Incidental to the case of The Brimnes, Tenax Steamship Co. Ltd. v. The Brimnes (Owners) [1972] 2 Lloyd’s Rep. 465, there has emerged a decision as to when payment made by telex is effected. The case concerned primarily the withdrawal of a chartered vessel because of late remittance of hire monies which was held to be justified both in the first Court and on Appeal. The actual time of payment could have been material had the Court taken a different view regarding the facts and law concerning the charter and for this reason was examined specifically. For bankers — especially in these days of volatile exchange markets — the time a payment is effected is very significant. In the particular case there were two methods of payment of the hire — by cheque and by telex. It was not disputed that payment by cheque was achieved when the cheque was received — albeit that such payment is conditional1 pending its being honoured. It was, however, where payment was by telex, the more usual method, that examination by the Court was necessary. It was held that payment was made when the bank receiving the instruction decided to debit the item to the account of the remitting agent. In this instance Hambros Bank in London had remitted the hire money by telegraphic transfer to Morgan Guaranty Trust in New York for the credit of the shipowners’ account. Leave has been given for appeal to the House of Lords but the unanimity indicates that the decision regarding the time of payment is unlikely to be disturbed.

A consequence will be even greater consciousness by bankers of their need to be aware of time. This has arisen currently as a result of attempts from New York to make payments “subject to recall within twenty-four hours” a reservation that was speedily declined by the London Market. Further concern has been engendered as a result of the Herstatt failure. It may, of course, be easy to say that payment of a telegraphic transfer was effected on a particular day “during business hours” or “before the close of business” but, to indicate a particular time, is normally an inquiry about which a busy banker will be very hesitant to commit himself. In the Brimnes case, for example, the sequence of events in Morgan Guaranty is analysed beginning with the receipt of the telex and ending with the night operating computers. A presumption is made as to when the decision was taken, but in most cases there will be an element of speculation involved. Litigation as to the evidence available will involve dispute as to fact as well as to law solely because of the difficult presumptions that have to be made as to the time of decision. That the result of the case is inconvenient is, of course, no justification for its being