China 18 December 1996 CIETAC Arbitration proceeding (Lentil case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/961218c1.html]
DATE OF DECISION:
DATABASE ASSIGNED DOCKET NUMBER: CISG/1996/56
CASE HISTORY: Unavailable
SELLER'S COUNTRY: People's Republic of China (claimant)
BUYER'S COUNTRY: United States (respondent)
GOODS INVOLVED: Lentils
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
8A [Interpretation of party's statement or other conduct: intent of party making statement or engaging in conduct]; 54A1 [Obligation to pay price includes enabling steps, e.g., arranging for letter of credit[; 74A ; 74B [General rules for measuring damages: loss suffered as consequence of breach; Outer limits of damages: foreseeability of loss]; 71A1 [Suspension of performance: grounds for suspension]; 78A [Interest on delay in receiving price or any other sum in arrears]
8A [Interpretation of party's statement or other conduct: intent of party making statement or engaging in conduct];
54A1 [Obligation to pay price includes enabling steps, e.g., arranging for letter of credit[;
74A ; 74B [General rules for measuring damages: loss suffered as consequence of breach; Outer limits of damages: foreseeability of loss];
71A1 [Suspension of performance: grounds for suspension];
78A [Interest on delay in receiving price or any other sum in arrears]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Chinese): Zhong Guo Guo Ji Jing Ji Mao Yi Zhong Cai Wei Yuan Hui Cai Jue Shu Hui Bian [Compilation of CIETAC Arbitration Awards] (May 2004) 1996 vol., p. 2215-2220
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
English: Dong WU, CIETAC's Practice on the CISG, at nn.45, 112, 120, 124, 208, Nordic Journal of Commercial Law (2/2005)Go to Case Table of Contents
|Case text (English translation)|
Lentil case (18 December 1996)
Translation [*] by CHEN Gang [**]
Translation edited by Meihua Xu [***]
In accordance with Clause No. 15, the arbitration provision of the sales contract between Claimant Qinghai XX Import and Export Ltd. Co. of China [Seller] and Respondent XX Co. of the U.S. [Buyer] on 31 October 1995, and the written application for arbitration filed by the [Seller] on 4 April 1996 with the China International Economic & Trade Arbitration Commission (formerly known as "China Council for the Promotion of International Trade Foreign Economic and Trade Arbitration Sub-commission", hereinafter referred to as "the Arbitration Commission"), the Arbitration Commission accepted this arbitration case arising out of the Contract aforesaid. Pursuant to Article 64 of the arbitration rules, as the sum of money in dispute did not exceed renminbi [RMB] 500,000, the summary arbitration procedure was applied to this case.
In accordance with Article 65 of the arbitration rules, the Chairman of the Arbitration Commission appointed Mr. P as the sole arbitrator in charge of this case. After going over the application for arbitration filed by the Claimant [Seller] and the defense by the Respondent [Buyer], as well as evidence and materials attached respectively, the arbitrator proposed to conduct a written hearing seeing that the facts of this case were considerably simple and the disputes involved were less complicated. On 18 September 1996, the Arbitration Tribunal asked the [Seller] and the [Buyer] to provide their supplemental opinions and materials respectively. Upon the order of the Arbitration Tribunal, the two parties submitted their supplemental evidence and materials, and also provided supplemental opinions with respect to the other party's supplemental materials within the time limit set forth by the Arbitration Tribunal.
The arbitration has been concluded with an award rendered based on deliberate inquisition by the sole arbitrator through the supplemental materials provided by the two parties in this case. The facts of the case, the opinion of the arbitrator and the award are presented as follows.
PART I: FACTS OF THE CASE
The [Buyer] and the [Seller] concluded the sales contract (No. 950008) (hereinafter referred to as the "Contract") on 31 October 1995. The Contract provided that:
On 9 November 1995, [Seller] received the L/C issued by the [Buyer] with an expiration date of 21 December 1995.
On 20 November 1995, the parties entered into a supplementary contract, which provided that:
On 21 December 1995, the parties agreed to amend the contract, which provided that the price of lentil of the original 300 tons would be raised to US $337/T if the shipment could be arranged before 31 December, otherwise, to US $340/T. On 22 December 1995, the Claimant [Seller] received the L/C, which had been amended in accordance with their agreement, providing the latest shipping date was 31 December 1995 and the L/C would remain valid till 15 January 1996.
The Contract was not successfully performed, and no agreement was reached between the two parties through negotiation regarding the matter of compensation. Thereafter, the Claimant [Seller] filed an arbitration application with the Arbitration Commission on 4 April 1996.
PART II: CLAIMANT [SELLER]'S POSITION
The [Seller] had gotten 300 tons of lentils ready in advance of the time of the conclusion of the Contract. The [Buyer] notified the [Seller] three times regarding the vessel's name during the period 17 December to 22 December but never sent any shipping notice, which resulted in [Seller] being unable to perform the obligation of shipment. On 15 January 1996, the [Buyer] gave the [Seller] notice to load 200 tons of lentils onto the vessel Datian. In view of the fact that the L/C had matured, the [Seller] requested several times for an extension of the L/C, and stated that the shipment would not be made till the receipt of the amendment and the extension. On the same day, the [Buyer] committed to extend the L/C and have the extension reach the [Seller] by facsimile on the 16th or 17th. However, on 17 January, the [Seller] was notified by the [Buyer] that 200 tons aforesaid could not be delivered due to port congestion. Owing to the fact that the Buyer could not dispatch ships, the parties thereafter negotiated for damages. The [Seller] contended that the [Buyer] should be held to bear the total liability for the failure of the Contract to be performed on schedule, and therefore, should compensate for all fees and losses, including interest, penalty interest, commodity inspection, phyto-sanitation, fumigation, storage, natural spoilage, and anticipated profits, which totaled US $30,000, as well as the arbitration fee and the attorneys' fee of the Claimant [Seller], which amounted to RMB 41,000.
PART III: [BUYER]'S POSITION
The [Buyer]'s defense:
The [Buyer] alleged that there was no provision for determining the specific shipping time of the goods in the amendment to the Contract concluded by the parties on 21 December 1995, which meant that the Buyer could arrange ships for delivery at any time whether before or after 31 December 1995. On 15 January 1996, the [Buyer] committed to extend the L/C, and stated that the amended L/C would reach the [Seller] on the 16th or 17th, which was approved by the [Seller]. The [Seller], however, turned down the request of the shipping agent to hand over related documents and deliver the goods. In view of the above, the [Buyer] had fully performed his obligations under the amended contract, whereas the [Seller] refused to meet the duty on his part.
The [Seller] refused to transfer the shipping documents on the same day as 15 January 1996 despite the requests from both the [Buyer] and the shipping agent of "Datian" so as to arrange the shipment. Due to the refusal by the [Seller] to deliver the cargo, the [Buyer] soon afterwards notified the bank to suspend amending the L/C. Neither of the parties under the Contract specified the issuing time of the L/C during the process of enforcing the Contract or in the original Contract.
With respect to the so-called notice received by the [Seller] on 17 January that the shipment of 200 tons for which the Buyer had committed could not be effected due to shipping congestion, this was invalid because it was merely a private letter in respect of its form and content; in any event, this notice was sent by unauthorized "Mr. Lin" in the name of an individual, after the [Seller] declined to hand over the related documents.
The "loss" claimed by the [Seller] should be regarded as a cost of export, and the calculation of interest, penalty interest and anticipated profits by the [Seller] was utterly groundless. The [Seller] was still able to resell the goods under the Contract at a profitable price by virtue of the rising market. The [Seller] should be liable for the breach of the Contract. [Buyer] retains any right to claim damages against the Claimant [Seller], and moreover, petitions the Arbitration Tribunal to dismiss all the claims made by the [Seller] and hold the [Seller] to bear the total arbitration fee and [Buyer]'s attorneys' fee for this case.
PART IV: [SELLER]'S SUPPLEMENTAL RESPONSE
Reception no later than 10 January 1996 was made a condition for effecting the shipment after 31 December 1995. The date of 31 December was a changing point for the price which was not identified with the indication that the Buyer was free to dispatch the ship at any time whether before or after 31 December.
On 15 January 1996, when after the shipping time agreed by two parties had passed, the [Seller] repeatedly urged to amend the L/C and stated clearly the position that the documents relating the goods would not be handed over till the change to the L/C had been completed. The reply from the [Buyer] was to commit to send the amended L/C to reach the [Seller] on the 16th or 17th. On the 16th, the [Seller] faxed a message that he was expecting the arrival of the amended L/C, but thereafter, did not receive any further answer from the [Buyer] except for the fax sent in the name of Mr. Lin on the 17th stating that the shipment could not be fulfilled.
It is common understanding that a seller would commence loading the goods only against the original L/C rather than its copies.
The [Seller] kept earnestly inquiring for the date of dispatching ships for the second time till after the 17th. Because there was no hope of fulfilling the contact after the 19th when Ramadan started, the parties entered into negotiations for the matter of compensation.
It was recognized by the parties that Mr. Lin acted on behalf of the [Buyer]. The unavailability of shipping space was a fact, not a reason for the [Seller] to refuse to load the goods.
The shipping advice submitted by the [Buyer] as Attachment 2 was spurious.
The L/C cannot be revoked once it has been issued except if the notice of cancellation is earlier than the fact of the amendment or modification. The statement that "Due to the negative response from the [Seller], the [Buyer] soon afterwards notified the bank to suspend amending the L/C" was found unauthentic. It was provided in the Contract that the L/C should reach the Seller several days before the shipment so as to assure the Seller a period of time of reasonable length to settle foreign exchange.
The [Seller] provided the supplemental explanation and supplemental evidence and materials regarding his claims for damages.
PART V. RESPONDENT [BUYER]'S SUPPLEMENTAL RESPONSE
The deadline agreed by the two parties for the delivery of the goods was 31 January 1996.
It was G. Premjee (UK) PLC, the issuer of the L/C, who conveyed the order of cancelling the amendment to the L/C from the [Buyer] to the bank.
After the [Seller] declined to hand over the shipping documents, the [Buyer] had no choice but to contact "XX, Gansu" in hope of buying substitutive goods for those of the [Seller].
The [Buyer] sent the shipping advice within the time limit for shipment fixed by the two parties, requiring the shipping documents of the [Seller]. Furthermore, on the same day the Respondent [Buyer] notified the bank to amend the L/C and informed the [Seller] that the L/C was under amendment. Therefore, the Respondent had performed his due obligation as the Buyer in terms of FOB. The [Seller], however, refused to hand over shipping documents and to deliver the goods, which violated his obligation to deliver the goods as the Seller under the Contract. In that case the [Seller] should be liable for the breach of the Contract. The [Buyer] further queried about the authenticity of evidence for losses claimed by the Claimant [Seller].
PART VI. OPINION OF THE ARBITRATION TRIBUNAL
1. The time limit for delivery fixed by or determinable from the Contract
When the time limit for the delivery agreed in the Contract expired, the two parties entered into additional agreement on 21 December, in conformity with which the [Buyer] modified the L/C, fixing the shipping date on 31 December 1995, and extended the valid term of the L/C late into 15 January 1996. Reviewing the faxes between the two parties on 15 and 16 January, the Arbitration Tribunal found that although the shipment was deferred time and again, neither the Seller nor the Buyer regarded the Contract avoided or suspended performing obligations under the Contract, which indicated that the [Seller] did not object to the arrangement of dispatching ships by the [Buyer] around 15 January 1996.
The [Seller] denied that he had accepted the requirement by the [Buyer] to change the delivery date to 31 January, whereas the evidences and materials submitted by the two parties (especially "the supplementary response of the [Seller] on the dispute over No. G XX Lentil Contract" in reference to Attachment 8) witnessed that the [Seller] did agree to the further modification on the shipping date.
2. Whether the [Seller] had accepted the method of payment proposed by the [Buyer] that the [Seller] would effect the shipment on 15 January 1996 prior to receiving the modified L/C faxed by the [Buyer] on 16 or 17 January
The [Buyer] emphasized repeatedly that the [Seller] had accepted the method of payment as seen in Attachment 8 and the third paragraph on page 2 of the arbitration application. Attachment 8 was a fax sent by the [Buyer] to the [Seller] on the evening of 15 January 1996 (the morning of 16 January Beijing time), which said in brief, "we are writing to apologize for the delay, and to confirm that the L/C will be sent tomorrow or the day after tomorrow, which is being modified as required for the time being. Moreover, the price has been raised and the deadline for shipping the goods been fixed on 31 January in the modified L/C". Pursuant to the third paragraph on Page 2 of the arbitration application, "... it is provided in Attachment 7 that the representative of the Buyer will pay the Seller U.S. dollars in cash in Tianjin, whereas afterwards the terms are accepted by the Seller that it turns out to raise the price in the modified L/C and at the same time pay in terms of L/C by fax on 15 January 1996 (in reference to Attachment 8)".
The arbitrator held that it was the settlement of the raised price by L/C that had been expressly accepted by the [Seller]. Even if the [Seller] had accepted Attachment 8 in whole, these sentences from the arbitration application and Attachment 8 do not indicate expressly or impliedly that the [Seller] had agreed to effect the shipment on 15 January prior to his receiving the modified L/C.
On the contrary, the [Seller] stated that the delivery must be performed against the reception of the amended L/C by fax on 15 January. "... before we received the amendment and the extension, we can't ship the cargo." (Refer to Attachment 10 to the arbitration application). The [Buyer] did not raise any objection to the evidence aforesaid.
3. Whether it was reasonable that the [Buyer] required the [Seller] to ship the cargo earlier than the amended L/C reached the [Seller]
On 15 January 1996, the [Buyer] sent the shipping notice requiring the [Seller] to ship the cargo right on that day, and furthermore, informed the bank to amend the expired L/C and notified the [Seller] that the amendment would reach the [Seller] within one or two days. In view of the aforesaid, the [Buyer] alleged that he had performed his obligation due as the Buyer in terms of FOB, whereas the [Seller] violated his obligation to deliver the goods under the Contract owing to refusing to ship the goods before receiving the amendment and the extension of the L/C.
Pursuant to the second paragraph in Article 14 of the Contract in this case, "the Seller is entitled to declare the Contract avoided or defer the delivery of the goods, in case the L/C does not reach the Seller within the time limit provided in the Contract, or the L/C opened by the Buyer does not comply with the Contract; and the Buyer cannot modify or amend the L/C in time after receiving the notice ...".
The two parties in this case agreed on payment by L/C. Article 10 of this contract provided that the L/C must reach the Seller before __ days of shipment. The original sentence above the preceding line said that the Buyer shall establish a ... L/C ... in favor of the Seller, in _ payable at sight ..., but "10 DAYS" was found typed in the blank space in the sentence aforesaid, which was recognized by the arbitrator as a slip in typing though there was no argument incurred between the two parties. To specify, "10 DAYS" should have been filled in the blank below instead of the above, where the currency code fixed in the L/C should be typed, such as US $, RMB, etc., otherwise the two parties should have been in no position to understand the sentence aforesaid. The currency code fixed in the L/C could be identified according to the context of the Contract, whereas the issuing date of the L/C could not be ascertained in the same way unless regarding "10 DAYS" typed in the wrong line. The arbitrator held that the real agreement reached by the two parties at the time of concluding the Contract was "the L/C must reach the Seller before 10 DAYS of shipment".
It was indisputable that the L/C must reach the Seller before shipment, even though the two parties really did NOT specify before how many days of shipment the L/C must reach the Seller, which was determinable from the Contract, and on the other hand and more particularly, one of the main rules for international trade practice and one of the fundamental presuppositions to safeguard payment made to traders in international market by choosing letters of credit as means of payment. According to Article 54 of the United Nations Convention on Contracts for the International Sale of Goods (hereinafter referred to as the "CISG"), the Buyer's obligation to pay the price includes taking such steps and complying with such formalities as may be required under the Contract or any laws or regulations to enable payment to be made ..., mainly indicating the application to the bank for establishing the L/C or guarantee in accordance with the provisions under the sales contract, which has been universally recognized within the circles of Law and International trade in China as well as the U.S. (Referring to Feng Datong, Law of International Sales, Press of University of International Business and Economics, 1989). No seller would deliver the goods without being ensured of payment. To solve this problem, payment by L/C as known to us today became popular in the middle of the 19th century. [With reference to Jordan & Warren, Commercial Law, 876-877, citing Baird, Standby L/C in Bankruptcy, 49 U. of Chi. L. Rev. 130, 133-135 (1982)]. Subject to Article 2-325(1) of the Uniform Commercial Code (hereinafter referred to as the "UCC"), failure of the Buyer seasonably to furnish an agreed L/C is a breach of the contract for sale, and Article 5-106 thereof, one concerning Time and Effect of Establishment of L/C, provides in its Item (1)(b) that unless otherwise agreed a credit is established ... as regards the beneficiary when he receives a letter of credit or an authorized written advice of its issuance, where "authorized" can not be defined in any way but "authorized by the issuing bank". Therefore, the [Seller] was not obliged to accept an oral guarantee by the [Buyer] in respect of payment.
Prerequisites for the Seller to settle exchange in terms of the L/C are: (1) the L/C was valid at that time; and (2) all, related documents, especially shipping documents that the Buyer's application to the bank for exchange settlement should be against, must comply with provisions of the L/C. Pursuant to Item (a) in Article 43 of Uniform Customs and Practice for Documentary Credit (No. 500 publication by the International Chamber of Commerce). Hereinafter referred to as UCP 500) ... in any event, documents must be presented not later than the expiry date of the Credit. It had evidently constituted material retardation to the performance of the [Seller]'s right to guarantee exchange settlement by L/C that the [Buyer] notified the [Seller] to ship the goods on the evening of 15 January when the L/C expired, which put the [Seller] at the unexpected and additional risk of failing to have the L/C negotiated after delivery of the goods.
From the view point of a neutral and reasonable third party, it was not an effective act to safeguard the [Seller]'s right to settle exchange that the [Buyer] on his own informed the bank to amend L/C on the same day (15 January), and notified the Claimant [Seller] that the amendment would reach his place on the 16th or 17th. The L/C provided in the Contract was irrevocable. Subject to Item (D) in Article 9 of UCP 500, I), except as otherwise provided by Article 48, an Irrevocable Letter of Credit can neither be amended nor cancelled without the agreement of the Issuing Bank, the Confirming Bank, if any, and the Beneficiary. ii) The Issuing Bank shall be irrevocably bound by an amendment(s) issued by it from the time of the issuance of such amendment(s)...iii) The terms of the original Credit (or a Credit incorporating previously accepted amendment(s)) will remain in force for the Beneficiary until the Beneficiary communicates his acceptance of the amendment to the bank that advised such amendment. ... In light of the above, the time when the issuing bank was bound was when L/C was sent out, whereas the time when the beneficiary was bound was when L/C was received. Therefore, a notice of amending the L/C was not binding on any party within the period of time from when the applier made the application with the issuing bank to when the issuing bank sent out the authorized amendment, which had been de facto proved by the fact that the [Buyer] succeeded in cancelling the notification of amending the L/C on 17 January. The amendment notice by the opening bank was not sent till 17 January, which implied that the act of the L/C amendment, binding to the opening bank did not occur, and therefore, the ineffective amendment could not guarantee exchange settlement to the [Seller] at all. Hereby, the arbitrator held that the opinion was sound that "the shipment of goods should be against the receipt of the amendment". Subject to Article 5-104 of UCC, a modification of the terms of a credit or confirmation must be signed by the issuer or confirming bank, and Article 5-106 thereof, one concerning Time and Effect of Establishment of L/C, provides in its Item (1)(b) that, unless otherwise agreed, a credit is established ... as regards the beneficiary when he receives a letter of credit or an authorized written advice of its issuance. Therefore, under circumstances in which the original L/C had expired, the [Seller] was entitled to suspend performance of his obligation of delivery until receipt of the authorized amendment in writing.
The [Seller] only stated that shipment would not be effected till he had received the extension, and did not declare to terminate the Contract at any time. The [Buyer] cancelled the advice of amending the L/C on 17 January, which de facto proved that the act of amendment did not occur. The [Buyer] had established the L/C prior to 15 January, but did not appropriately perform his obligation of dispatching ships, nor did he extend the L/C after 15 January, which amounted to the violation of the obligation of payment. Owing to the failure by the [Buyer] to perform his obligation as required under the Contract, the [Buyer] should be in the position to compensate the [Seller] all losses arising therefrom.
4. The status and authority of Mr. Daniel Lin
Subject to the correspondence between the two parties in this case, the arbitrator held that Mr. Lin was working on behalf of the [Buyer] and that it was the [Buyer] who was bound to undertake the burden to prove that Mr. Lin was not authorized and had no right to send out the advice. However, the [Buyer] failed to satisfy this burden. On the other hand, the [Seller] did not refuse to ship the cargo pursuant to the notification by Mr. Lin stating that "The goods had been squeezed out of shipping space", and therefore, it was not crucial in respect of this case the fact concerning Mr. Lin's status and authority in the [Buyer]'s company as well as the background and intention of the fax by Mr. Lin in this case.
5. The Contract concluded by the [Buyer] and Gansu XX Import and Export Co.
The Contract concluded by the [Buyer] and Gansu XX Import and Export Co. was signed on 23 November 1995, with an L/C fixed as terms of payment. The [Buyer] should have established the L/C before 3 December 1995 so as to get ready for executing the Contract in advance of 20 December. To say the least, the evidence and materials available indicated that the [Buyer] was also being pressed by Gansu XX to arrange shipping space at the same time. Gansu XX drew original invoice on 16 January 1996 (Beijing Time). The [Buyer] failed to prove that it was after the [Seller] refused to deliver the goods when the [Buyer] concluded this contract with Gansu XX in replacement. In view of reasons put forward in Item 1, 2 and 3 above, the award of this case did not fundamentally rely on to whom and why the [Buyer] transferred the shipping space of the Datian.
6. Losses suffered by the [Seller]
Pursuant to Article 74 of CISG, damages for breach of contracts by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. The arbitrator held that, some losses claimed by the [Seller] were de facto incurred and irreversible, including commercial inspection, phyto-sanitation, fumigation, storage (collected for three, NOT five months, for the reason as follows) and natural spoilage, and anticipated profits due in international trade, which, in the amount of US $14,733.60 in total, should be borne by the [Buyer] as compensation for [Buyer]'s breach of contract. In addition, the interest loss should compensated by the [Buyer]. It was foreseeable to the [Buyer] as a company engaged in international trade in light of the fact that the [Seller] was extended credit by the bank to purchase the goods as a professional trade company. In respect of the length of time relied on to compensate for the interest loss aforesaid, the arbitrator held that the de facto time of reasonable length for the [Seller] to get the goods ready for shipment, wait for the vessel and pay for the warehouse charge should be THREE months, rather than FIVE months, alleged by the [Seller] due to the lack of adequate evidence and materials, and as a consequence, amounted to US $5,090.53. The penalty interest was not approved due to its minute foreseeability and the absence of payment receipt.
As for the attorneys' fees, the arbitrator judged that the Respondent [Buyer] should bear only part of payable attorney fees to the Claimant [Seller], RMB 9,000, according to the standard charge by professional attorneys, because the [Seller] did not submit the appointment contract with attorneys, nor did he note expressly the relation with this case in his attorney fee receipt.
PART VII: AWARD
The Arbitration Tribunal hereby decides:
This Award is final.
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Claimant of the People's Republic of China is referred to as [Seller]; Respondent of the United States is referred to as [Buyer]. Amounts in the currency of the United States (dollars) are indicated as [US $]; amounts in the currency of the People's Republic of China (renminbi) are indicated as [RMB].
** CHEN Gang LL.M. University of International Business and Economics; LL.B. Shanxi Finance and Economics University.
*** Meihua Xu, LL.M. University of Pittsburgh School of Law on an Alcoa Scholarship. She received her Bachelor of Law degree, with the receipt of Scholarship granted by the Ministry of Education, Japan, from Waseda University, Tokyo, Japan. Her focus is on International Business Law and International Business related case study.Go to Case Table of Contents