Supreme Court A
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The following additional cases were cited in argument before the Supreme Court:
D
Clough Mill Ltd v Martin [1985] 1 WLR 111; [1984] 3 All ER 982, CA
Demby Hamilton & Co Ltd v Barden [1949] 1 All ER 435
Hollis Bros & Co Ltd v White Sea Timber Trust Ltd [1936] 3 All ER 895; 56 Ll L Rep
78
Pordage v Cole (1668) 1 Saund 319l
The following cases are referred to in the judgment of Moore-Bick LJ in the Court of
E
Appeal:
Armour v Thyssen Edelstahlwerke AG 1986 SLT 452; 1989 SLT 182, Ct of Sess;
[1991] 2 AC 339; [1990] 3 WLR 810; [1990] 3 All ER 481; [1991] 1 Lloyds Rep
95, HL(Sc)
Arnold v Britton [2015] UKSC 36; [2015] AC 1619; [2015] 2 WLR 1593; [2016]
1 All ER 1, SC(E)
Borden (UK) Ltd v Scottish Timber Products Ltd [1981] Ch 25; [1979] 3 WLR 672; F
[1979] 3 All ER 961; [1980] 1 Lloyds Rep 160, CA
Chaigley Farms Ltd v Crawford, Kaye & Grayshire Ltd (trading as Leylands) [1996]
BCC 957
Clough Mill Ltd v Martin [1985] 1 WLR 111; [1984] 3 All ER 982, CA
Rowland v Divall [1923] 2 KB 500, CA
The following additional cases were cited in argument before the Court of Appeal: G
Barber v NWS Bank plc [1996] 1 WLR 641; [1996] 1 All ER 906, CA
Garnac Grain Co Inc v HMF Faure & Fairclough Ltd [1966] 1 QB 650; [1965]
3 WLR 934; [1965] 3 All ER 273; [1965] 2 Lloyds Rep 229, CA
Morris v CW Martin & Sons Ltd [1966] 1 QB 716; [1965] 3 WLR 276; [1965] 2 All
ER 725; [1965] 2 Lloyds Rep 63, CA
Springwell Navigation Corpn v JP Morgan Chase Bank [2010] EWCA Civ 1221; H
[2010] 2 CLC 705, CA
Wilson (FG) (Engineering) Ltd v John Holt & Co (Liverpool) Ltd [2012] EWHC
2477 (Comm); [2013] 1 All ER (Comm) 223; [2012] 2 Lloyds Rep 479; [2013]
EWCA Civ 1232; [2014] 1 WLR 2365; [2014] 1 All ER 785; [2014] 1 All
ER (Comm) 393; [2014] 1 Lloyds Rep 180, CA
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A The following additional cases, although not cited, were referred to in the skeleton
arguments before the Court of Appeal:
Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676;
[1976] 2 All ER 552; [1976] 1 Lloyds Rep 443, Mocatta J and CA
Angara Maritime Ltd v Oceanconnect UK Ltd (No 2) [2010] EWHC 619 (QB);
[2011] 1 Lloyds Rep 61
Astro Exito Navegacion SA v Southland Enterprise Co Ltd (No 2) [1982] QB 1248;
B [1982] 3 WLR 296; [1982] 3 All ER 335, CA
Castle v Playford (1872) LR 7 Ex 98
Colley v Overseas Exporters [1921] 3 KB 302; 8 Ll L Rep 127
Dunlop v Grote (1845) 2 Car & K 153
Forsythe International (UK) Ltd v Silver Shipping Co Ltd (The Seatta) [1994] 1 WLR
1334; [1994] 1 All ER 851; [1993] 2 Lloyds Rep 268
Fragano v Long (1825) 4 B & C 219
C Harry & Garry Ltd v Jariwalla (unreported) 16 June 1988; [1988] CA Transcript
No 516, CA
Hill (Christopher) Ltd v Ashington Piggeries Ltd [1972] AC 441; [1971] 2 WLR
1051; [1971] 1 All ER 847; [1971] 1 Lloyds Rep 245, HL(E)
Manbre Saccharine Co Ltd v Corn Products Co Ltd [1919] 1 KB 198
Martineau v Kitching (1872) LR 7 QB 436
Minister for Supply and Development v Servicemens Co-operative Joinery
D Manufacturers Ltd (1951) 82 CLR 621
Otis Vehicle Rentals Ltd v Cicely Commercials Ltd [2002] EWCA Civ 154, CA
Rainy Sky SA v Kookmin Bank [2011] UKSC 50; [2011] 1 WLR 2900; [2012]
Bus LR 313; [2012] 1 All ER 1137; [2012] 1 All ER (Comm) 1; [2012] 1 Lloyds
Rep 34, SC(E)
Shell-Mex Ltd v Elton Cop Dyeing Co Ltd (1928) 34 Com Cas 39
Span Terza, The (No 2) [1984] 1 WLR 27; [1984] 1 Lloyds Rep 119, HL(E)
E Stein Forbes & Co v County Tailoring Co (1916) 115 LT 215
Warman v Southern Counties Car Finance Corpn Ltd [1949] 2 KB 576; [1949] 1 All
ER 711
White and Carter (Councils) Ltd v McGregor [1962] AC 413; [1962] 2 WLR 17;
[1961] 3 All ER 1178; 1962 SC (HL) 1, HL(Sc)
Young v Bristol Aeroplane Co Ltd [1944] KB 718; [1944] 2 All ER 293; 78 Ll L Rep
6, CA
F
APPEAL from Males J
By a claim form led on 5 May 2015 the owner and the manager
respectively of the vessel Res Cogitans, PST Energy 7 Shipping LLC and
Product Shipping & Trading SA (both limited liability companies formed in
the Marshall Islands and collectively the owners), applied under
section 69(2)(b) of the Arbitration Act 1996 for leave to appeal against the
G award dated 15 April 2015, issued by a tribunal consisting of Mr David
Farrington, Mr Kinnell QC and Mr Bruce Harris, on questions of law arising
out of a contract for the supply of bunkers to the vessel by the rst supplier,
OW Bunker Malta Ltd. The rst suppliers bank, ING Bank NV, which was
also a party to the arbitration, asserted a right to recover, as assignee, any
debt owed by the owners to the rst supplier in respect of that supply. The
questions of law raised by the appeal were, among others, whether (i) the
H
contract between the owners and the rst supplier in respect of the bunker
supply was a contract of sale of goods within the meaning of the Sale of
Goods Act 1979; (ii) the implied terms pursuant to section 12 of the 1979
Act applied to the contract; (iii) if the contract was not a contract of sale
within the 1979 Act, the eect on the owners claim was none as found by
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A account facts and matters which had arisen after the formation of the
contract, and in particular he had concluded that, since there was likelihood
of any agreement to sell not maturing into a sale, the parties had never
intended to enter into an agreement to sell; (5) the judge had impermissibly
let the question of what remedy might be available to the rst supplier
inform his conclusion as to whether the contract was within the 1979 Act;
B
and (6) if the judge had been correct in holding that the 1979 Act did not
apply to the contract, he had been in error in holding that terms identical or
equivalent to those under section 12, and in particular section 12(1), would
not have been implied into the contract.
On 9 September 2015 the third supplier, Rosneft Marine (UK) Ltd, was
granted permission by the Court of Appeal (Vos LJ) to le written
submissions.
C By a respondents notice dated 24 July 2015 the rst supplier asked the
court to uphold the judges decision on dierent or additional grounds,
principally that (1) if, contrary to the judges analysis, the contract was one
of sale of goods within the 1979 Act, it was such only in relation to bunkers
which remained unconsumed on payment and at the end of the credit period;
and (2) section 49 of the 1979 Act was not exhaustive, and FG Wilson
D (Engineering) Ltd v John Holt & Co (Liverpool) Ltd [2014] 1 WLR 2365
had been wrongly decided and was not binding on the court.
At the hearing the court dealt only with questions raised by the owners
appeal.
The facts are stated in the judgment of Moore-Bick LJ.
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provided for payment to be made 30 days after delivery and also included a A
retention of title clause. It did not, however, expressly allow the owners to
use the bunkers for the purposes of the propulsion of the vessel pending
payment.
3 On 6 November 2014 OWBAS announced that it was applying to the
court in Aalborg for restructuring. The commencement of those proceedings
constituted an event of default under a nancing agreement which the group
B
had entered into with the second respondent, ING Bank NV (ING), and as
a result, ING asserted a right to recover as assignee the debt, if any, owed by
the appellants to OWBM in respect of the supply of the bunkers.
4 On 17 November 2014 RMUK, having become aware that it might
not receive payment from OWBAS, asserted that it remained the owner of
the bunkers and indicated that it would seek payment from the appellants,
who are the owners and managers respectively of the vessel. (Since their C
positions are the same as far as the present proceedings are concerned, I shall
refer to them together simply as the owners.) The owners have paid
neither OWBM nor RMUK. Part of the bunkers supplied to the vessel at
Tuapse had been consumed in the propulsion of the vessel by the time the 30-
day period of credit allowed under RMUKs terms expired and the whole of
them had been consumed for that purpose by the time the 60-day period of
D
credit allowed under OWBMs terms expired.
5 In early December 2014 the owners began arbitration proceedings
against OWBM and ING seeking a declaration that they were not bound to
pay either of them for the bunkers supplied to the vessel at Tuapse, or, in the
alternative, damages for breach of contract, on the grounds that OWBM had
been unable to pass title in the bunkers to them. In the event, the tribunal
agreed to determine as preliminary issues a number of questions formulated E
by the parties. They included the following: (i) whether OWBM had
property in the bunkers at any material time (issue 1); (ii) whether the
retention of title clause in OWBMs terms prevented property in the bunkers
from passing to the owners (issue 3); (iii) whether OWBM could recover the
price of the bunkers under section 49(1) of the Sale of Goods Act 1979 (issue
4); (iv) whether OWBM had any other claim under the contract (issue 6(a));
F
(v) whether the Sale of Goods Act 1979 applied to the contract between
OWBM and the owners (issue 9).
6 By an interim award published on 16 April 2015 the arbitrators
determined all but one of the preliminary issues. They held that the eect of
OWBMs terms, in particular the combination of the retention of title clause
and the clause giving the owners the right to use the bunkers for the
propulsion of the vessel in advance of payment, was that it did not undertake G
to transfer property in the bunkers to them and that therefore the contract
was not one for the sale of goods within the meaning of the 1979 Act. As a
result, OWBM could not recover the price of the goods under section 49 of
the Act, but was entitled to recover the sum due as a simple debt.
7 The owners appealed by agreement of the other parties to the
proceedings in relation to ve questions of law which in one form or another
H
raised the question whether the contract between themselves and OWBM
was a contract for the sale of goods, and therefore subject to the 1979 Act,
and if not, whether it was an implied term of the contract that OWBM
would be able to pass title in the bunkers to them at the time when they were
delivered or consumed.
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only on the question whether OWBM was bound to transfer title in the A
contract goods and would give our decision on that question before deciding
on what, if any, further questions it would be appropriate to hear argument.
Accordingly, this judgment deals only with the questions raised by the
owners appeal. The parties will have an opportunity in due course to make
submissions about the future conduct of the appeal.
13 Before turning to consider the parties submissions on the central B
question before us it may be helpful to refer in a little more detail to the
commercial background and to the salient features of OWBMs standard
terms. For the purposes of their interim award the arbitrators were asked to
assume the existence of a number of facts. They included the following:
6. It is well known in the industry . . . that many bunker suppliers sell
on terms including retention of title clauses along the supply chain . . . C
7. It is well known by shipowners and charterers that suppliers of
bunkers are frequently sub-sellers, and that the terms on which bunkers
are sold frequently include retention of title clauses . . .
18. RMUK was aware that the OWB [terms and conditions] would
include or were likely to include both a retention of title clause and an
express provision that, prior to payment, owners would be in possession
of the bunkers as bailee[s] and would not be entitled to consume them D
other than for the propulsion of the vessel.
19. RMUK was aware that OWB Malta was supplying the bunkers to
the vessel for consumption.
20. RMUK was aware that the bunkers might be being purchased for
immediate use and might accordingly be wholly or partly consumed
during the period of 30 days credit which RMUK had granted to E
OWBAS. Such consumption might also occur before the expiry of any
contractual credit period agreed between owners and (the relevant) OWB
company. This happened in respect of the present stem the subject matter
of this arbitration.
14 The standard terms and conditions of the OW Bunker group, on
which OWBM contracted with the owners in this case, are described as F
terms and conditions of sale for marine bunkers and are couched in
language redolent of a contract for the sale of goods. In particular, the
parties are described as seller and buyer respectively and there are
references to sale and purchase. The important terms for the purposes
of this appeal are contained in section H which deals with title. It includes
the following provisions:
G
H Title
H1. Title in and to the bunkers delivered and/or property rights in
and to such bunkers shall remain vested in the seller until full payment has
been received by the seller of all amounts due in connection with the
respective delivery . . .
H2. Until full payment of the full amount due to the seller has been
H
made . . . the buyer agreed [sic] that it is in possession of the bunkers
solely as bailee for the seller, and shall not be entitled to use the bunkers
other than for the propulsion of the vessel, nor mix, blend, sell, encumber,
pledge, alienate, or surrender the bunkers to any third party or other
vessel.
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agreement to sell within the meaning of section 2(1) of the 1979 Act derived A
its force almost entirely from the descriptive language used in OWBs
standard terms, but it paid little heed to their detailed provisions, in
particular those of section H. In support of his argument Mr Cogley drew
our attention to the recent decision in Arnold v Britton [2015] AC 1619, in
which the Supreme Court cautioned against making too free a use of
business common sense and commercial context in order to give to a
B
contract a meaning that its language cannot properly bear. I entirely accept
that it is no part of the courts function in the guise of interpretation to
remake the parties contract in a way that seems to improve its operation or
mitigate unfortunate consequences for one or other party. However, that is
not what the court is being invited to do in this case. The question is simply
whether the characterisation by the parties of the contract as one of sale
adequately reects the substance of the obligations to which it gives rise. C
Just as it is no part of the courts function to remake the parties contract in
the guise of interpretation, so it is no part of the courts function to shoehorn
their contract into a category to which it does not properly belong in order to
impose on them consequences which they did not intend. I agree with the
judge, therefore, that, however the parties have described the transaction, it
is necessary to ascertain what each of them has actually undertaken to do.
D
19 Mr Cogley sought to support his analysis by reference to the position
that would exist if instead of 60 days the period of credit had been 5 days. In
such a case, he argued, only a small proportion, if any, of the bunkers could
be expected to have been consumed before the time for payment arrived and
so the contract would obviously be an agreement to sell with property to
pass on payment. In my view this example is apt to mislead, mainly because
it confuses an agreement to sell the whole contract quantity with an E
agreement to sell only part. Whenever the contract provides that property is
to pass on payment and that anything more than a minimal part of the goods
may be consumed before payment is due, the parties necessarily contemplate
that part of the goods may not exist at that time. In truth, therefore, it is not
an agreement to sell the nominal contract quantity, but an agreement to
sell whatever remains at the time of payment. It may be that in some
F
circumstances, for example, where the parties contemplate that the
overwhelming majority of the goods will continue to exist at the date when
property is to pass, that the ability to transfer property in the remainder will
be of fundamental importance and an inability to do so will amount to a
total failure of consideration or a breach which goes to the root of the
contract, but that is not this case. In some circumstances, therefore, the
commercial context may be of importance in deciding what the parties have G
undertaken to do, but in the present case I do not think it necessary to look
far beyond the terms of the contract themselves, although the commercial
context as set out in the assumed facts supports the conclusion to which, in
my view, the terms of the contract themselves point.
20 The critical terms, in my view, are to be found in the agreement for
60 days credit and in clauses H1 and H2, which provide that property in the
H
bunkers is not to pass until they have been paid for in full but that the owners
have the right to use them for the propulsion of the vessel from the moment
of delivery. In so far as the commercial context has any bearing on the
interpretation of these provisions, it is to be found in the fact that the parties
contemplated that a large part, if not all, of the bunkers would or might be
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unable to do so. That question simply did not arise. I do not consider, A
therefore, that the case supports Mr Cogleys submission. The decision is
important for another reason, however. As Bridge LJ made clear, the resin
ceased to exist when it was incorporated into the new product and property
in it ceased to exist at the same time, because it is not possible to own
something that does not exist: see p 35G. That has serious implications for
Mr Cogleys submission that property in the whole of the bunkers passed to B
the owners at the time of payment, despite their prior consumption.
25 Mr Cogley also referred to other decisions involving retention of title
clauses, in particular, Clough Mill Ltd v Martin [1985] 1 WLR 111, Armour
v Thyssen Edelstahlwerke AG 1986 SLT 452; 1989 SLT 182; [1991] 2 AC
339 and Chaigley Farms Ltd v Crawford, Kaye & Grayshire Ltd [1996]
BCC 957. He submitted that in each of those cases the courts had treated the
contract as one for the sale of goods, despite the existence of a retention of C
title clause and the parties knowledge that the goods would or might be
consumed before payment had been made.
26 In Clough Mill Ltd v Martin [1985] 1 WLR 111 the plainti supplied
a quantity of yarn to a company called Heatherdale Fabrics Ltd on terms
that the goods were to remain its property until paid for in full, although
Heatherdale was granted the power to sell the goods or use them for the D
purpose of manufacturing products. The contract also provided that if any
payment were overdue the plainti could recover or resell the goods and
enter Heatherdales premises for that purpose. When the defendant was
appointed receiver of Heatherdale the plainti informed him that it wished
to repossess the unused yarn and asked to be allowed to collect it. The
defendant refused on the grounds that the retention of title clause amounted
E
to a charge to secure payment and was void for non-registration. On appeal,
this court (Sir John Donaldson MR, Oliver and Robert Go LJJ) held that
property in the yarn had not passed to Heatherdale, which could not
therefore have created a charge in favour of the plainti. Robert Go LJ,
and to a lesser extent Oliver LJ, assumed that the contract under which the
yarn had been supplied was a contract for the sale of goods to which the
1979 Act applied. It was not necessary, however, for the court to consider F
questions of the kind that arise in this case. In particular, the court did not
have to consider an argument that the company was not liable to pay for the
goods it had consumed.
27 In Armour v Thyssen Edelstahlwerke AG the defendant supplied
steel to a manufacturing company under a contract which contained a
retention of title clause. The contract was governed by German law. The G
plaintis, who had been appointed as receivers, brought proceedings against
the supplier seeking a declaration that property in the steel had passed to the
company, despite the fact that payment had not been made. The suppliers
argued that the retention of title clause, which was valid under German law,
was eective to prevent title passing, either because the steel in question had
been in Germany when the contract had been entered into so that German
law was the lex situs, or because the passing of title was governed by German H
law as the proper law of the contract. The receivers agreed that the passing
of property was governed by the lex situs, but argued that, once the goods
reached Scotland, Scots law governed the question and that the retention of
title clause was ineective under Scots law. They also argued that cutting the
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A steel into strips in preparation for use in manufacture had created a new
species of goods, title to which vested in the company.
28 The Lord Ordinary, Lord Mayeld, held 1986 SLT 452 that property
had passed from the supplier to the company, but that in any event the
cutting of the steel into strips in preparation for its use had resulted in the
creation of a new species of goods, title to which vested in the company
which had produced them. The decision was upheld on appeal by the
B
Second Division 1989 SLT 182, although doubts were expressed about the
conclusion that cutting the steel into strips had resulted in the creation of
goods of a dierent nature.
29 In the House of Lords [1991] 2 AC 339 the decision was reversed.
Lord Keith of Kinkel, with whom Lord Griths, Lord Oliver of Aylmerton,
Lord Go of Chieveley and Lord Jauncey of Tullichettle all agreed, referred
C to sections 17 and 19 of the 1979 Act, which concern the time at which
property passes under a contract for the sale of goods, and held that property
passed when the parties agreed that it should pass and therefore not until the
goods had been paid for. When rejecting the proposition that the retention
of title clause made the transaction one in the form of a contract of sale
which was intended to operate by way of security within the meaning of
section 62(4) of the 1979 Act, Lord Keith described the contract as
D
a genuine contract of sale, but he was not addressing the question which
we are required to consider.
30 In the Chaigley Farms case [1996] BCC 957 the plainti supplied live
animals to an abattoir under a contract which contained a retention of title
clause. Both parties contemplated that the animals would or might be
slaughtered before they had been paid for. When receivers were appointed
E over the abattoir the plaintis sought to enforce the retention of title clause
in order to recover the remaining live animals and butchered meat which
they alleged were their property. Garland J held that the clause related only
to live animals and that when they were slaughtered the plaintis title to
them was extinguished.
31 These authorities certainly tend to support Mr Cogleys submission
that the courts have consistently regarded a contract for the sale of goods
F
which contains a retention of title clause as a contract of sale falling within
the scope of the 1979 Act, even in cases where the buyer is given a licence to
use or dispose of the goods before he has paid for them. However, as the
judge pointed out, in none of those cases was the court concerned with the
question whether the contract provided for property to pass retrospectively
at a time when the goods or part of them had ceased to exist. The judge
G regarded Armour v Thyssen [1991] 2 AC 339 as authority for the
proposition that a contract of sale containing a retention of title clause can
fall within the 1979 Act, but he noted that it was not a case in which the
goods had been or were likely to be consumed in a manufacturing process
before payment fell due and did not consider that it determined the issue he
had to decide. Mr Cogley submitted that he ought to have regarded the
decision as binding authority for the proposition that a contract of this kind
H
is always to be regarded as an agreement to sell the whole of the contract
quantity, with the consequence that unless the seller is able to transfer
property in the goods he cannot recover the price.
32 In the light of these authorities Mr Cogley submitted that the
contract in the present case was properly to be understood as an agreement
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to sell the full contract quantity of bunkers on terms that property was to A
pass on payment, even if they had been consumed in whole or in part by the
time payment fell due. The diculty with that submission, however, is that
in a case such as the present it is no longer possible to transfer property in
goods once they have ceased to exist: see Bordens case [1981] Ch 25; and
even if the goods have been only partly consumed, it is not possible to
transfer title in the whole of the goods covered by the contract. Another B
approach might be to treat the contract as one for the sale of all the goods
with the risk of loss passing to the buyer at the time of delivery, but that does
not assist Mr Cogley either. The consumption of the goods in a manner
contemplated by the contract cannot properly be regarded as loss due to the
occurrence of a risk and in any event the seller can still pass property only in
those goods which remain in existence at the time of payment. Mr Cogley
sought to answer that objection by submitting that, on payment in full, title C
passed retrospectively from OWBM to the owners, alternatively that
OWBM became estopped from denying that property in the bunkers had
been vested in the owners at the time when they were consumed. In my view
that is an articial analysis which reects neither the terms of the contract
nor commercial reality.
33 On this point also I agree with the judge. Whatever label one D
attaches to the contract (and I see nothing incongruous in describing it in
commercial terms as a contract for the sale of goods), its essential nature is in
my view reasonably clear. It is a contract under which goods are to be
delivered to the owners as bailees with a licence to consume them for the
propulsion of the vessel, coupled with an agreement to sell any quantity
remaining at the date of payment, in return for a money consideration which
E
in commercial terms can properly be described as the price. That may not
satisfy the denition of a contract of sale of goods in section 2(1) of the 1979
Act, but there is no reason why the incidents of a contract of sale of goods for
which the Act provides should not apply equally to such a contract at
common law, save to the extent that they are inconsistent with the parties
agreement. The diculties in the present case stem entirely from the owners
attempt to establish that the consideration for the payment of the price was F
the transfer of property in the whole of the goods to which the contract
related, despite the fact that that does not correspond to the express terms of
the contract relating to the use of the goods and the passing of title. The
commercial background and the terms of the contract make it clear that
what the owners contracted for was not the transfer of property in the whole
of the bunkers, but the delivery of a quantity of bunkers which they had an G
immediate right to use but for which they would not have to pay until the
period of credit expired. From the suppliers point of view the retention of
title clause provided an ever diminishing degree of security for the payment
of what was due to them. Since the contract provided for the transfer to the
owners of property in any part of the bunkers remaining at the time of
payment, it was to that extent a contract for the sale of goods to which the
Act, including the implied condition in section 12, applied. A failure to pass H
title to any residue remaining at the time of payment would therefore involve
a breach of contract, but it would not be one which entitled the owners
to treat the contract as a whole as discharged, unless (contrary to all
expectations) it represented such a large proportion of the quantity
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A originally delivered that there could be said to have been a total failure of
consideration.
34 For these reasons I agree with the judge that the transfer of property
in the bunkers from OWBM to the owners was not the essential subject
matter of the contract and that a failure to transfer property in the bunkers,
all of which had been consumed when the period of credit expired, did not
relieve the owners of the obligation to pay for them.
B
Implied term
35 The judge held that as a matter of necessary implication the contract
imposed on OWBM an obligation to ensure that the licence which it gave the
owners to use the bunkers immediately upon delivery was or became binding
on whichever entity in the supply chain was or would become the owner of
C
the goods. Mr Cogley submitted, however, that an implied term to that
eect was unworkable. He argued that if the contract could not be brought
within the 1979 Act, the judge ought to have held that it was subject to an
implied term that OWBM had performed all the obligations arising under its
contract with its own supplier.
36 I have to say that I had some diculty in understanding the precise
D content of the implied term for which Mr Cogley contended. In the grounds
of appeal it is said that the judge ought to have held that the contract was
subject to an implied term equivalent to that contained in section 12(1) of
the 1979 Act, but that imposes on the seller an obligation to ensure that he
has a right to sell the goods at the time when property is to pass. It does not
help one to identify when or in respect of what goods that is intended to
occur. At one point in the course of argument in response to a question from
E
the bench Mr Cogley said that it was an implied term, based on the retention
of title clause, that at the time of delivery of the bunkers OWBM had paid for
them and that title to the goods had passed to it. However, that is plainly not
what the parties contemplated, since it is common knowledge in the industry
that bunkers are normally sold on 30 days credit and no one would have
expected OWBM to pay its own supplier on or before delivery. Later, when
F asked to repeat his submission, Mr Cogley said that it was an implied
condition of the contract that OWBM would comply with its obligations to
the party above it in the chain (in this case OWBAS), in particular by paying
for the goods on expiry of the relevant period of credit. In my view there is
no need to imply a term of that kind, which does not accurately reect the
essential nature of the contract. Under a contract of this kind the owners
G
bargain for the right to consume the goods before property has passed to
them and if they obtain an eective licence to do so binding on the various
parties in the supply chain, an implied condition of the kind postulated by
Mr Cogley is both unnecessary and inappropriate.
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Moore-Bick LJ
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[2016] AC PST Energy 7 Shipping LLC v OW Bunker Malta Ltd (CA)
Longmore LJ
MCCOMBE LJ
45 I agree with both judgments.
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(SC(E)) [2016] AC
Argument
Jonathan Crow QC, Stephen Cogley QC, Julian Kenny QC and Liisa A
Lahti (instructed by Ince & Co) for the owners.
Whether any contract constitutes a contract of sale for the purposes of
section 2(1) of the Sale of Goods Act 1979 is a matter of substance not form:
see Stoneleigh Finance Ltd v Phillips [1965] 2 QB 537. It depends upon the
terms of the parties bargain. It must be determined once and for all as at the
date of the contract. A contract cannot fall in and out of the Act, depending B
on events occurring subsequently. The issue must be answered by reference
to the statutory test set out in section 2(1), which has three components:
(1) an agreement to transfer property in a thing; (2) the thing constitutes
goods; and (3) the buyer agrees to pay a money consideration. The only
issue in dispute is whether the rst supplier agreed to transfer property in the
bunkers. The agreement to transfer property in the bunkers was both
express and implicit in the rst suppliers terms. The retention of title and C
liberty to consume clauses had two eects: (1) the time of the agreed transfer
of property was deferred until full payment had been made; and (2) the
owners were given a liberty to consume in the meantime, which might result
in the destruction of some of the bunkers before the agreed transfer of
property could take place. As a consequence, the transfer of property
became conditional on the bunkers remaining unburned when payment was
D
made. However, those terms did not take the contract outside the Act: see
section 2(3)(5). Numerous cases have been decided in relation to retention
of title clauses without it ever having been suggested that the inclusion of
such a provision can have any eect on the classication of the agreement as
a sale of goods: see, for example, Armour v Thyssen Edelstahlwerke AG
[1991] 2 AC 339 and Borden (UK) Ltd v Scottish Timber Products Ltd
[1981] Ch 25. Thus the contract plainly was an agreement under which the E
rst supplier agreed to transfer the property in the bunkers to the owners
within section 2(1), even if, as a result of the credit period and the retention
of title clause, the transfer was to take place at a future time or subject to
some condition later to be fullled within section 2(5). [Reference was made
to Clough Mill Ltd v Martin [1985] 1 WLR 111; Forsythe International
(UK) Ltd v Silver Shipping Co Ltd (The Seatta) [1994] 1 WLR 1334 and
F
Angara Maritime Ltd v Oceanconnect UK Ltd (No 2) [2011] 1 Lloyds Rep
61.]
The courts below erred in taking a dierent view based on (i) the
signicance they attributed to the parties supposed expectations as to what
would happen after delivery, and (ii) the eect they allowed those supposed
expectations to have on the proper classication of the contract. That
reasoning relies on the supposed expectations of the parties as to future G
conduct, rather than on the terms of the contract, to determine the
application of the Act, which is wrong in principle, in as much as it fails to
apply the terms of section 2. Further, it engages the court in an exercise of
trying to identify the essential subject matter of the contract, which again is
not an exercise mandated or permitted by section 2. Section 2 asks only
whether the contract is an agreement to transfer property, conditional or
H
otherwise. By those two errors the courts below have succeeded in turning a
subordinate provision in the contracta proviso to an ancillary
clauseinto a provision expressive of the essential subject matter of the
contract. Although there was a possibility, even a likelihood, that some or
all of the bunkers would be consumed before payment was made, that
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Argument
A possibility, whatever the likelihood of its arising, cannot aect the answer to
the question of classication under the Act. The question of classication
posed by section 2 is directed towards the content of the agreement, not
towards an extra-contractual, factual inquiry into the parties expectations
as to (i) when an obligation under the contract would be performed (i e when
payment would be made), or (ii) whether a permission granted by the
contractthe liberty to consumewould be exercised, and if so when and
B
to what extent. The required approach is consistent with sensible policy.
First, admitting the relevance of the parties contemplation is predicated on
the assumption that each party would have some informed expectations in
each case, which may be an entirely unfounded assumption. Second,
admitting the relevance of the parties contemplation is also predicated on
the assumption they shared a common expectation, but they might not.
C Third, even if the parties shared a common expectation, the court would
then have to decide how that expectation aected the issue of classication.
Fourth, even assuming (i) the parties shared a common expectation and
(ii) the court was able to translate that into an answer to the question
whether the Act applied to their bargain, there could be two contracts, on
precisely the same terms, one of which would be governed by the Act, but
not the otherthe only dierentiating factor would be the parties diering
D
expectations about what would or might happen after the contract was
made. That cannot be the right approach to a question of statutory
classication. There is no possible basis for suggesting that Parliament
intended the application of the Act to be so unpredictable. The whole
purpose of a statutory denition is to deliver certainty, not to provide a
platform for disputes. Alternatively, if it is legitimate to look for the essence
E of the contract by reference to the parties expectations, the Court of Appeal
was wrong to characterise the contract by saying that, in essence, what the
parties contracted for was the delivery of a quantity of bunkers which they
had an immediate right to use. On the contrary, the parties contracted for
the transfer of property in the whole quantity of bunkers and that agreement
was the essence of their agreement. Any credit terms which could have the
eect of reducing, even to zero, the quantity of bunkers actually sold were
F
ancillary matters, introduced for the rst suppliers benet but not intended
to aect the fundamental character of the contract.
The Court of Appeal was wrong to hold that the contract was a composite
contract, and that the 1979 Act applied to it only to the extent of applying to
the sale of any bunkers which had not been consumed at the time of
payment. In eect the Court of Appeals analysis was that there was
G (1) a contract for licensed consumption in respect of any bunkers consumed
prior to the date of payment, which was outside the Act; and (2) a contract
of sale in respect of any subsisting bunkers, which was within it. However,
the contract as a whole was a contract of sale within the Act. Unless the
contract can be severed and treated as two separate contracts, there is no
principled basis for treating the contract as a hybrid, partly in and partly out
of the Act. First, there is no basis for that approach in the wording of the
H
legislation. The Act makes no provision for its partial application to some
elements of a contract and not others. Either a contract in relation to goods
falls within section 2 or it does not. Second, there is no basis for it in the
express words of the contract. The contract expressly refers to selling the
goods. Accordingly, the hybridisation of the contract is a matter of
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Argument
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Argument
A a claim in conversion. This requires the rst supplier to ensure that consent
for the bunkers being used by the vessel was a feature of the terms agreed by
the relevant third party supplier. However, such consent is not dicult to
obtain, precisely because everyone in the relevant chain will be aware that
(i) the bunkers are being delivered to a vessel which expects to be able to use
them and (ii) the terms on which they are supplied will not prohibit the
vessels use of the bunkers. Accordingly, the rst supplier must be taken to
B
have given good performance of the promise to confer the right to use the
bunkers in accordance with the contract. It never became obliged to transfer
property in any of the bunkers because the owners did not pay for them and
because, by the time the owners obligation to pay arose, all of the bunkers
had been consumed, so that property in them was extinguished. Thus the
rst supplier rendered good performance under the contract and fully
C discharged its contractual obligations. The owners have received everything
they were entitled to receive from the rst supplier, and the rst supplier has
no further obligations that remain unperformed or undischarged. There has
been no breach of contract at all by the rst supplier, let alone a breach of
condition or a total failure of consideration.
The Sale of Goods Act 1979 does not apply so as to frustrate the parties
intention, because it is inapplicable. The language of the contract is
D
consistent with it being a contract of sale, in the supercial sense that it uses
words such as sale, buyer and seller. However, determining whether
a contract is within the Act or not depends on the substance of the bargain,
not on form or labels. The real substance or object of the contract was the
supply of bunkers of the contractually agreed quantity and quality which the
owners could consume safely and legally. That was what the owners were
E paying for and got. The contract might result in the transfer of property in
some bunkers, but that was not fundamental and was not suciently related
to the price to bring the contract within section 2(1) of the Act. Bunker
supplies often involve a chain of contracts, with several bunker traders
interposed between the physical supplier and the charterers or owners of the
relevant vessel. In standard bunker supplies, and under each of the contracts
in the chain, the parties enter into that contract expecting that payment will
F
be made without there having been any transfer of property. Further, by that
time, it will not be possible for there to be a transfer of property in the
quantity of bunkers that the contract stipulates as its subject matter, because
some or all of that stipulated quantity of bunkers will no longer exist. The
contract in the present case was not a conditional contract within
section 2(3), because the circumstances which would govern whether any
G bunkers remained to be the subject matter of any transfer of property
i e whether and in what quantity bunkers were consumed by the vessel, and
when the owners chose to pay the pricewere within the control of the
owners. To that extent the contract resembles an option rather than a
condition, because the obligations relating to the transfer of property were
not mutually bindingwhich is how, in the event, no such transfer has
occurred and yet neither party is in breach. Rowland v Divall [1923] 2 KB
H
500 can be distinguished as the owners cannot realistically say that the fact
that they did not receive a transfer of title goes to the root of the contract or
is a total failure of consideration or was intended by the parties to constitute
any breach at all, let alone a breach of condition. That the contract is not
one within the Act becomes all the more obvious when other provisions of
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(SC(E)) [2016] AC
Argument
the Act are considered, in particular sections 12 and 49, because neither of A
them can sensibly be applied to it. The implied term suggested by the owners
is not necessary, because the contract works perfectly well without it and it
cannot be said to be obvious. Accordingly, the judgment of the Court of
Appeal is right. [Reference was made to Hollis Bros & Co Ltd v White Sea
Timber Trust Ltd [1936] 3 All ER 895.]
In any event, the Court of Appeals order should be upheld on the grounds
B
that section 49 of the Act is neither mandatory nor exhaustive; that, in the
circumstances, a claim for the price lies under the contract whether or not the
requirements of section 49 are satised; and that, in so far as FG Wilson
(Engineering) Ltd v John Holt & Co (Liverpool) Ltd [2014] 1 WLR 2365
(Caterpillar) decided otherwise, that case was wrongly decided. If
Caterpillar was wrongly decided, the owners have no defence to the claim
under the contract, even if the Act applies to it. By raising this argument, the C
rst supplier and the bank are not seeking in any way to vary the answers of
the arbitrators or the order of the Court of Appeal. Prima facie, the argument
is one that they are, therefore, entitled to raise: see the Supreme Court Rules
2009 (SI 2009/1603), rule 25 and Supreme Court Practice Direction 8,
paragraph 8.3.1. Alternatively, if permission to raise the point pursuant to
Supreme Court Practice Direction 6, paragraph 6.3.3 is needed on the
D
grounds that it was not argued before the arbitrators or Males J, albeit only
because it could not be, the court should grant such permission. The point is
an important one which is overdue for consideration by the Supreme Court.
In Caterpillar, the principal justication for regarding section 49 of the
1979 Act as mandatory and exclusive was that it was said to state the
position at common law before 1893. However, the general common law
approach is that everything which is not forbidden is allowed, especially in E
the context of contract law where freedom of contract prevails except where
specically limited. With some exceptions, notably illegality, most of the
limits which inhibit freedom of contract derive from statute. Before 1893,
there was ex hypothesi no relevant statute aecting the sale of goods which
limited the parties contractual freedom. It follows that it can only be said
that there would have been no claim for the price before 1893 on the facts of
F
the present case if a decision can be found which pre-dates the 1893 Act and
which establishes that the court will not give eect to an agreement that the
price is payable even though there has been no transfer of property.
Furthermore, it must be either a decision on analogous facts or by reference
to a general principle which would encompass such facts. There is no such
decision. Instead, there are at least three decisions demonstrating that the
courts would and did give eect to an agreement that the price was payable G
even though there had been no transfer of property: see Dunlop v Grote
(1845) 2 Car & K 153; Castle v Playford (1872) LR 7 Ex 98 and Martineau
v Kitching (1872) LR 7 QB 436, none of which was cited to the Court of
Appeal in Caterpillar. Furthermore the general approach of the 19th
century commentators was that the parties to a contract of sale enjoyed
unrestricted freedom of contract. Sir Mackenzie Chalmers, the draftsman of
H
the Act, made it clear that he did not intend the 1893 Act to restrict freedom
of contract: see The Sale of Goods, including the Factors Acts 1889 (1890)
and The Sale of Goods Act 1894, including the Factors Acts 1889 & 1890
(1894), pp iiiiv. In ordinary circumstances the personal views of the
draftsman of a statute might not assist in interpretation. It is dierent where
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Argument
A those views (i) existed in published form before the statute was presented to
Parliament, (ii) were explained to those responsible for scrutinising and
considering the draft statute during its passage through Parliament and
(iii) can be seen to have prevailed. The decision of the Court of Appeal in
Caterpillar has also provoked academic criticism: see Gullifer, The
interpretation of retention of title clauses: some diculties [2014] LMCLQ
B
564; and Benjamins Sale of Goods, 9th ed (2014), para 16028. [Reference
was also made to Laird v Pim (1841) 7 M & W 474 and Pordage v Cole
(1668) 1 Saund 319l.]
The 1893 Act was intended to summarise, synthesise and set out in an
accessible manner the existing case law as it stood in 1893. In the sense that
it set out all the principles which those cases had established thus far, it was
intended to be a complete statement of the law in 1893. But it was not
C intended to stand as a complete statement of the law for all time. It was
expository rather than exhaustive. It was recognised that the law would
continue to develop, as new forms of contract raised new questions which
would require new answers: see section 55; Christopher Hill Ltd v
Ashington Piggeries Ltd [1972] AC 441, 501 and Harry & Garry Ltd v
Jariwalla (unreported) 16 June 1988; [1988] CA Transcript No 516. The
D 1893 Act did not lay down exhaustive rules, but default rules which would
apply where the parties had not made their intentions express. It was
therefore not intended to limit freedom of contract. A claim for the price
payable under a contract of sale is a particular species of claim in debt.
There is no reason in principle why, in 1893, such a claim would not have
succeeded in reliance on the contract terms, the eect of which is that the
rst suppliers right to payment is not conditional on the transfer of property
E
in the bunkers. Very few of the cases decided since 1893 call that analysis
into question. A number of cases have proceeded on the basis that the seller
had to bring itself within section 49 but that is likely to have been because in
none of those cases had the parties reached any special agreement as to
payment of the price: see Stein Forbes & Co v County Tailoring Co (1916)
115 LT 215 and Muller, Maclean & Co v Leslie & Anderson (1921)
F 8 Ll L Rep 328. The only case in which the judge was clearly of the view that
section 49 is exhaustive is Colley v Overseas Exporters [1921] 3 KB 302 but
the relevant dicta were (i) obiter; (ii) based on the erroneous belief that there
was no action for the price at common law save under the indebitatus
counts; and (iii) inconsistent with Shell-Mex Ltd v Elton Cop Dyeing Co Ltd
(1928) 34 Com Cas 39, 4445. There have been two Court of Appeal
G decisions since 1893 in which the court has either expressly found that
section 49 is not mandatory, or has indicated that it is only mandatory unless
agreed otherwise: see Harry & Garry Ltd v Jariwalla (unreported) 16 June
1988; [1988] CA Transcript No 516 and Otis Vehicle Rentals Ltd v Cicely
Commercials Ltd [2002] EWCA Civ 1064 at [12]. The decision in
Caterpillar does not appear to have been followed in any Commonwealth
jurisdiction and the weight of authority in Australia favours the view that
H the situations in which the price may be claimed are not restricted to those
set out in section 49: see Minister for Supply and Development v
Servicemens Co-operative Joinery Manufacturers Ltd (1951) 82 CLR 621.
[Reference was also made to Plaimar Ltd v Waters Trading Co Ltd (1945) 72
CLR 304 and Demby Hamilton & Co Ltd v Barden [1949] 1 All ER 435.]
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Argument
Crow QC in reply. A
There is no jurisdiction to hear argument on FG Wilson (Engineering) Ltd
v John Holt & Co (Liverpool) Ltd [2014] 1 WLR 2365 (Caterpillar) in
this appeal or, if there is jurisdiction to hear it, the court should decline to
exercise that jurisdiction. The arbitrators award made a binding
declaration of the parties rights. As part of that award, they held that (i) the
rst supplier never had property in the bunkers, (ii) it never passed property
B
in the bunkers to the owners, and (iii) as a result, section 49 of the 1979 Act
would deprive the rst supplier and the bank of any ability to maintain an
action for the price against the owners (assuming the contract fell within the
Act): that conclusion expressly relied on the decision in Caterpillar.
Appeals lie from arbitrators on points of law by virtue of section 69(1) of the
Arbitration Act 1996. The rst supplier and the bank were accordingly free
to appeal against the arbitrators conclusion based on Caterpillar, but they C
chose not to do so. After the parties appeals had been heard by Males J, the
rst supplier and the bank specically sought permission to appeal to the
Court of Appeal on the Caterpillar point. Males J specically refused
permission to appeal on that point. Accordingly, the Caterpillar point
ended there, because permission to appeal from the High Court to the Court
of Appeal under section 69(8) of the Arbitration Act 1996 can only be
D
granted by the High Court. In the circumstances, it is not open to the rst
supplier and the bank to raise the point now. In any event, even if
Caterpillar was wrongly decided, it would make no dierence to the
outcome in this case. The rst supplier never paid its own supplier and was
never in a position to transfer title and, therefore, it could not sue for the
price outside section 49, even if such a claim is permitted by the Act. Even if
it were in principle possible to contract out of section 49, the rst supplier E
did not do so: there is no express term in the contract entitling it to bring an
action for the price irrespective of whether property in the goods has passed.
The rst supplier and the bank wrongly suggest that, if the Act applies to the
contract, the issue in Caterpillar needs to be resolved in order to achieve
nality as between the parties. However, depending on the answer to the
question whether the Act applies, numerous other issues may also need to be
F
resolved. Resolving the Caterpillar issue does not, therefore, achieve
nality. It is a matter for the Supreme Court to assess whether, having given
permission to appeal in relation to a short point as to the application of the
Act, it is either appropriate or feasible, in the time available, also to hear
argument on a dierent point.
In any event, Caterpillar was correctly decided. The policy of the law is
that it would be wrong to allow a seller both to claim the price and to keep G
the goods. For that reason, as a general rule, under a contract for the sale of
goods the buyers liability to pay the price is treated as conditional on
performance of the sellers promise to transfer property in the goods.
Essentially, the eect of that rule is that, where the seller has not in fact
performed his contract, he is limited to his remedy in damages. Thus
section 49(1) of the Act applies the default rule that the transfer of property
H
is a pre-condition to an action for the price. Section 49(2) provides for a
limited exception to that rule, permitting the seller to sue for the price where
the parties have agreed that payment will be made on a day certain,
irrespective of whether delivery is made. However, even where section 49(2)
applies, the seller must be able to prove that it is ready, willing and able to
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Argument
A perform: see Otis Vehicle Rentals Ltd v Cicely Commercials Ltd [2002]
EWCA Civ 1064 at [16]. The question whether section 49 is mandatory has
to be answered in a way which gives eect to that policy. The rst supplier
and the banks interpretation of the section fails to do that. On their
interpretation, the buyers promise to pay would be actionable as soon as
payment fell due in accordance with the express terms of the contract and
the result is that the buyers promise to pay the price would become an
B
entirely independent promise, i e not conditional on the transfer of property
(unless expressed to be so). Their focus on legal history has led them to
ignore the fact that the court is being asked to conduct an exercise in
statutory interpretation, which requires it to look rst and foremost at the
language of the 1979 Act. On the rst suppliers and the banks approach,
section 49 would be otioseindeed, it would in a sense be misleading, or at
C the very least confusing, because it would declare some, but not all, of the
circumstances in which a seller could maintain an action for the price. There
is also a number of internal indicators which show that section 49 was
intended to comprise an exhaustive statement of the circumstances in which
a seller could sue for the price since there are at least three other provisions
which expressly produce dierent results: see sections 17(1), 20 and 55. The
rst suppliers and the banks argument depends on two erroneous
D
propositions: (i) the Sale of Goods Act 1893 was intended to reect some,
but not all, of the circumstances in which the common law recognised a
sellers right sue for the price of goods, and (ii) before 1893 the common law
recognised a sellers right to sue for the price of goods even though property
had not passed and the price was not expressed as being payable on a day
certain. The 1893 Act was, as its Preamble expressly states, An Act for
E codifying the Law relating to the Sale of Goods. The purpose of a code is to
provide a systematic and comprehensive statement of the law, not a
summary of part of it. Furthermore, the expression used in the Preamble
means that the draftsmans purpose was to codify all of the then law, not
part of it. Once an area of the law has been codied, it is not open to judicial
alteration. The purpose of any codication is to deliver certainty by
encapsulating the law in a single legislative instrument. It is antithetical to
F
that purpose to invite the court to conduct a detailed examination of the
common law as it may have existed before the code was enacted. In any
event, there is no case law before the 1893 Act which shows that a seller
could bring an action for the price other than in the circumstances described
in section 49. Properly analysed, neither Castle v Playford (1872) LR 7 Ex
98 nor Martineau v Kitching (1872) LR 7 QB 436 undermines the
G proposition that section 49 contains an exhaustive list of the circumstances
in which a seller can sue for the price. Section 49 of the 1979 Act, and the
same provision in the 1893 Act, have generally been interpreted as an
exhaustive statement of the circumstances in which a seller can sue for the
price, either implicitly (see Stein Forbes & Co v County Tailoring Co (1916)
115 LT 215; Muller, Maclean & Co v Leslie & Anderson (1921) 8 Ll L Rep
328 and Otis Vehicle Rentals Ltd v Cicely Commercials Ltd [2002] EWCA
H
Civ 1064) or expressly: see Colley v Overseas Exporters [1921] 3 KB 302,
310 and Shell-Mex Ltd v Elton Cop Dyeing Co Ltd (1928) 34 Com Cas 39,
44. The view to the contrary expressed in Harry & Garry Ltd v Jariwalla
(unreported) 16 June 1988; [1988] CA Transcript No 516 was obiter. In
Minister for Supply and Development v Servicemens Co-operative Joinery
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Argument
Introduction
1 Despite the signicance of her name in Cartesian philosophy, the
vessel Res Cogitans depends on bunkers. The parties submissions have in E
compensation lent a degree of metaphysical complexity to commonplace
facts. We are told that many similar cases worldwide await our decision
with interest.
2 The essential problem arises from the insolvency of the OW Bunker
Group and the concerns of vessel owners that they may be exposed to paying
twice over, once to their immediate bunker supply group now insolvent, and F
again to the ultimate source of the bunkers who may claim rights under a
reservation of title or maritime lien. The concerns stem from what are
understood to be fairly typical conditions on which bunkers are supplied
worldwide.
3 The bunkers in this case were supplied to the vessel in the Russian port
of Tuapse in the Black Sea on 4 November 2014. They were ordered on G
31 October 2014 by the appellants, who are respectively owners and
managers of the vessel and can be treated as one and referred to simply as the
owners. The immediate bunker supplier was the rst respondent, OW
Bunker Malta Ltd (OWBM), which obtained the bunkers under a contract
with its parent company, OW Bunker & Trading A/S (OWBAS), another
member of the OW Bunker Group, which was at the time the worlds largest
bunker supplier and is now insolvent. OWBAS in turn obtained them from H
Rosneft Marine (UK) Ltd (RMUK), which itself obtained them from an
associate, RN-Bunker Ltd (RNB), which had facilities in Tuapse and made
the actual delivery. On 6 November 2014, OWBAS announced that it was
applying to the court in Aalborg for restructuring. The second respondent,
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Lord Mance JSC
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Lord Mance JSC
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A the answer to this question is Yes. We do not agree. Whether or not one
chooses to describe the contract between these two parties as a hybrid
contract is, we consider, probably neither here nor there (although we
would prefer to describe itand no doubt others like itas sui generis),
but to suggest that the remedies that may follow from the failure to
comply with its terms are solely and irrevocably those within the gift of
the 1979 Act appears to us to be unacceptable and quite unreal.
B
17 In the next paragraph (para 47), they continued:
If all had gone in accordance with the parties expectations (and, of
course, the owners had had previous dealings with OWB Group
companies), the owners would have paid OWBMs invoice within the 60
days credit period. We are quite condent, that, when they did so, it
C would not have crossed anyones mind to inquire what bunkers had been
consumed meanwhile in order to determine whether the invoice was
being paid wholly or in part under a contract of sale (in respect of
unconsumed bunkers), or otherwise (in respect of consumed bunkers).
Regardless of the situation on board the vessel, both parties would in our
opinion understand that payment was being made simply in accordance
with the express terms of the contract, which would have been the case.
D
There is in our view no challenge to the provisions of the 1979 Act or their
eect in reaching the conclusion that we have unhesitatingly reached that,
on the assumed facts, once the 60 days period of credit had elapsed the
owners were in breach of contract, the remedy for which was a claim in
debt. We have seen nothing in the authorities to suggest that this simple
and straightforward conclusion is incorrect.
E
18 The arbitrators concluded that this reasoning enabled them to
answer issues 4(b) and 6(a). Issue 6(a) was whether to the extent not
resolved by the determination of issue 4 OWBM/ING had a claim under the
contract. However, they added we have to say that we nd the relationship
(if any) between issues 4 and 6 somewhat unclear: para 48. They went on
to say that we believe that we can at this point also tackle issue 9. Before
F doing so they addressed issue 5, rejecting OWBMs case that their supply to
the owners contained various implied terms, now no longer relied on.
Turning to issue 9, this asks: Did 1979 Act apply to the contract between
the owners/OWBM in any event and if not what is the eect on the parties
respective claims? The arbitrators gave the straightforward answer: No,
and none.
19 In the light of this answer, the arbitrators concluded that they could
G
deal shortly with issues 10 to 13, saying, at para 53:
As to issue 10, OWBM was not required to own or to have property in
the bunkers at the time of delivery because the contract between OWBM
and the owners did not require this. There was no modication of the
requirements of the 1979 Act because the 1979 Act did not apply and its
terms were not engaged. As to issue 11, there was no such requirement.
H
As to issue 12, no terms were implied into the contract by virtue of
section 12 of the 1979 Act. And, nally, as to issue 13, in so far as there
were no such implied terms as suggested, there were none to be breached.
It is unclear what, if any, other breaches of contract by OWBM are
alleged, but none appears to have been established.
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A to its supplier, in particular by paying for the bunkers timeously? Like the
judge, the Court of Appeal was bound by the Caterpillar decision [2014]
1 WLR 2365, so that it could have done no more than hold that section 49 of
the Sale of Goods Act 1979 barred any claim to the price by OWBM if the
contract was subject to the Act, even if that point was open and had arisen,
for consideration.
B
23 The Court of Appeal agreed substantially with the judge in
answering the two main questions before it in OWBM/INGs favour, ante,
p 1039. However, as appears from the following key passage in its
reasoning, it also contemplated that the contract would or might be a
contract of sale pro tanto to the extent that payment was made at a time
when any part of the bunkers remained unconsumed. Moore-Bick LJ, giving
the main judgment, with which the other members of the court agreed, said,
C ante, pp 10481049, paras 3334:
33. . . . Whatever label one attaches to the contract (and I see nothing
incongruous in describing it in commercial terms as a contract for the sale
of goods), its essential nature is in my view reasonably clear. It is a
contract under which goods are to be delivered to the owners as bailees
with a licence to consume them for the propulsion of the vessel, coupled
D with an agreement to sell any quantity remaining at the date of payment,
in return for a money consideration which in commercial terms can
properly be described as the price. That may not satisfy the denition of a
contract of sale of goods in section 2(1) of the 1979 Act, but there is no
reason why the incidents of a contract of sale of goods for which the Act
provides should not apply equally to such a contract at common law, save
E to the extent that they are inconsistent with the parties agreement. The
diculties in the present case stem entirely from the owners attempt to
establish that the consideration for the payment of the price was the
transfer of property in the whole of the goods to which the contract
related, despite the fact that that does not correspond to the express terms
of the contract relating to the use of the goods and the passing of title.
The commercial background and the terms of the contract make it clear
F that what the owners contracted for was not the transfer of property in
the whole of the bunkers, but the delivery of a quantity of bunkers which
they had an immediate right to use but for which they would not have to
pay until the period of credit expired. From the suppliers point of view
the retention of title clause provided an ever diminishing degree of
security for the payment of what was due to them. Since the contract
G provided for the transfer to the owners of property in any part of the
bunkers remaining at the time of payment, it was to that extent a contract
for the sale of goods to which the Act, including the implied condition in
section 12, applied. A failure to pass title to any residue remaining at the
time of payment would therefore involve a breach of contract, but it
would not be one which entitled the owners to treat the contract as a
whole as discharged, unless (contrary to all expectations) it represented
H
such a large proportion of the quantity originally delivered that there
could be said to have been a total failure of consideration.
34. For these reasons I agree with the judge that the transfer of
property in the bunkers from OWBM to the owners was not the essential
subject matter of the contract and that a failure to transfer property in the
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bunkers, all of which had been consumed when the period of credit A
expired, did not relieve the owners of the obligation to pay for them.
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it would not have crossed anyones mind to inquire what bunkers had A
been consumed meanwhile in order to determine whether the invoice was
being paid wholly or in part under a contract of sale (in respect of
unconsumed bunkers), or otherwise (in respect of consumed bunkers).
30 Mr Crow sought to avoid some of these diculties by submitting at
one point that the agreement could be analysed as one of sale, under which
OWBM undertook that at the date of payment they would transfer property B
in any bunkers then remaining and that they could and would also have
transferred property in any bunkers already consumed, had they not been
consumed. That submission certainly has a metaphysical aspect. But it
makes in my view neither legal nor commercial sense. All that mattered for
the owners was that they should have and had the right to consume the
bunkers in the vessels propulsion as and when they did so prior to payment, C
and that upon payment they would acquire the property in, and thereby an
absolute right to dispose of or use as they wished, any remaining bunkers.
31 For similar reasons to those given in the preceding three paragraphs,
I would also reject the Court of Appeals suggestion in para 33 of its
judgment, quoted in para 23 above, that the contract can be analysed as a
contract of sale to the extent that it provided for the transfer of property in
D
any part of the bunkers remaining at the time of payment. That is again to
divide up a single agreement covering the supply of all the bunkers (gasoil
and fueloil) at a single price for each, irrespective of what had happened to
them. However, I fully accept that, viewing in isolation the position of any
bunkers remaining at the time of payment, the transaction relating to them is
closely analogous to a sale. I also accept that, both as regards bunkers
consumed and as regards any bunkers remaining at the time of payment, the E
contract, although not one of sale, would contain similar implied terms as to
description, quality, etc to those implied in any conventional sale.
32 The above analysis is consistent with the approach taken by the
Court of Appeal in the somewhat complicated case Harry & Garry Ltd v
Jariwalla (unreported) 16 June 1988; [1988] CA Transcript No 516. The
English buyers, Harry & Garry, had under contracts of sale received a F
quantity of sarees which they found defective and in respect of which they
had not yet accepted the relevant bills of exchange, by reference to which, it
appeared, the Indian sellers, the Jariwallas, had however already succeeded
in raising some moneys in India. In these circumstances, Harry & Garry
agreed to accept the bills, so acquiring property in the sarees, while the
Jariwallas agreed either to arrange the cancellation of the bills or to take G
back and pay for the sarees. Under this agreement, 2,494 sarees were then
selected as sarees which the Jariwallas would, as they did, take back
physically, and it was agreed that the Jariwallas would pay 46,763.45 for
such sarees, with property being retained by Harry & Garry until this full
amount was paid. Through a Mr Shah, the Jariwallas sold some 411 of these
sarees, evidently with the consent of Harry & Garry despite the reservation
of title. Harry & Garry sued for the full 46,763.45 agreed to be paid. H
33 In the court below, Judge Harris had seen the contract as being one
of sale, and on that basis held that, since the circumstances did not fall
within section 49(2), a claim for the price was precluded. In the Court of
Appeal, Harry & Garrys appeal was allowed. Kerr LJ, giving the main
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A judgment, noted that section 49(1) was in terms inapplicable, because of the
reservation of title. But he went on to say of the judges approach that:
It would be ironical if that were the correct analysis. One would be
driven to the conclusion that although these goods had been delivered and
had been accepted, the only remedy open to the plaintis, if indeed they
were sellers of these goods, would apparently have been a claim for
B damages for non-acceptance under section 50, there being no other
provision of the Act which would have given the plaintis any remedy.
With all due respect to the judge, no doubt inuenced as he was by the
complexity of this case and the arguments which were addressed to him,
I cannot agree with that analysis for two reasons. First, in my view this
was not a contract for the sale of goods within the terms of the 1979 Act.
It was not, to quote section 2(1) of the Act, a contract by which the seller
C
transfers or agrees to transfer the property in goods to the buyer for a
money consideration, called the price. Like many other contracts in
complex situations, this was a sui generis transaction. In eect, what the
Jariwallas agreed was that if the bills of exchange were accepted, which
was their great concern, they would either have them cancelled or they
would take the goods back and pay for them.
D When it then came to the specic agreement about the 2,494 selected
sarees, I think the nature of the agreement was that in consideration of the
plaintis allowing them to take that consignment away and seeking to
dispose of it as agents for the plaintis, who remained the owners of it,
they agreed again either to perform the rst part of the option, to have the
bills of exchange cancelled at any rate to the extent of the value of those
selected goods, or to pay the sum of 46,763.45. That was the nature of
E
the agreement. Taking it on its own or taking it, as I think one should, as
part of the agreement made on 23 December, I do not think it was a
contract for the sale of goods to which the Act applied.
34 As with the buy back contract in the Harry & Garry case, so here, in
my opinion, the relevant agreement is, in Kerr LJs words, Like many other
contracts in complex situations . . . a sui generis transaction, not a contract
F
of sale. As I have already indicated, that does not mean that its terms, as
regards undertakings as to description and quality, would not be modelled
on those applying in the sale of goods. But, in its essential nature, it oered a
feature quite dierent from a contract of sale of goodsthe liberty to
consume all or any part of the bunkers supplied without acquiring property
in them or having paid for them. The obligation on the part of OWBM to be
G able to pass the property in respect of any bunkers not so consumed against
payment of the price for all the bunkers cannot make the agreement as a
whole a contract of sale.
35 Mr Crow drew our attention to rst instance cases where the
relationship between the suppliers of bunkers and charterer customers under
a reservation of title was assumed to fall within the Sale of Goods Act 1979,
for the purposes of analysing whether, on the termination of the charter, the
H
vessels owners had acquired title under section 25(1) of that Act: Forsythe
International (UK) Ltd v Silver Shipping Co Ltd (The Seatta) [1994] 1 WLR
1334 and Angara Maritime Ltd v Oceanconnect UK Ltd (No 2) [2011]
1 Lloyds Rep 61. In neither case was the nature of the contract or the
present issue questioned or directly addressed. Similarly, it was simply
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assumed that the transaction was one of sale within the Act in the appellate A
authorities of Borden (UK) Ltd v Scottish Timber Products Ltd [1981] Ch
25 and Armour v Thyssen Edelstahlwerke AG [1991] 2 AC 339the former
case concerning an unsuccessful attempt to trace title reserved in resin into
chipboard manufactured using it, the latter concerning a successful attempt
to reclaim steel supplied subject to a reservation of title. I add that, even if
on analysis these two cases could and should have been analysed as sui
B
generis, like the present, it is dicult to think that could have had any eect
on their outcome. None of these cases therefore really assists the resolution
of the present appeal.
36 I also add (with further reference to the Court of Appeals suggestion
mentioned in para 31 above) that, even if the contract were (contrary to my
above analysis) to be analysed as a contract of sale when made in that it
contemplated the transfer of property in any bunkers unused at the date of C
payment, I do not see how this could assist the owners. OWBM could not
owe any obligation to transfer property in bunkers consumed before
payment. The contract would be subject to a resolutive condition subsequent
whereby it would cease to be a contract of sale as and to the extent that the
owners exercised their contractual right to consume the bunkers in the
vessels propulsion, and would cease entirely to be a contract of sale if and
D
when all such bunkers were consumed before payment.
37 For the reasons I have given, the arbitrators were correct, in my
opinion, in concluding that the contract was not one of sale within section 2
of the Sale of Goods Act 1979, with the result that the owners could have no
possible defence under section 49 to the claim for the price.
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A at the time of any payment, OWBM would of course have to have had or at
least be able to pass title. Had they been unable to do so, then, maybe, the
owners could have treated OWBM as in breach of condition and terminated
the contract, though they would at the same time have had to refrain from
further use of the bunkers. OWBM would then have been unable to
maintain a claim for the whole price, and would have had to assert either a
contractual or a restitutionary claim (it is unnecessary to consider which) to
B
pro rata payment for the bunkers consumed. But none of this is relevant,
and for that reason it was not explored in submissions. What happened was
quite dierent. No payment was ever tendered by the owners. The owners
simply continued to use the bunkers under the contractual liberty until they
were all consumed. So far as material, no basis appears for treating the
contractual liberty as ending with the 60-day period for payment, if payment
C was not then made; so long as the contract remained in force, the liberty
would continue on its face until payment or complete consumption of all the
bunkers supplied. The issues before the court do not involve any claim that
OWBM had no right to permit such use, or that the owners are or may be
exposed to any risk of double exposure, either by reason of RMUKs claim
(never so far as appears formally pursued) or on any other basis. On the
presently assumed facts, therefore the owners are simply liable for the price,
D
albeit under a contract sui generis, which is not one of sale.
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them to its subsidiary, John Holt plc (Holt Nigeria), a Nigerian company. A
The majority (Patten and Floyd LJJ) held that, under the relevant terms, Holt
Liverpool (not having paid the price to F G Wilson) had delivered the goods
to Holt Nigeria as duciary agents for F G Wilson, and that property had in
this situation continued in law to reside in Holt Liverpool until such delivery,
whereupon it had passed directly from F G Wilson to Holt Nigeria without
Holt Liverpool ever acquiring it. Longmore LJ, although he had dissented
B
on the passing of property, gave the principal reasoned judgment on the
question which arose from the majoritys conclusion that property had not
passed. This was whether F G Wilson could sue Holt Liverpool for the price.
He concluded, after reviewing the authorities, that section 49 constituted a
code, which precluded any action for the price outside its terms.
43 The authorities included what Longmore LJ saw as two inconsistent
previous Court of Appeal decisions, one Otis Vehicle Rentals Ltd v Cicely C
Commercials Ltd [2002] EWCA Civ 1064, the other Harry & Garry 16 June
1988, discussed above on another aspect and which Longmore LJs
judgment records was unearthed by the industry of counsel appearing in the
Caterpillar case.
44 Section 49(1) enables an action for the price where the seller has
transferred property, with or without delivery, and the buyer has failed to
D
pay the price due. Conversely, the authorities cited by Longmore LJ
establish that, where property has not passed, a seller cannot sue for the
price of goods, delivery of which the buyer has refused to accept either
physically (Atkinson v Bell (1828) 8 B & C 277; the Otis Vehicle Rentals
case [2002] EWCA Civ 1064) or by refusing to take up the shipping
documents (Stein Forbes & Co v County Tailoring Co (1916) 115 LT 215;
Muller, Maclean & Co v Leslie & Anderson (1921) 8 Ll L Rep 328 and E
Plaimar Ltd v Waters Trading Co Ltd (1945) 72 CLR 304) or by failing or
refusing to make the necessary shipping arrangements: Colley v Overseas
Exporters [1921] 3 KB 302.
45 An established common law exception (see Dunlop v Grote (1845)
2 Car & K 153) now reected in section 49(2) of the Act exists where the
price is payable on a day certain, in which case the seller may enforce its
F
payment, provided that he is ready and able at the same time to deliver to the
buyer the goods and property in them: the Otis Vehicle Rentals case [2002]
EWCA Civ 1064 at [16] per Potter LJ. In the Caterpillar case [2014]
1 WLR 2365, Longmore LJ expressed the view that a price payable on a
day certain would embrace a situation where the price was expressed to be
payable within 30 days of the date of the invoice. If so, it would embrace the
situation under RMUKs contract with OWBAS or OWBMs contract with G
the owners, whereby the price was payable within respectively 30 or 60 days
of delivery. This was also Males Js view, diering on the point from the
arbitrators.
46 Leaving section 49(2) aside, the question of principle is whether
section 49 excludes any claim to recovery of a price outside its express terms.
The majority of the High Court of Australia in Minister for Supply and
H
Development v Servicemens Co-operative Joinery Manufacturers Ltd
(1951) 82 CLR 621 can be read as accepting that similar statutory language
did not exclude all such claims. However, whilst Latham CJ, one of the
majority, made no express reference to section 49(2), he did refer to Dunlop
v Grote 2 Car & K 153 and to Benjamin on Sale, 7th ed (1931), p 861,
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A which both deal with a price payable on a day certain. It is not clear that he
necessarily intended to go further.
47 In Colley v Overseas Exporters [1921] 3 KB 302 McCardie J
undertook a detailed examination of the pre-1893 Sale of Goods Act
position at common law, concluding that there had been only two
established counts available for recovery of the price of goods sold, both
B
dependant on property passing and so falling within what became
section 49(1). Section 49(2) was a limited exception. Support for this can be
found in the illuminating discussion and judgments in Laird v Pim (1841)
7 M & W 474, to which McCardie J also referred. In that case, the
defendant, having contracted to purchase and having been given possession
of a plot of land, had refused to complete a conveyance or pay for it. During
the proceedings, the analogy with the non-acceptance of goods was drawn,
C and at one point Parke B pointed out that, since the land was still the
plaintis at law, the plainti might bring ejectment. The plainti made
clear however that it was not claiming the price of the whole purchase
money, but only for the damages sustained by the non-performance of the
contract: p 479. To this counsel for the defendant responded at p 483 that
Unless the defendants are bound to pay the purchase-money, no
D
damages can be recovered for the non-payment of it: the plainti,
therefore, must shew not only that the defendants did not pay, but also
that they were bound to pay.
But this argument failed. Parke B said at p 485 that the plainti was:
substantially in the same situation, for the purpose of recovering the
E money, as if all had been done on his part which he engaged to do. It does
not follow that he shall recover the whole purchase-money, but he is in
the same situation for the purpose of recovering damages for the
non-payment of the price, as if all had been done by him.
48 That approach, if adopted, at least answers the problem which
Longmore LJ found in paras 5556 in the Caterpillar case [2014] 1 WLR
F 2365 about accepting a claim for damages for non-payment of money or
seeing any remedy whatever open to the seller. I add three observations.
First, it would seem to me that the non-performance in a case like Laird v
Pim 7 M & W 474 could just as well be described in terms of failure to
accept a transfer of the title to property, as failure to pay its price. Second, if
described as a claim for failure to pay the price, the judgments in Sempra
G Metals Ltd (formerly Metallgesellschaft Ltd) v Inland Revenue Comrs
[2008] AC 561 mean, I believe, that a claim for damages for non-payment of
money could quite readily be accommodated in the modern law. Third, in
Laird v Pim, the damages might have had to be reduced to take account of
the prospect of recovery of the propertythe law report does not address
their measure more precisely than I have already indicated. In the present
case, bearing in mind the complete consumption of the bunkers, there would
H
be no dierence between the agreed price and the damages for non-payment
of the price that would follow on the approach taken in Laird v Pim.
49 None the less, there is articiality about treating the sellers claim as
being for damages, after delivery was made albeit under retention of title,
and particularly so where the buyer is authorised to consume the goods as
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here. Part of the thinking behind the rule in section 49(1) is no doubt, as A
Longmore LJ observed [2014] 1 WLR 2365, para 43, that:
It would have been thought unfair to a buyer if, before delivery had
occurred, the goods had perished or been damaged and yet the price was
payable, unless the goods were actually his property, see Simmons v Swift
(1826) 5 B & C 857. It would also be odd if a sellers creditors on
bankruptcy could both seize goods still on his premises and sue the buyer B
for the price.
However, it will be noted that both these rationales focus on situations
where delivery has not been made, and, as appears from the judgments in
Simmons v Swift (1826) 5 B & C 857, the real signicance attached by the
court to the fact that property had not passed in Simmons v Swift was that it
meant that the goods were still at the risk of the sellers. The oddity C
mentioned by Longmore LJ would not have existed, if the goods had been at
the buyers risk.
50 Section 49(2) relaxes only partially the strictness of section 49(1),
and it depends on the price being payable on a day certain. These are
words which can no doubt be construed liberally, as Longmore LJ was
minded to, but are not of indenite expansion. Further, the main focus of D
section 49(2) may well have been on cases where delivery has not been
madehence the phrase irrespective of delivery. Section 49 does not
focus on the position existing where delivery is made, title is reserved but the
price is agreed to be paid, albeit not on a particular day certain. Even less
does it focus on the position where all these features are present and the
buyer is permitted to dispose of or consume the goods or they are at the
buyers risk and are destroyed or damaged. The question is whether in all E
these cases an action for the price is excluded, and the seller is forced to look
around for other means of redress.
51 The Court of Appeal, in an alternative reason for its judgment in the
Harry & Garry case 16 June 1988, did not think so. Kerr LJ, now
approaching the case on the hypothesis that the buy back contract was
subject to the Sale of Goods Act 1979, said this: F
In any event, howeverand this is the second reason why I dier
from the judgeit is clear from the authorities to which we were referred
that even in the realm of contracts for the sale of goods there can be
situations in which a seller may be entitled, under the particular terms of
the contract, to claim a sum which is in eect the price of the goods, even
though he cannot bring himself within the terms of section 49. G
In that connection we were helpfully referred by Mr Bartlett to
another section of the Act and a number of authorities. I can deal with
them quite shortly. First, section 55 of the Act makes it clear that the
provisions of the Act are not exhaustive, but that the parties may enter
into agreements which negative or vary the rights, duties or liabilities
which would otherwise arise under a contract of sale by virtue of the Act.
H
Secondly, Mr Bartlett referred to a part of the speech of Lord Diplock in
Christopher Hill Ltd v Ashington Piggeries Ltd [1972] AC 441, 501, in
which he points out that the Sale of Goods Act is not an exhaustive code
within which every transaction of the nature of a sale of goods must
necessarily be brought, but that it is open to parties, if they have done so
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some of the sarees of which possession was taken back. It seems entirely A
natural and appropriate that Harry & Garry should be entitled to recover
for the price of all the sarees so taken back, on condition of course that they
were ready and willing to transfer title in the remaining sarees to the
Jariwallas in return.
55 Another case covered by authority is that where the goods are at the
buyers risk, but property has not passed. This situation was addressed in B
two successive cases in 1872: Castle v Playford (1872) LR 7 Ex 98 and
Martineau v Kitching (1872) LR 7 QB 436. In the former, the contract for
the sale of ice was for cash on delivery at the rate of 20s a ton as weighed on
arrival and delivery in the United Kingdom, but it was agreed that the buyer
should take upon himself all risks and dangers of the seas. The vessel was
lost. The court (Cockburn CJ, Willes, Blackburn, Mellor, Brett and
Grove JJ) found it unnecessary to decide whether property had passed. C
Whether or not it had, the true construction of the contract was from the
buyers viewpoint, in Cockburn CJs words LR 7 Ex 98, 99:
I will engage, when it arrives, to pay you according to what may be its
value; and if, in the meantime, while it is upon the seas, it shall perish
through the perils of the seas, I will undertake to pay you for it according
D
to what may be estimated to have been its fair value at the time of going
down.
Blackburn J giving the other reasoned judgment said, at p 100:
Now here, the ship and cargo have gone to the bottom of the sea; but
in the cases of Alexander v Gardner (1835) 1 Bing NC 671, and Fragano v
Long (1825) 4 B & C 219, it was held, that if the property did perish E
before the time for payment came, the time being dependent upon
delivery, and if the delivery was prevented by the destruction of the
property, the purchaser was to pay an equivalent sum. In the present case,
when the ship went down there would be so much ice on board, and, in all
probability, upon an ordinary voyage so much would have melted; and
what the defendant has taken upon himself to pay is the amount which, in F
all probability, would have been payable for the ice.
The two judgments dene the sum payable in very slightly dierent ways,
but both treat it as a sum payable for the goods under the contract terms.
56 Three months later the second case came before Cockburn CJ,
Blackburn, Lush and Quain JJ in the Queens Bench Division. LR 7 QB 436
Sugar was agreed to be sold, with the price payable Prompt at one month; G
goods at sellers risk for two months, to be kept at the sellers premises and
drawn down by the buyers as wanted. After two months and after only
some of the sugar had been drawn down by the buyers, a re destroyed the
rest. The buyer having disputed his liability to pay for the undelivered sugar
which had been burned in the re, the seller brought an action to recover
the price of [the] sugars sold and the question was whether the sellers were
so entitled: see pp 436, 441 (para 21) and 445. The court held that they H
were. Cockburn CJ did so on the basis that property had passed. But
Blackburn, Lush and Quain JJ found it unnecessary to decide this, and they
all decided the case on the basis that after two months the risk had passed.
Blackburn J put the matter thus, at p 455:
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A assume that [property] had not passed. If the agreement between the
parties was, I contract that when you pay the price I will deliver the
goods to you, but the property shall not be yours, they shall still be my
property so that I may have dominion over them; but though they shall
not be yours, I stipulate and agree that if I keep them beyond the month
the risk shall be upon you; and then the goods perish; to say that the
B buyer could then set up this defence and say, Although I stipulated that
the risk should be mine, yet, inasmuch as an accident has happened which
has destroyed them, I will have no part of that risk, but will throw it
entirely upon you because the property did not pass to me, is a
proposition which, stated in that way, appears to be absolutely a reductio
ad absurdum; and that is really what the argument amounts to. If the
parties have stipulated that, if after the two months the goods remain in
C
the sellers warehouse, they shall, nevertheless, remain there at the buyers
risk, it would be a manifest absurdity to say that he is not to pay for them;
and I think the case of Castle v Playford is a clear authority of the Court of
Exchequer Chamber, that where the parties have stipulated that the risk
shall be on one side, it matters not whether the property had passed or
not. The parties here have by their express stipulation impliedly said,
D after the two months the goods shall be at the risk of the buyer,
consequently it is the buyer who must bear the loss.
57 The price may therefore be recovered in respect of goods undelivered
which remain the sellers property but are at the buyers risk and are
destroyed by perils of the seas or by re. The present situation is in my
opinion a fortiori. The price of bunkers, which remain the sellers property
E but which are both (i) at the buyers risk as regards damage or destruction
(clause G.12) and (ii) also permitted by the express terms of the contract to
be destroyed by use for the owners commercial benet, must be equally
recoverable. I add that I do not suggest that this is the limit of the
circumstances outside section 49 in which the price may be recoverable. The
decision in Harry & Garry 16 June 1988 itself was that the price was
F recoverable for all the 2,494 sarees agreed to be bought back, although only
411 of them had been disposed of by the buyers with the sellers permission.
The precise limits of such circumstancesand the signicance which may in
particular attach to the use of retention of title clauses in combination with
physical delivery of the goods and the transfer of riskmust be left for
determination on some future occasion. I would only add that, when that
G
occasion arises, much benet will be obtained (as I have done in writing this
judgment) from the perceptive discussion by Professor Louise Gullifer in her
article The interpretation of retention of title clauses: some diculties
[2014] LMCLQ 564. She also addresses some critical remarks to the other
issue in the Caterpillar case [2014] 1 WLR 2365, that is the interpretation
of Holt Liverpools role as one of agency on behalf of F G Wilson in parting
with the goods to Holt Nigeria. That issue does not arise here, but may well
H merit further consideration in another case in this court.
58 It follows from what I have said that, had the contract been one of
sale, I would have held, overruling the Caterpillar case on this point, that
section 49 is not a complete code of situations in which the price may be
recoverable under a contract of sale, and that, in the present case, the price
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Lord Mance JSC
was recoverable by virtue of its express terms in the event which has A
occurred, namely the complete consumption of the bunkers supplied.
Conclusion
59 In the result, I conclude that, on the assumed facts: (i) the contract
between OWBM and the owners was not one of sale, but sui generis; (ii) that
it was not subject to any such implied term or terms, regarding performance B
by OWBM (or OWBAS) of any supply contract higher up the chain, as the
owners have allegedthough it was no doubt subject to an implied promise
by OWBM that OWBM was entitled (in consequence of whatever were the
arrangements under which the bunkers had been obtained directly or
indirectly from whoever was interested in them) to supply them to the
owners on terms permitting their use for the propulsion of the vessel before
payment; and (iii) that the owners have no defence to OWBMs claim to the C
agreed price.
60 Had I concluded on the other hand that the contract was one of sale,
I would, again on the assumed facts, have held that section 49 of the Sale of
Goods Act 1979 was also no bar to a claim by OWBM to payment of the
agreed price.
D
Appeal dismissed.
JILL SUTHERLAND, Barrister
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