Where a bank finances an international sale of goods, original bills of lading (“OBLs”) are amongst the documents that will be presented by a seller to the bank to obtain payment for the goods. The OBLs are held by the bank as security for the financing extended to the buyer. If the cargo is discharged by the carrier without presentation of the OBLs, the bank has a claim in misdelivery against the carrier.
One of the defences raised against a misdelivery claim is that the bank would have consented to the cargo being discharged from the carrier without presentation of the OBLs in any event. As such, it is argued, the bank is not entitled to the damages sought as the carrier’s breach of the contract of carriage did not cause the loss allegedly suffered by the bank. Such a defence was successfully established in Unicredit Bank AG v Euronav NV [2022] 2 Lloyd’s Rep 467, where the English High Court rejected the plaintiff bank’s misdelivery claim. The decision was affirmed on appeal.
In the recent case of The Maersk Katalin [2024] SGHC 282, the same defence was considered by the Singapore High Court, but the carrier in that case failed to succeed in this defence. Nevertheless, the case serves as a reminder that a bank’s security over the cargo (by virtue of being holder of the OBLs) would be compromised if the carrier is able to prove that the bank would have counterfactually consented to the discharge of the cargo without presentation of the OBLs.
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For further information, please contact:
Moses Lin, Partner, Shook Lin & Bok
moses.lin@shooklin.com
