In Ramburs Inc v Agrifert SA [2015] EWHC 3548 (Comm) the High Court has considered the effect of notice provisions in an fob sale when the buyer nominates a substitute vessel. The sale provided for delivery between 15 to 31 March 2013. The buyer was to provide the seller with not less than 10 days’ “pre-advice” of, among other things, the collecting vessel’s name, dimensions and estimated time of arrival. The contract was also subject to the terms of GAFTA 49. Clause 6 “Period of Delivery” provides:
“Buyers shall serve not less than … consecutive day’s [sic] notice of the name and probable readiness date of the vessel and the estimated tonnage required. The Sellers shall have the goods ready to be delivered to the Buyers at any time within the contract period of delivery. Buyers have the right to substitute the nominated vessel, but in any event the original delivery period and any extension shall not be affected thereby. Provided the vessel is presented at the loading port in readiness to load within the delivery period, Sellers shall if necessary complete loading after the delivery period, and carrying charges shall not apply”.
The buyer nominated a vessel on 20 March 2013 with eta 26/27 March and on 26 March nominated a substitute vessel with eta 28 March. The seller asserted that the nomination was invalid and terminated the contract. Andrew Smith J overturned the award of the GAFTA Board of Appeal in favour of the buyer and held that where an FOB buyer nominated a substitute vessel pursuant to its right under GAFTA 49, it had to comply with the terms of the contract of sale as to nomination and pre-advice in respect of the substitute vessel. The GAFTA wording did not constitute a complete code defining and limiting the right to substitution, and did not dispense with any requirement for pre-notice in respect of the substituted vessel.