SOCIETE CO-OPERATIVE SUISSE DES CEREALES ET MATIERES FOURRAGERES v. LA PLATA CEREAL COMPANY, S.A.
(1946) 80 Ll.L.Rep. 530
KING'S BENCH DIVISION.
Before Mr. Justice Morris.
Sale of goods (f.o.b.) - Breach - Cancellation by sellers - Failure by buyers to declare or tender ship - Prohibition of export - Impossibility of performance - Frustration - Liability of sellers - Construction of contract - Measure of damages - Sale by Argentine company to Swiss company of "about 5000 tons Plate maize new crop by steamer/s . . . as per bill or bills of lading dated or to be dated 16th May/June, 1945" - Second contract entered into on similar terms - Contracts based on terms of London Corn Trade Association Contract No. 64, which provided (inter alia): -
Extension clause. Should buyer not tender suitable tonnage within contract time he shall be in default, unless he gives notice to the seller by letter or telegram not later than the last day of the specified period for delivery, that an extension is claimed. Should extension be so claimed, seller shall carry the grain for account of buyer at the current charges for storage, interest and insurance, such to be paid by the buyer; but at any time after 21 days after the expiration of such specified period for delivery, seller may demand payment at contract price, plus such carrying charges, but less the current f.o.b. charges, against a tender of proper warehouse receipts, and such tender of warehouse receipts, without fire insurance, shall be deemed complete performance of contract on the part of seller.
Prohibition clause. Should the fulfilment of this contract be rendered impossible by prohibition of export, blockade, or hostilities, this contract, or any unfulfilled part thereof, to be cancelled.
"Special conditions as annexed." Special conditions providing: -
Payment in Buenos Aires by telegraphic transfer on Switzerland on first presentation of the documents and/or warehouse receipts and/or mate's receipts if necessary.
The buyers must declare the name of the steamer to load the goods at least 15 days beforehand.
If the goods have not been able to be loaded by the 30th of June, 1945, the
carrying charges will be for buyers' account from the 1st July, 1945, at the rate of 10 centavos per 100 kilos per fortnight for storing and fire insurance, and payment will be made against warehouse receipt established by the sellers.
Ship not declared or tendered by buyers - Extension not claimed - Contracts cancelled by sellers on July 2, 1945, on ground of prohibitive decrees introduced by Argentine Government - Decrees providing that all maize destined for export must be purchased exclusively from Agricultural Products Regulating Board - Evidence that Board had no "Plate maize new crop" which they were willing to sell and that sellers were unable to obtain permit to export maize of their own property - Claim by buyers for damages - Whether sellers excused from performance of contracts - Effect of decree - Arbitration - Award in favour of buyers - Damages assessed on oasis of estimated market value at time of breach - Case stated - Interpretation of contracts - Effect of annexed special conditions - Whether extension clause of Contract No. 64 superseded.