By virtue of a sales contract dated 14 February 1994, Wright Limited sold to Wrong Limited 1000 tons of tomatoes fob Southampton (UK). The contact, which was expressly subject to English law, contained the following terms as regards nomination.
A) The buyers are requested to give provisional notice of eight clear days of the date on which the vessel will arrive at the port of lading;
B) The nomination must identify the vessel by name, its itinerary and the approximate quantity of goods to be loaded;
C) The provisional notice must be confirmed by definite notice of four days from the date of presentment of the vessel for loading;
D) In the event of the buyers failure to give define notice he will be deemed to be in default and the seller entitled to cancel the contract.
On February 12th 1994 Wrong Ltd, gave a provisional notice nominating The Rusty nail or substitute with an estimated time of arrival on 20 February, and on 15 February gave definite notice that The Rusty Nail would arrive on 23 February 1994. Write acknowledged receipt of the definite notice of The Rusty Nil and confirmed they would accept The Rusty Nail provided she complied with all the terms and conditions of the contract.
On 16 February Wrong gave definite notice substituting The Black Russian with an estimated date of arrival on 19 February. Wright rejected this notice on the grounds that definite notice had already been issued in respect of The Rusty Nail.
The Black Russian arrived at Southampton and noted that she was ready to load on 19 February, but Wright refused on the ground that she was not the contractual vessel, since she had not been nominated in accordance with the contractual terms. Right consider themselves to have acted correctly and that Wrong are in default. Hence they have canceled the contract.
Wrong ask for your advice.
At first I thought I was straight forward and that wrong, where wrong. However then I looked over it again and realized it said “On February 12th 1994 Wrong Ltd, gave a provisional notice nominating The Rusty nail or substitute.." this would make me think then as it says it here they can then change the ship. However if you look at the dates Wrong gave notice of change of ship on the 16th of February and the ship arrive on 19th. This is 3 days. In part (c) they have to give " C)The provisional notice must be confirmed by definite notice of four days from the date of presentment of the vessel for loading; "
So I am now confused and don't know who is correct. Any ideas????