Case 1
The credit confirming bank received a defect document from the negotiating bank. Then the confirming bank made inquiry to the opening bank whether it is acceptable to pay against the inconsistent document and thereafter, the opening bank instructed the negotiating bank to make all the payment to the negotiating bank. Then the confirming bank paid all the principle amount to the negotiating bank but demanded overdue interest. But the opening bank rejected the overdue interest demand which created a dispute.
Case study
1. Responsibility of the confirming bank for a defect document
The confirming bank is responsible only when there is a request to submit an identical document to the credit terms. Therefore, if there is an inconsistent document submission, they can make an independent decision to reject the payment without the consent of the opening bank. (The Sub-Article 9(b) of U.C.P.)
2. Payment instruction of the opening bank against a defect document
Even if the opening bank instructed to make payment against a defect document, there is way to get excuse from a responsibility as a confirming bank. The opening bank must indicate a clear clause declaring that they will not hold any further responsibility as a confirming bank. Otherwise, the bank can not be exempt from a liability. (I.C.C. pub 371. p127). If the confirming bank made substitute payment where there is a clear indication
that they refuse to bare confirmation responsibility, the confirming bank is consider as a mere agency who just made a substitute payment for the opening bank. As of a result, the confirming bank can receive reimbursement against the payment from the opening bank.
3. The process of a confirming bank against a defect document
The confirming bank has no responsibility for the payment against a defect document therefore, if there is a purchase inquiry, the bank should reject the inquiry, and instead, process collection method. The bank will become a final drawee once purchase is done. Since the seller has no right of indemnity and if the opening bank refuse to make payment, the confirming bank is in difficult situation to demand compensation.
4. Conclusion
For this case, the confirming bank has right to demand compensation against the payment since the bank had no refusal on the confirmation. The bank has a responsibility because the payment was made as a confirming bank, as of a result, compensation can be demanded to the opening bank.
Except, the confirming bank should pay overdue interest for 3 days that took for cable exchanges etc. with the opening bank. (I.C.C. pub 459. case No.23).
Case 2
A confirming bank estimated that a irrevocable and freely negotiable credit was conforming to the shipping documents of the credit. Thereafter, the confirming bank purchased it and sent the document to the opening bank for the payment. However, the opening bank rejected to meet the payment declaring the shipping documents were not conforming to the terms of the credit.
Case study
1. The payment of a confirming bank and payment refusal of a opening bank.
This is a case where a confirming bank was determined about the consistency of the shipping documents to the credit term but a opening bank refused to make payment declaring there is inconsistency in the document and the credit terms. In this case, the confirming bank can not request a payment to the opening bank. Based on the Sub-Article 9(b) of U.C.P., The confirming bank is committed to payment, undertaking, purchasing and deferred payment addition to the opening bank's payment confirmation as long as the designated credit's documents are consistent to the credit and presented to the nominated bank.
2. Payment refusal of the opening bank and the right of recourse for a beneficiary.
There is a problem with recourse to beneficiary when a confirming bank made purchase determining that the shipping documents were consistent to the credit terms and the opening bank refuse to make payment declaring a defect. To state conclusion first, the confirming bank can not recourse to the beneficiary.
Because based on the Sub-Article 9(b-jy) of U.C.P, as long as presented agreed document is consistent to the terms of credit, the confirming bank must make purchase without recourse to drawers and/ or bona fide holders.
Case 3
Company "Y" opened a irrevocable credit through a "C" bank. Thereafter, the company notified to the seller of an amendment declaring "NEGO after December 1997" through the opening bank but there was no response. However, the company "Y" became dishonored so the opening bank unilaterally notified a cancellation of the credit on October 1997. But the beneficiary shipped the goods on December 1997 letting a "S" bank to NEGO and presented the shipping documents. The opening bank rejected to meet payment declaring that the credit was cancelled already and that processing NEGO before indicated NEGO terms which was December 1997 was breaching the contract.
Case study
1. Amending a irrevocable credit
Amending a irrevocable credit is only possible when there is agreement among the opening bank, confirming bank and the beneficiary. The amendment can not be materialized if any one of them disagree to it.
2. Silence of the contracting party and agreement
There must be a written opinion of the beneficiary to amend credit. Silence can not represent a agreement. (I.C.C. pub 399 R.71).
But if the seller kept silence in amending credit and present documents according to the amended terms, it can be consider as a agreement to the amendment.
|