The dispute arose out of three contracts for the СIF delivery of Brazilian soybeans to Turkiye. The goods were loaded with excessive moisture content and further deteriorated while staying at anchorage in Ukrainian waters. Upon completion of the voyage, the surveyors revealed heavy smell, mould and high temperature of the cargo. Our client sought negotiations and made several without prejudice proposals to accept the goods with allowances corresponding to the actual quality of the goods. Failing to reach an amicable solution, the client refused to pay for the delivered goods due to their non-contractual quality and incomplete tender of shipping documents. The seller treated the refusal to pay as default and terminated the contracts.
In arbitration, the seller argued that the quality must be determined at loading and the condition of the cargo at discharge was irrelevant. According to its position, the difference of 0,8% in moisture content at loading was merely a slight discrepancy generally contemplated by businesses in commercial trade. The seller also alleged that it was entitled to payment as the broker received all necessary shipping documents. This argument was supported by the allegation that the client waived the right to reject the goods by suggesting to accept the cargo with the allowance.
Both the first-tier tribunal and the board of the appeal held that the seller was not entitled to payment under the contracts and thus wrongfully terminated them. First, they determined that the moisture requirement constituted a condition of the contracts and the deviation from the maximum limit represented their repudiation. Second, the arbitrators agreed with our position that the seller failed to tender the full set of contractual shipping documents and, hence, did not trigger the payment obligations under the contracts. They did not consider without prejudice settlement proposals a waiver of the client’s rights.
On this ground, the tribunal awarded the client damages of around USD 1 million together with the compensation of interest, legal fees, arbitration and trade representative costs.
Credits to the partners Ivan Kasynyuk and Iryna Moroz together with the senior associate Pavlo Lebediev and associate Anastasiia Shevchuk for handling this arbitration.