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Application of Compulsory Joinder, Intervention, Impleader, and Attachment to the Letter of Credit Litigation

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Application of Compulsory Joinder, Intervention, Impleader, and Attachment to the Letter of Credit Litigation Fordham Law Review Volume 52 Issue 5 Article 10 1984 Application of Compulsory Joinder, Intervention, Impleader, and Attachment to the Letter of Credit Litigation David C. Howard Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation David C. Howard, Application of Compulsory Joinder, Intervention, Impleader, and Attachment to the Letter of Credit Litigation, 52 Fordham L. Rev. 957 (1984). Available at: https://ir.lawnet.fordham.edu/flr/vol52/iss5/10 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. THE APPLICATION OF COMPULSORY JOINDER, INTERVENTION, IMPLEADER AND ATTACHMENT TO LETTER OF CREDIT LITIGATION INTRODUCTION A letter of credit' is a device by which a bank or other issuer,2 at the request of its customer, engages 3 that it will honor drafts or other demands for payment if presented in compliance with specified condi- tions.4 The essential function of the letter of credit is to substitute the 1. For a general definition of a letter of credit, see Bank of Newport v. First Nat'l Bank & Trust Co., 34 U.C.C. Rep. Serv. (Callaghan) 650, 655 (8th Cir. 1982); East Girard Say. Ass'n v. Citizens Nat'l Bank & Trust Co., 593 F.2d 598, 601-02 (5th Cir. 1979) (quoting 2 Tex. Bus. & Com. Code Ann. § 5.103(a)(1) (Vernon 1968)); Consolidated Aluminum Corp. v. Bank of Va., 544 F. Supp. 386, 393-95 (D. Md. 1982), aff'd, 704 F.2d 136 (4th Cir. 1983); Dynamics Corp. of Am. v. Citizens & S. Nat'l Bank, 356 F. Supp. 991, 995 (N.D. Ga. 1973); Ernesto Foglino & Co. v. Webster, 217 A.D. 282, 293, 216 N.Y.S. 225, 234 (1926), modified on other grounds, 244 N.Y. 516, 155 N.E. 878 (1927); H. Harfield, Bank Credits and Acceptances 26-27 (5th ed. 1974); 6 Michie on Banks and Banking ch. 12, § 28, at 398 (perm. ed. 1975) [hereinafter cited as Michie]; J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code § 18-2 (2d ed. 1980). 2. An issuer is defined as "a bank or other person issuing a credit." U.C.C. § 5- 103(1)(c) (1977). Accordingly, an issuer need not be a bank but also may be a finance or insurance company, or other similar institution. J. White & R. Summers, supra note 1, § 18-1, at 710; see Barclays Bank D.C.O. v. Mercantile Nat'l Bank, 481 F.2d 1224, 1226 (5th Cir. 1973) (mortgage broker as issuer), cert. dismissed, 414 U.S. 1139 (1974); U.C.C. § 5-102(1)(b), (c) & official comment 1 (1977). 3. The issuer's engagement that it will honor drafts or other demands for payment that comply with the terms of the letter of credit is one of the formal requirements for establishing a valid letter of credit. See U.C.C. § 5-103(1)(a) (1977); Baker v. National Blvd. Bank, 399 F. Supp. 1021, 1024 (N.D. Ill. 1975). The other formal requirements are that the letter of credit be in writing and signed by the issuer, U.C.C. § 5-104(1) (1977), and that the letter conspicuously state that it is a letter of credit when no demand or draft is required for payment, id. § 5-102(1)(c). In addition, the issuer's engagement to honor must be written on the draft itself, see id. § 3-410(1), and, to be enforceable, must be communicated to the prescribed third party in such a mnanner "that the commitment may be legally enforced against the [issuer]." H. Harfield, supra note 1, at 10. 4. There is a split of authority as to whether strict or substantial compliance is required. The traditional view requires strict compliance with the terms of the letter of credit. Kozolchyk, Preface to The Law of Letters of Credit and Standbys in the 80's, 24 Ariz. L. Rev. 235, 235 (1982) [hereinafter cited as Kozolchyk 1]; State of N.Y. Law Revision Comm'n, Study of Uniform Commercial Code: Article 5- Documentary Letters of Credit, Legislative Doe. No. 65(F), at 67 (1955), reprinted in 3 State of N.Y. Law Revision Comm'n, Report of the Law Revision Comm'n for 1955, at 1635 [hereinafter cited as 1955 Report]; e.g., Philadelphia Gear Corp. v. Central Bank, 717 F.2d 230, 236 (5th Cir. 1983); Marino Indus. Corp. v. Chase Manhattan Bank, N.A., 34 U.C.C. Rep. Serv. (Callaghan) 637, 640 (2d Cir. 1982); Insurance Co. of N. Am. v. Heritage Bank, N.A., 595 F.2d 171, 175 (3d Cir. 1979) (per curiam); Courtaulds N. Am., Inc. v. North Carolina Nat'l Bank, 528 F.2d 802, FORDHAM LAW REVIEW [Vol. 52 credit of the issuer for the credit of its customer, 5 often a buyer of goods (customer).6 As a result, the beneficiary of the credit, typically a seller of goods (beneficiary) , 7 is assured of payment upon proper 805-06 (4th Cir. 1975); AMF Head Sports Wear, Inc. v. Ray Scott's All-American Sports Club, Inc., 448 F. Supp. 222, 223 (D. Ariz. 1978); Dynamics Corp. of Am. v. Citizens & S. Nat'l Bank, 356 F. Supp. 991, 995 (N.D. Ga. 1973). Some courts, however, have required only substantial compliance, or some variation thereof. See, e.g., Corporacion de Mercadeo Agricola v. Mellon Bank Int'l, 608 F.2d 43, 47 n.1 (2d Cir. 1979) (strict compliance limited to "essential requirements of the letter of credit"); Flagship Cruises v. New Eng. Merchants Nat'l Bank, 569 F.2d 699, 705 (1st Cir. 1978) (non-compliance "not fatal" absent possibility of misleading paying bank to its detriment); Banco Espanol de Credito v. State St. Bank & Trust Co., 385 F.2d 230, 237 (1st Cir. 1967) (documentary draft is acceptable if it complies "in all significant respects"), cert. denied, 390 U.S. 1013 (1968); Crocker Commercial Servs. v. Countryside Bank, 538 F. Supp. 1360, 1362-63 (N.D. Ill. 1981) (reasonable compliance standard); First Arlington Nat'l Bank v. Stathis, 90 Ill. App. 3d 802, 816, 413 N.E.2d 1288, 1299 (1980) (compliance sufficient when presentment does not "deviate significantly" from the letter's requirements). A third view applies a strict compliance standard when the beneficiary sues the issuer, but a substantial compli- ance standard when the issuer seeks reimbursement from its customer. J. White & R. Summers, supra note 1, § 18-6, at 731-32 (quoting State of N.Y. Law Revision Comm'n, supra, at 67-68, reprinted in 1955 Report, supra note 4, at 1634-35); see Transamerica Deleval, Inc. v. Citibank, N.A., 545 F. Supp. 200, 203-04 (S.D.N.Y. 1982); Far E. Textile Ltd. v. City Nat'l Bank & Trust Co., 430 F. Supp. 193, 196 (S.D. Ohio 1977). Compare Bank of Italy v. Merchants Nat'l Bank, 236 N.Y. 106, 108, 140 N.E. 211, 212 (1923) (action by beneficiary against the issuer) with Bank of Montreal v. Recknagel, 109 N.Y. 482, 494, 17 N.E. 217, 221-22 (1888) (suit by issuer for reimbursement). See generally Note, Letters of Credit: A Solution to the Problem of Documentary Compliance, 50 Fordham L. Rev. 848, 856 (1982) (advocating strict compliance) [hereinafter cited as Documentary Compliance]. 5. Continental Nat'l Bank v. National City Bank, 69 F.2d 312, 316 (9th Cir.), cert. denied, 293 U.S. 557 (1934); Courtaulds N. Am., Inc. v. North Carolina Nat'l Bank, 387 F. Supp. 92, 98 (M.D.N.C. 1975), rev'd on other grounds, 528 F.2d 802 (4th Cir. 1975); H. Harfield, supra note 1, at 27, 44; 6 Michie, supra note 1, ch. 12, § 30, at 410; see Insurance Co. of N. Am. v. Heritage Bank, N.A., 595 F.2d 171, 173 (3d Cir. 1979) (per curiam); H. Ray Baker, Inc. v. Associated Banking Corp., 592 F.2d 550, 552-53 (9th Cir.), cert. denied, 444 U.S. 832 (1979); West Va. Hous. Dev. Fund v. Sroka, 415 F. Supp. 1107, 1112 (W.D. Pa. 1976); National Sur. Corp. v. Midland Bank & Trust Co., 408 F. Supp. 684, 690 (D.N.J. 1976), rev'd on other grounds, 551 F.2d 21 (3d Cir. 1977); Documentary Compliance, supra note 4, at 848 (1982). 6. A customer is defined as "a buyer or other person who causes an issuer to issue a credit." U.C.C. § 5-103(1)(g) (1977). Other names for this party include accredited buyer, importer, consignee and account party. H. Harfield, supra note 1, at 33. A bank that procures the issuance or confirmation of a letter of credit on behalf of its customer is also considered to be a customer. U.C.C. § 5-103(1)(g) (1977). 7. A beneficiary of a letter of credit is defined as "a person who is entitled under its terms to draw or demand payment," U.C.C. § 5-103(1)(d) (1977), and is usually a seller of goods, see, e.g., Empire Abrasive Equip. Corp. v. H.H. Watson, Inc., 567 F.2d 554, 556 (3d Cir. 1977); Vazman, S.A. v. Fidelity Int'l Bank, 418 F. Supp. 1084, 1085 (S.D.N.Y. 1976); Lantz Int'l Corp. v.
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