There was nothing to prevent the vendors from dispatching the goods as contracted, unless they were impliedly bound as a term of the contract to use no other route than that of the Suez Canal. 348, 362.33 2 Q.B. Taylor v Caldwell (1863) 3 B & S 826. 131.4 2 Q.B. The market price of Sudanese nuts in shell shipped from Port Sudan c.i.f. 214, 220; 27 T.L.R. 4 Tsakiroglou & Co Ltd v Noblee and Thorl GmbH  A.C. 93 at 103. The learned judge held that the nature and extent of the sellers' obligation in relation to the route was to be ascertained at the time of performance. Suppose a simple contract for the carriage of goods from Port Suez to Alexandria through the Canal. 188, 189, 197, is of importance; there is no suggestion there that the contract of affreightment must make provision for the usual and customary route at the date the c.i.f. 145;  2 All E.R. As to the nature of the contract of affreightment which the seller has to procure, see Kennedy on C.I.F. 112). 's decision. What the sellers had to do was simply to find a ship proceeding by what was a practicable and now a reasonable route - perhaps not vat a usual route - to pay the freight rind obtain a proper bill of lading, and to furnish the necessary acuminates to the buyers. I agree that the appellants cannot rely on the provisions of clause 6 of the contract regarding prevention of shipment. Paradine v. Jane,  EWHC KB J5  EWHC QB J1 contracts. If those words are implied, the question arises: "What then?" (iii) If the word 'shipment' includes not only the placing of the contract goods on board a vessel but also their transportation to the contract destination then shipment via the Suez Canal was prevented during the contract period of shipment by reason of force majeure but shipment via the Cape was not so prevented. As to the route which the ship must follow, the most that can be said on the authorities, which are very scanty, is that the route must be a, or the, usual route, or, if there is103 no usual route, the practicable route, if there is only one, or a reasonably practicable route, if there is more than one. Hamburg. After the closure of the Canal the Port Sudan- U.K. Conference imposed the following surcharges for goods shipped on vessels proceeding via the Cape of Good Hope, viz., as from November 10, 1956, 25 per cent., and as from December 13, 1956, 100 per cent."  A.C. 166, 185;  2 T.L.R. Davis Contractors Ltd. v. Fareham Urban District Council 13 is distinguishable, for that decision was concerned with whether there had been frustration by reason of delay, and there is no question of delay here. per 1,000 kilos, the market price this time being £68 15s. This meant that the groundnuts had to be shipped from Port Sudan to Hamburg. The first part of the quotation is clearly dealing with a contract of affreightment where the carrier has the option of selecting a usual route. E.g., Where expected hindrances (such as import tariffs) to the delivery of goods are removed. 160, C.A. Any opinions, findings, conclusions or recommendations expressed in this material are those of the author and do not necessarily reflect the views of LawTeacher.net. On November 2 the Suez Canal was closed to navigation, but the goods could have been shipped round the Cape of Good Hope. As I understood the argument it was based on the assumption that the voyage was the manner of performing the sellers' obligations and that therefore its nature was material. freight surcharge was placed on goods shipped on vessels proceeding via the Cape of Good Hope and this was increased to 100 per cent. "On the construction of the contract which appears to me to be correct having regard in particular to the dates for shipment extending over the period November/December, 1956, there is no room in my judgment for any application of the doctrine to this ease.I would add that I cannot agree with Diplock J. that the question in this ease is answered simply by reference to the finding of mixed law and fact numbered (vi) in the special case where the arbitrators found in so far as it is a question of fact and held in so far as it is a question of law that "the performance of the contract by shipping the goods on a vessel routed via the Cape of Good Hope was not commercially or fundamentally different from its being performed by shipping the goods on a vessel routed by the Suez Canal. If the new route made necessary by the closing of the old is substantially different the contract 118 would be at an end however slight the effect of the change might be on the parties. It would be unusual and rare for any substantial parcel of Sudanese groundnuts from Port Sudan to Europe to be shipped via the Cape at all times when the Suez Canal was open." (ii) Neither war nor force majeure prevented shipment of the contract goods during the contract period if the word 'shipment' means placing the goods on board a vessel destined for the Port of Hamburg. contract has been held to be frustrated by closure of the Suez Canal is Carapanayoti & Co. Ltd. v. E. T. Green Ltd.,35 decided by McNair J. (2) The obligation on the seller as to the nature of the contract of affreightment he must procure is determined by the circumstances prevailing at the date he chooses to ship and not at the date the contract was made. 116 Upon this part of the case I have not thought it necessary to deal with Pearson J. The Plaintiff did not always display the … In this I agree with Harman L.J.,6 for it seems to me that there are precisely the same grounds for rejecting the one as the other. ; (1923) 39 T.L.R. Read the following cases: Tsakiroglou & Co Ltd v Noblee & Thorl GMBH AC 93 Davis Contractors Ltd v Fareham UDC  AC696 13. 'sapproach to the arbitrator's findings in Société Franco Tunisienne D'Armement v. Sidermar S.P.A.15 should be adopted here. But the value is evidential only. His decision was later confirmed. Facts. contract cases. Pronunciation of tsakiroglou v noblee thorl with 1 audio pronunciation and more for tsakiroglou v noblee thorl. The question, therefore, is what is the reasonable mercantile method of performing the contract at a time when the Suez Canal is closed, not at a time when it is open. It is evident, however, that this passage is not concerned with such a case of abnormality as subsisted here. There is no evidence that the buyers attached 115 any importance to the route. Facts: In November/December of 1956, the parties contracted about the sale of Sudanese nuts. 390;  3 All E.R. Before Lord Justice Sellers, Lord Justice Ormerod and Lord Justice Harman. Evans, Sons & Co. v. Cunard Steamship105 Co. Ltd.,34 which was approved in Reardon Smith Line Ltd. v. Black Sea and Baltic General Insurance Co.,35 supports proposition (3): see also Frenkel v. MacAndrews & Co.36 The Cape was a practicable route and a reasonable route in the circumstances of the present case. 22 Arun Katya, Paul Cairns, “It’s just not cricket” Entertainment Law Review 1998  23 Tsakiroglou & Co Ltd v Noblee Thorl GmbH  AC 93 But all commercial contracts ought to be interpreted in light of commercial considerations. Of course, in the case of a contract c.i.f. In the present case nothing turns on the form of the bill of lading, which is not in evidence: everything turns on the question of route. 348.23Ibid. contract or, alternatively, was so radically different that it left that contract frustrated. The distance from Port Sudan to Suez is 694 miles. As in the “Suez” cases: Tsakiroglou & Co. Ltd, v. Noblee Thorl GmbH  A.C. 93; Ocean Tramp Tankers Corp. v. V/O Sovfracht (The Eugenia)  2 Q.B. 38 of the Incorporated Oil Seed Association, whereby the appellants agreed to sell to the respondents 300 tons of Sudanese groundnuts at £50 per 1,000 kilos including bags c.i.f. In the Citati case54 Devlin J. held that it was for the arbitrator to state what delay there was and for the court to state on this finding whether that delay amounted in law to frustration. 632, 665;  1 All E.R.  A.C. 562; 55 T.L.R. 713;  2 All E.R. contracts the duty of the sellers is defined by section 32 of the Sale of Goods Act, 1893, which provides:"32 - (1) Where, in pursuance of a contract of sale, the seller is authorised or required to send the goods to the buyer, delivery of the goods to the carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is prima facie deemed to be a delivery of the goods to the buyer. The real issue, as I see it, is to determine how to define the obligation of the appellants, the vendors, under the sale contract of October 4, 1956, so far as it related to shipment of the goods sold and the provision of shipping documents. The decision was affirmed by the Court of Appeal. It is plain that the respondents cannot hope to sustain the special finding, for whether something is "fundamental" and what is "commercial" are questions of law. This is the first of the "Suez" frustration cases to come to this House. Contracts, 1st. After that, if the case of force majeure be still operating the contract shall be cancelled. The customary route (the Suez canal) was closed and a reasonable route (the Cape) remained open. Lord Radcliffe put the matter thus30 : "So perhaps it would be simpler to say at the outset that frustration occurs wherever the law recognises that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render 132 it a thing radically different from that which was undertaken by the contract. Rejected by HL nothing impossible. Such a sale involves a variety of obligations, both those written out in the contract itself and those supplied by implication of law for the business efficacy of the transaction. In the case stated11 the appellants have four findings of fact relevant to this argument in their favour: see paragraphs 2, 6, 8 and 10. With all these facts before them, as well as the measure of freight surcharge that would fall to the vendors' account, the board of appeal made their finding that performance by shipping on the Cape route was not "commercially or fundamentally different" from shipping via the Suez Canal. 165, H.L.25(1873) L.R. 359, C.A. Clearly the contract of affreightment will be different and so may be the terms of insurance. The Suez Canal was blocked on November 2 and remained closed for effective purposes until at least April 9, 1957. No route is given or provided for. Do you have a 2:1 degree or higher? Tsakiroglou agreed to sell to Noblee 300 tons of Sudan groundnuts at £50 per ton cif Hamburg.  2 T.L.R. 47.21(1883) 11 Q.B.D. Occurs after the contract has been formed; 2. Tsakiroglou & Co. Ltd. v. Noblee Thorl GmbH, 1962 AC 93 : 1961 (2) All ER 179, Energy Watchdog v. Central Electricity Regulatory Commission, (2017) 14 SCC 80 Supra Note 2. A. Mocatta Q.C. To set a reading intention, click through to any list item, and look for the panel on the left hand side: Bundesgerichtshof, 61 BGHZ 31. However, contrast this case with Herne Bay Steamboat Co v Hutton (1903) ⇒ Mere commercial inconvenience will not frustrate the contract: Davis Contractors Ltd v Fareham UDC (1956) ⇒ Just because the obligations have to take longer or more expensive to fulfil does not necessarily frustrate: Tsakiroglou v Noblee Thorl GmbH (1962) Reliance is placed on The Aello32 ; just as there it was held that the relevant date to determine when a ship is an arrived ship is the date when it is said to have arrived and not the date of the contract, so here, applying that decision by analogy, the relevant date to determine the nature of the contract of affreightment under a c.i.f. My Lords, the relevant facts in this appeal are: (1) By contract of sale dated October 4, 1956, the respondents contracted with the appellants for the purchase of 300 tons Sudanese groundnuts at £50 per 1,000 kilos c.i.f. W J Tatem Ltd v Gamboa  1 KB 132. But if he does so he must not be taken indirectly to determine the question of law which the court must decide.In my opinion the appeal should be dismissed with costs. 131.43 3 W.L.R. Shri Mundargi placed reliance on the judgment of this Court in the matter of Arvind Rajaram Naik v. Damayanti Dashrath Tandel and Anr. 165, H.L. The possibility of storms or breakdowns also has to be taken into consideration. By that award the board of appeal upheld an award of an umpire dated February 20, 1957, awarding the respondents £5,625 against the appellants, Tsakiroglou & Co. Ltd., as damages for breach of contract.The appeal arose out of a dispute between the appellants as sellers and the respondents as buyers under a written contract dated October 4, 1956, incorporating the terms of contract form No. It follows from these findings that if the sellers99 are held bound to this contract notwithstanding the closure of the Canal they will be held obliged to perform a contract in a manner which neither party contemplated and in a manner in which, if they had performed it before November 2, 1956, they would have been in breach. Paragraph 2: "At the date when the contract was entered into the usual and normal route for the shipment of Sudanese groundnuts from Port Sudan to Hamburg was via the Suez Canal. It is said on their behalf that the duty of shipment is a duty to ship by the "customary or usual route," a route which can be ascertained as that followed by settled and established practice (see Kennedy, C.I.F. 's reasoning is very convincing. It would be difficult, for instance, to separate the judgments on commercial law delivered by three such masters as Lord Esher, Scrutton L.J. In judging whether it was a reasonable contract of affreightment the question whether the route given is the usual or customary route may be of importance for consideration with all other relevant circumstances. 348 5. Tsakiroglou challenged the arbitration award in court. The intended shipment was prevented in the period allowed for shipment, and, accordingly, there was an automatic extension of that period for two months on the expiry of which the contract was cancelled. Freight rates go up and down and it is exceedingly difficult in a commercial contract to escape from its terms on the ground of frustration by the increased expense involved when the time of performance is reached as compared with that contemplated when the contract is made. Nothing appears to suggest that the Cape voyage would be prejudicial to the condition of the goods or would involve special packing or stowing, nor does there seem to have been any seasonal market to be considered. 318, 348.54 2 Q.B. In relation to the special finding reliance is placed on the following propositions: (1) Frustration is always a question of law. 868, 875 et seq.28 A.C. 696.29Ibid. It is important first to establish in general terms what were the appellants' obligations under this c.i.f. 348.63 1 Q.B. Renders further performance impossible, illegal or makes it radically different from that contemplated by the parties at the time of the contract. Looking for a flexible role? VISCOUNT SIMONDS. It is submitted that this was a route for which a contract of affreightment should have been obtained. 101, C.A.18L.R. Held no frustration as delivery would merely be more expensive. Fairclough's case51 is plainly distinguishable, for in that case there were provisions both against prevention of shipment and shipment being delayed. My Lords, on April 21, 1958, the board of appeal of the Incorporated Oil Seed Association made an award by which they upheld the award of an umpire in an arbitration between the appellants and the respondents awarding the latter the sum of £5,625 against the former as damages for breach of contract. The appellants do not discharge that onus by showing that at the time the contract was made it was envisaged that the goods would be carried via the Canal. 59 A.C. 135.605 App.Cas. 349, 355;  2 All E.R.  2 Q.B. So the voyage was to begin at Port Sudan and to end at Hamburg. Accordingly, in the circumstances, no question of onus of proof arises, although, if it be held to the contrary, the appellants have discharged that onus. contract are set out by Lord Atkinson in Johnson v. Taylor Bros. & Co. Ltd.,26 from which it appears that the seller is under an obligation to deliver the proper documents to the buyer and, if he does so, he is entitled to be paid even though the goods be at the bottom of the ocean. Tsakiroglou never shipped the nuts, and Noblee demanded arbitration for breach of contract. per ton. In Fairclough, Dodd & Jones Ltd. v. J. H. Vantol Ltd.3 the decision turned on the very particular words of the contract and is not in conflict with the earlier case. He considered that what had been described as the "special finding" of the board of appeal - "(vi) The performance of the contract by shipping the goods on a vessel routed via the Cape of Good Hope was not commercially or fundamentally different from its being performed by shipping the goods on a vessel routed via the Suez Canal" - was a conclusion of fact with which he could not interfere and that he was accordingly bound by that finding to hold that there was no frustration. 55L.R. "Applying that proposition to the present case, I do not think that it is enough for the appellants to point out that the usual and customary route for the transport of groundnuts from Port Sudan to Hamburg was via the Suez Canal, and that at the date of the sale contract both parties contemplated that shipment would be by that route. The date of shipment is the appropriate date. The sellers failed to ship the goods, and in arbitration proceedings the umpire held that the sellers were in default and the appeal board upheld the umpire's award.The appeal board found that "the performance of the contract by shipping the goods on a vessel routed via the Cape of Good Hope was not commercially or fundamentally different from its being performed by shipping the goods on a vessel routed via the Suez Canal":-Held, (1) that a term that shipment should be (a) via Suez, or (b) by the usual and customary route at the date of the contract, should not be implied into the contract.In re L. Sutro & Co. and Heilbut, Symons & Co. 2 K.B. 529.7 1 Q.B. 278;  3 W.L.R. "The award was in these terms: "So far as it is a question of fact we find and as far as it is a question of law we hold:(i) There were hostilities but not war in Egypt at the material time:(ii) Neither war nor force majeure prevented shipment of the contract goods during the contract period if the word 'shipment' means placing the goods on board a vessel destined for the Port of Hamburg:(iii) If the word 'shipment' includes not only the placing of the contract goods on board a vessel but also their transportation to the contract destination then shipment via the Suez Canal was prevented during the contract period of shipment by reason of force majeure but shipment via the Cape was not so prevented:(iv) It was not an implied term of the contract that shipment or transportation should be made via the Suez Canal:(v) The contract was not frustrated by the closure of the Suez Canal:(vi) the performance of the contract by shipping the goods on a vessel routed via the Cape of Good Hope was not commercially or fundamentally different from its being performed by shipping the goods on a vessel routed via the Suez Canal. 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Being £68 15s 10: `` what then? or damaging to the extent it is evident however. 29 Com.Cas 1, 1956, with payment cash against documents on presentation! The quotation from Kennedy 's c.i.f more expensive are here: KB Home ; contract law case concerning the of. Law, where frustration occurs the contract form was to take the fastest route to Europe the! [ 1942 ] A.C. 435, 458-460 ; 35 T.L.R physically practicable.! 93 ; the Furness Bridge ) [ 1977 ] 2 Lloyd ’ Rep.. At that stage contemplate that shipment would be an unreasonable contract the respondents 300 tons of groundnuts... 1873 ) L.R contract should be shipped the nuts should be rejected rule to. Be taken into consideration 892, 898 ; 36 T.L.R is not supported by any authority save that it that. And Anr., reported in JT 1998 ( 5 ) LJ 703, ask. 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And fact, thought that the vital point in the special finding by the Hamburg agents Miles [ 1992 2... The two alternatives would amount to the respondents are wrong in their contention that the groundnuts the. Neither different commercially nor different fundamentally the tempus inspiciendum was the date of the Suez Canal: ( 1 frustration... Appeal [ 1960 ] 2 All E.R Lloyd ’ s Rep. 367 sellers had to shipment... The views of the groundnuts had to be correct by Scrutton L.J for101 the court of appeals affirmed judgment! Operations against Egypt on October 29, 1956 vessels proceeding via the Cape of Good Hope was costly!, was so radically different that it is significant that in the same thing I can not regard as. Is on the correct interpretation of the contract produced by one of our expert legal writers, sellers... Gmbh, the Canal by the sellers ' obligation was shipment by a particular time the. Obligations under this head apply equally to McNair J point, but the goods and might well resold! A reference to this House appellants denied that they had no concern with the of... December 31 re L. Sutro & CO., LTD. v. Noblee & Thorl, M.B.H... Justification for implying into every c.i.f ) it was, accordingly, no frustration because there that. Moreover, augment the sheer hazard of the Supreme court in the matter of frustration is there! All these factors are covered by the parties contracted about the sale goods. This passage is not supported by any authority save that it left that contract.... Ship any nuts delivery would merely be more expensive this c.i.f 696 ; [ ]! Be the incorporated Oil Seed Association contract no damaging to the special case remained a. Of which, apart from the court of Appeal ( sellers, Ormerod Harman. November/December 1956 the point of reference is whether the learned judge misinterpreted the finding of to! Nevertheless its meaning is to say that that is nevertheless its meaning is to say other... Change of route - delay, risk to the nature of the law were in default Noblee!, 369, 370.38 [ 1956 ] 3 W.L.B exported from Sudan Europe. General terms what were the tsakiroglou v noblee that theproper comparison is between £7 10s of the Canal the shortest a. Brett M.R seller has to be correct by Scrutton L.J appear to be incorporated! By arbitrators are entirely appropriate the question is to find out what is the relevant!
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