Lloyd's Maritime and Commercial Law Quarterly
ENGLISH SALE OF GOODS LAW
Djakhongir Saidov*
158. Euro-Asian Oil SA (formerly Euro-Asian Oil AG) v Credit Suisse AG v Abilo (UK) Ltd1
Whether contract on CIF terms—INCOTERMS 2000—Letters of credit—payment against shipping documents or letter of indemnity—Sale of Goods Act 1979 (“SGA”), s.51(2) and (3)—whether s.51(3) displaced and damages to be assessed with reference to sub-sale—letter of indemnity
Between 2007 and 2009, Euro-Asian engaged in four transactions with Mr Igniska’s companies importing and distributing gasoil in Romania. Because Mr Igniska’s companies had limited credit lines, he was only able to finance the purchase of relatively small cargoes. Mr Igniska wanted to purchase larger quantities and Euro-Asian agreed to a scheme whereby it would buy cargoes of gasoil from various companies for delivery “CIF Constantza”. Mr Igniska would negotiate such deals and Euro-Asian would decide whether it would agree to enter the contracts as purchaser. If so, it would sell those cargoes to a company owned by Mr Igniska, such as Abilo, on extended payment terms. On this basis, Mr Igniska would organise the discharge of the cargo in Constanza and arrange for the oil terminal to issue an in-tank “holding and title certificate” (“holding certificate”), confirming that it held the cargo in Euro-Asian’s name and under pledge to Euro-Asian’s financing bank. The product would then be released in parcels to Mr Igniska’s companies on payment by instalments.2 The way in which the said four transactions were performed was described as a “carousel”, whereby the documents (notably the holding certificate), tendered under one transaction related to the cargo delivered and discharged under the previous transaction.
The sale contract which was in issue was the fourth such contract entered into between Abilo (seller) and Euro-Asian (buyer) on 1 October 2010. It provided for the sale of a cargo of 20,000 metric tons 10% ultra-low sulphur diesel: “CIF one safe port/berth Constantza in one full cargo lot per M/T ‘T.B.N’… during the period 10 September–31 December 2010”. Payment was to be made by letter of credit (“l/c”), dated 1 October and opened by Credit Agricole (Suisse) SA. The buyer was named as the applicant and the seller as the named beneficiary. The credit stipulated that, if certain specified documents, including bills of lading, were not available when the payment became due, payment was to be made against
* Professor of Commercial Law, King’s College London.
1. [2018] EWCA Civ 1720; [2018] 7 WLUK 586; varying [2016] EWHC 3340 (Comm); [2017] 1 Lloyd’s Rep 287; digested [2016] IMCLY § 131.
2. The commercial benefit to Euro-Asian was the difference between the price at which Euro-Asian bought the cargoes and the price it sold them to one of Mr Igniska’s companies, usually a difference of about US$2–US$3.5 per mt, described as a “financing fee”.
English Sale of Goods Law
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