AD TOEPFER INTERNATIONAL GmbH v NIDERA HANDELSCOMPAGNIE BV NIDERA HANDELSCOMPAGNIE BV v ROMAK [1990] NSWCA 1

AD TOEPFER INTERNATIONAL GmbH v NIDERA HANDELSCOMPAGNIE BV NIDERA HANDELSCOMPAGNIE BV v ROMAK

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and HANDLEY JA 8 March 1990, 16 October 1990 [1990] NSWCA 1

CONTRACT — "String" contracts for sale of barley — contracts provide mechanism for loading of barley and its carriage by sea — also provide for times by which this be done — buyer's obligation to provide ship — ship in port within time, but unable to berth because of port congestion — question whether upon proper construction of contracts this meant buyer was in breach, and if so in such breach as entitled seller to terminate — held that buyer was in breach, and seller entitled to rescind.

Mahoney JA This appeal concerns the obligations of the buyer and the seller under a particular contract for the sale of barley. Mr Sheller QC has, in his presentation of the case, reduced it to its essentials. It is accepted that, in a classic FOB contract in this area of the law, the obligations of a buyer include the obligation to berth the ship at the relevant berth. The obligations of the seller include the obligation to nominate the berth. It is accepted also that, in such a case, a buyer is in breach if, because of port congestion or the like, it is not in a position to put the ship into such berth as the seller may properly have nominated. And, as I understand what has been put in the appeal, this is so even though it means that the seller is not able to nominate a berth which is free to take the vessel.

The issue in this appeal is whether the terms of the present contract result in the seller bearing the risk of the buyer not being able to do what, in the circumstances, it was obliged to do.

Mr Sheller QC has urged that the present contract creates a different set of obligations. And he seeks an order that the arbitration be dealt with accordingly.