SANHE HOPE FULL GRAIN OIL FOODS PRODUCTION CO LTD V TOEPFER INTERNATIONAL ASIA PTE LTD

[2007] EWHC 2784 (Comm), David Steel J, 28 November 2007

Sale of goods – Soybeans – Calculation of loss – Whether same cargo –FOSFA cl. 27 – Whether clause 27 provided for liquidated damages or limitation – Appeal under section 69(1) of the Arbitration Act 1996

It was common ground that there had been a repudiatory breach of the Sale Agreement. The buyer argued that the seller had suffered no loss because the cargo of soybeans in question had been successfully sold elsewhere at a higher price. The seller argued that it was a different cargo that had been sold. Held, that the Appeal Tribunal had wrongly concluded that the umpire had misinterpreted clause 27, whereas his interpretation, that the clause did not provide for liquidated damages but required an assessment of the loss sustained (if any) with an upper limit was entirely correct.