COMPTOIR D'ACHAT ET DE VENTE DU BOERENBOND BELGE, S.A. v. LUIS DE RIDDER, LIMITADA.

(1946) 80 Ll.L.Rep. 653

COURT OF APPEAL.

Before Lord Greene (Master of the Rolls), Lord Justice Asquith and Mr. Justice Croom-Johnson.

Sale of goods - C.i.f. contract - Documents - Payment by buyers against delivery order - Ship diverted by sellers to neutral port owing to enemy occupation of contract destination - Right of buyers to repayment of price paid - Failure of consideration - Sale of 500 tons of rye (part of bulk cargo) "for shipment per steamer . . . Julia afloat as per bill or bills of lading dated or to be dated accordingly at the price of 4.025 dols. per 100 kilos c.i.f. Antwerp on the terms, conditions and rules contained in Form No. 41 of the London Corn Trade Association" - Further provision that "Payment to be made by net cash on first presentation of and in exchange for first arriving copy/ies of bill/s of lading . . . and/or delivery order/s and polic/ies and/or certificate/s and/or letter/s of insurance at Antwerp . . ." - Bulk cargo shipped by sellers in chartered ship Julia - Delivery order presented in Antwerp to Belgian buyers (claimants) - Delivery order signed by sellers' agents and addressed to sellers' cargo superintendents instructing them to release to claimants 500 tons rye ex bill of lading for 1120 tons shipped in Julia - Notification in delivery order that holder was entitled to share in certificate of insurance covering bulk cargo - Certificate and bills of lading retained by sellers (or their agents) - Goods unascertained - No passing of property to buyers - Payment made by buyers against delivery order - Undertaking by sellers' cargo superintendents indorsed on delivery order "to honour the present delivery order according to the clauses and conditions of the bill of lading, and the bearer has all the rights and obligations of the original document which we hold for his inspection" - Invasion of Belgium by German armed forces - Julia diverted to Lisbon by arrangement between shipowners and sellers (as charterers) - Cargo discharged and sold by sellers ex ship - Proceeds offered to buyers - Contention by buyers that they were entitled to repayment of sum paid against delivery order - Alleged total failure of consideration - Construction of contract - Evidence of course of business followed in previous transactions between parties - Passing of risk - Frustration - Arbitration - Award rejecting buyers' claim - Case stated.