SOLEA INTERNATIONAL BVBA V BASSETT & WALKER INTERNATIONAL INC

2018 ONSC 4261, Superior Court of Justice, Ontario, Pollak J, 23 October 2018

Sale of goods - CIF sale of container of shrimp - Fundamental terms - Mitigation - Estoppel - Unjust enrichment – Convention on Contracts for the International Sale of Goods 1980, articles 49, 53, 74-77, 78

A container of shrimp had been shipped by Solea CIF Manzanillo but was not accepted by BWI at the discharge port, and was therefore returned by Solea to Ecuador. There was no evidence as to what had happened to it subsequently. The Superior Court of Justice had granted Solea summary judgment in December 2016, but on appeal the Court of Appeal directed the court to rehear Solea's two motions for summary judgment applying the provisions of the Convention on Contracts for the International Sale of Goods 1980 (CISG). BWI resisted the motions, arguing that it was a fundamental term that a health certificate should be provided guaranteeing that the shrimp were free of certain diseases; that Solea had failed to act reasonably in mitigating damages under the relevant CISG provisions; and that there was an estoppel on the basis of Solea's representation that they would accept return of the order and unjust enrichment as a result of Solea's sale of the goods to a third party leading to double payment.