В публикации рассматривается конкретное дело Galaxy Energy International Ltd v Murco Petroleum Ltd [2013]. Из судебного решения по этому делу можно сделать ряд выводов, а именно:
– cоглашение может быть заключено путем конклюдентных действий, которые должны быть подтверждены посредством сообщения;
– если продавцы не хотят погрузить судно в срок поставки, они должны отменить продажу на стандартных условиях ФОБ, и, наоборот, продавец, являющийся одновременно фрахтователем, не имеющий обязанности выполнить погрузку до даты лейдейс и имеющий право прекратить действие договора, может отвечать только в размере демереджа;
– применительно к фактам и доказательствам в каждом отдельном случае в решении суда должно быть отдано предпочтение ценам “Платтс” при компенсации ущерба, которые являются более соответствующими справедливым обычаям торговли, а не ценам “Платтс” на день нарушения контракта (причинения вреда).
Решение по этому делу, несомненно, имеет значение прецедента в английском праве.
Facts
The parties had traded on previous deals. On 4 January 2012, a
broker acting for Murco communicated, by instant messenger
and telephone, with a trader at Galaxy, to agree terms for
the sale. The agreement was recorded in an internal Galaxy
recap (accepted as an accurate summary by the Judge) as FOB
Milford Haven “in one lot … during period 15/17 January 2012” but
otherwise as “previous deal.”
The same day, Murco sent a confirmation email with
slightly different terms and sought to introduce an
extended delivery period, with the wording “plus such
extension to that period as is required by the seller to effect or
complete delivery.” Galaxy responded to inform Murco that
they would “revert in due time with comments.” In Galaxy’s
response, provided on 11 January, they deleted the extended
delivery window wording and asked Murco to “confirm your
agreement to the above. If you do not do so you will be taken to
have agreed with the terms set out in any event.” Murco did not
respond but proceeded with the deal.
Meanwhile Galaxy’s nominated vessel arrived and tendered
NOR on 13 January 2012. It was common ground that the
cargo was not made available for loading until 17 January.
Galaxy chose to accept delivery and claim damages.
Due to berth congestion, loading did not commence until
20 January and was not completed until the following day
when the vessel set sail.
Murco argued that Galaxy’s conduct was consistent with
its having accepted the additional delivery term. In the
alternative, Murco said that the delivery provision was
actually a laycan provision which did not provide for the
latest date of delivery.
Decision
The Court found that a contract had come into existence
(without the delivery window amendment) on either 4 or
11 January 2012 and Galaxy’s conduct in taking all normal
operational steps expected to perform the contract was a
world away from accepting the delivery window provision.
Significantly, Galaxy had rejected the delivery window
provision on all previous occasions when negotiating to
purchase cargoes from Murco, such that Judge Mackie QC
held Murco must have known that this amendment would
also be rejected.
The Judge also rejected Galaxy’s secondary argument
that the delivery period was a laycan provision on the
basis that there was no requirement to narrow the
delivery date range.
The Judge therefore agreed that Galaxy was entitled to
damages and the only significant question that remained
was which Platts price was to be used for determining the
difference in market value between the last contractual
date for delivery on 17 January 2012 and the actual date for
delivery on 20 January 2012, which was a Saturday.
Galaxy contended that the Platts price on Friday 20 January
2010 was appropriate but Murco said that it should be based
on a spread of days, as is common practice in oil deals.
The Court agreed with Murco and decided that as Platts
is a reporter of information and not a literal market place
or exchange on which a sale or purchase can be made in
trading hours, applying a spread of days of such market
information would be fairer in the circumstances.
Comment
This case is worth highlighting, as it contains a number of
useful reminders for commercial parties:
(i) That any attempts to amend the terms of a sale contract,
once concluded, should be expressly agreed. Agreement
can be made by conduct but it needs to be communicated
(ii) That if sellers do not want to commit to loading a vessel
within guaranteed delivery dates, they should avoid selling
on standard FOB terms. The difference between “delivery
dates” and “laycan” in the context of FOB contracts was
addressed in The “LUXMAR” [2007], where the Court of
Appeal confirmed that the effect of describing an FOB
delivery period as a laycan is to make time for delivery
an obligation which is not of the essence. The buyer who
has disposition of the vessel is in the same position as a
shipowner and is at risk of the charter being cancelled
if the vessel does not present before the last day of the
laycan period. Conversely, the seller is equated to the
charterer under a charterparty and has no obligation to
load before the first day of the laycan and may terminate
the contract if the vessel does not arrive in time. The
seller’s only penalty for delay is the agreed demurrage rate
(iii) Subject to the facts and evidence in any particular case,
this decision indicates that courts may prefer to approach
the assessment of damages by reference to prices given by
Platts on a spread of days, rather than the Platts price for
the single day on which a breach occurred
Авторы: Ed Mills-Webb, Harriet Thornton
Источник: http://sites.clydeco.vuturevx.com/34/3061/uploads/the–seacrown-.pdf