SHV GAS SUPPLY & TRADING SAS v NAFTOMAR SHIPPING & TRADING CO LTD INC(THE “AZUR GAZ”) [2005] EWHC 2528 (Comm) Before Mr Justice Christopher Clarke
 
Sale of goods (cif) - Sale contract containing “Laycan” period - Loading of goods delayed by reason of bad weather at loadport - Buyers cancelling contract - Whether cancellation justified - Whether “Laycan” period to be construed as shipment period - Whether sellers in breach of implied term that goods would be shipped within reasonable time - Whether discharge port ETAs given on reasonable grounds.
英国商事法庭案例，货物买卖合同规定laycan，由于坏天气船舶无法装货，但卖方给了预计抵卸港的时间，买方取消了合同。商事法庭判定，Laycan一般指的是船舶租约合同下船舶的销约期，而不是指的是货物买卖合同下的付运期shipment period。这样买卖合同中就没有明确的付运期，卖家有合理的时间安排装货，不可抗力条款也不影响卖家的责任。买家不能基于以上取消合同。

但是，卖家在装港发生严重的坏天气的情况下仍预计过早的抵达卸港的时间，证明卖家没有考虑应当考虑的事实，造成预计时间错误，属于明显没有诚实合理地预计抵卸港的时间的情况。诚实合理预计抵港时间是买卖合同下的条件条款，因此买家可以基于此取消合同。
On 17 February 2003 SHV Gas Supply and Trading SAS (SHV) agreed to sell to Naftomar Shipping and Trading Co Ltd Inc (Naftomar) 2,700 mt +/− 5 per cent at sellers’ option commercial butane meeting Melilli specifications cif Tunisia Port-La Goulette or Gabes. Melilli was a port on the east of Sicily. The price was US$390 per metric tonne. The contract contained the following clauses:
 
Vessel Azur Gaz Accepted by the Buyer
 
Laycan 17-19 February 2003 consequently ETA Gabes 20 February am La Goulette 19 February pm
 
. . .
 
Force Majeure  Neither seller nor buyer shall be liable in damages or otherwise for any failure or delay in the performance of any obligation hereunder other than the obligation to make payment, where such failure or delay is caused by force majeure, or any event occurrence or circumstance reasonably beyond the control of that party including without prejudice to the generality of the foegoing (sic), Acts of God, strikes, fires, floods, wars (whether declared or undeclared), riots, boycotts, restrictions imposed by government authorities including allocations, priorities, requisitions, quotas and price controls.
 
The party whose performance is so affected shall immediately notify the other party here (sic), indicating the nature of such cause and, to the extent possible inform the other party of the expected duration of the force majeure event.
 
Commercial Terms  Where not in conflict with the above, Incoterms 2000 for cif sales plus latest amendments to apply.
 
Maritime Terms  The Asbatankvoy charter- party amended for LPG attached to this contract where not in conflict with terms of the main body of this contract shall apply.
Incoterms 2000 provided as follows:
 
A4 Delivery
 
The seller must deliver the goods on board the vessel at the port of shipment on the date or within the agreed period
 
The Asbatankvoy charter- party referred to was a voyage charter- dated 31 January 2003 between Gas Marine, of Ezzahra, Tunisia and SHV which provided for the carriage on Azur Gaz of 2,700 mt of butane or LPG mix for carriage from Melilli to one safe/berth/port West or East Med, limited to a small number of discharging port options which did not include Gabes or La Goulette, although they were later agreed. The laydays were to commence on 16 February and the cancelling date was 19 February.
 
In February 2003 Melilli experienced an unusually long spell of bad weather, which prevented vessels from loading, and the port was substantially inoperative between 15 February and 2 March, save for three periods on 19, 24 and 26 February when larger vessels were able to berth.
 
Azur Gaz arrived at Melilli on 17 February and tendered notice of readiness. Because of the bad weather she had to lie in the outer roads of Santa Panagia Bay. She was able to anchor on 19 February, but was not able to berth until 3 March.
 
On 25 February Naftomar cancelled the contract, relying on the failure of SHV to ship within the period 17-19 February.
 
SHV alleged that by cancelling the contract Naftomar was in repudiatory breach, and claimed damages.
 
Naftomar contended that it was entitled to terminate the contract on the basis that (a) the reference to “Laycan Feb 17-19 2003” was to be construed as a reference to a shipment period, and SHV was in breach of its obligation to ship within that period, alternatively (b) there was an implied term that the goods would be shipped within a reasonable time, which had expired by 27 February, alternatively (c) SHV was in breach of its undertaking that the ETAs given were reached honestly and on reasonable grounds.
 
-Held, by QBD (Comm Ct) (Christopher Clarke J), that the claim failed.
 
(1) The word “laycan” in the contract did not mean “shipment”. It applied in its ordinary sense and was consistent with the incorporation of the charter- party (see para 20).
 
(2) Since there was no expressly agreed shipment period, it was an implied term of the contract that SHV would ship the goods within a reasonable time. SHV was not in breach of that implied term. It could not be blamed for the weather or for the berthing difficulties, and there was no evidence that it was in any way dilatory in shipping the cargo. That conclusion was not affected by the existence of the force majeure clause (see paras 24 and 25);
 
-Hick v Raymond [1893] AC 22 considered.
 
(3) An estimated time of arrival had to be given honestly and on reasonable grounds. An estimate was not given on reasonable grounds if an inquiry which ought to have been made was not made, and the answer 
would have invalidated the estimate (see paras 42 and 46);
 
-S Sanday & Co v Keighley Maxted & Co (1922) 10 Ll L Rep 738, The Mihalis Angelos [1970] 2 Lloyd’s Rep. 43; [1971] 1 QB 164, The Filipinas [1973] 1 Lloyd’s Rep. 349, and The Pantanassa [1985] 2 Lloyd’s Rep. 449 considered.
 
(4) SHV’s estimate of the time of the vessel’s arrival at the discharge port was not based on reasonable grounds in the absence of any information as to the berthing prospects at the loading port. Bad weather, port closure and berthing difficulties could and did occur at Melilli and other ports in winter. It was not reasonably to be assumed that in February there would be no problem. An inquiry of someone with knowledge of what was happening at Melilli would have revealed that the port was, on account of bad weather, substantially inoperative on 15, 16 and 17 February and that there was no prospect of Azur Gaz berthing immediately upon arrival on 17 February (see paras 47 and 51).
 
(5) Since the ETAs were not based on reasonable grounds, SHV was in breach of condition and Naftomar was entitled to terminate as it did (see para 53);
 
-The Mihalis Angelos [1970] 2 Lloyd’s Rep. 43; [1971] 1 QB 164 applied.