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SAVARIN CORP. v. NATIONAL BANK OF PAKISTAN

October 3, 1968

SAVARIN CORPORATION, Plaintiff,
v.
NATIONAL BANK OF PAKISTAN and S.H.A. Sharbatly, Defendants



The opinion of the court was delivered by: HERLANDS

HERLANDS, District Judge:

 Defendant National Bank of Pakistan (hereinafter "the Bank") moves for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on all causes of action naming the Bank as defendant, upon the grounds that there exist no genuine issues of material fact and that the Bank is entitled to judgment as a matter of law. For the reasons hereinafter stated the motion is denied with respect to all causes of action.

 Plaintiff Savarin Corporation (hereinafter "plaintiff") entered into a contract on September 20, 1966, with defendant S.H.A. Sharbatly (hereinafter "Sharbatly") for the sale by plaintiff to Sharbatly of approximately 6,000 tons of wheat, 3,000 tons to be shipped to Dammam, Saudi Arabia and 3,000 tons to be shipped to Jeddah, Saudi Arabia [the "wheat contract"]. Sharbatly agreed to establish promptly letters of credit to effect payment and to advise plaintiff by cable of the establishment of these credits.

 Sharbatly cabled plaintiff on September 22, 1966, informing plaintiff that the Dammam credit would be opened September 25, 1966 and the Jeddah credit September 29, 1966.

 On September 26, 1966, plaintiff received two communications from the New York branch of the Bank. One related to the Jeddah branch letter of credit No. 3697, of which relevant parts read:

 
"[printed] We are in receipt of a cable/wire from our correspondent indicated above which reads as follows:
 
'[typewritten] WE ESTABLISH CONFIRMED IRREVOCABLE CREDIT THREESIXNINE SEVEM SHA VSHARBATLY JEDDAH SAVARIN CORPORATION ELEVEN BROADWAY NEWYORK FOUR NY AMOUNT ABOUT USDOLLARS ONEFIVEFOURFOURTWOFIVE SHIPMENT ABOUT ONEFIVEZEROZERO METRIC TON HARDWINTER NUMBER ONE OLD GRADE WHEAT NEWCROP DARKRED BIG GRAIN PRICE USDOLLARS ONZEROTWO CENTS NINETYFIVE PER MTON C AND F DAMMAM USAPORT DAMMAM VALIDITY THIRTIETH NOVEMBER FIFTEENTH DECEMBER SIXTYSIX DETAILS AIRMAILING'"

 Also printed on the communication was the following:

 
"Please note that the above is given to you in accordance with instructions of the above mentioned correspondent and conveys no engagement by us."

 And:

 
"This credit is subject to the Uniform Customs And Practice For Documentary Credits (1962 Revision). International Chamber of Commerce Brochure No. 222."

 The second communication, on a similar form, related to the Jeddah branch credit No. 3698 and reads substantially the same.

 On October 13, 1966 plaintiff received two communications from the Bank's New York branch on forms similar to those received September 26, 1966, relating to Jeddah branch credit Nos. 3713, 3717. The relevant parts of No. 3713 read:

 
"[printed] We are in receipt of a cable/wire from our correspondent indicated above which reads as follows: [remainder typewritten] This is subject to mail confirmation.
 
'WE ESTABLISH CONFIRMED IRREVOCABLE CREDIT THREESEVENONETHREE SHA SHARBATLY JEDDAH SAVARIN CORPORATION ELEVEN BROADWAY NEWYORK FOUR NY AMOUNT ABOUT USDOLLARS ONEFOURNINENINETWOFIVE SHIPMENT ABOUT ONEFIVEZEROZERO METRIC TONS AMERICAN HARD WINTER NUMBER ONE OLD GRADE WHEAT NEWCROP DARKRED BIGGRAIN PAKEDIN NEWDOUBLE JUTEBAGS WITH BLUELABEL ATTACHED ON EACHBAG WEIGHING ONETWOZERO [handwritten "LBS"] GROSS FOR NET PRICE USDOLLARS NINETYNINE CENTS NINETY-FIVE PER METRICTON CANDF JEDDAH LINERTERMS SHIPMENT SHOULD BE IN THRE [handwritten "E"] LOTS EACH LOT NOT EXCEEDING FIVE HUNDRED TONS TEN PERCENT MORE OR LESS USAPORT JEDDAH SHIPMENT SHOULD BE EFFECTED BY FIRSTCLASS STEAMER WHICH SHOULD NOTBE OVERTHAN TWENTY YEARSOLD TRANSHIPMENT NOTALLOWED PARTSHIPMENT ALLOWED SHIPMENT THIRTIETH NOVEMBER NEGOTIATION FIFTEEN DECEMBER SIXTYSIX SHIPPING DOCUMENTS TOBE IN TWO GROUPS EACH GROUP ABOUT TWOFIVEZERO TONS TEN PERCENT MORE OR LESS DETAILS AIRMAILING'"

 The communication relating to No. 3717 was substantially similar.

 On October 17, 1966, plaintiff received from the Bank's New York branch two communications on the same form as described above relating to credits Nos. 3697, 3698. This communication had a typewritten "x" in two squares indicating that the printed language immediately adjacent was applicable. The printed language so indicated provides:

 
"[x] At the request of our correspondent indicated above, we are enclosing their letter of credit ...

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