Uniserve (Northern) Ltd v Birkart Globistics Ltd

Whether a delivery was unintended does not, without more, prevent contractual terms from applying to it. An umbrella agreement may govern goods mistakenly delivered, provided that is the parties’ bargain. Contractual terms must be construed as part of the agreement as a whole. Where necessary, their language may be adapted mutatis mutandis to the contractual relationship into which they are incorporated. The court may recognise an agreement covering unintended deliveries even though the goods were not delivered as the relevant party expected. A preliminary determination limited to whether terms could apply does not decide whether they were in fact incorporated or contractually binding on the particular consignment.

Matrix Europe Limited’s goods were collected for carriage to Hong Kong but were delivered to Uniserve Northern Limited’s warehouse rather than to the intended freight-forwarding warehouse. Uniserve accepted the goods, believing them to be covered by arrangements between members of Group 99. The goods were subsequently stolen.

Uniserve sought an indemnity and damages from Birkart under the 2000 British International Freight Association terms. The court was directed to decide, as preliminary issues, whether Birkart intended delivery to Uniserve and, if not, whether that delivery could have been subject to the BIFA terms.

1. First preliminary issue. Birkart did not intend the goods to be delivered to Uniserve. Its intention was that they should be delivered to Robins. Uniserve, however, intended to accept delivery. The finding concerned the parties’ own intentions and did not determine the authority or status of any agent.
2. Second preliminary issue. The mistaken nature of the delivery did not necessarily mean that there was no contract relating to it. An agent might have acted with ostensible authority, and the court was not prepared to exclude that possibility on the limited preliminary evidence.
3. The BIFA terms could have applied under an umbrella agreement between the parties, even though the delivery was unintended by Birkart. The terms had to be construed together with the agreement into which they were said to be incorporated. Although primarily directed to freight-forwarder and customer arrangements, they could be adjusted and applied mutatis mutandis to an agreement under which Uniserve provided storage or handling services to Birkart.
4. The wording of the alleged agreement, including references to dealings, business, work and services, did not confine its operation to intended deliveries. Uniserve’s pleadings sufficiently averred an express umbrella agreement covering mistaken or unintended deliveries. It was therefore unnecessary to resolve the issue as an arid pleading point.
5. The court answered the preliminary issues: Birkart did not intend delivery, Uniserve did intend to accept it, and the delivery could have been subject to the British International Freight Association (2000) terms. The judgment did not determine whether those terms were in fact incorporated or contractually binding for this consignment. Directions were to be considered for the efficient resolution of the remaining litigation.