国际经济法英文案例.doc

案例一TSAKIROGLOU & CO. LTD. V NOBLEE THORL G. m. b. H.House of Lords1962 A. C. 93事实：THE FACTS:By a contract dated Hamburg, October 4, 1956 between Tsakiroglou & Co. Ltd, of Khartoum as sellers, and the respondents, Noblee Thorl G. m. b. H. of Hamburg/Hargurg as buyers, through agents, the sellers agreed to sell and the buyers to buy about 300 tons of Sudanese groundnuts in the shell basis 3 percent, admixture new crop 1956/1957 at $50 per 1,000 kilos including bags c.i.f. Hamburg. Shipment November/December, 1956, with payment cash against documents on first presentation for 95 percent of the amount of provisional invoice, balance to be paid after the analysis on final invoice. The contract form was to be the incorporated Oil Seed Association Contract No.38(hereinafter called “I.O.S.A Contract No. 38”) with arbitration in London. Clause 1 of I.O.S.A Contract No. 38 provided for “shipment from an East African portby steamers(tankers excluded) direct or indirect with or without transshipment.”Both parties contracted on the basis that the goods would be shipped from Port Sudan. Clause 6 of the contract provided: “in case of prohibition of import or export, blockade or war, and in all cases of force majeure preventing the shipment within the time fixed, or the delivery, the period allowed by not exceeding two months. After that, if the case of force majeure be still operating, the contract shall be cancled.”At the date when the contract was made, both partied contemplated that shipment would be made via the Suez Canal. On October 29, 1956, the Israelis invaded Egypt, on November 1 Britain and France commenced military operations, and on November 2 the Suez Canal was blocked to shipping. At the date when the contract entered into, the usual and normal routes for the shipment of Sudanese groundnuts from Port Sudan to Hamburg was via the Suez Canal. However, the closure of the Suez Canal prevented transport from Port Sudan to Hamburg via the Canal and the impossibility by that route continued until April 1957. The distance via the Suez Canal is approximately 4,386 miles and the distance via the Cape of Good Hope is approximately 11,137 miles. From November 10, 1956, after the closure of the Canal, a 25% freight surcharge was placed on goods shipped on vessels proceeding via the Cape of Good Hope and this was increased to 100% on December 13, 1956. The sellers claim that the contract was frustrated and was at an end because of the closure of the Suez Canal was not accepted by the buyers.法院程序：PROCEDURE BEFORE THE COURTIn arbitration proceedings, the umpire, by an award dated February 20, 1957, awarded that the sellers were in default and should pay to the buyers as the damages the sum of $5,625 together with $79 15s. costs of the award. The sellers were dissatisfied with the award, and a board of appeal appointed to hear the appeal on January 28, 1958, dismissed the appeal and upheld the umpires award.判决：JURISDICTIONThe board of appeals award was in following term: “so far as it is a question of fact we find and as far as it is a question of law we hold:(i) These were hostilities but not war in Egypt at the material time.(ii) Neither war nor force majeur prevented the shipment of the contract goods in the contract period to the contract destination, since shipment via the cape was not so prevented when the shipment via the Suez Canal was prevented by reason of force majeur.(iii) It was not an implied term of the contract that shipment or transportation should be made via the Suez Canal and shipping the goods on a vessel via the Cape of Good Hope was not commercially and fundamentally different from shipping the goods on a vessel via the Suez Canal. So, the contract was not frustrated by the closure of Suez Canal.” 分析问题：MERITS: Is there an implied term that the goods shall be carried by a particular rout? Is the contract frustrated?(a) usual and customary routeThe contention that the shipment of goods must be via Suez can only prevail if a term is implied, for the contract dose not say so. For the general proposition that in a c.i.f. contract the obligation, in the absence of express terms, is to follow the usual or customary route. It is not the date of the contract but the time of performance that determines what is customary. As the section 32(2) of the Sale of Goods Act, 1893, provides that: “unless otherwise authorized by the buyer, the seller must make such contract with the carrier on behalf of the buyer as may be reasonable having regarded to the nature of the goods and the other circumstances of the case.” Therefore, if there is no customary route, that route must be chosen which is reasonable. If there is only one route, that must be taken if it is practicable. At the date when the performance was called for, there was no usual or customary route because the Suez Canal was closed and the only practicable route was via the Cape of Good Hope. The sellers could have fulfilled their obligation by a bill of lading via the Cape.(b) whether the contract was frustrated by the closure of Suez？The board should consider whether the imposition upon the sellers the obligation to ship by an emergence route via the Cape would be to impose upon them a fundamentally different obligation which neither party could at the time when the contract was performed have dreamed that the sellers would be required to perform. The board found no justification for the positive answer. A c.i.f. contract is for the sale of goods, not a contract of affreightment. The primary duty on the part of sellers was to dispatch the groundnuts by sea from one port to destination of the other. There was no evidence that the buyers attached any importance to the route. They were content that the nuts should be shipped at any date in November or December. There was no stipulated date for arrival at Hamburg. There was no evidence either, that the nuts would deteriorate or the transportation would involve special packing or stowing as a result of a longer voyage, nor any evidence that the market was seasonable. In a word, there was no evidence that the buyers cared by what route, or within seasonable limits, when the nuts arrived. What, then, of the sellers? Clearly the contract of affreightment will be different and so may be the terms of insurance. In both these respects the sellers may be put to greater cost: their profit may be reduced or even disappear. But an increase of expense is not a ground of frustration, the doctrine of frustration must be applied within very narrow limits, and this case falls far short of satisfying the necessary conditions. With all these facts before them, the board of appeal made their finding that performance by shipping on the Cape route was not commercially or fundamentally different from shipping via the Suez Canal, and the appeal should be dismissed.案例二 UNTTED CITY MERCHANTS (INVESTMENTS) LTD. AND GLASS FIBRES AND EQUIPMENTS LTD.V.ROYAL BANK OF CANADA, VIROREFUERZOS S.A AND BANCO CONTINENTAL S.Before Lord DIPLOCK, Lord Fraser OF TULLYAELTON. LORD RUSSELL OF KILLOWEN,Lord SCARMAN and Lord BRIDGE HARWICHHOUSE OF LORDS Mar.16,17,18 and 22,1982事实：THE FACTS:A Peruvian company, Vitrorefuerzos S.A.(“the buyers”) agreed to buy from the Glass Fibers (second appellants) for the manufacture of glass fibers (“the goods”) at a price of 662,086 f.o.b. London for shipment to Callao. Payment was to be in London by confirmed irrevocable transferable letter of credit for the invoice price plus freight, payable as to 20%. Of the invoice price upon the opening of the credit, as to 70%. Of the invoice price and 100%. Of the freight on presentation of shipping documents and as to the balance of 10%. Of the invoice price on completion of erection of the plant in Peru. The buyers arranged with a Peruviann bank, Banco Continental S.A.(“the issuing bank”) to issue the necessary credit and the issuing bank appointed the respondents, Royal Bank of Canada (“the confirming bank”) to advise and confirm on its behalf the credit to the sellers. The confirming bank duly notified the sellers on Mar. 30, 1976, of the opening of the confirmed irrevocable transferable letter of credit. So far as concerned the 70% of the invoice price and 100% of freight. It was expressed to be subject to the Uniform Customs and Practice for Documentary Credit (1974 Revision) of the International Chamber of Commerce (“the Uniform Customs”) and to be available by sight drafts on the issuing bank against delivery inter alia of a full set “on board” bills of lading evidencing receipt for shipment of the goods from London to Callao on or before a date in October, 1976, which was subsequently extended to Dec.15, 1976.The initial payment of 20 percent of the invoice price was duly made by the confirming bank to the sellers. The goods were ready for shipment by the beginning of December, 1976. It was intended by the loading brokers acting as agents on behalf of Prudential Lines Inc.(“the carriers”) that they should be shipped on a vessel(“American Legend”) belonging to the carriers due to arrive at Felixstowe on Dec,10,1976.(The substitution of Felixstowe for London as the loading port is immaterial. It was acquiesced in by all parties to the transaction.) The arrival of American Legend at Felixstowe was cancelled and another vessel, American Accord, was substituted by the loading brokers, but its date of arrival was scheduled for Dec.16,1976, one day after the latest date of shipment required by the documentary credit. The goods were in fact loaded on American Accord on Dec.16,1976; but the loading brokers issued a set of “received for shipment” bills of lading dated Dec.15,1976, and handed them over to the sellers in return for payment of the freight. On presentation of the shipping documents to the confirming bank on Dec,17 ,that bank raised various objections to their form, of which the only one relevant to the documentary credit point was that the bills of lading did not bear any dated ”on board” notation. The bills of lading were returned to the carriers freight brokers who issued a fresh set bearing the notation, which was untrue: These goods are actually on board 15th December 1976. E.H. Mundy and Co.(Freight Agents) Ltd. as agents. The amended bills of lading together with the other documents were represented to the confirming bank on Dec.22, 1976. But the confirming bank again refused to pay on the ground that they had information in their possession which suggested that shipment was not effected as it appears in the bill of lading.The additional facts that give rise to the Breton Woods point may be stated that the sellers original quotation for the sale price of the glass fiber making plant was half the figure that ultimately became the invoice price for the purposes of the documentary credit. The buyers who were desirous of converting Peruvian currency into U.S. dollars, a transaction which was contrary to Peruvian exchange control regulations, persuaded the real sale price in U.S. dollars and to agree that they would within 10 days after drawing upon the documentary credit for each of the three instalments of the invoice price, remit one half of the amount so drawn to the dollar account in Miami, Florida, of an American corporation controlled by the buyers. This the sellers agreed to do: and of the first instalment of 20%, of the now doubled invoice price of 662,086, which was the only drawing that they succeeded in making under the credit, they transmitted one half,66,208 to the American corporation in Florida. They would have done the same with one half of the next drawing of 70% of the invoice price payable against shipping documents, if the confirming bank had paid this instalment. The defendants therefore contended that the agreement between Glass Fibers and Vitro was illegal and/or unenforceable as contrary to public policy as having been entered into to secure the transfer of funds of Vitro out of Peru contrary to that country s exchange control regulations, and that the agreement was unenforceable by reason of the Bretton Woods Agreements Order in Council 1946,art ,VILL.2,(b)法院程序：PROCEDURE BEFORE THE COURTAccording to judgment held by Q.B.(com ,ct.) (MOCATTA,Jj.), As to the bill of lading, judgment was made in favor of the plaintiffs; and as to the illegality of the letter of credit, the judgment was for the defendants. The plaintiffs then filed an appeal which was dismissed by C.A. (STEPHENSON, ACKNER and GRIFFITHS, L, JJ): (1) whether the learned Judge was right in holding that the contract should not by enforcing the confirmed letter of credit enable the Breton Woods Agreements Order in Council to be avoided? (2) Whether the nature of the sale contract had any relevance to the contract sued upon? and (3) Whether the holder of an irrevocable letter of credit was entitled to payment by the bank if the supporting documents, although appearing on their face to conform to the requirements of the letter of credit, had in fact been fraudulently prepared to present false information? However, on May 20, 1982, the H.L. (lord DIPLOCK, Lord FRASER OF TULLYBELTON, Lord RUSSELL OF KILLOWEN, Lord SCARMAN and Lord BRIDGE OF HARWICH) hold somewhat differently from the court of appeal.判决和分析：JURISDICTIONMerits: The appeal raised two distinct questions of law. The first relates to the mutual rights and obligations of the confirming bank and the beneficiary under a documentary credit. Whether an allegations of fraud were made out and whether defendants was entitled to refuse payments against document presented. The second question is whether the letter of credit is in breach of Peruvian exchange Control regulations and whether the letter of credit is enforceable, which turns upon the construction of the Breton Woods Agreements Order in Council, 1946 and its application to the effect on certain special provisions in an agreement between the sellers and the buyers that was collateral to their contract of sale. (a) The documentary credit point The learned Judge held that (1) Having considered the evidence of Mr. Baker (the loading broker), the way he gave it, its many inconsistencies and the strangeness of his theory justifying when goods said to be shipped or on board a ship, the conclusion was that in issuing bills of lading dated Dec,15, with a signed on board notation of the date, he was making a false representation as to the date of shipment without belief in its truth or recklessly careless whether it be true or false and he did this knowing that the correct date was a matter of importance in relation to a letter of credit; (2) it was clear that the defendants knew about shipment at Felixstowe before Dec,22, and on Dec,21the United States Lines had informed Vitro that the vessel had left Felixstowe on Dec. 17 and Banco were also aware of this . (3) Although Mr. Baker had acted fraudulently, neither he nor his company were acting on behalf of either of the plaintiffs but were acting as loading brokers on behalf of the American Prudential Lines from whom they received their remuneration in the form of a commission on freight. (4) despite the absence of oral evidence called on behalf of either of the plaintiffs, the evidence fell short of that which was required to establish fraud against them on the occasions when the plaintiffs (U.C.M)presented documents to the defendants; (5) there was no fraud by the plaintiffs nor was there any finding that they knew the date on the bills of lading to be false when they presented the documents; there was no plea either by way of an implied term or by way of a warranty imposed by the law that the presenter of documents under a letter of credit warranted their accuracy and the plaintiffs were entitled to succeed.The C.A. hold that: (1)whether or not a forged document was a nullity. it was not a genuine or valid document entitling the presenter of it to be paid and if the banker to which it was presented under a letter of credit knew it to be forged, then he must not pay ;(2) the letter of credit in this case was expressly made subject to the Uniform Customs for Documentary Credits issued by the International Chamber of Commerce and although in the ordinary case visual inspection of the actual documents presented was called for ,banks had to examine all documents with reasonable care to ascertain that they appeared on their face to be in accordance with the terms and conditions of the letter of credit ; this was no ordinary case in that there was a finding of fraud in relation to the bill of lading ; and if a document false in the sense that it was forged by a person other than a beneficiary could entitle the bank to refuse payment there was no reason why a document in any way false to the knowledge of a person other than the beneficiary should not have the same effect ; (3) in a situation in which a fraud , in known to the issuing or confirming bank would entitle the bank to refuse payment , the bank owed no duty to the beneficiary to pay and owed a duty to the customer not to pay ; here the defendants , when they knew that they had been intentionally deceived as to a date material to their liability to pay , were right to refuse to honor the plaintiffs credit even though there was no finding that B. was the plaintiffs agent in making the bill or presentation to the defendants ; the bill of lading was therefore a dishonest document , it was not a genuine document and the defendants were entitled to reject it .The H.L.s judgment was as follows: (1) the whole commercial purpose for which the system of confirmed irrevocable documentary credits had been developed in international trade to give the seller an assured right to be paid, before he parted with control of the goods, that did not permit of any dispute with the buyer, as to th