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[2021] EWHC 793 (Comm), Queen's Bench Division, Commercial Court, The Honourable Mr Justice Henshaw, 31 March 2021

Sale of goods – FOB sale – Nomination of vessel – Duty to nominate – Nominated vessel not scheduled to stop at load port – Whether nomination on honest and reasonable grounds a condition – Substitute nomination – Arbitration – Appeal on a point of law – Arbitration Act 1996, sections 68 and 69

This was the appeal of a GAFTA Board of Appeal award on five questions of law. The dispute concerned the sale of a cargo of Ukrainian feed corn FOB from one safe berth or safe Ukrainian port and buyers were to nominate a vessel. The claimant was the seller and the defendant the buyer. On 20 March 2018, the buyers nominated the vessel Tai Hunter without naming the owner as required by the charterparty. Sellers, having received information that the vessel was to proceed to Ireland without further stops in Ukraine causing them to doubt that the nomination was genuine, requested a copy of the charterparty. On 26 March 2018, the sellers purported to terminate the contract for repudiatory breach, based on the failure to provide the charterparty and the vessel's itinerary. Two days later, buyers purported to nominate a substitute vessel. The nomination was not accepted. The parties agreed that the contract was at an end and settled subject to arbitration. In arbitration, the Board determined that while the nomination had been invalid, this was not a breach of condition entitling the sellers to terminate. The buyer had been entitled to substitute the vessel. The seller appealed.