SCHENKER LTD V NEGOCIOS EUROPA LTD

[2017] EWHC B20 (QB), High Court, Mercantile Court, Mrs Justice Moulder, 6 October 2017

Carriage (air) - Set-off against freight - Rule on set-off against freight from shipping law equally applicable to carriage by air - BIFA terms

The parties had entered into a contract for the carriage by air of chia seeds. The agreed freight was US$58,000. In this litigation, the claimant carrier sought to recover that sum from the defendant. The defendant's position was that it was a condition of the contract that the goods were delivered within seven days, in October 2015. The seeds had in fact been delivered in early January 2016. This was the decision of the preliminary issue of set-off, the defendant denying that the freight was due or contending that the freight payable should be equal to the amount it would have paid had the goods gone by sea. The claimant relied on BIFA terms, or in the alternative, on the common law rule well established in sea carriage which prevented set-off against freight, arguing that this rule was applicable also to air freight.