Please enable JavaScript.

Coggle requires JavaScript to display documents.

(7) estoppel + mkt loss (Market loss damages- Should dges claim include…

- - - - Taylor & Sons v Bank of Athens (1922) Ll L Rep 88
        
        CIF contract for sale of beans with July/August shipment
        Goods not shipped until September 1919. By September market value of goods was falling. BoL incorrectly dated: 31 August 1919
        S had option of tendering a ship’s delivery order rather than a BoL. B seeks assurance about date on BoL
        B pays price in return for documents including delivery order
        [Goods did not conform to description. Different date. Bol indicates to buyer shipped within a period. "ship delivery order" is another type of document. Document allowed tendering ship delivery order
        B realised BOL was wrong date and accepted goods alr.
        How to calculate measure for dges.]
        
        Substantial dges or nominal dges.
        The buyer was after substantial dges
        
        B discovers BoL incorrect some months later
        B sold goods and thus lost right to reject; only remedy available is damages
        Question over measure of damages
        Difference between contract price and MV on either actual date of delivery or date ship would have arrived if BoL had been correct (substantial damages), OR - takes into account market fall element.
        Difference between MV on actual date of delivery and MV on date ship would have arrived if BoL had been correct (negligible damages)
        
        Correct measure of damages is …
        Difference between MV on actual date of delivery (i.e. September shipment) and MV on date ship would have arrived if BoL had been correct (i.e. August shipment)
        B able to recover only negligible damages
        Original arbitration award upheld
        Note: breach in relation to goods (i.e. not within shipping period), but not in relation to documents tendered (S did not have to tender BoL)
        Market falls are not sth S should be responsible for. As a market trader, sould bear some risks.
        Market loss damages
        , McCardie J at 90:
        ‘Market falls are not generally due to a vendor's default. A buyer cannot, I think, save perhaps in very exceptional circumstances, attribute to his seller a loss which, in substance and in fact, arises not from the seller's breach but from a fall in market values. To impose the burden of such a loss would be to saddle him with something for which he is wholly free from blame.’
        
        James Finlay & Co v NV Kwik Hoo Tong Handel Maatschappij [1929] 1 KB 400
        
        No allegation of fraud against S, but tender of inaccurate BoL is breach of a contractual condition(Cf. Lord Diplock in Gill & Duffus)
        
        Breach in both documents and goods
        
        -
        Contract: CIF Rotterdam under GAFTA 100
        Clause 6: BoL to be dated when goods are on board
        Last date of shipment extended to 29 February 1984
        BoL dated 31 January 1984, but goods not loaded until around 6–11 February
        B pays S in return for shipping documents
        When goods arrive B indicates intention to rejects goods, but then makes a sub-sale
        
        Proctor & Gamble v Kurt A Becher [1988] 2 Lloyd’s Rep 21
        B claims damages from S: difference between contract price and amount realised in sub-sale
        Held by CA
        B lost right to reject documents; unaware at time of breach in relation to documents
        B’s remedy limited to recovering losses suffered as a result of breach
        B entitled to no damages as no loss as B received goods conforming to the contract (i.e. breach in relation to documents but not goods)
        
        Can B make a claim that includes mkt loss element. NO.
        Contrast previous cases Jim finley and bank of athens, here there is a breach in document but not goods. Thus mkt loss cannot be recovered.
        Kerr LJ at 22:
        ‘Many commercial cases turn on the dates of bills of lading. Normally they have three common features. The date shown is the last day of a calendar month. This is also the last day of the contractual shipment period. But the cargo was in fact only loaded a few days later, during the following month. Presumably some cargoes are really loaded in full on the last day of a month and covered by a correctly dated bill of lading. But one never hears of such cases in the Courts … ’
        
        Shipment periods are so crucial, people will often falsely date documents. Usually cases of bol will be shifted to 31st Dec, 31st feb … last daye of month prob not the correct date of shipment.
        ‘ … When we see a bill of lading dated on the last day of a month we know that it was ante-dated to serve a clear-cut, though dishonest, commercial purpose: the pretence that the goods were in fact put on board before the expiry of the contractual shipment period. The reason lies in the decision … in Bowes v. Shand … that the shipment period stipulated in a c.i.f. contract forms part of the description of the goods. It follows that late shipment involves a breach of condition which gives rise to a right of rejection.’