Changes

DMC/SandT/15/08

1. The contract was not a contract of sale subject to the Act in as much as it did not fulfill fulfil either of the requirements of s.49 of the Act (Fn,2) for a claim for the price. (It was common ground that a claim for the price of goods sold must be brought under s.49.) S.49 required that either (a) Sellers pass property in the bunkers to Owners, or (b) the price claimed be “payable on a day certain irrespective of delivery”.

(4) The (a) credit terms, (b) retention of title clause, (c) acknowledgment acknowledgement that the bunkers could be consumed before payment (in the OWB Terms), and (d) the likelihood that the bunkers might well be consumed before payment – all meant it was unlikely that property in the bunkers was intended to pass from Sellers to Owners in return for the price.

(5) Instead, what Owners were to pay for was an immediate right to consume the bunkers. The acknowledgment acknowledgement in the OWB Terms (which was read as express permission to consume the bunkers) was held to include not only permission from Sellers, but also confirmation that Sellers would be in a position to give such permission to Owners on behalf of other up-stream suppliers. That permission should also defend Owners against claims by up-stream suppliers.

(1) They, as “buyer in possession” (the Act, s.25(1)(fn.3) ) could pass good title to the bunkers.

3Fn. 1 The “Res Cogitans” indicates that right to payment was assigned by OW Bunker Malta to ING Bank NV, and notice of assignment was duly given to the debtor. For the purposes of this note, OW Bunker Malta and ING Bank NV are one and the same.  Fn.2 S.49. Action for price. (1) Where, under a contract of sale, the property in the goods has passed to the buyer and he wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may maintain an action against him for the price of the goods. (2) Where, under a contract of sale, the Court hearing appeals price is payable on points a day certain irrespective of law from delivery and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an arbitration award may determine facts action for the price, although the property in the goods has not passed and the goods have not determined been appropriated to the contract…. Fn.3 S.25(1) Where a person having bought or agreed to buy goods obtains, with the consent of the seller, possession of the goods or the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the Tribunalgoods or documents of title, under any sale, pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods, has the same effect as if those facts are necessary to decide the points person making the delivery or transfer were a mercantile agent in possession of the goods or documents of law before title with the Court. See paragraph 49 consent of the judgmentowner.