JOHN BATT & CO. (LONDON), LTD. v. BROOKER, DORE & CO., LTD.

(1942) 72 Ll.L.Rep. 149

KING'S BENCH DIVISION.

Before Mr. Justice Atkinson.

Sale of goods- Repudiation by sellers- Failure to ship- Force majeure clause - Extension of time for shipment- Waiver- Sale of tinplates c. & f. Stockholm- Shipment February, 1940, from Italian port- Sub-sale to W., of Tallinn, Estonia- "In all cases of force majeure, including . . . blocking of shipping or railway lines . . . and any unforeseen circumstances whatever, any delay occasioned thereby shall not be considered to form part of the time herein mentioned for the completion of the contract"- Intimation made to sellers by shipping company that they would "only accept tinplates for Sweden with guarantee consumption Sweden," unless an undertaking could be obtained from the Ministry of Economic Warfare that any ship in which the goods might be carried would not be delayed by British Contraband Control, or unless sellers undertook to indemnify the shipping company against the costs of any such delay- Undertaking refused by M.E.W., in spite of continuous efforts during February and March by buyers and sellers- Buyers informed by letter from sellers dated Mar. 29 that "we are afraid that shipment cannot be effected to Stockholm unless you can indicate Swedish receivers, and we would hereby call upon your goodselves to indicate Swedish receivers as we can then proceed with shipment to Stockholm in accordance with the order. Should your goodselves not be able to indicate Swedish receivers, we would suggest without prejudice that we are prepared to amend the contract to an f.o.b. Leghorn basis by allowing you the freight calculated as shown upon the contract and leave your goodselves to make your own shipping arrangements" - Letter treated by buyers as a final refusal by sellers to perform and accepted as a repudiation- Claim by buyers for damages- Arbitration- Award that letter "was actually a final repudiation of the said contract and that the buyers accepted it as such"; and that therefore buyers were entitled to damages- Case stated.