Unicredit Bank AG対Euronav NV(The Sienna)の控訴審判決
本ケースでは、Unicredit Bank AG対Euronav NV(The Sienna)の控訴審の判決について説明しています。
控訴審においては、銀行側が敗訴した第一審における争点、すなわちB/Lを提示することなく貨物を荷揚げしたことにより、船主がB/Lで証明された運送契約に違反したかどうかという点で、銀行側の主張が認められ勝訴しました。
同裁判所は、B/Lが運送契約として機能するか、単なる受領書として機能するかは、発行時の当事者の契約上の意図に左右されるとしました。また、裁判所は本ケース特有の状況を考慮し、B/Lは荷揚げ時の単なる受領書ではなく、用船契約がGulf側に移管されたときに、B/Lはその後、運送契約の証拠となったと結論づけました。
Background facts
Gulf Petroleum FZC(“Gulf”) purchased 80,000mt of low sulphur fuel from BP Oil International Limited(“BP”). The purchase was financed by Unicredit Bank A.G. (“the Bank”). The Bank and Gulf intended that Gulf would re-sell to sub-buyers approved by the Bank, on terms requiring the sub-buyers to pay the Bank directly.
BP chartered the vessel ‘SIENNA’ under a voyage charter. Clause 30.7 of that charter required Euronav NV (“Owners”), to discharge the cargo without production of the bill of lading in return for a letter of indemnity (“LOI”). Owners issued a bill of lading naming BP as shipper.
On 1 April 2020, Gulf purchased the cargo and on 6 April 2020 Gulf, BP and Owners entered into a novation agreement, under the terms of which Gulf became the charterer of the vessel in place of BP.
Between 26 April and 2 May, on Gulf’s instruction and against an LOI from Gulf, Owners discharged the cargo without production of the bill of lading. Post discharge, the bill of lading was endorsed over to and forwarded to the Bank.
The Bank was not repaid by Gulf and sought recovery from Owners on the basis that by delivering the cargo without production of the bill of lading, Owners were in breach of the contract of carriage contained or evidenced by the bill of lading.
At first instance, the Bank’s claim failed for the following reasons:
- Since the bill of lading was a mere receipt when issued because the shipper and the voyage charterer were the same party, i.e. BP, it was not at that time a contract at all. Surprisingly, the first instance judge rejected the argument that when BP ceased to be the voyage charterer by virtue of the novation agreement, a contract came into existence at that stage. Accordingly, at the time of discharge, Owners’ contractual obligations were set out in the charterparty alone, namely to discharge the cargo without production of the bill of lading if ordered to do so by the voyage charterer, i.e. Gulf. As such, there was no breach of contract.
- Even had there been a bill of lading contract at the time of delivery, breach of the same had caused no loss or the same loss would have been suffered by the Bank in any event. The so called “causation” argument.
Court of Appeal decision
On appeal, the Bank succeeded on the first issue, namely Owners breached the contract of carriage evidenced by the bill of lading by discharging the cargo without production of the bill of lading. The Court held that the question of whether a bill of lading serves as a contract of carriage or a mere receipt hinges upon the contractual intentions of the parties at the time of its issuance. Considering the specific circumstances of this case, the court concluded that the bill of lading was not a mere receipt during discharge. When the charterparty was novated to Gulf, the bill of lading subsequently became evidence of the contract of carriage.
Even if the court was mistaken in finding that the bill of lading became a contract of carriage subsequent to the novation, the court held that in accordance with Section 2(1) of the Carriage of Goods by Sea Act (COGSA), the moment the bill of lading was endorsed by BP to the Bank, it became a contract on the terms of the bill of lading. In this case, Owners had breached these terms by discharging the cargo without production of the bill of lading.
On the causation issue, the Court of Appeal affirmed that the court of first instance applied the correct test, namely had Owners initially refused to discharge the cargo without production of the bills of lading, the Bank would have required Owners to do so, such that the Bank’s security interest would still have been lost.
Comments
Although the Court of Appeal expressed an expectation that the case will be confined to its own facts, it remains to be seen if the decision will have wider implication. It is not uncommon for traders to rely on LOI trades instead of on bills of lading. It is anticipated that in future misdelivery cases involving banks, especially in the oil trade, shipowners may seek to rely on the same causation argument i.e. that even had they initially refused to discharge cargo without production of bill of ladings, the banks would subsequently have asked the vessels to do so anyway given that the cargoes would need to be discharged to potential buyers in order for the banks to be paid.
