Congimex Companhia Geral de Comercio Importadora e Exportadora S.A.R.L. v Tradax Export S.A.
|England & Wales
|THE MASTER OF THE ROLLS
|18 November 1982
|Judgment citation (vLex)
| EWCA Civ J1118-2
|Court of Appeal (Civil Division)
|18 November 1982
 EWCA Civ J1118-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE STAUGHT0N)
Royal Courts of Justice.
The Master of The Rolls
(Sir John Donaldson)
Lord Justice Watkins (Not Present)
Lord Justice May
MR. ROGER BUCKLEY, Q.C. and MR. IAIN MILLIGAN (instructed by Messrs. Middleton Potts & Co.) appeared on behalf of the Appellants.
MR. R. NEVILLE THOMAS, Q.C. and MR. C. RUSSELL (instructed by Messrs. William A. Crump & Sons) appeared on behalf of the Respondents.
For the reasons set out in my own written judgment, which has been handed to counsel, this appeal will be dismissed. I understand that Lord Justice May agrees, and Lord Justice watkins authorises me to say that he also agrees.
This is a GAFTA appeal with a difference. It relates to import controls in Portugal in 1975 instead of to export controls in the United States in 1973.
The full story is admirably set out in the judgment of Mr. Justice Staughton and I need only refer to the salient facts. In July and November 1974 the appellants agreed to buy quantities of U.S./Brazilian soya bean-meal c.i.f. Lisbon free out. The contracts were on GAFTA Form 100 and were governed by English law. They were not classic c.i.f. in that they provided for an adjustment in the price upon the basis of delivered weights and, consistently with this, further provided that weighing and sampling should take place at the time and place of discharge at the port of destination, i.e. Lisbon (see clauses 16 and 17).
At the time when the contracts were made, the buyers were importers of 80 per cent of the soya beanmeal required by the Portuguese market and about 95 per cent of their supplies were obtained from the sellers with whom they had been trading for more than five years. The sellers knew that at least some of the soya beanmeal would be sold on to other Portuguese importers and that the buyers would generally require those importers to pay the sellers directly, any difference being settled between the sellers and the buyers. Imports and payment for them were subject to licensing and exchange controls, but the buyers had never been refused a permit and applications generally produced a permit within two days. Indeed it had been known for applications to be made and a permit granted whilst the vessel concerned was actually discharging in the port of Lisbon.
The sellers would not necessarily have been aware of the detailed operation of this scheme, but they would certainly have been aware that there was some import licensing and exchange control system in operation in Portugal. However, so far as they were concerned, this would have been entirely a matter for the buyers. The contracts themselves made no reference to these matters or to the buyers undertaking specific obligations with reference to impart permits or obtaining foreign exchange.
The blow fell when, at the beginning of January 1975, the Portuguese government decided that in future the sole importer of soya beanmeal should be IAPO, a state enterprise. Thereafter the buyers were unable to obtain a licence to import soya beanmeal or to obtain foreign currency to pay for such soya beanmeal. Indeed they could not even use foreign currency held by them abroad in payment for soya beanmeal destined for Portugal.
In these circumstances the buyers claimed that the contracts were frustrated and the dispute was referred to arbitration in accordance with the GAFTA rules. The umpire found partly in favour of the sellers and partly in favour of the buyers. Predictably both parties appealed to the board of appeal of GAFTA which stated it3 award in the form of a special case...
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