Gulf Import & Export Co v Bunge SA, Court of Appeal - Commercial Court, November 21, 2007, [2008] 2 All ER (Comm) 161,[2008] 1 Lloyd's Rep 316,[2007] 2 CLC 853,[2007] EWHC 2667 (Comm)

Reporting Judge: [2008] 2 All ER (Comm) 161,[2008] 1 Lloyd's Rep 316,[2007] 2 CLC 853,[2007] EWHC 2667 (Comm)

President: Gulf Import & Export Co v Bunge SA

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Extract

Gulf Import & Export Co v Bunge SA, Court of Appeal - Commercial Court, November 21, 2007, [2008] 2 All ER (Comm) 161,[2008] 1 Lloyd's Rep 316,[2007] 2 CLC 853,[2007] EWHC 2667 (Comm)

Neutral Citation Number: [2007] EWHC 2667 (Comm)

Case No: 2007 FOLIO 1112

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

COMMERCIAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21/11/2007

Before :

THE HONOURABLE MR JUSTICE FLAUX

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Between :

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Mr Stephen Males QC (instructed by Middleton Potts) for the Claimants

Mr Nicholas Hamblen QC and Mr Charles Kimmins (instructed by Holman Fenwick & Willan) for the Defendant

Hearing dates: 12-13 November 2007

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Judgment

Mr Justice Flaux:

1. This application is made by Gulf Import and Export Co (``Gulf'') under one or other of sections 67 to 69 of the Arbitration Act 1996 seeking to challenge an Appeal Award of the Board of Appeal of FOSFA dated 14 June 2007 in favour of Bunge S.A. (``Bunge''). The matter arises in the following circumstances.

2. Bunge was the seller and Gulf was the buyer of a quantity of about 60,000 metric tons of Brazilian soyabeans in bulk for shipment between 15 April and 10 May 2004 on C&F terms, Free Out one safe berth Jebel Ali. The contract of sale, so far as relevant, provided for demurrage at the discharge port at the rate of US$55,000 per day. The contract incorporated the FOSFA 22 form, including clause 26 providing for arbitration and appeal pursuant to the FOSFA Rules of Arbitration and Appeal.

3. The shipment was loaded on the vessel MASTROGIORGIS B, of which Bunge was the time charterer. At the discharge port cargo damage was allegedly found. Gulf applied to the local court in Dubai and the vessel was arrested, with security for the cargo claim ordered to be provided by the shipowners, initially in the sum of US$9,012,500. The vessel was thus detained in Dubai and remained so for some three months. So far as the security ordered in respect of the cargo claim is concerned, in September 2005, the Court of Cassation, the ultimate appeal court in Dubai, reduced the security ordered to US$3,997,036.50.

4. Bunge as time charterer placed the vessel off-h...

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