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TSAKIROGLOU & Co.ltd.v noblee thorl g.m.b.h.house of lords
[1962] a.c.93
사실:
; Co.ltd, of Khartoum as sellers, and the respondents, noblee thorl g.m.b.h. of Hamburg/hargurg as buyers. The sellers agreed to sell and the buyers to buy about 3 tons of Sudanese ground nuts in the shell basis 3 percent, Admixture new crop 1956/1957 at $5 per 1, kilos including bags c.i.f.hamburg.shipment November/December With payment cash against documents on first presentation for 95 percent of the amount of provisional invoice, Balance to be paid after the analysis on final invoice.the contract form was to be the incorporated oil seed association contract no.38 ( Alled "i.o.s.a contract no.38") With arbitration in london.clause 1 of i.o.s.a contract no.38 provided for "shipment from an east African port ... by sy Direct or indirect with or without transshipment. "
both parties contracted on the basis that the goods would be shipped from port suurt The contract provided: "in case of prohibition of import or export, blockade or war, And in all cases of force majeure preventing the shipment within the time fixed, or the delivery, The period allowed by not exceding two months.after that, if the case of force majeure be still operating, The contract shall be cancled. "
at the date when the contract was made, Both partied contemplated that shipment would be made via the Suez canal.on October 29, 1956, the Israelis invaded Egypt, On November 1 Britain and France commenced military operations, And on November 2 the Suez canal was blocked to shipping.at the date when the contract entered into, The usual and normal routes for the shipment of Sudanese ground nuts from port Sudan to Hamburg was via the Suez canal.however, The closure of the Suez canal prevented transport from port Sudan to Hamburg via the canal and the impossibility by that route continued until April 1 957. the distance via the Suez canal is approximately 4, 386 miles and the distance via the cape of good hope is approximately 11, 137miles.from November 1, 1956, after the closure of the canal, A 25% freight surcharge was placed on goods shipped on vessels proceeding via the cape of good hope and this was increased to 1% on December 1 1956 ..
the seller's claim that the contract was frustrated and was at an end because of the closure of the Suez canal was not accepted .
법원 절차:
procedure before the court
in arbitration proceedings, the umpire, by an award dated februars Awarded that the sellers were in default and should pay to the buyers as the damages the sum of $5, 625 together with $79 15s.costs of the award.the sellers were dissatisfied with the award, And a board of appeal appointed to hear the appeal on January 28,1958, Dismissed the appeal and upheld the umpire's award.
판결:
jurisdiction
the board of appeal's award Ion of fact we find and as far as it is a question of law we hold:
(I) these were hostilities but not war in Egypt at the material time Neither war nor force majeur prevented the shipment of the contract goods in the contract period to the contract destination, Since shipment via the cape was not so prevented when the shipment via the Suez canal was prevented by reason of force majeur.
(iii) It was not an implied term of the contract that shipment or transportation shouldbe made via the Suez canal and shipping the goods on a vessel via th E cape of good hope was not commercially and fundamentally different from shipping the goods on a vessel via the Suez canal.so, The contract was not frustrated by the closure of Suez canal. "
문제 분석:
merits: is there an implied term that the goods Is the contract frustrated?
(a) usual and customary route
the contention that the shipment of goods must be via Suez can only prevail if a term is imples For the contract dose not say so. for the general proposition that in a c.i.f. contract the obligation, in the absence of express Is to follow the usual or customary route.it is not the date of the contract but the time of performance that determines what is customary.as to Ction 32 (2) of the sale of goods act, 1893, provides that: "unless otherwise authorized by the buyer, The seller must make such contract with the carrier on behalf of the buyer as may be reasonable having regarded to the nature of the goods and the oth Er circumstances of the case. "therefore, if there is no customary route, that route must be chosen which is reasonable.if there That must be taken if it is practicable.at the date when the performance was called for, there was no usual or customary route because the Suez