| SALE OF GOODS — Contract — Jurisdiction — Cider shipped from Liverpool to Limassol — Place of delivery — Council Regulation (EC) No 44/2001, art 5(1)(b) — Sale of Goods Act 1979, s 32(1)(2)
Scottish & Newcastle International Ltd v Othon Galanos Ltd [2008] UKHL 11; WLR (D) 61
HL(E): Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Brown of Eaton-under-Heywood, Lord Mance and Lord Neuberger of Abbotsbury: 20 February 2008
Where, under a contract for the sale of cider by the Scottish claimants to Cypriot defendants, with invoices giving Limassol as the “place of delivery”, the cider had been shipped from Liverpool to Limassol, the agreed place of delivery had been Liverpool and delivery of the goods had taken place at Liverpool for the purposes of art 5(1)(b) of Council Regulation (EC) No 44/2001.
The House of Lords so held in dismissing an appeal by the defendants, Othon Galanos Ltd, from the Court of Appeal (Waller and Rix LJJ), who on 20 December 2006 had dismissed their appeal from Andrew Smith J. The judge had held that the court had jurisdiction to entertain a claim against the defendants by the claimants, Scottish & Newcastle International Ltd.
LORD MANCE said that the defendants had ordered 11 containers of cider from the claimants. Under “Shipment”, the order had provided “From Liverpool or Felixstowe per Zim Line vessel”. The invoices had been completed, under “Place of delivery”, “Limassol”. The goods had been shipped from Liverpool to Limassol. The claimants had brought proceedings against the defendants in England. Andrew Smith J had held that the English court had jurisdiction, under art 5(1)(b) of the Council Regulation, to entertain the action.The defendants contended that under the contract Limassol had been the agreed place of delivery.The reference to Limassol as the “place of delivery” referred to the place of delivery in the context of transport arrangements that might involve through or mixed transport, and merely confirmed that the transport arranged went no further than Limassol. Agreement for payment only 90 days after arrival had been no more than a relaxed payment regime with no significance in relation to the place of delivery. The defendants alternatively submitted that the contract had been on terms providing for delivery cfr Limassol and that the focus of such a contract was the place of discharge. In his Lordship’s view, however, the contract had been in all essential respects an fob contract. The carriers had been the defendants’ agents for the purposes of s 32(1) of the Sale of Goods Act 1979. Risk and property had passed on shipment. The fact that the claimants had incurred liability as principals to the carriers for the freight did not take the case outside s 32(1). Delivery had accordingly taken place at Liverpool for the purposes of art 5(1)(b) and the English court had jurisdiction.
LORD BINGHAM and LORD RODGER delivered concurring opinions.
LORD BROWN and LORD NEUBERGER agreed with Lord Mance.
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