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DMCc/SandT/15/17
'''England'''
'''ARBITRATION ACT 1996 SECTION 69 APPEAL: SUPPLY OF BUNKERS: RETENTION OF TITLE CLAUSE: CONTEMPLATED THAT GOODS WOULD BE CONSUMED BEFORE TITLE PASSED: NO PASSING OF PROPERTY INTENDED: SALE OF GOODS ACT 1979 INAPPLICABLE'''
Note:this judgment has now been upheld by the Supreme Court
[[http://www.onlinedmc.co.uk/index.php/PST_Energy_7_Shipping_v_OW_Bunker_Malta_-_The_Res_Cogitans]]
'''Summary'''
'''Background'''
This note is an update to the note on the first instance decision (- accessible from [[http://www.onlinedmc.co.uk/index.php/PST_Energy_7_Shipping_%26_Product_Shipping_and_Trading_v_OW_Bunker_Malta_%26_ING_Bank_the_Res_Cognitans]]
For the background, both notes should be read together.
If the Sellers had undertaken to transfer property in the bunkers, but had failed to do so at the agreed time, that would have constituted a total failure of consideration, with the result that the Sellers would be unable to claim for the price.
Considering the commercial background and contract terms, the contract was not for the transfer of property in the bunkers, but for the delivery of bunkers that Owners could use immediately, but for which they only had to pay after the credit period had expired. The critical factors in the Court reaching this decision were:
(1) The clause allowing Owners to use the bunkers for propulsion from the moment of delivery.
