Case No.:

AC-RE V-228-1962

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Contract—Performance—Materiality of failure to perform f.o.b. mercantile contract on Lime

·  Contract—” Conditions beyond our control “—does not include inability to locate shipping space

Plaintiff accepted an order to supply defendant with a quantity of cloth to be delivered “f.o.b. English port—shipment April/June 1953.” The goods were delivered on board at London on July 3. 5953. Respondent refused to take delivery when the cloth arrived in Port Sudan. Plaintiff sued for the amount lost when the goods were otherwise disposed of by the port authority; plaintiff claimed that the unavailability of steamers at the material time was a circum stance beyond its control, that therefore his non-performance of the condition was excused, and that the three-day delay was not a material breach.
Held: (I) inability to secure space for shipment of goods is not a “condition beyond (plaintiff’s) control “;

(ii) Because of the importance of performance at the time agreed in mercantile contracts, delay by a seller in putting goods f.o.b. within the time stipulated by contract discharges the buyer.

Judgment

                                               (COURT OF APPEAL) *

                      DOMBROWER & CO. v. EL SAYED KHALIL YACOUB

                                             AC-RE V-228-1962

Advocates: Mohamed Beshir Abdel Rahman and E. M. Kronfli for plaintiffs-applicant

El Rasheed Nayel for defendant-respondent

Babiker Awadalla 1. January 2, 1963: —The question involved in this case is whether in an f.o.b. contract a stipulation as to the date of shipment is a condition precedent to the liability of the buyer therefore entitling

him to reject the goods, or whether it is a mere warranty giving the buyer no right to such rejection and entitling him merely to damages.

The facts of the case are as follows.

Applicants (plaintiffs) in the suit are a company carrying on business in England. Respondent (defendant) is a merchant of Omdurman.

On April so, 1953, applicants, through their agents, the Oriental Trading Corporation of Khartoum, accepted from respondent an order for the supply of a certain quantity of oil baize cloth on the terms specified in the order form (Exh. P.1). According to that form the goods were to be delivered f.o.b. English port—shipment April/June 1953. The following appears as an endorsement to the form under the heading “Working

Terms”:

“This order cannot under any circumstances be cancelled or refused by the buyers once signed by them. The partial execution of this order does not entitle purchasers to reject the part shipment and to any indemnity whatsoever. All orders and contracts are accepted only on the understanding that we are not to be held responsible for any delay or loss arising from contingencies beyond our control such as war, political disturbances, prohibition of export, strikes, lock-outs, rail way dislocation, washouts, fire, rains, sandstorms or any cause or causes of force rnajeure or act of God which prevent or delay the delivery of the goods. In case of wrong execution of order or goods not being in conformity, buyers have the option to reject the same but acquire no right to any indemnity. Disputes arising and/or touching this order shall be submitted to the decision of the civil court of Khartoum.”

On April 17, 1953, i.e., only a week after acceptance by the agents of the order, a memorandum headed “Confirmation of Order” was submitted for respondent’s signature (Exh. P.6). In this memo., the date of delivery is shown as May/June 1953 and a clause was inserted absolving applicants from liability for delay and reading as follows: “We cannot be held responsible for any delay in delivery due to conditions which are beyond our control.” This memo was signed by both parties.

The goods were delivered on board SS. Mulbera at the London Port on July 3, 1953, and on their arrival at Port Sudan, respondent refused to take delivery on the ground that applicants had committed a breach of the term as to date of shipment. The goods were left at the Port Sudan quays for a long time and were thereafter disposed of by the port authority at a loss to applicants of a sum of £S99.455m/ms. which is now claimed by applicants.

Applicants contended that the delay of three days was due to circumstances beyond their control and submitted in proof of this a statement on Oath by their sole director made before a notary-public to the effect that the delay was due to unavailability of steamers at the material time.

The learned District Judge, Omdurman, gave judgment in favour of applicants on the ground that the exception clause inserted in Exh. P.6 (the “Confirmation of Order “) nullified the effect of the stipulation as to time, in that the unavailability of space for shipment was a “circumstance beyond the control of the sellers.” Respondent applied to the Honourable Judge of the High Court for revision against this judgment and the application was dealt with by His Honour Salah Hassan, Province Judge. He reversed the findings of the learned District Judge, Omdurman, on the ground that applicants have contracted to delivery during May/June I9 and that such a stipulation goes to the root of the contract. It is against that decision that this application is now being made.

In my view, this application should be dismissed. It is a cardinal principle regarding these mercantile contracts, whether they are c.i.f. or f.o.b., that time is of the essence of the transaction and that performance must be within and neither before nor after the stipulated time. In Carver, Carriage of Goods by Sea 732 (10th ed. 1957), it is stated as an example that “under a January f.o.b. contract, the seller must tender the last of the goods over all within working hours on January 31, at the latest; the seller must deliver in such time that the goods can be put on board in January.”

In the two English cases of Alexander v. Vanderzee (1872) L.R. 7 C.P. 530, and Bowes v. Shand (1877) 2 A.C. 455; 2 Q.B.D. 112; 1 Q.B.D. 470, shipment was made a little earlier in time than was stipulated in the contract and in both of them it was held that the buyer was entitled to reject the goods. In the latter case Lord Hatherley at (2 A.C. 455, 476, said: “If the words have a certain definite meaning, it is dangerous   to depart from that meaning until you can arrive at any sound ground upon which you should do so; it is dangerous to depart from it upon a conjecture that it can make no difference to the parties, and especially you cannot reject the literal construction because you think that, unless you reject it, you may be affording an opportunity for an evasive purchaser to escape from his bargain. Of course, .as has been already observed, in many cases a purchaser is desirous of escaping from his bargain, and if he finds that the bargain which is attempted to be enforced as against him, is not only burdensome upon him, but is against the letter of his contract, there is nothing in our law which prevents his availing himself of that answer to the case made against him, namely, that he has not entered into the engagement you allege, and if you seek to fasten upon him the engagement, you must first bring him within the four corners of the contract.” In the present case, delivery was agreed to be made during May/June and if it is made otherwise than during these two months, no matter how short the difference in time may be, then that amounts to a breach of contract.

It is contended on behalf of applicants that they are covered against “delays beyond their control” but that term cannot in my view apply to inability to secure a space for shipment of the goods. I think the clause in the confirmation of order has to be read in conjunction with that in the original order itself which enumerated exigencies beyond the control of applicants and confines them to “war, political disturbances, prohibition of export, strikes, lock-outs, railway dislocation, washouts, fire, rains, sand- storms or any cause or causes of force majeure or act of God”

Finally, I would like to point out that applicants have adduced no evidence that shipment was not available during the months of May and June. All that they have tendered in this respect is an inadmissible affidavit made before a British notary-public enclosing an inadmissible letter from their shipping agents.

This application is accordingly hereby dismissed with costs.

M. A. Abu Rannat C.J. January 2, I963: —I concur

* Court: M. A. Abu Rannat C.J. and B. Awadalla J.