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54.  The Sale of Goods Act generally uses delivery to refer to passing of possession, and this under some FOB contracts will be associated with the transfer of the shipping documents. But there are, as the definition in s.61(1) contemplates, occasions when in the Act delivery is used in another sense. An example is s.30, dealing with the seller’s obligation to deliver the contractual quantity, which must in the context of an FOB contract refer to delivery by shipment.

55.  Bearing in mind the general aim of article 5(1)(b) as explained in Color Drack and the general nature of FOB contracts, I would consider it clear that the place of shipment is the place of delivery which characterises an FOB contract such as the present and is relevant under article 5(1)(b). This is so whether the matter is viewed simply under domestic law (as in both parties’ primary submissions can and should be done) or is viewed as engaging autonomous conceptions of delivery (as Mr Lord submitted in an alternative).

56.  For the reasons given in paragraphs 24 to 48 above, I would hold that the place of delivery under the present sale contract was Liverpool and would accordingly dismiss this appeal.

LORD NEUBERGER OF ABBOTSBURY

My Lords,

57.  I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Mance and for the reasons he gives, with which I agree, I too would dismiss this appeal.