CANPOTEX SHIPPING SERVICES LTD AND OTHERS V MARINE PETROBULK LTD AND OTHERS

2018 FC 957, Federal Court, Canada, Mr Justice Russell, 28 September 2018

Contracts - Bunker suppliers - Contractual claim - Interpretation of terms and conditions - Meaning of insistence on terms in negotiation

In ING Bank NV v Canpotex Shipping Services Ltd [2017] 2 Lloyd's Rep 270, the Federal Court of Appeal had allowed the appeal of ING in this OW Bunker insolvency-related case, and referred certain issues back to the judge. As a result of that decision, the judge now reconsidered the meaning of the alternative version of clause L.4, present in the OW Group's General Terms and Conditions, and its effect on the relationship between OW UK, Canpotex (which had purchased the bunkers and deposited the purchase price to be paid with solicitors pending determination) and Petrobulk (the physical supplier). The main material difference compared to the L.4 clause was the words: "These terms and Conditions are subject to variation in circumstances where the physical supply of Bunkers is being undertaken by a third party which insists that the Buyer is also bound by its own terms and conditions" (emphasis added).