A talk on maritime fraud

Fraud: discovery, proof and recovery.

Paul Todd, M.A., B.C.L.

Lecturer, University of Wales, Cardiff.

Talk given on 26 Jan 96

Footnotes, Substantive law, Procedural issues, The investigation

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The emphasis of this talk differs from the earlier talks, in that it is assumed that a fraud has occurred, and that you are the victim. So the question is: what can a victim of maritime fraud do to minimise losses? The paper is not about prevention, which will have been dealt with by other speakers, but (so far as is possible) "cure".

Although the talk has a practical bent, covering for example expert witnesses and investigators, the starting point has to be the substantive law: who is liable, and on what basis? [1] There are also procedural questions to be considered, such as how to obtain information from reluctant defendants, and how to prevent them dissipating their assets prior to trial. Also, given the international nature of maritime fraud, there are inevitably jurisdictional issues to be considered.

There are, however, some initial points which are worth making:

1. If the fraudster is convicted of a criminal offence, whether in the U.K. or elsewhere, it may be possible to obtain compensation through the criminal process. Possible offences under U.K. law are theft, obtaining property by deception, and conspiracy to defraud. History shows, however, that very few successful prosecutions are ever brought, partly because of jurisdictional problems. [2] In reality, it is likely to be more profitable using the civil law, and attempting to trace and freeze assets.

2. Although a fraud victim may have an action against someone with whom he is in contractual relationship, this will not usually be the case. Disputes are far more likely to be resolved by litigation than arbitration, therefore, and if in the U.K., given the sums of money involved, in the High Court.

3. Whereas with an insurance fraud (e.g., a rust-bucket scuttling), there may be time before payment is made for investigators to inquire, for example, whether the crew were rescued with full suitcases and overnight accommodation pre-booked in local hotels, the victim of a documentary fraud is unlikely to be able to prevent payment being made. The documentary credit process simply does not allow the time. We shall assume for the purposes of this talk, then, that the money has gone.

4. The investigation of maritime fraud will almost always be external. The fraudster will typically be a stranger, or at any rate not somebody from within the organisation, and therefore techniques that would be appropriate for an internal investigation will not work.

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The substantive law - damages - who is liable, and on what basis?

It is often said that the law protects parties to international trade transactions from the bankruptcy but not the fraud of other parties, and victims of fraud often therefore start from a position of disadvantage. For example, in Discount Records Ltd. v. Barclays Bank Ltd., [3] the plaintiffs were purchasers of a consignment of records and cassettes from a French company, "Promodisc", payment to be by confirmed irrevocable credit. Conforming documents were tendered, [4] but by then it had become clear that the cartons shipped contained largely rubbish. The purchasers had ordered 8,625 records and 825 cassettes. The cargo was packed in 94 cartons, but of these two were found to be empty, five were filled with rubbish or packing, and 28 were only partly filled. 275 records and 518 cassettes were actually delivered, but of the 518 cassettes only 25 per cent. were delivered to order. Nevertheless the buyers failed to restrain the confirming bank from paying under the credit. It was alleged, but could not be proved, that the sellers were fraudulent. It is not easy to prove fraud, particularly in the short time before payment becomes due under a documentary credit, and fraud must be attributed to the seller, not to a third party such as a freight forwarder or loading broker. [5] The courts appear to assume that the parties to international sale contracts are more interested in promoting the negotiability of bills of lading, and insulating banks from any concern over disputes under the sale contract, than in preventing fraud.

In Discount Records itself, the report suggests that the victims (buyers) might have had a contractual action against the issuing bank, arising from an independent breach, and might therefore have been adequately protected, but in the absence of such an action their position would be very weak. Promodisc were presumably in breach of contract, and if the allegations that had been made were correct, had committed the tort of deceit. For fraudulent misrepresentations, fraudulent breaches of contract and the tort of deceit, normal rules of remoteness do not apply, and in Doyle v. Olby (Ironmongers) Ltd., [6] the Court of Appeal held that the object of damages in fraud, unlike contract, is that the damages should compensate the plaintiff for all the loss he has suffered, i.e., for all the actual damage directly flowing from the fraudulent inducement. However, in many cases this will be rather theoretical. Promodisc was a French company, which may have had neither offices nor assets in the United Kingdom, and the plaintiffs had no useful property to protect them. (Property in the money would have passed to Promodisc.)

Retention of legal title in some property by the plaintiff can be useful in that it is not usually defeated by theft, and so even if the fraudster is not worth suing it may be possible to recover the property, or at any rate its value, from whoever has come into possession of it. In V/O Rasnoimport v. Guthrie & Co. Ltd., [7] where some of the cargo (bales of rubber) was stolen after mate's receipts had been signed, but before it was loaded on board. The loading broker did not know, and issued bills of lading for the entire cargo. The indorsee, who was the immediate victim of the fraud, having paid the entirety of the price for a part cargo, successfully sued the loading broker for breach of warranty of authority, but could also presumably instead have sued the seller. Property in the bales of rubber would have remained in the seller, who might therefore be able to recover them from any third party into whose possession they had come.

Property is far better at protecting against bankruptcy than fraud, however, and its value should not be over-estimated. In Manchester Trust v. Furness, Withy & Co. Ltd., The Boston City, [8] time charterers persuaded the master to divert an entire cargo of coal destined for Rio de Janeiro to Buenos Aires, where they sold it to a third party. Presumably the indorsees of the bills of lading, who were the victims of the fraud, retained their legal title in the coal, but that would not have availed them once it had been mixed with other coal, or consumed. [9] Similarly in Shell International Petroleum Co. v. Gibbs, The Salem, [10] the infamous case where shipowners stole an entire cargo of 200,000 tons of crude oil, property would not have passed to the recipients in South Africa, [11] but it would not have availed Shell once their cargo became mixed with that of the recipient. [12]

Legal property can also be defeated by process of law. Take, for example, the documentary bill, where the seller attaches to the bill of lading a bill of exchange drawn on the buyer, the buyer being required to return the bill of lading should he fail to honour the bill of exchange. If the buyer defaults, the seller retains property in the goods by virtue of s.19(3) of the Sale of Goods Act 1979: [13]

"Where the seller of goods draws on the buyer for the price, and transmits the bill of exchange and bill of lading to the buyer together to secure acceptance or payment of the bill of exchange, the buyer is bound to return the bill of lading if he does not honour the bill of exchange, and if he wrongfully retains the bill of lading the property in the goods does not pass to him."

While retention of the property no doubt protects the seller against the bankruptcy of the buyer who remains in possession of the bill of lading, s.19(3) gives no protection against a fraudulent buyer who uses the bill of lading to re-sell the goods. Because the fraudulent buyer is regarded as being in possession of the documents of title with the consent of the seller, the seller's property does not avail against the sub-buyer. In Cahn v. Pockett's Bristol Channel Steam Packet Co. Ltd., [14] the sellers shipped copper on the defendant's ship and sent bills of lading and a draft to buyers who were insolvent. The buyers did not accept the draft but did transfer bills of lading to the plaintiffs, who took them in good faith. The Court of Appeal held that the plaintiffs had obtained good title to the copper under s.25(2) of the Sale of Goods Act 1893, read in conjunction with s.2 of the Factors Act 1889. [15] The sellers also attempted to stop the goods in transitu, but the plaintiffs were held protected against this action also by section 47 of the Sale of Goods Act 1893. [16]

Another example is Lloyds Bank v. Bank of America National Trust and Savings Association, [17] where a bank's special legal title as pledgee did not prevail against a second bank, the first bank having released the documents of title to its customer, who had fraudulently pledged them a second time and disappeared without reimbursing the plaintiff bank. In cases like this, however, even though the victim may lose title to the goods, he might be able to trace the proceeds of sale, and since (at any rate in the documentary credit situation) the fraudster is an agent of the victim, and hence a fiduciary, equitable tracing rules ought to allow tracing into mixed accounts. However, any third party who has given consideration for the proceeds and has no knowledge of the victim's rights will take free of them. Also, the equitable action being a proprietary rather than a personal claim, is available only against someone still in possession of the victim's property. [18]

The bank which obtains the protection of a trust receipt is in a better position, since it becomes equitable owner of the goods and, once they have been sold, the proceeds of sale. There is therefore a trust of the proceeds, and in addition to being able to trace these in equity, the bank can proceed against third parties who knowingly receive the trust property, or who knowingly assist in the breach of trust by the fraudster. The liability of the knowing receiver or knowing assister, being a personal liability, does not depend on his continued retention of the property, and knowing receipt and knowing assistance can therefore be valuable actions even if none of the proceeds are traceable, and the fraudster has disappeared.

To be liable for knowing receipt the defendant must have received the property for his own purposes (the action failed in Agip Africa v. Jackson against a bank, which had opened an account into which the victim's money had been placed). Constructive knowledge of the victim's rights is also necessary, a more rigorous requirement than the constructive notice doctrine which (except to the extent that it has been curtailed by legislation) applies to conveyancing transactions. [19] There is however no requirement for dishonesty.

For liability for knowing assistance to arise, it is not even necessary for the defendant to have received the trust property. There is however a dishonesty requirement (hence failed in Belmont). However, it is not necessary for the defendant to know the exact nature of the fraud. In Agip Africa the action succeeded against the money launderers' accountants, who may have believed only that they were participating in an illegal currency transaction, contrary to the exchange control laws of Tunisia.

The relationship between common law and equitable tracing, and knowing is well illustrated by the Agip Africa case. The plaintiff company's chief accountant (Mr Zdiri) fraudulently altered payment orders which had been signed by an authorised signatory of the plaintiff, altering the name of the payee to that of a company (Baker Oil), of which the defendants were directors and shareholders. The forged payment order (for over $US half a million) was taken to the Banque du Sud in Tunis, which debited the plaintiff's account and sent telexed instructions to a London bank (Lloyds) to credit the account which Baker Oil had there. The Banque du Sud also instructed its correspondent bank (Citibank) in New York to reimburse Lloyds with an equivalent sum. However, Lloyds credited Baker Oil before themselves being reimbursed by Citibank.

Baker Oil subsequently disposed of all but about $US 45,000, but the plaintiffs attempted to trace the entire amount received by Baker Oil at common law. The Court of Appeal held that the money could not be traced at common law, since the money received by Baker Oil could not be identified as the plaintiffs' property. The plaintiffs succeeded, however, in an equitable tracing claim, but only for the $US 45,000 remaining in the hands of Baker Oil. A knowing receipt claim failed for the reasons already elaborated, but a claim for knowing assistance succeeded, again for the full amount of the fraud.

As was observed at the beginning of this paper, an investigator needs to be aware of all possible legal liabilities in order to be most effective. Even if an action against the fraudster himself looks hopeless, there may be other possible defendants. The victims in Discount Records probably had a contractual action against the issuing bank; those in Rasnoimport v. Guthrie successfully sued the loading broker, those in Manchester Trust the shipowners; those in Banque Belge the mistress; those in Agip Africa the accountants. Even Shell in The Salem were compensated for most of their loss. In a sense, of course, this simply shifts the loss to another victim, who will then himself look to sue the fraudster, or to shift the loss further.

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Litigation: procedural issues.

Mareva, Anton Piller, Jurisdictional issues

Where it is proposed to take action against anyone connected in any way with the fraud, he is unlikely to leave his assets intact in an English bank account to be paid out to the victim who brings a successful action. However, there are procedural devices which can help plaintiffs.

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The Mareva injunction

The Mareva injunction is a form of interlocutory relief, whose object is to prevent the defendant from removing his assets out of the jurisdiction, or otherwise dealing with them, until the action pending against him has been tried by a court. Although the original basis of the Mareva injunction was obscure, like the Anton Piller order considered below, that courts' jurisdiction now has a clear statutory footing, under the Supreme Court Act 1981, s.37 (powers of High Court with respect to injunctions and receivers), subsections 1 and 2 of which are as follows:

(1) The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so.

(2) Any such order may be made either unconditionally or on such terms and conditions as the Court thinks just.

The name Mareva comes from the case of Mareva Compania Naviera S.A. v. International Bulk Carriers S.A. [20] (although this is not in fact the first reported case in which the order appears). In Mareva itself, the plaintiffs were shipowners who time-chartered their ship, The Mareva, to the defendants. The hire was to be paid in instalments, but after the third instalment the defendant defaulted and claimed to repudiate the contract. The plaintiffs were afraid that the defendant would remove his assets from the jurisdiction before the plaintiffs' claim could be heard.

Since the Mareva injunction is a form of interlocutory relief, the courts are reluctant to allow themselves to be drawn into attempting to make a lengthy and detailed assessment of the strengths and weaknesses of the applicant's case at trial. Nonetheless, before a Mareva injunction can be granted, the plaintiff must satisfy tests which are far more stringent than the American Cyanamid tests which are ordinarily applicable to interlocutory injunctions, the requirements being summarised by Rattee J (whose views on the grant of the injunction were upheld in the Court of Appeal) in Re BCCI (No.9): [21]

As has been said again recently by the Court of Appeal, there are three issues on which the court has to be satisfied before granting a Mareva injunction: (i) has the applicant a good arguable case; (ii) has the applicant satisfied the court that there are assets within and, where an extra-territorial order is sought, without the jurisdiction; and (iii) is there a real risk of dissipation or secretion of assets so as to render any judgment which the applicant may obtain nugatory?

Thus, the applicant must show a good arguable case, not merely (as in American Cyanamid) that there is a serious issue to be tried. [22] The second requirement, that the applicant must show that there are assets within the jurisdiction, are relaxed where a world-wide injunction is sought: see further below). The remedy is personal against the defendant, and is not intended to give the plaintiff security so as to place him in a preferential position in the event of the defendant's bankruptcy.

The last decade or so has seen a number of frauds on a truly international scale, but until recently it was thought that Mareva injunctions were available only to prevent removal of assets from within the jurisdiction. Since the jurisdiction is personal, however, it should not in principle matter where the assets are situated, and it is now clear (in particular from Babanaft International Co S.A. v Basantine [23] and Derby & Co Ltd v Weldon (Nos. 3 & 4)) [24] that Mareva injunctions can be granted on a world-wide basis. However, since in reality anybody with notice of the injunction can be affected by it, it is granted only in exceptional circumstances, and the courts are careful to frame the order so as to protect the position of third parties. In Derby v Weldon (No.1), Parker LJ said: [25]

In [exceptional] it appears to me that there is every justification for a worldwide Mareva, so long as, by undertaking or proviso or a combination of both, (a) oppression of the defendants by way of exposure to a multiplicity of proceedings is avoided, (b) the defendants are protected against the misuse of information gained from the ordinary order for disclosure in aid of the Mareva, (c) the position of third parties is protected. Whether, ultimately, the order in personam will be converted into an order attaching some or all of the assets disclosed will of course depend on (i) the court here giving the plaintiffs leave to proceed in a jurisdiction in which assets have been found and (ii) the decision of the court in such jurisdiction whether to make an order.

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Anton Piller orders

These are a type of interlocutory mandatory injunction which (like the Mareva injunction) now derives its jurisdiction from the general power of the High Court, contained in the Supreme Court Act 1981, s.37, to grant an injunction when it appears 'just and convenient' to do so. The order is named after the case of Anton Piller KG v Manufacturing Processes Ltd, [26] which was the first case where the Court of Appeal approved the use of this kind of order. Anton Pillar received House of Lords approval in Rank Film Distributors Ltd v Video Information Centre. [27]

An Anton Piller order is obtained ex parte (i.e., in the defendant's absence), so as to catch him off his guard, and is used in cases where the court believes there is a danger that he will remove or destroy evidence in the form of documents or moveable property, such as money, papers or illegal copies of films. The evidence need not be the actual subject-matter of the dispute. In addition to ordering the defendant not to move or destroy the evidence, the court may require him to allow the plaintiff to inspect the relevant evidence or property at the defendant's premises. It is not, however, a search warrant, and the defendant is merely required to allow the plaintiff to carry out an inspection of the property.

The order is very powerful and the courts are concerned to protect the interests of the defendant. As Lord Wilberforce observed in the Rank Film case:

Because they operate drastically and because they are made, necessarily, ex parte - i.e. before the persons affected have been heard, they are closely controlled by the court: see the judgment of Lord Denning M.R. in Anton Piller. [28] They are only granted upon clear and compelling evidence, and a number of safeguards in the interest of preserving essential rights are introduced. They are an illustration of the adaptability of equitable remedies to new situations.

Among the safeguards are that the applicant shows a strong prima facie case, that the damage, potential or actual, must be very serious for the applicant, that there is a real possibility that the evidence will be destroyed, and that the injunction would do no real harm to the defendant or his case.

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Jurisdictional issues.

Because of the international nature of maritime fraud, jurisdictional issues frequently arise, and it is necessary to be aware of the English rules in R.S.C. Order 11, and the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (as amended). These issues were dealt with in detail in Grupo Torras S.A. v. Sheikh Fahad Mohammed Al Sabah, [29] and if there is time I will discuss them during the talk itself.

There may also be advantages, of course, in litigating outside the U.K. This is likely to depend on individual circumstances.

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The investigation.

As has already been observed, the investigation will generally be external. Among the techniques described by Huntingdon are: [30]

1. Records maintained by the register of companies, from which can be obtained names and addresses of directors, professional advisers and bankers.

2. Surveillance techniques of individuals, whose behaviour may indicate recent sudden enrichment. It may also be useful to observe meetings, places, etc.

3. Immigration department records (if access available) to show access to and egress from countries.

4. Travel agent records, hotel registers, car hire receipts, etc.

5. Communication company records (for telexes, etc.).

The purpose of any investigation needs to be borne in mind at all times, which will usually be to identify the whereabouts of traceable assets and then to move quickly to freeze them before they can be dissipated by the fraudster or an accomplice.

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Footnotes

1. In his book, Fraud: Prevention and Detection, Butterworths (1992), Ian Huntington, who is a chartered accountant and a partner in KPMG Peat Marwick notes (at p.51):

"Fraud investigations are concerned with the law and litigation as much as with (and arguably more than) the measurement of the financial consequences of fraud; ... It can be seen, therefore, that the fraud investigator needs not only the skills and technique to discover facts which have been deliberately concealed, but also a clear understanding of the legal context in which he must work and the processes which may help or hinder him."

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2. The history of maritime fraud over about the last two decades is related by Barbara Conway, Maritime Fraud, Lloyd's of London Press (1990).

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3. [1975] 1 W.L.R. 315; [1975] 1 All E.R. 1071; [1975] 1 Lloyd's Rep. 444.

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4. Or at any rate, documents which were eventually accepted as conforming by an official of the plaintiffs: [1975] 1 All E.R. 1071, at p.1073b.

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5. See also U.C.M. v. Royal Bank of Canada, and on the question of the circumstances in which an ex parte injunction should be issued which prohibits a bank from paying under an irrevocable letter of credit, Bolivinter Oil S.A. v. Chase Manhattan Bank [1984] 1 Lloyd's Rep. 251, [1984] 1 All E.R. 351.

It is probable, however, that these authorities do not apply where the bill of lading tendered is a nullity, for example the bill of lading in Heskell v. Continental Express Ltd. [1950] 1 All E.R. 1033, where no goods were shipped, or the more extreme case where the bill of lading is a forgery, and neither ship nor cargo exist. This was apparently what happened in Etablissement Esefka International Anstalt v. Central Bank of Nigeria [1979] 1 Lloyd's Rep. 445, where apparently conforming documents were tendered in respect of 94,000 tonnes of cement said to be aboard eight vessels, although there was considerable doubt whether the vessels ever existed. However, if the buyer does not find out in time in such cases, and pays against apparently good documentation, his position is very poor. If the obligation to insure is on the seller (as in a c.i.f. contract) and all the documents are forgeries, then the buyer obtains nothing at all, since obviously there will be no valid insurance policy. Nor, of course, does the bank obtain any security for its advance. However, since no consideration will have moved from the seller, it may be possible to trace the money paid at common law, on the principles discussed in Lipkin Gorman v. Karpnale Ltd. [1991] 2 A.C. 548.

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6. [1969] 2 Q.B. 158, [1969] 2 W.L.R. 673, [1969] 2 All E.R. 119.

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7. [1966] 1 Lloyd's Rep. 1.

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8. [1895] 2 Q.B. 282.

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9. Instead, they successfully sued the shipowners on the bill of lading contract. Presumably a conversion action against the charterers would have been useless.

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10. [1983] 2 A.C. 375, [1983] 2 W.L.R. 371, [1983] 1 Lloyd's Rep. 342, [1983] 1 All E.R. 745.

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11. The South African Strategic Fuel Fund Association (S.F.F.).

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12. Shell in fact claimed unsuccessfully on their marine insurance policy, but eventually recovered most of their losses from the S.F.F.

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13. Re-enacting the 1893 provision, which itself (as a codifying provision) did no more than to enact the House of Lords decision in Shepherd v. Harrison (1871) L.R. 5 H.L. 116.

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14. [1899] 1 Q.B. 643 (C.A.).

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15. Section 25(2) of the 1893 Act has been re-enacted as s.25(1) of the 1979 Act, and is similar to section 9 of the Factors Act 1889. It allows a buyer in possession of the goods or documents of title with the consent of the owner to pass good title to any person receiving them in good faith.

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16. This section (which was re-enacted without alteration in the Sale of Goods Act 1979, and which is similar to section 10 of the Factors Act 1889) operates to defeat the seller's rights of lien and stoppage in transit where a document of title to goods has been lawfully transferred to any person as buyer or owner of the goods, and that person transfers the document to a person who takes it in good faith for valuable consideration. The crucial point in the Court of Appeal was again that the buyer was in possession of the bill of lading with the consent of the sellers, in spite of s.19(3).

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17. [1938] 2 K.B. 147.

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18. Common law tracing of proceeds is limited, and is not available where the proceeds get paid into a mixed bank account (Agip (Africa) Ltd v Jackson [1991] Ch 547, [1991] 3 WLR 116, [1992] 4 All ER 451), nor where a recipient has given consideration. However, where they remain unmixed they can be traced into the hands of a donee, as in Banque Belge pour L'Etranger v. Hambrouck [1921] 1 KB 321, where they were traced into the bank account of the fraudster's mistress, Mlle. Spanoghe, or where the common law does not recognise the services provided as valid consideration, as in Lipkin Gorman v. Karpnale Ltd. [1991] 2 A.C. 548, where the defendant was a casino.

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19. See, e.g., Eagle Trust plc v. SBC Securities Ltd. [1992] 4 All E.R. 488; Polly Peck International plc v. Nadir (No.2) [1992] 4 All E.R. 769.

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20. [1975] 2 Lloyd's Rep. 509.

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21. [1994] 3 All E.R. 764.

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22. This was one of the reasons why the injunction was not granted in Etablissement Esefka International Anstalt v. Central Bank of Nigeria [1979] 1 Lloyd's Rep. 445.

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23. [1990] Ch. 13.

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24. [1990] Ch. 65.

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25. [1990] Ch. 48, at p.57.

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26. [1976] 2 W.L.R. 162.

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27. [1982] A.C. 380.

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28. [1976] Ch. 55, 61.