on shipment; 20% on delivery. Commission: We want a net price of %5B22, i.e. you must take your commission over and above our fixed price.

It was common ground that these conditions were to be treated as the conditions referred to in the cable from the defendant to [RESPONDENT] of 13th August. This letter was taken by [RESPONDENT] and the defendant to the export authorities at Noumea and with its aid any difficulties about obtaining an export licence were satisfactorily surmounted. On 22nd August the defendant wrote the plaintiff a letter in the following terms: "Following our conversations concerning the payment of your lot of about 700 tons of chrome which you are to load aboard the [NAME], I hereby confirm that:

1. The letter of credit being in my favour, I undertake to forward to your firm, as soon as you have the documents in hand, a letter requesting the [NAME], to pay you: (a) 80% of the value amount represented by the tonnage of chrome ore shipped on the basis of %5B21 f.o.b. per dry metric ton, for 45% of Cr203 and not per long ton as stipulated in my letter of credit, the bonus and penalty rates being as per our agreements, which were specified in my cable of 12.8.55 from Sydney and which will be detailed in this letter; (b) 20% of the value amount represented by the tonnage of ore (in metric tons) upon receipt and verification which must take place before the expiry of the letter of credit.

2. In these conditions, I shall myself bear the difference between the long and the metric ton, as our agreements have always been based on the metric ton." This letter was followed by a letter dated 23rd August from the defendant to the Manager of the Banque de l Indochine, Noumea, as follows: "Would you kindly credit the [NAME] with the sums I will draw on letter of credit no. 35/80069, as per the following conditions: 1. 80% of the amount of the value represented by the tonnage of chrome ore shipped on the following basis: %5B21 f.o.b. per metric ton for 45% of Cr203, ratio 2.60—Boni: 60 cents per unit above 45%, fractions pro rata—Penalties: 90 cents per unit under 45%, fractions pro rata—rejection point 44%.

2. The balance, after checking of the weight and analysis in Japan, on the same abovementioned basis."

It is now necessary to refer to the scanty evidence about what happened after the [NAME] arrived at Noumea to load the chrome ore. The ship arrived and began loading on 24th August and finished loading on 27th August. When loading finished it was found that there had been loaded only 645 metric tons, the equivalent of 637 long tons. The defendant pressed [RESPONDENT] for further ore but this was not available. A weight certificate showing the tonnage loaded in metric tons was signed by the master and as shipper the defendant signed "[NAME]" and underneath "[RESPONDENT]". It seems likely that there were at the ship the defendant, [RESPONDENT], the ship's agent, [COUNSEL], and one [COUNSEL], who was the defendant's representative. There is no direct evidence to show who it was that received the weight certificate but it seems likely that it was given after [NAME] had left the ship. It also appears that on 14th September it was taken by [NAME] to the [NAME] from whose custody it was produced at the trial. The defendant in evidence gave no explanation why he signed it as he did. What happened after the giving of the weight certificate is even more obscure because the bill of lading signed by the master and dated at Noumea on 27th August named [NAME] [COMPANY]. as the shipper. Again there is no direct evidence as to how this happened but there is no doubt that it was not done upon the instructions of the plaintiff. The trial judge was prepared to infer that it was the work of the defendant, relying for that inference upon the following circumstances: (1) that the bill of lading could only have been prepared by some one with access to the letter of credit; (2) that upon the weight certificate the defendant did sign "[RESPONDENT]"; (3) that the weight certificate was in the defendant's control. The later dealings with the bill of lading are not satisfactorily explained. After the departure of the ship it was held by [NAME] who it seems was prevailed upon by [NAME] and [NAME] to go with them to the [NAME] for the purpose of drawing on the letter of credit. This was on 14th September. When the bill of lading was produced with other documents the [COMPANY] very properly refused to pay for two reasons: (1) that 637 long tons, instead of the minimum of 665 long tons, were all that had been loaded, and (2) that the bill of lading was not blank endorsed by the person to whom it had been made out. At this point it is necessary to go back to the part played by [RESPONDENT]. He acted as the defendant's agent and was, at any rate by 9th September, authorised to sign invoices on his behalf. His relationship with [COMPANY]. appears less clearly. On 12th September that company notified the [COMPANY] of Australia that it authorised [NAME] to endorse bills of lading and to sign weight certificates and any other necessary documents in connexion with shipments made against letter of credit no. 35/80069 on [NAME] and requested that this authority should be cabled to the [NAME], Noumea. There is no evidence whether this was done but at some time which cannot be identified but which may have been 14th September when the documents were produced to the [COMPANY], [NAME] did sign his own name on the back of the bill of lading. All that can be said definitely is that this was done before 15th September. The copy of the bill of lading that was produced in evidence came from the [NAME], Noumea. What happened to the other copies is not known but it is common ground that the chrome ore was carried to Japan and that possession of it was obtained by [RESPONDENT]. The defendant gave evidence that he had not been paid for the chrome ore.

Upon this evidence the trial judge made the following finding: "In my opinion [NAME] directed, or at least knowingly permitted, the bill of lading to be made out to [COMPANY]. and therefore there was the obligation on him to see that the company endorsed in blank so that it might be valid for the purpose of the letter of credit and his failure to do so was a breach of his contractual duty to the plaintiff."

As has already been stated, however, the naming of [COMPANY]. as shipper in the bill of lading and the lack of its effective endorsement in blank was not the only reason why the [COMPANY] would not pay against the letter of credit upon the documents submitted. The letter of credit was upon its face for 18,480 dollars to cover 80% of the provisional invoice cost of 700 dry long tons, 5% more or less, that is, 665 to 735 tons. All that was shipped, as the weight certificate showed, was 645 metric tons, equalling 637 long tons. There was therefore a significant deficiency. This deficiency was due to the plaintiff and had the documents been otherwise in order the [COMPANY] would certainly have refused to pay because of it. As to this deficiency representations were made to [COMPANY]. for the amendment of the letter of credit. The plaintiff pressed the defendant to get the letter of credit modified and the defendant asserted that he had requested Japan to make the necessary modification. At the same time [COMPANY]., both directly and through [COMPANY]., was pressing to ensure that [COMPANY]. would refuse any modification which did not provide for the deduction of the dead freight from the purchase price of the chrome ore. It seems that in the contest, if there was one, the representations of [COMPANY]. were given the greater weight because the amendment which was made to the letter of credit on or about 23rd September 1955 was to the effect that 11% should be substituted for the 5% more or less but that this was subject to the condition that 8,977 dollars should be deducted from the amount of 80% of the provisional invoice amount. No advantage was taken of this modification because apart from anything else it left the amount available insufficient to credit the plaintiff in accordance with the defendant's instructions set out in the letter of 23rd August.

In due course the letter of credit expired without any payment against it having been made.

The amount for which the plaintiff sued the defendant was the full price of the chrome ore shipped on the footing that if the 80% referred to in the letter of credit was owing, so too was the balance of 20% since the ore had been delivered in Japan and was in accordance with specifications. There was no issue as to this.

Before considering the judgment appealed against it is desirable to refer to an argument addressed to this Court on behalf of the appellant to the effect that upon the evidence there was no sale and no delivery of the chrome ore to the defendant. It was said that there was an agreement to buy unascertained goods; that goods were never ascertained and appropriated to the contract; that what had occurred did not amount to delivery and that the property in the chrome ore shipped on the [NAME] never passed from the plaintiff to the defendant and that the defendant is not liable to pay for it. To all this there are two answers. The first is that having regard to the way in which the trial was conducted this argument is not open upon appeal; and the second is that in any case it is unsound. The parties at the trial confined themselves to issues which assumed both sale and delivery and left for determination the obligation of [NAME] to pay [NAME] having regard to the terms of the contract. It would be wrong and would destroy the value of commercial causes procedure if a court upon appeal were to decide a case by reference to matters which were not raised as issues upon trial. But having said so much it is desirable to point out why the argument is unsound. It is convenient to consider the matter firstly independently of the fact that the plaintiff loaded only 637 long tons instead of the minimum of 665 long tons which the contract required and then taking that deficiency into account.

The contract between the plaintiff and the defendant was an f.o.b. contract. In what has been called the "classic" type of f.o.b. contract it is the duty of [NAME] both to put the goods on board and procure a bill of lading but this is not always the case. As was pointed out by Devlin J. in [COMPANY]. v. [COMPANY]. [1] the f.o.b. contract has become a flexible instrument and in some cases [NAME] discharges the whole of his duty by putting the goods on board on account of [NAME] and putting [NAME] in a position to obtain a bill of lading. The case his Lordship takes as an example is as follows: "[NAME] engages his own forwarding agent at the port of loading to book space and to procure the bill of lading; if freight has to be paid in advance this method may be the most convenient. In such a case [NAME] discharges his duty by putting the goods on board, getting the mate's receipt and handing it to the forwarding agent to enable him to obtain the bill of lading." [2] In [NAME] v. [NAME] [3] Lord [NAME], speaking for the Judicial Committee, thus described a mate's receipt: "The mate's receipt is not a document of title to the goods shipped. Its transfer does not pass property in the goods, nor is its possession equivalent to possession of the goods. It is not conclusive, and its statements do not bind the shipowner as do the statements in a bill of lading signed within the master's authority. It is, however, prima facie evidence of the quantity and condition of the goods received, and prima facie it is the recipient or possessor who is entitled to have the bill of lading issued to him." [4] The weight certificate given here though not in the form of a mate's receipt was signed by the master and is of the same character.

1. (1954) 2 Q.B. 402. 2. (1954) 2 Q.B., at p. 424. 3. (1938) A.C. 429. 4. (1938) A.C., at p. 445.

In this case [NAME] had nothing to do with arrangements for the carriage or the insurance of the goods to be shipped or with the payment of freight; its obligations were fulfilled when it put the goods on board and allowed [NAME] by virtue of his possession of the weight certificate to obtain such bill of lading as he wanted. Although the issue of sale and delivery was not before him the evidence at the trial did satisfy the trial judge not only that [NAME] did put the goods on board but that it allowed [NAME] to get such bill of lading as he wanted. This finding was open upon the evidence. It is true that the course which [NAME] adopted was, as the events show, an improvident one. It put [NAME] in a position to procure a bill of lading which would give him control of the goods and yet would not comply with the terms of the letter of credit, so that [NAME] unnecessarily lost all control of the goods without payment or assurance of payment.

The problems associated with the passing of property in goods shipped in performance of a contract for unascertained goods were examined by [NAME]. in [NAME] v. The Commonwealth [1] where it is pointed out, inter alia, that the final test of the stage when the transfer of property in the goods takes place is the intention of [NAME], and in cases where there is an unconditional appropriation of goods the presumption is that property should then pass. On the facts here the inference is irresistible that when [NAME] put the ore on board the [NAME] and left the rest to [NAME] there was such an appropriation. The statement of [NAME].: "If he" (that is [NAME]) "does not reserve the right of disposal of the goods, as it is called, his delivery of the goods to the shipowner as a carrier for the purpose of transmission to [NAME] is deemed an unconditional appropriation of the goods to the contract" [2] applies with additional force in the present case where [NAME] was present on the ship and obtained control of the weight certificate. In [NAME], [NAME], 3rd ed. (1955) p. 60, after discussing rules applicable where it is the duty of a [NAME] to deliver a bill of lading, the author says: "These rules apply to all contracts where it is [NAME]'s duty to deliver a bill of lading. In cases where that duty does not exist, e.g. in ex works, strict f.o.b. or free delivered contracts, the delivery of the goods to [NAME] or to the carrier is presumably the act which passes the property to [NAME]." In this quotation the word "strict" is used in the sense that [NAME] is to make arrangements for freight and insurance; see op. cit. p.

17. What is there said would apply to this case. It follows therefore that unless the short delivery referred to previously is of decisive importance there was a completed sale and delivery of the amount loaded.

1. (1939) 62 C.L.R. 339, at pp. 377-380. 2. (1939) 62 C.L.R., at p. 378.

For the present purposes the significance of the short delivery to which reference has been made is that it would prevent the delivery on board that was in fact made from amounting to a complete or sufficient appropriation of the goods to the contract so as to pass the property independently of subsequent acceptance. The proper conclusion is, however, that the defendant, having the control of the weight certificate for 637 long tons, used it to obtain a bill of lading made out to [COMPANY]. and at no time restored that bill of lading to the plaintiff in a condition to enable it to exercise dominion over and the disposition of the goods. There was therefore acceptance by the defendant of the tonnage shipped by the plaintiff. In these circumstances it is not a matter for surprise that the issue of sale and delivery was not raised at the trial.

The case was therefore one where the plaintiff sold and delivered goods to the defendant and unless there was a term in the contract excusing payment the price was recoverable. The defendant said there was such a term and to this contention the first issue was directed. The general question whether a [NAME] who stipulates for or agrees to payment by letter of credit can enforce payment directly against [NAME] in the event of payment not being received out of the letter of credit is one which has been raised but not decided. In a book by Dr. [NAME]. [NAME], The Law Relating to Commercial Letters of Credit, 2nd ed. (1954), p. 42, the question is stated in these terms: "A question of much greater importance so far as the relationship between [NAME] and [NAME] is concerned is whether [NAME], by demanding "payment by bankers' credit", agrees thereby to release [NAME] from liability for payment under the sales contract; whether, in other words, [NAME] agrees to take the letter of credit as absolute payment or whether it constitutes conditional payment only." This question is discussed and such authority as exists is cited and the author concludes by saying that although dicta favour the conclusion that [NAME] does not take a draft drawn under a letter of credit in absolute payment of [NAME]'s obligation to pay for the merchandise "until the point is raised in an action between [NAME] and [NAME], it cannot be said to be settled definitely." The question could only arise in special circumstances, e.g. if the [COMPANY] responsible for the credit were to become insolvent or, as here, where notwithstanding that the documents tendered were not in conformity with the letter of credit, [NAME] had lost control of the goods to [NAME]. As such contingencies are not likely to have been within the contemplation of either [NAME] or [NAME] when they made their contract, the inquiry as to what they intended in such circumstances must inevitably be somewhat artificial. It would in any event be wrong to consider the question without regard to the kind of letter of credit for which the contract provides. A provision for payment by revocable letter of credit could hardly be regarded in any circumstances as negativing payment in the event of revocation. At the other end of the scale a provision for payment by irrevocable and confirmed letter of credit which in words taken from [NAME], on The Law of Bankers' Commercial Credits, (1955) p. 13, is "an absolute undertaking by the banker to honour all drafts complying with the terms of the instrument creating the credit, subject only to limitations as to the amount and the period of time for which it is to be available", might perhaps not unreasonably be regarded as a stipulation for the liability of the confirming [COMPANY] in place of that of [NAME]. Where the stipulation is for an irrevocable but not confirmed credit there would be less reason for regarding the provision of the credit as being all that is required by [NAME] in any circumstances. This is not, however, the place to determine the general question propounded by Dr. [NAME] and it is undesirable to go beyond what is necessary for the determination of this case.

The contract here is to be found in the cables of 12th and 13th August and the letter dated 28th July, all of which so far as they are relevant have been set out previously. The stipulation contained in the words "payment by opening a letter of credit with the [NAME]=80% on shipment; 20% on delivery", which was assumed to require an irrevocable but not a confirmed credit, does not go beyond requiring the establishment of a letter of credit as the primary but not the exclusive source of payment. If the conversation between [RESPONDENT] and the defendant on the occasion between 17th and 20th August were to be regarded as forming a part of the contract it would not make any difference. It is not reasonable to suppose that the parties here intended that in the unlikely circumstance that [NAME] got the chrome but payment therefor against the letter of credit was refused, [NAME] should not be paid. The trial judge reached the conclusion that the letter of credit was not intended to be the exclusive source of payment, with the assistance by way of analogy of the rules relating to the acceptance of negotiable instruments as conditional or absolute payment. This analogy is no doubt useful and is one to which Dr. [NAME] (op. cit.) refers and cites [NAME] v. [NAME] [1] as authority for the proposition that an intention to take a negotiable instrument in absolute payment must be strictly shown and will not be deduced from ambiguous expressions such as "in payment".

1. (1843) 6 [NAME]. 40 [134 E.R. 801].

The answer given by the trial judge to the first issue was clearly right and upon the basis on which the action was conducted that would in strictness seem to be the end of the matter.

Had the issue been, however, whether the letter of credit was intended as the primary source of payment, the answer would have been that it was. In that event, the further question would have arisen whether the circumstances in which that primary source of payment failed excused the defendant from payment altogether. It would seem that the only possible ground upon which [NAME] could have been defeated in his claim for the price would have been that [NAME] was solely responsible for the failure of the primary source of payment. It is not necessary in the present case to determine whether in such circumstances [NAME] who has received the goods could successfully resist a claim for payment of the price because there is here the finding of the trial judge, to which reference has already been made, that the defendant was responsible for the bill of lading being made out as it was and that this of itself and independently of the deficiency in quantity would have made payment out of the letter of credit impossible. Moreover, as has already been stated, the defendant accepted delivery of the actual amount loaded by the plaintiff and did not restore to the plaintiff dominion over the goods shipped.

The trial judge was therefore correct in his answer to the first issue and even if that issue had been differently framed to raise the question whether the letter of credit was intended to be the primary source of payment and had been answered affirmatively, the answer to the second question would have been that the defendant was not exonerated from liability to pay for the goods by reason of the failure of the primary source of payment because he had accepted the goods shipped and had caused the bill of lading to be made out in such a way that the letter of credit could not be utilized as a means of payment for the goods sold and delivered to him.

The appeal must be dismissed.