Bunge G.m.b.H. v Alfred C. Toepfer
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE WALLER,LORD JUSTICE EVELEIGH |
| Judgment Date | 02 February 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J0202-10 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 February 1979 |
[1979] EWCA Civ J0202-10
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(On Appeal from Order of Mr. Justice Brandon - Sitting as an Additional Judge of the Queen's Bench Division)
(Revised)
Lord Justice Megaw
Lord Justice Waller and
Lord Justice Eveleigh
In the Matter of the Arbitration Act 1950
And In the Matter of an Arbitration
Mr. NICHOLAS MERRIMAN (instructed by Messrs. William A. Crump & Son) appeared on behalf of the Appellants (Applicants).
Mr. KENNETH ROKISON, Q.C. and Mr. CHRISTOPHER RUSSELL (instructed by Messrs. Richards Butler & Co.) appeared on behalf of the Respondents (Respondents).
(without calling upon Counsel for the Respondents)
This is an appeal brought by Messrs. Bunge G.m.b.H., who were the sellers under a contract for the sale of soya bean meal. The respondents, who were the buyers in that contract are Alfred C. Toepfer. The appeal arises out of a Case stated by the Board of Appeal of the Grain and Feed Trade Association of 21st June, 1977.
I do not propose to take time or to cause waste of effort or paper in going through the facts, or the contents of the Award, because, for anybody who is interested to see them, they are set out in the judgment of Mr. Justice Brandon (as he then was) from which this appeal is brought, which has been reported, under the name of Bunge v. Toepfer, in (1978) 1 Lloyds Law Reports 506.
The question which is in issue before us on the appeal is simply as to what was the right date to be taken for the measurement of damages arising from a breach of a contract under which the sellers agreed to sell a quantity of soya bean meal to the buyers. The sellers were in breach of contract. That is not in dispute before us. The question as to the date by reference to which the damages are to be assessed arises but of the provisions of the Contract standard form GAFTA 100, to which this contract of sale was subject. It provides that in the event of default damages are to be assessed by the difference between the contract price and the market price on the date of default. So the question here is, what was the date of default.
The question is important to the parties because at the time when the default took place the market in soya bean meal was in a highly volatile state as regards prices. That was as a result of well-known events in the United States affecting the export of soya bean meal in the early summer of 1973. The buyers assert that therelevant date of default was 10th July. That was, I think, the date at which the market price was at its very highest. The sellers contend that the relevant date should be the 18th or 19th July, by which time the market price had fallen substantially from its highest level.
The Board of Appeal of GAFTA held that the relevant date was 10th July. That date was upheld as being the relevant date by Mr. Justice Brandon. It is now conceded on the part of the buyers, as the result of a decision in the House of Lords since the date of Mr. Justice Brandon's judgment, that instead of the 10th July the buyers, if they are in other respects right, have got to take as the date of assessment the 11th July. That is something conceded and not in issue before us, and to that extent, as I understand it, it is accepted that the appeal has to be allowed. The point, however, put forward by Mr. Merriman on behalf of the sellers was that Mr. Justice Brandon was wrong in taking the 10th (which would now be the 11th) July, and that he ought to have given the sellers another 8 days, so as to move forward the appropriate point of time for the fixing of damages for default for breach of contract so as to become the 18th (or, as it would now be, the 19th) July.
Under the GAFTA contract there were sent by the sellers to the buyers various telexes comprising, or purporting to comprise, notices. One of those telexes was a telex sent on 3rd May, 1973, which, it is said, and for the purposes of this appeal I am content to assume, as Mr. Justice Brandon was content to assume, was intended by the sellers to be the giving of the notice under clause 9 of the GAFTA 100 Contract, which would have involved the extension of the shipment period by 8 days. So that goods which were to be shipped on bills of lading dated not later than 30th April would become goods which had to be shipped...
To continue reading
Request your trial