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ARTICLE · 01 JULY 2009

Commodities Bulletin - June 2009

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In KG Bominflot Bunkergesellschaft mbh & Co KG v Petroplus Marketing AG (“The Mercini Lady”) (22 May 2009) the High Court has again considered “final and binding” clauses in the context of an FOB sale contract.

United KingdomTransport
Sarah Taylor
Sarah Taylor

WHEN IS A CERTIFICATE FINAL NOT FINAL?

In KG Bominflot Bunkergesellschaft mbh & Co KG v Petroplus Marketing AG ("The Mercini Lady") (22 May 2009) the High Court has again considered "final and binding" clauses in the context of an FOB sale contract.

The defendant sellers sold a cargo of gasoil FOB Antwerp on terms which included the following clause:

"Quality and quantity, basis shoretank, to be determined by a mutually agreed independent inspector at the loading installation, in the manner customary at such installation. Such determination shall be final and binding for both parties, except in case of fraud or manifest error".

The contract further provided:

"There are no guarantees, warranties or representations, express or implied, or (sic) merchantability, fitness or suitability of the oil for any particular purpose or otherwise, which extend beyond the description of the oil set forth in this agreement".

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