" Delivery shall be given and taken FOB Taman with Laydays of30 January 2019 to31 January 2019 . Seller to narrow to a one (1) day loading window latest COB 27 th January 2019."
" The fixed price per METRIC TONNE(S) FOB Taman shall be the arithmetic average of the high quotes for FUEL OIL 1% SULPHUR under the heading CARGOES FOB MED as published in Platts European Marketscan plus a premium of 22.50 US dollars per metric tonne The applicable quotation(s) shall be those published in the 10 consecutive publication(s) dated immediately after the BILL OF LADING date of the shipment in question."
" 2.1.1 Measurement of the quantities and the taking of samples and analysis thereof for the purpose of determining the compliance of the Product with the quality and quantity provisions of the Special Provisions shall be carried out in the following manner (b) where the Loading Terminal is not operated by the Seller or the Seller's Affiliate and if jointly agreed upon by the Buyer and Seller, by an independent inspector in accordance with the good standard practice at the Loading terminal at the time of shipment ."
" 3.1 the risk and property in the Product delivered under the Agreement shall pass to the Buyer as the Product passes the Vessel's permanent hose connection at the Loading Terminal."
"7.1 Delays In the event of any delay of any kind or from any cause whatsoever whether in connection with the scheduling of the Vessel's turn to load (including any change in such scheduling), provision of a Berth for the Vessel, berthing or loading of the Vessel or otherwise howsoever without limitation, and provided always that the Vessel is eventually loaded pursuant to Section 6.2.2, any rights of the Buyer against the Seller, however the same may arise and whether or not arising under the Agreement, shall be limited in all circumstances whatsoever to a claim for the payment of demurrage as specified below, and the Buyer shall not be entitled to complain directly or indirectly of any delay except for the purpose of founding a claim to such demurrage."
"59.1 Quality 59.1.1 Unless otherwise stated in the Special Provisions, the quality of Product delivered hereunder shall not be inferior to the specification (if any) set out in the Special Provisions. Whether set out in these General Terms and Conditions or in the Special Provisions neither typicals nor any stipulation as to time of delivery shall form part of the Product's description, quality or fitness for purpose. This sub-section constitutes the whole of the Seller's obligations with respect to the description, quality and fitness for purpose of the Product and all statutory or other conditions or warranties, express or implied, with respect to the description or satisfactory quality of the Product or its fitness for any particular purpose or otherwise are hereby excluded 59.2 Claims in respect of quality and/or quantity 59.2.1 Any complaint of deficiency of quantity or of variation of quality shall be admissible only if notified in writing to the Seller within 45 days of the completion of discharge date and accompanied by evidence fully supporting the complaint. Any term as to quantity in the Agreement, including in the Special Provisions, shall be an innominate term. Notwithstanding the foregoing, no claim shall be admitted in respect of any deficiency of quantity where the difference between the loaded and discharged quantity is 0.5% of the loaded quantity or less. If the difference between the loaded and discharged quantity is in excess of 0.5%, the whole amount of the loss may be claimed."
"66.1 Except as specifically provided in the Agreement, in no event, including the negligent act or omission its part, shall either party be liable to the other, whether under the Agreement or otherwise in connection with it, in contract, tort, breach of statutory duty or otherwise, in respect of any indirect or consequential losses or expenses including if and to the extent that they might otherwise not constitute indirect or consequential losses or expenses, loss of anticipated profits, plant shut-down or reduced production, loss of power generation, blackouts or electrical shut-down or reduction, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable."
"Our clear understanding on the basis of representations made to us, is that it will be impossible for BPOI to deliver a cargo which is within the contractual specification, specifically with regard to sulphur content. This was confirmed by yourselves earlier this evening where you mentioned that the sulphur content is 1.47 against guaranteed contractual maximum spec of 1.30. We consider this representation to place BPOI in breach of contract entitling Galtrade to reject the cargo now; though for the avoidance of any doubt, this message is not itself a rejection notice. In relation to BPOI's representation, we request: That you immediately confirm that BPOI's representation is to be treated as an assessment of the quality of the cargo pursuant to the contract; OR that you immediately provide us with the testing certificate (which BPOI clearly have) confirming that the cargo is off-spec as BPOI have represented We are prepared to wait until Monday, provided that: (i) the cargo will not be tendered for delivery; and (ii) that our willingness to wait until Monday has no impact on the assessment of the damages arising out of BPOI's breach (particularly as the vessel nominated for loading will have to wait until then, incurring costs)."
" Hi, it's your charter. So yes, as we discussed, regardless of the outcome of this cargo (i.e. if we agreed a quality discount or if you decided to go down the route of rejecting the cargo, or if there was some other commercial solution to it) one thing is clear – it makes no sense to let your vessel wait in the Black Sea . So in line with everyone's obligation to mitigate costs, this vessel should sail towards Malta for now, which gives us time to find a solution."
" As you know, the recent testing of the cargo loaded on the performing vessel show[s] that the cargo is outside of the contractual specification in relation to the sulphur content which is of 1.53 Pct against a contractually guarantee[d] spec of maximum 1.30 Pct and typical spec of 1.16 Pct. We are waiting for the balance of testing and it may be that further spec will be outside of the contractual specs, for instance as to vanadium which was also off-spec the other times. For now, this is a huge difference from the contractual specification that makes this cargo drastically different from what Galtrade contracted for. In the circumstances, Galtrade have no option but to reject the cargo and hereby place BPOI on formal notice of the same. We note that BPOI has instructed us to instruct the performing vessel to proceed to Malta, which instructions have been passed to the vessel. The cargo continue[s] to remain at BPOI's availability and Galtrade will continue to take all necessary steps to mitigate their position arising out of BPOI's breaches, as described above. Galtrade hereby place BPOI on formal notice that they will be seeking to recover any and all losses associated with BPOI's failure to provide a cargo pursuant to the terms of the contract (including but not limited to freight, demurrage, and other expenses). Please be guided accordingly."
" To resolve the impasse, and mindful of the need to mitigate losses, BPOI will take back the cargo from m/t "
" the Defendant breached the Contract in that Parcel 3 at the time and place of loading had: 14.1 an average sulphur content of 1.53%; 14.2 a P-value of 2; and 14.3 a Vanadium value of 59."
" The Claimant claims damages in the amount of its wasted expenditure of dealing with Parcel 3, from which it derived no benefit as a result of the aforesaid breach and the subsequent rejection of Parcel 3 "
"The conclusion to be drawn from these cases is that a term of a contract will be held to be a condition: (i)if it is expressly so provided by statute; (ii)if it has been so categorised as the result of previous judicial decisions (although it has been said that some of the decisions on this matter are excessively technical and are "open to re-examination by the House of Lords"); (iii)if it is so designated in the contract https://uk.westlaw.com/Document/IB08DBE906F4711E78AB0DD5C39CC2AEA/View/FullText.html?ppcid=a8acfdb047a54d8d935298386bfa06bc&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Search)&nortId=I1C8F2600846B11E79F2D9B1D6A0DF1C8&comp=books&navId=73F22BFD81FC704318BE38D1AA6169EF - co_footnote_2ec0c1a4-b645-4337-a1b3-244ba091b81d-CI or if the consequences of its breach, that is, the right of the innocent party to treat himself as discharged, are provided for expressly in the contract; or (iv)if the nature of the contract or the subject matter or the circumstances of the case lead to the conclusion that the parties must, by necessary implication, have intended that the innocent party would be discharged from further performance of his obligations in the event that the term was not fully and precisely complied with. Otherwise a term of a contract will be considered to be an intermediate term."
"In the absence of either express classification as a condition by the parties or of a statute or binding authority classifying the disputed term as a condition, modern courts seem more inclined to classify a term as intermediate rather than as a condition: "the modern approach is that a term is innominate unless a contrary intention is made clear."
"In my view, a court should not be over ready, unless required by statute or authority so to do, to construe a term in a contract as a "condition" any breach of which gives rise to a right to reject rather than as a term any breach of which sounds in damages - I deliberately avoid the use of the word "warranty" at this juncture. In principle contracts are made to be performed and not to be avoided according to the whims of market fluctuation and where there is a free choice between two possible constructions I think the court should tend to prefer that construction which will ensure performance and not encourage avoidance of contractual obligations."
" in the absence of any clear agreement or prior decision that this was to be a condition, the court should lean in favour of construing this provision as to impurities as an intermediate term, only a serious and substantial breach of which entitled rejection."
"So well established has become the view that the proper remedy for physical defects in the goods in international sales is a price allowance that courts have reached similar conclusions when dealing with express quality terms failing to state the consequences of a breach. Terms considered to be intermediate stipulations, so that a breach not going to the root of the contract would give the buyer no more than a price allowance, including the shipment of citrus pellets "in good condition" and the requirements that white Syrian barley not contain excess of 4 per cent impurities and that crude oil be of the "usual Dakar refinery quality"
" it is important to understand that, from Galtrade's perspective, trades like this are never about gambling on the market price for [SRFO] rising or falling. We are always seeking to extract value by, for example, using higher specification [SRFO] to blend with and "improve" lower specification parcels, or filling a particular need for a refinery."
" In the case of Parcel 3, the difference between the agreed value of 1.3% sulphur and the quality actually provided (1.53% sulphur) is in my opinion a big discrepancy which did not allow Galtrade to carry out their original trading plan, and thus in my opinion deprived them of the whole benefit of the Contract "
"The test whether an event has this effect or not has been stated in a number of metaphors all of which I think amount to the same thing: does the occurrence of the event deprive the party who has further undertakings still to perform of substantially the whole benefit which it was the intention of the parties as expressed in the contract that he should obtain as the consideration for performing those undertakings?"
"To constitute repudiation, the threatened breach must be such as to deprive the injured party of a substantial part of the benefit to which he is entitled under the contract. The measure of the necessary degree of substantiality has been expressed in a variety of ways in the cases. It has been said that the breach must be of an essential term, or of a fundamental term of the contract, or that it must go to the root of the contract."
"The question whether a breach of an intermediate term is sufficiently serious to entitle the innocent party to treat himself as discharged is to be determined "by evaluating all the relevant circumstances"
" (1) The buyer is deemed to have accepted the goods (a) When he intimates to the seller that he has accepted them; or (b) When the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller. (2) Where goods are delivered to the buyer and he has not previously examined them, he is not deemed to have accepted them under subsection (1) above until he has had a reasonable opportunity of examining them for the purpose: (a) of ascertaining whether they are in conformity with the contract; and (b) in the case of a contract for sale by sample of comparing the bulk with the sample."
" (2) The measure of damages is the estimated loss directly and naturally resulting in the ordinary course of events, from the seller's breach of contract. (3) Where there is an available market for the goods in question the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered or (if no time was fixed) at the time of the refusal to deliver."
" Where there is a breach of warranty by the seller the buyer may: (a) set up against the seller the breach of warranty in diminution or extinction of the price, or (b) maintain an action against the seller for damages for breach of warranty. (2) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty. (3) In the case of breach of warranty of quality such loss is prima facie the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had fulfilled the warranty."
" It seems to me that a plaintiff in such a case as this has an election: he can either claim for loss of profits, or for his wasted expenditure. But he must elect between them. He cannot claim both."
"If the claimant takes steps that were out of the ordinary course, speculative or otherwise to be treated as collateral and not part of the continuous chain from the breach, ie unreasonable steps, the steps will be deemed by the principle of legal causation not to have occurred for the purpose of assessing damages (and any costs or benefits resulting from the steps ignored)."
" In some cases the damages measure will be measured by the claimant's expenditure wasted by the defendant's breach here we are talking only about expenditure that, even but for the breach, would still have been incurred although not (it is said by the claimant) wasted."
" A claimant cannot recover expenses that would have been incurred even but for the breach, whether on the same or an alternative transaction." b. Chitty Vol 1 , at [26-030]: "
"We start with the "
" Lost profit is the difference between the total net cost to the seller of acquiring the goods and bringing them to market on the one hand and the net sale price that would have been achieved on the other." c. Conversely, and although the claim for wasted expenditure is an expression of the claim for expectation losses, it is no necessary part of that claim that the claimant has foregone any actual net profits. The only assumption is that the claimant would have broken even had the contract been complied with. Put another way, the substance of the claim is that the claimant has lost money which it would not otherwise have lost. It is not that the claimant has foregone a profit which it would otherwise have earned. d. The point may also be articulated via Benjamin , at [17-062]: "
" (1) Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for non-acceptance. (2) The measure of damages is the estimated loss directly and naturally resulting in the ordinary course of events from the buyer's breach of contract. (3) Where there is an available market for the goods in question the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price at the time when the goods ought to have been accepted or (if no time was fixed for acceptance) at the time of the refusal to accept."
" The assessment must be made on the basis of the value of the contract goods at the time and place of the breach which may be ascertained by any relevant evidence, such as the cost of the nearest equivalent, or a resale price, or the profits which the buyer would have made had he acquired the goods and manufactured them into other articles, as the seller knew that he intended to do."