BAXTER, FELL & CO., LTD. v. GALBRAITH & GRANT, LTD.

(1941) 70 Ll L Rep 142

KING'S BENCH DIVISION.

Before Mr. Justice Atkinson.

Sale of goods-Frustration-Tender of documents under c. & f. contract- Validity of bills of lading-Sale of steel rods c. & f. Bombay-Shipment at Antwerp of part of consignment (ten parcels in all) in German steamer Rauenfels - Bills of lading dated Aug. 20 and 25, 1939-Bills of lading tendered by sellers to buyers on Aug. 28 in respect of seven parcels-Cheque covering seven parcels handed by buyers to sellers in exchange for documents -Cheque stopped by buyers on ground that bills of lading were bad tender, in that before tender the master of the Rauenfels had received instructions from his Government to proceed to a German port (She in fact reached Bremen on Aug. 28)-Formal tender of bills of lading covering remaining three parcels waived by buyers- Whether commercial purpose of contract frustrated-Effect of war clause protecting the shipowner from liability for delays or deviations arising from restraint of princes or as a result of the imminence or existence of war- Arbitration-Interim award in form of special case-Award that bills of lading were valid and effective and such as the buyers were bound to accept -Questions for the opinion of the Court: (a) Whether the bills of lading were on Aug. 28 valid and effective and such as the buyers were bound to accept; (b) whether, if the answer to (a) was in the negative, the buyers were entitled to counterclaim damages in respect of the seven parcels.