In (1) Pt Berlian Laju Tanker TBK (2) Brotojoyo Maritime PTE Ltd v Nuse Shipping Ltd – Butterworths Law Direct 16.6.08 the dispute arose out of the construction of an MOA on the NSF 93 and specifically what was agreed regarding how and where the Buyers were obliged to pay the deposit.

In this case the recap provided for a 10% deposit to be lodged in Sellers' nominated bank in Singapore with the balance of 90% to be paid on the day of delivery at Sellers' nominated bank.

The deposit was paid into Sellers' nominated account in Singapore.

The MOA provided for payment of a deposit of 10% to be place with Sellers' nominated bank in Singapore 'to be released in accordance with joint written instructions of the Sellers and the Buyers'. It then provided for the purchase price to be 'paid in full free of bank charges to Sellers nominated bank on delivery of the vessel.'

Sellers nominated the Singapore account for payment of the deposit and a bank account in Piraeus for payment of the balance.

Buyers said that they were required to pay the 90% balance to Sellers' nominated bank in Singapore with the balance of 10% coming from the release of the deposit.

The Sellers' case was that they were entitled to 90% at their nominated account in Piraeus and also to have the 10% made available to them there.

The tribunal found in favour of Sellers.

The Buyers appealed on three grounds:-

(1) That under the MOA they were not bound to pay any part of the purchase price in Greece.

(2) If (1) was wrong, they were only obliged to pay the 90% in Greece

(3) If (1) and (2) were wrong, payment in Greece was not a condition but only an innominate term.

The Commercial court judgment, which again found in favour of the Sellers, emphasised that there is no need to hold that the Sellers' nominated bank for payment of the purchase price must be the same as Sellers' nominated bank for payment of the deposit. In doing so it highlighted that the commercial reality is that there may be reasons why the seller may want the price to be paid somewhere other than the place of the deposit, eg the mortgagee bank, the ability to choose that place after the MOA has been signed and that the price is often paid in a different jurisdiction to the deposit.

The judgment also considers the 'role' of the recap and the MOA, although it made no decision on this as it was held that the tribunal had made a factual finding that although there was a concluded agreement when the recap was sent, that agreement was superceded by the final signed contract, the MOA, in which the parties intended to record their final agreement. The court considered when rectification may be possible, holding that in this case the buyers were not entitled to rectification of the MOA unless they could establish that the MOA was intended to embody the provisions of the recap as to payment of the price without alteration. On the basis of the tribunal's finding of fact, rectification was not available to the buyers: the parties intended to agree what was in the MOA even if it was different to what was in the recap.

Finally, in accordance with Bunge Corp v Tradax Export SA [1981] 1 WLR 711 the court held that the obligation to tender payment in accordance with the provisions of the contract which specify how payment is to be made is a condition rather than an innominate term.