Profindo Pte Ltd v Abani Trading Pte Ltd
Jurisdiction | Singapore |
Judge | Judith Prakash J |
Judgment Date | 14 January 2013 |
Neutral Citation | [2013] SGHC 10 |
Date | 2013 |
Docket Number | District Court Appeal No 5 of 2012 |
Published date | 23 January 2013 |
Plaintiff Counsel | Gopalan Raman (G R Law Corporation) |
Hearing Date | 01 November 2012 |
Defendant Counsel | John Wang and Chong Li Lian (RHTLaw Taylor Wessing LLP) |
Court | High Court (Singapore) |
Subject Matter | Commercial Transactions,Sale of Goods |
This is an appeal against the decision of the district judge (“the DJ”) in
The parties are both trading companies incorporated in Singapore. On 19 May 2009, the appellant, Profindo Pte Ltd, agreed to sell 2,750 metric tons of cement to the respondent, Abani Trading Pte Ltd. The cargo was to be loaded in China and delivered to a port in Madagascar. The terms of the sale are contained in a proforma invoice (“the Agreement”).
The relevant clauses of the Agreement are as follows:
…
Pursuant to cl 15 of the Agreement, the parties agreed that on arrival of the carrying vessel at the discharge port, the respondent would discharge the goods within the allowable laytime of 2.75 days (calculated on the basis that 2,750 metric tons of cargo would be discharged at the rate of 1,000 metric tons per day). Clauses 3 and 4 of the Agreement also made it clear that the parties contracted on a CFR (
The appellant chartered the
However, as it was too late in the day for significant discharge to occur, Mr Damodar instructed Mr Wong to wait until the next day (
In his reply email on the same day, Mr Damodar simply replied:As spoken, we will advise vessel to berth tomorrow instead of today as per your decision. Kindly note that time is to count whether vessel is berthed or not, and once demurrage, always in demurrage.
Let the [vessel] discharge then for 2 hours, if it does not make any difference.
Despite Mr Damodar’s email, the vessel only returned to berth on 3 July 2009 and the respondent completed the discharge of the goods on the same day.
The parties’ claims Subsequently, the owners of the vessel (“the shipowners”) imposed demurrage on the appellant who managed to negotiate a reduced charge of US$8,200 but wanted the respondent to pay the amount. The appellant alleged that pursuant to cll 2 and 15 of the Agreement, the respondent was responsible for the delay since laytime continued to run whether the vessel was berthed or not. The respondent disagreed, contending that laytime was suspended when the vessel left the berth and that it was not responsible for demurrage because it had completed the discharge within the allowable laytime of 2.75 days
The appellant eventually paid the shipowners. However, the appellant alleged that it was blacklisted by the shipowners for late payment of the demurrage. As a result, the appellant allegedly suffered a loss of earnings of US$57,500 because it was unable to charter any vessel from the shipowners to fulfil its agreement with another customer for cement to be shipped. The appellant claimed this sum of loss of earnings from the respondent.
The appellant also claimed reimbursement of disbursements payable at the port,
The respondent also filed a counterclaim against the appellant on two separate grounds relating to the cement delivered. First, the respondent claimed that the cement supplied was not of satisfactory quality. As a result, the respondent had had to compensate a subsequent buyer of the cement by paying it a sum of US$10,000. The respondent therefore sought to recover this sum from the appellant.
Second, the respondent claimed that there was a shortfall of four metric tons of cement as the total amount discharged from the vessel was 2,746 metric tons instead of the 2,750 metric tons as agreed in cl 2 of the Agreement. Relying on cl 3 of the Agreement, the respondent sought to recover US$404 (
The DJ held as follows:
Finally, the DJ fixed costs of $10,000 in favour of the respondent on the basis that the majority of court time was spent on the issues relating to demurrage and loss of earnings, which the appellant did not succeed on.
The appellant appealed against the findings in paras 13(a), (b) and (c). It also appealed against the costs award.
Issues The issues which arise for my consideration in this appeal are as follows:
In determining the issue of whether laytime was suspended in favour of the respondent, the DJ appeared to have shifted the burden of persuasion on to the appellant to show that laytime was
In their submissions before me, both parties were unable to identify any case authority which
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Profindo Pte Ltd v Abani Trading Pte Ltd
...Pte Ltd Plaintiff and Abani Trading Pte Ltd Defendant [2013] SGHC 10 Judith Prakash J District Court Appeal No 5 of 2012 High Court Commercial Transactions—Sale of goods—CFR sale contract—Seller claimed demurrage from buyer on basis that laytime continued to run when vessel was unexpectedly......