Westbrook Resources Ltd v Globe Metallurgical Inc

This is an appeal against two orders of Tomlinson J., the first giving judgment for the respondent, Westbrook Resources Ltd (“Westbrook”) on its claim against Globe Metallurgical Inc. (“Globe”) for damages for breach of contract to be assessed and the second assessing those damages at US$ 1,541,897.66.

The dispute between the parties arose out of a contract made in January 2005 for the sale by Westbrook to Globe of 30,000 tons of manganese ore lying at Large, Pennsylvania, c.i.f. Belfre [sic – an error for Belpre], the first shipment to be made by 28^th January 2005 with subsequent shipments at intervals thereafter. As both parties were aware, the ore from which the goods were to be drawn formed part of a stockpile which had been assembled by the Defense National Stockpile Center (“DNSC”), an arm of the Defense Logistic Agency (“DLA”), an agency of the United States Government, and was no longer required. It had been stored in the open for many years in unsegregated piles which were not homogeneous, containing lumps and particles of various sizes ranging from pieces several inches across to fine particles. It was an express term of the contract that the ore to be delivered under the contract was to be “Screened over plus ½ screen at DLA”.

In the event bad weather conditions made it impossible to screen the ore efficiently and as a result Westbrook failed to load the first barge by 28^th January 2005. Initially that did not cause Globe a great deal of concern, and, as the judge found, both parties were content to wait for the weather to improve. However, as time passed, it became apparent to Globe that it was unlikely to be able to make use of the ore in the manner it had originally contemplated and there then occurred a period of commercial fencing which led to each party treating the other as in repudiation of the contract. The immediate dispute was whether the goods tendered as the first shipment conformed to the contract in terms of the size of the particles. Globe refused to accept and pay for them on the grounds that they did not and Westbrook treated its conduct as a renunciation of the contract as a whole.

The present proceedings were begun by Westbrook in July 2005 seeking to recover from Globe damages for breach of contract in failing to accept any of the goods that it had agreed to buy. Globe contended that it was entitled to treat the contract as discharged, not only because Westbrook had demonstrated an unwillingness to deliver goods that conformed to the contract, but for two other reasons as well, namely, (a) because Westbrook had failed to ship the first instalment by the required date and (b) because by selling and delivering goods to other buyers, Westbrook had disabled itself from performing the contract.

Tomlinson J. rejected all of these arguments. He held that Westbrook had complied with its obligations in relation to screening and accordingly that the first shipment conformed to the contract in terms of its composition and the size of the constituent particles. There is no appeal against that part of his judgment. He held that Globe had waived its right to require shipment of the first parcel by 28^th January or by any specific date thereafter and he rejected Globe’s submission that Westbrook no longer retained a sufficient quantity of ore at Large to enable it to perform the contract. These last two arguments formed the main grounds of appeal.

The contract provided as follows:

Delivered: CIF Barge bottom Belfre Ohio, by latest 30^th April 2005

Shipment: First barge to load before 28^th January 2005 with barges to follow no sooner than every 7 days and no more than one month between barges until contract is complete.

As both parties were aware, the capacity of the barges used for transporting ore was about 1,500 dwt. It was recognised, therefore, that if the first barge was not loaded until (say) 27^th January, the full contractual quantity could not be delivered until mid-June. Nonetheless, since time of shipment is usually of the essence of a contract of this kind, I am prepared to accept for present purposes Mr. Mallin’s submission that it was a condition of the contract that the first shipment should be made before 28^th January 2005. That, however, is only the beginning of the story. In paragraph 25 of his judgment Tomlinson J. describes the circumstances under which shipment of the first parcel of ore was delayed. In particular he found that Mr Becker, Globe’s Purchasing Manager, visited the site on 26^th January to meet Mr. Nick Shilatz, whose company USB Metals LLC was responsible for screening and shipping the material on Westbrook’s behalf, in order to discuss the operations. The weather was very cold with snow and ice, rendering it impossible to screen the wet ore effectively. Globe was not operationally inconvenienced by Westbrook’s inability to load the first barge by 28^th January and were content to await developments. On 2^nd February Westbrook told Globe that it could do nothing but wait for the weather enabled effective screening to be carried out. Globe did not demur, but, as the judge found, acquiesced in that strategy. He also found that Globe fully appreciated that by so doing it was releasing Westbrook from any obligation either to load the first barge by 28^th January or to deliver further quantities within any particular time thereafter.

As the weather began to improve screening of the ore began in earnest and Westbrook sought to obtain information from Globe about its requirements. In one sense that was unnecessary because it would have been entitled to start shipping goods as soon as it was ready to do so, but it is routine in commercial circles for parties to communicate with each other in that way. None of Westbrook’s messages or telephone calls were answered, however, because, as the judge said, “Globe now embarked on a deliberate policy of not communicating with Westbrook and in particular of not responding to Westbrook’s repeated queries as to their, Globe’s, intentions and requirements so far as concerned performance of the Large contract”. It was clear from the contents of the messages, however, that Westbrook was screening the ore and taking steps to enable the first barge to be loaded. Screening, using a piece of equipment brought to the site for the purpose, began on 21^st March 2005. Between 22^nd March and 4^th April two of Globe’s retired employees, Mr. Richard Clark and Mr. Wayne Brooks visited the site regularly to inspect the process on its behalf. The first barge completed loading on 12^th April.

That judge held in the light of parties’ conduct that Globe had waived any right to reject the first barge on the grounds that it had not been loaded by 28^th January 2005 and that the parties had plainly not conducted themselves on the basis that delivery of the entire quantity by 30^th April 2005 was of the essence of the contract. For reasons I have already mentioned, I doubt whether it could ever have been a condition of the contract that the full contract quantity should be delivered by 30^th April, but once Globe had waived the date for the first shipment, completion by that date became doubly impossible unless the parties had agreed to load barges at closer intervals than the contract provided for. For obvious reasons that was never discussed.

Mr. Mallin (who did not appear for Globe below) submitted that the judge should not have entertained argument on that question because the point had not been raised by Westbrook in its statement of case. Moreover, he submitted, that to allow it to be raised at a late stage in the trial after its witnesses had finished giving their evidence prevented Globe from dealing with the matter fairly. He relied in particular on the judge’s finding, to which I have already referred, that Globe fully appreciated that it was releasing Westbrook from any obligation either to load the first barge by 28^th January or to deliver further quantities within any particular timescale thereafter.

It is always important for a judge to ensure that all parties to the proceedings have a fair opportunity to deal with the case against them and in some cases a party’s failure to raise a point in its statements of case will lead to its being prevented from arguing it at trial. However, the overriding object of proceedings is to do justice between the parties and it is important that form is not allowed to override substance. In this case there is nothing to indicate that counsel appearing for Globe objected to the introduction of this issue or sought an adjournment to enable him to take instructions from his client or call further evidence. I do not find that surprising in view of the fact that the judge had before him detailed evidence of the dealings between the parties during the period from January to May 2005 and that if Globe sought to rely on the contractual date for the first shipment an argument of this kind was bound to be raised. The fact that no objection was made reflects what in my view was the inevitable recognition that the judge had before him all the evidence that was relevant to the question and that Globe’s counsel had a sufficient opportunity to address the point.

Mr. Mallin criticised the judge for failing to explain the legal basis on which he reached his conclusion, but in my view the conclusion itself was too obvious to call for detailed analysis of that kind. It is well established that if a party to a contract who is entitled to receive performance of an obligation by a stipulated date represents to the other that he is willing to accept performance out of time and the other relies on that representation, he cannot insist on performance by the date originally stipulated. If the representation is made before the time for performance has come, the waiver will operate by way of equitable estoppel. If it is made after the time for performance is past it may also take effect as an election to affirm the contract. In the present case the judge’s findings support the conclusion that both before and after the time for performance had come Globe had clearly and unequivocally represented to Westbrook that it would not treat the contract as discharged by reason of late shipment of the first instalment but would accept delivery over an unspecified period in the future. On the faith of that assurance Westbrook continued screening and loaded the first barge. In those circumstances the judge was clearly right in my view to hold that Globe could no longer insist on shipment before 28^th January. As the judge recognised, his observation that Globe fully appreciated the effect of what it was doing was unnecessary to his conclusion.

Mr. Mallin submitted that the only way in which the parties’ rights could have been modified in this case was by a variation of the contract and that since the contract itself provided that no variation was to be effective unless made in writing, there could have been no effective modification of those rights. I do not agree that the parties rights could only be modified by variation, in the sense of a further agreement, for the reasons mentioned earlier, but there is no reason why the contract, including the clause requiring variations to be in writing, could not have been varied orally.

In my view the judge reached the only possible conclusion on the evidence before him and I would reject his ground of appeal.

At the time the parties entered into the contract the precise quantity of ore available to Westbrook for delivery under it was uncertain. There were various reasons for that. In the first place, the ore had been lying for many years in open piles over which vegetation had grown. In some places extraction and the natural effects of the weather had created lakes in which unknown quantities of ore lay below the water level. The pile itself was not homogeneous and the proportion of material that would pass over a ½ inch screen varied in different places. That made it difficult to calculate how much ore of the required size remained at Large in early May when Globe treated the contract as discharged.

Two questions have to be considered: how much material remained on site and what proportion of it met the contractual requirements? In relation to the first of these questions there was evidence from a variety of sources. The first was the tender for sale published by DLA in 2003 in which Pile 1 (which contained the only relevant material for present purposes) was described as containing 170,709.81 SDT (short dry tons) of “Fines”. The second was the evidence of Mr. Shilatz, who had been closely involved in operations at Large extracting the ore, screening it and arranging its carriage by truck to the loading point. He told the judge that his experience of working the ore led him to think that even at the time he was giving evidence there were about 10,000 tons of material remaining in the lake below the level water of the water. The third was a report of an inspection carried out on 22^nd June 2007 by a Mr Robert A. Drew, Managing Partner of Maritime Commodity Services Inc., a cargo and marine surveying and commodity inspection and testing company. That report suggested that little, if any, material remained on site at the time of his inspection. Finally, there was evidence in the form of two e-mail messages, one dated 8^th June from legal counsel for DNSC at DLA and one dated 15^th June 2007 from the Director of Stockpile Contracts and Marketing at DLA, to the effect that all recoverable manganese ore had been removed from the site.

The amount of material that remained at Large in May 2005 was relevant to the quantum of damages as well as the issue of liability. A hearing to assess quantum was fixed for 25^th January 2008. At the opening of that hearing Globe applied to adduce in evidence a report made by Stagg Resource Consultants Inc. (“Stagg”), a company carrying on business as natural resource consultants, of an inspection of the site at Large carried out during January 2008. A copy of the report, which indicated that no more than 1,200 to 1,340 tons of fine-grained manganese bearing material remained in the lake, had been served on Westbrook’s solicitors on 23^rd January. The judge dismissed the application on the grounds that it had been made at a very late stage in the proceedings and that to allow the evidence to be admitted would cause serious prejudice to Westbrook, which, in the absence of an adjournment, would have no real opportunity of checking its contents or instructing someone to investigate the matter on its behalf.

Mr. Mallin submitted that the judge was wrong to take that course because the issue was of considerable significance and justified adjourning the trial to enable Westbrook to consider the matter, albeit on terms that Globe paid the costs thrown away. It must be remembered, however, that this was a matter that called for the exercise by the judge of his discretion having regard to all the circumstances, not least the stage in the proceedings at which the application was made. Judgment on liability was delivered on 16^th October 2007. It is not clear exactly when Stagg was instructed, but the report itself records that the survey and sampling on which it was based took place during the second week of January 2008 and the report is dated 21^st January. If Globe had acted with reasonable diligence following the delivery of the judgment there is no obvious reason why it could not have been available by the end of November or why an application to adduce it in evidence could not have been made well in advance of the hearing.

In those circumstances the judge cannot in my view be criticised for refusing to allow Globe to call that evidence; indeed, I think it would have been surprising if he had taken any other course. It should also be borne in mind that at the trial Globe had relied on expert evidence in the form of the Drew report which tended to show that there was no significant quantity of material remaining on site in June 2007. The judge had not been impressed by it and had preferred the evidence of Mr. Shilatz. Globe was now seeking to adduce a similar but, as it hoped, more persuasive, report covering the same ground. Although the judge had not made any precise finding about the amount of material that remained at Large, he had held that there was enough to enable Westbrook to fulfil the contract. To that extent the matter was by then res judicata and I doubt, therefore, whether the Stagg report was admissible at all. However, it is unnecessary to reach any final conclusion on that point because I am satisfied that the judge was fully entitled to dismiss the application in the exercise of his discretion.

That is not the end of the Stagg report, however, because Globe now seeks to rely on it as fresh evidence in support of the present appeal. On an application of this kind one question which the court will normally wish to consider is whether the evidence could with reasonable diligence have been obtained for use at the trial. In my judgment it is clear that it could. Globe says that it did not become apparent until Mr. Shilatz’s witness statement was served towards the end of April 2007 that Westbrook would say that a substantial quantity of material remained on site under water. That may be so, although Globe had alleged and bore the burden of proving that insufficient material was available and was aware of the conditions at Large. However, Globe had time to obtain the Drew report, which was put in evidence at the trial, and Mr. Mallin was constrained to accept that if Stagg had been instructed instead of Drew, the report could have been placed before the judge at the trial.

Nor do I think that in these circumstances the Stagg report, though credible in itself, is of sufficient significance to justify its admission at this stage. As will become apparent in a moment, the issue to which it relates was one of some difficulty in relation to which there was evidence of very different kinds. If the Stagg report were admitted, there would have to be a re-trial of that part of the case because Westbrook would have to be given an opportunity to serve evidence in response and it would be necessary to put the report to Mr. Shilatz for his comments. At the trial the judge had before him conflicting evidence from quite different sources: a report from a surveyor, Mr. Drew, who had inspected the site two years after the event and oral evidence from Mr. Shilatz whose knowledge of the site was derived from his practical involvement in operations over a considerable period of time. The Stagg report is essentially of the same nature as the Drew report and, though the method of sampling adopted appears to have been more professional, no very good reason has been put forward to explain why on a re-trial the judge could be expected to prefer the evidence of a survey carried out some years after the event to the evidence of Mr. Shilatz. In all the circumstances, I would not give Globe permission to adduce the Stagg report in support of the appeal.

I can now return to the issue of the quantity of ore remaining at Large in May 2005. The judge placed little, if any, weight on the e-mails from DLA, but that does not surprise me because they failed to identify the questions in response to which they had been sent, were based on information provided by others and were couched in language that gave little confidence that anyone had made a recent inspection of the site. He was clearly not impressed by Mr. Drew’s report and Mr. Drew himself was not called to give evidence in support of it. Again, I am not surprised. The report does not identify the person who attended the site and simply states that twelve points in the lake were sampled in an unspecified manner around the shoreline closest to the hillside. The judge preferred the evidence of Mr. Shilatz to the untested evidence of Mr. Drew. He did so, not simply because he had heard Mr. Shilatz give evidence (though he had and described him as an impressive witness whose manner and evidence he found straightforward and convincing), but because his evidence was based on a considerable amount of practical experience of extracting ore from the site and in particular from the lake.

Mr. Mallin submitted that the judge was not entitled to place any reliance on Mr. Shilatz’s evidence because he was simply giving the court the benefit of his own opinion of how much ore remained at Large. Such evidence, to be admissible at all, could be given only by an expert. Moreover, he submitted that if Mr. Shilatz had been put forward as an expert witness, the judge would have been bound to reject it as being based on nothing more than random personal observations.

It is not uncommon for parties to seek to elicit from a witness who has been called to give evidence of fact evidence that is in reality expert opinion evidence, particularly when the witness occupies a position that calls for a significant degree of training, skill and experience, such as a master mariner or chief engineer. Such attempts should in my view be firmly discouraged, but that is not what occurred in this case. It is been recognised for a long time that sometimes what may appear to be a statement of opinion is no more than a compendious means of giving factual evidence, a proposition now reflected in section 3(2) of the Civil Evidence Act 1972. In the present case Mr. Shilatz had spent a good deal of time working the material, knew where there were deposits beneath the water and had a good idea of the quantity that he could expect to recover. He could no doubt have described the circumstances of operations at Large in some detail and at some length, but he was not asked to do so, confining himself to what he described as “the size of the footprint of the pile and the scraping that we did with the wheel machines etc.”. This particular part of his evidence was given in response to a question from the judge, but counsel were offered the chance to ask questions arising out of his answer and neither chose to do so. As a result the evidence was not challenged. Nor does there appear to have been any suggestion that the judge should disregard that part of his evidence. That does not surprise me, since it is very rare nowadays for an objection to the admissibility of evidence to be made in civil proceedings, particularly the Commercial Court.

In my view this part of Mr. Shilatz’s evidence was admissible, but even if it was not, the judge was entitled to accept and act on it in the absence of any objection to its admissibility. What weight he gave to it was a matter for him, although he must have been fully aware of the basis on which it was given. It may not have been scientific, but it was the best evidence available and the judge had good reason to think that it was likely to be reliable.

That being so, the next question is whether the remaining quantity of ore contained enough material to satisfy the balance of the contract. The nature of the material at Large made it very difficult to determine how much would be required to produce the full quantity of screened ore. In January 2004 an analysis by Alfred H. Knight showed that 68.3% of the material passed a ½ inch screen. An analysis by Alternative Testing Laboratories Inc (“ALT”) in December 2004 indicated that 65.1% of the material passed a ½ inch screen and an analysis undertaken by GMI in October 2004 found that 85.39% passed a ½ inch screen. These results tend to suggest that significantly less than half the material met the requirements of the contract with Globe. Basing himself on these analyses, an expert witness instructed by Westbrook, Mr. Michael Anthony, calculated that 78,530 tons of raw material would be needed to produce 30,000 tons of ore complying with the terms of the contract.

In paragraph 82 of his judgment the judge concluded that on the evidence before him he could do no better than find that 60,000 tons of “raw” material would be required to produce 30,000 tons of screened ore, or in other words, that about half the material met the necessary standard. He did not refer to the analyses carried out by Alfred H. Knight or GMI, but he did take into account the analysis by ATL, emphasising that it was carried out in a laboratory, that the sample was very small by comparison with the bulk and that it would almost certainly have been dried before being analysed. This last factor is of some importance having regard to the fact that the material on site was wet, that the contract (as the judge had held) required only that it be passed over a ½ inch screen and that significant quantities of fines could be expected to adhere to the lumps which remained on the screen. Moreover, the fact that the pile was not homogeneous rendered any samples of reduced value. In making his finding the judge again preferred the evidence of Mr. Shilatz. He had said that there was regular sampling of the material at the site which showed that 70% of the material remained on a ½ inch screen and that he had worked on the basis that 50% of the material was of that size. Mr. Anthony’s report was not put to Mr. Shilatz in cross-examination and insofar as this part of his evidence was challenged, he was able to put give cogent answers in defence of his assessment.

Mr. Mallin submitted that the judge was wrong to prefer the evidence of Mr. Shilatz to that of Westbrook’s own expert, Mr. Anthony, which was the only evidence of a precise scientific nature before the court. In many cases that would be a strong argument, but in this instance the scientific evidence was not as strong as it appeared at first sight. In the course of his evidence Mr. Anthony had explained that he had significant reservations about the reliability of the analyses carried out by ATL, Alfred H. Knight and GMI because he was not persuaded that the samples on which they were based were truly representative of the bulk. His own work had been based on averaging the results obtained by those laboratories and he considered it to have been a valid exercise because none of the results fell outside the range of what was possible, but he clearly did not regard his own results as providing a reliable indication of the composition of the whole bulk.

In those circumstances the judge was plainly entitled to consider whether there was other, more reliable, evidence available. Mr. Shilatz had agreed to purchase the fines from Westbrook himself for sale to another buyer and for that reason alone had a strong interest in monitoring the quantities that passed over and through the screen respectively. In the light of these matters the judge was in my view entitled to reject the evidence of the laboratory analyses carried out under conditions very different from those pertaining on site in favour of the practical experience of Mr. Shilatz. I think it would have been more satisfactory if he had referred to the analyses, particular that of Mr. Anthony, and had explained why he did not attach much, if any, weight to them, but perhaps that is a counsel of perfection. In the light of Mr. Anthony’s evidence I think it is clear why the judge expressed himself as he did. In the circumstances he was entitled to prefer the evidence of Mr. Shilatz and to find, as he did in paragraph 82, that, taken as a whole, there was an approximate 50/50 cut on oversize versus undersize, in other words, that 60,000 tons of ore was required to produce 30,000 tons of material complying with the contract.

One issue that arose in connection with this part of the case was whether about 9,600 metric tons of ore that had been loaded by Westbrook into barges at Large but remained unsold could have been delivered to Globe under the contract. The material had not been screened before leaving Large. In his judgment on liability the judge did not find it necessary to make a finding on this issue because he took the view that an inability to screen at Large the amounts of ore that would otherwise be available to make up a shortfall would not amount to a repudiation of the contract. However, he returned to the matter in the context of the assessment of damages and found in paragraph 19 of his judgment that the ore probably could, if necessary, have been returned to Large for screening, although if Globe wanted to receive the material, it would have been more convenient to screen it elsewhere. He therefore treated that cargo as available to satisfy the contract.

The evidence bearing on this question was very thin. Mr. Shilatz said that he could see no difficulty in practice in taking the ore back to Large, but the authors of the e-mails from DLA, to which I referred earlier, expressed the view that it was highly unlikely that Westbrook would have been allowed to return the ore to the site for screening. However, neither of them gave any reason why that should have been the case while operations to recover ore from the site were still going on and the tenor of those messages does not suggest a carefully considered response to whatever question had been asked. Mr. Mallin submitted that Mr. Shilatz’s views, expressed in rather vague terms, did not provide a sufficient basis for a finding that Westbrook could have brought the ore back for screening at Large, especially in the face of the (equally vague) messages from DLA to the effect that it was “highly unlikely” that it would have been permitted to do so. As I have already observed, however, that evidence was not particularly persuasive and again it is worth noting that Mr. Shilatz’s evidence was not challenged in cross-examination. In my view the judge was entitled to find that, if Globe had insisted on its being screened at Large, the ore could have been returned for that purpose.

For all these reasons I am satisfied that there are no grounds for disturbing the judge’s findings about the quantity of ore available to Westbrook to satisfy its contract with Globe. It follows that his conclusion that Westbrook had not by May 2005 finally disabled itself from performing the contract must stand.

Globe raised three grounds of appeal against the judge’s order on the assessment of damages. The first relates to the date for delivery. When he came to assess damages the judge proceeded on the basis that but for Globe’s repudiation Westbrook would have delivered the full contract quantity. In doing so he rejected Globe’s argument that the whole of the contract quantity had to be shipped by 30^th April 2007. Mr. Mallin submitted that he was wrong to do so, but for the reasons given earlier, I am satisfied that the judge was right to hold that Globe could no longer rely on the dates for delivery set out in the contract.

The second and third concern the quantity available for delivery and both rely to a greater or lesser degree on the evidence of the Stagg report and the proportion of the bulk that represented material of the contract description. I have already considered both aspects of the case. For the reasons given earlier, I think that the judge was entitled to refuse Globe permission to adduce the Stagg report in evidence and I also think he was entitled to find that about 50% of the material at Large complied after screening with the terms of the contract. It follows that all three challenges to his assessment of damages must fail.

For these reasons I would dismiss the appeal.

I entirely agree with the judgment of Moore-Bick L.J. which I have had the advantage of reading in draft. Like him, I would dismiss this appeal.

With all possible respect to the arguments advanced by the appellant, this strikes me, as a non-specialist in the field, as a very simple case. The appellant, as it seems to me, made a clear bargain for the purchase of manganese ore. At a later stage, notably when the price of the product fell, it repented of its bargain, and sought to extract itself from it.

I am, I hope, the first to recognise that if the appellant had a legitimate basis for extracting itself from its bargain, it had the right to do so. In my judgment, however, none of the arguments advanced by the appellant even begin to demonstrate a basis for so doing. In particular, I am entirely satisfied that the judge was entitled to rely on the evidence of Mr. Shilatz. Not only did he have an unrivalled knowledge of the site, but as Moore-Bick L.J. makes clear in paragraphs 24 and 25 of his judgment, his was the best evidence available, and much of it was, effectively, unchallenged.

Moore-Bick L.J. has, with what I hope I can properly describe as his customary clarity, analysed the contractual relationship between the parties. I am in no doubt whatsoever that he has reached the right result, and that his penetrating legal analysis coincides fully with the merits.

For all the reasons he gives, therefore, I too would dismiss this appeal.

I agree that the appeal should be dismissed for the reasons given by Moore-Bick L.J.