MSC v Cottonex Anstalt was the case we reported last autumn about the containers of cotton that nobody came to collect from their discharge port in Bangladesh. Leggatt J held that the carrier was entitled to claim demurrage from the shipper under the bill of lading up to the point at which the contract came to an end due to its repudiation by the shipper. The Court of Appeal has upheld the first instance finding but has overturned the finding that the repudiation took place on 27 September 2011 when the shipper advised the carrier that it would not be able to collect the containers. At this time the delay was between two and a half to four months from discharge and the carrier argued that this was not a long enough period of delay to go to the root of the contract.
The Court of Appeal agreed ( EWCA Civ 789). No reason had been given as to why the contract should be taken to have been repudiated on 27 September 2011. Instead, the Court of Appeal fixed on 2 February 2012 as the date of repudiation. That was when the carrier offered to sell the containers to the shipper in an attempt to break the impasse. That was the clearest indication that the commercial purpose of the adventure had by then become frustrated. The sale would have discharged the shipper’s obligation to redeliver the containers and with it the final obligations under the contracts of carriage which still remained to be performed. Accordingly, the shipper was liable for demurrage up to that date and for the value of the containers by way of damages.