Bunge G.m.b.H. v C.C.v Landbouwbelang G.A.
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSKILL,LORD JUSTICE ORMROD,SIR DAVID CAIRNS |
| Judgment Date | 28 June 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J0628-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 June 1979 |
[1979] EWCA Civ J0628-2
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice
Lord Justice Roskill
Lord Justice Ormrod
Sir David Cairns
In the Matter of the Arbitration Act 1950 and
In the Matter of an Arbitration
MR. B. A. RIX (instructed by Messrs. William A. Crump & Son) appeared on behalf of the Appellants.
MR. M. J. MOORE-BICK (instructed by Messrs. Richards, Butler & Co.) appeared on behalf of the Respondents.
Mr. Rix has said everything that can be said on behalf of the appellants, but in my judgment the learned judge, from whom this appeal has been brought, clearly reached the right conclusion.
The appeal itself is somewhat stale, because Mr. Justice Donaldson's judgment was given as long ago as 19th October 1977; but the hearing of the appeal was delayed because, at the time that the learned judge gave his judgment, the well-known case of Bremer Handelsgesellschaft v. Vanden Avenne-Izegem PVBA was pending before the House of Lords. Their Lordships gave their decision on 18th May last year. That decision is reported in (1978) 2 Lloyd's List 109.
Many of the points which have been argued in this massive number of GAFTA cases at different levels have now disappeared from the scene. Indeed, as a result of the decision of the House of Lords, some of the points argued before Mr. Justice Donaldson in this case have disappeared.
We are left with three points which have been argued succinctly. But before I deal with those three points, I must say something about the background to the present dispute, which is between buyers and sellers of a quantity of soya bean meal. Bunge, as sellers, sold to the buyers this meal under a contract entered into in Hamburg on 19th December 1972. That contract was for a total quantity of 1,800 tons of 1,000 kilos each; and the short form of contract provided that the delivery was to be in six instalments of 300 each in April, May, June, July, August and September 1973; the contract price being 158 US dollars per ton of 1,000 kilos delivered weight CTF Rotterdam.
The events which led to this mass of litigation, which has occupied much of the time of our courts during the last four orfive years, need no repetition. Suffice it to say that, following disastrous Mississippi floods, an embargo was placed on the export of soya beans by the US Government. The contract price was, as I have just said, 158 US dollars per ton at the time this contract was entered into, but by 10th July 1973 the market price had risen to $635 per metric ton. That price fell the very next day to $585 per metric ton and therefrom went down still further, so that by 18th July it was $475 per metric ton. Then it rose again slightly the following day, on 19th July, to $490. Of course, the disturbance to the market caused by this sudden ban on exports by the US Government was immense: as a result prices fluctuated violently and this litigation has resulted.
As I have already indicated, we are only concerned here with the June instalment of 300 tons, and the sellers have claimed damages from the buyers in respect of the whole of that quantity. The Board, of Appeal of GAFTA and the learned judge have both reached the conclusion that the buyers are entitled to damages on that quantity of 300 tons. There was, of course, in many of these cases and, indeed, in the present case a dispute about the date of default but, in the light of the decision of the House of Lords, it is clear that the relevant date is July 11th and not July 10th, and that is now not susceptible of further argument.
But it is argued by Mr. Rix that the sellers, contrary to the views of the Board of Appeal of GAFTA and the learned judge, are under no liability at all to the buyers. The answer to this question depends, in my judgment, upon the construction of some telexes and, in particular, of one telex of 11th July 1973.
But, before reading that telex, it is necessary that Ishould recall that the short form of contract incorporated the well-known GAFTA Form 100. Clause 10 of Form 100 under the heading "APPROPRIATION" reads:
"(a) Notice of Appropriation stating the vessel's name and the approximate weight shipped shall within (i) 10 consecutive days if shipped from the U.S. Gulf and/or U.S. and/or Canadian Atlantic/Lake Ports, (ii) 14 consecutive days if shipped from any other port, from the date of the Bill (s) of Lading be despatched in accordance with sub-clause (e) by or on behalf of the Shipper direct to the first Buyer or to the Selling Agent or Broker named in the contract.
"(b) Notice of Appropriation stating the vessel's name and the approximate weight shipped, shall, within the period stated in sub-clause (a) be despatched in accordance with sub-clause (e) by or on behalf of each subsequent Seller to his Buyers or to the Selling Agent or Broker named in the contract, but if Notice of Appropriation is received by a subsequent Seller on or after the period stated in sub-clause (a) from the date of the Bill of Lading, his Notice of Appropriation shall be deemed to be in time if despatched:- (1) On the same calendar day, if received not later than 1600 hours on any business day. (2) Not later than the next business day, if received after 1600 hours or on a Non-Business Day." I need not read (e) in full; it is dealing with the machinery for giving Notices of Appropriation.
We are not here concerned with a seller who was a shipper, and therefore we are not concerned with 10(a). We are, however, concerned with 10(b), and that required the Notice of Appropriation to be given within the period stated in sub-clause (a), that is, the shipper clause, and that period, since this was a US shipment port, had to be within 10 consecutivedays from the date of the Bill of Lading. That obligation was not, of course, complied with but, in the case of sellers who are not shippers, there is an escape provision (if I may use that phrase) in that, if a Notice of Appropriation is received by a seller lower down the string than the shipper on or after the "10 days from the date of the Bill of Lading, then his Notice of Appropriation is deemed to be in time if it is timeously...
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