By Will Chan & Philippa Langton
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Published 12 November 2026
This case serves as a stark reminder of how one seemingly simple, ad hoc amendment can bring unintended consequences and fundamentally change the parties' obligations. Even if the parties expressly agree that "all else is the same", much about the contract may nevertheless be different.
In a judgment recently handed down in FinCo International AG v Integra Petrochemicals Europe AG [2026] EWHC 727 (Comm), the Commercial Court considered the consequences of amending a sale contract from DES to CIF terms. The parties originally entered into a contract for the delivery of methyl tert-butyl ether on DES ARA terms, which also incorporated the BP Oil General Terms and Conditions version 1.2 (the "BP Terms"). The delivery window was agreed to be between 10 and 24 November 2023. The parties later decided by email that the delivery terms were to be changed from DES to CIF, but that "all else is the same".
After the amendment, Integra nominated M/T Aramon to be the performing vessel. FinCo replied on the same day by email that "it will be very difficult to get an LR [long range tanker] discharged”. FinCo also stated in Whatsapp messages that Vessel would not "fit to the jetty" and asked for a medium range tanker instead. Three days later, FinCo stated by email that “if you want to arrange STS, all costs will be for your account. Please send a new vessel”.
Eventually, both parties worked on the premise that Aramon would carry the shipment to the discharge port, where the cargo would be discharged by barges or via alternative logistical arrangements.
Unfortunately, Aramon did not arrive at the discharge port within the agreed delivery window. FinCo attempted to terminate the contract on two grounds. Firstly, Aramon arrived after the agreed delivery window, which FinCo contended constituted a breach of condition. Secondly, the nomination of Aramon was rejected by FinCo either by email or by Whatsapp messages.
Both parties accepted that, had the contract stayed on DES terms, there was an obligation on Integra to ensure the performing vessel arrived within the delivery window; and that late arrival at the discharge port within the delivery window would allow FinCo to terminate the contract. The question before the court was whether the binding nature of the delivery window survived the change from DES to CIF delivery, with "all else" remaining the same.
The Court found that the nature of the delivery window was fundamentally altered. For typical CIF (or CFR) contracts, delivery usually occurs upon loading, and there is no obligation on the seller to ensure that the vessel arrives at the discharge port within any particular window, or indeed at all. The inclusion of a delivery window referable to the discharge port can modify the ordinary CIF position, but it depends on the wording used.
In this case, the contract incorporated the BP Terms. Following the amendment from DES to CIF, s.11.3 of the BP Terms applied, with the result that the agreed delivery window became an "Indicative Discharge Date", rather than a binding obligation to complete delivery at the discharge port within that period. The significance of this distinction was central to the dispute. FinCo's case depended upon the delivery window retaining its status as a binding obligation following the amendment to CIF terms.
The agreement that "all else is the same" did not assist FinCo. The Court described the argument as "question begging". While the amendment preserved the same delivery window, it did not answer the separate question of what legal effect that window had after the contract moved from the DES regime to the CIF regime.
Accordingly, the Court held that Integra's obligation was not to ensure arrival at the discharge port during the delivery window. Rather, it only had to ensure that the vessel tendered NOR at the loading terminal at a time consistent with arrival within the stated discharge window, based on a reasonable assessment of customary loading and voyage times, which Integra had done. FinCo was therefore not entitled to terminate the contract on the basis of late arrival.
The Court also found that there had been no proper contractual rejection by FinCo. Rejection by instant messaging, including WhatsApp, is not permitted under the BP Terms. Further, the Court found that, pursuant to clause 14.6.1 of the BP Terms, any rejection had to be communicated within one business day of the nomination. Accordingly, FinCo's first email stating that the use of a long-range tanker would be "difficult" was within time, but was not sufficiently clear. The WhatsApp messages could not constitute a valid contractual rejection. The second email, which requested Integra to "send a new vessel", was clear enough to be a rejection, but it was sent too late.
The fact that the parties had already made arrangements for discharge of the cargo via barges was the final nail in the coffin. In any event, an estoppel by convention would have prevented FinCo from rejecting the Vessel, having proceeded on the assumption that Aramon would perform the voyage and that alternative discharge arrangements would be utilised.
Ultimately, the case illustrates the dangers of focusing on the commercial effect of an amendment without considering its interaction with the contract as a whole. The parties may have believed that they were simply changing the delivery basis from DES to CIF. In reality, that amendment altered the operation of the incorporated BP Terms and fundamentally changed the legal significance of the agreed delivery window.
The takeaways:
- The effect of an amendment must be assessed by reference to the contract as a whole, including any incorporated standard terms
- Simply agreeing that "all else is the same" does not mean that all contractual provisions will retain the same legal effect following a fundamental amendment to the contractual framework
- Amendments or not, parties should remain mindful of incorporated terms, which may have consequences every bit as significant as the contract's express provisions
- Commercial conduct following a contractual dispute may create estoppel arguments which can prove decisive regardless of the underlying contractual position
The decision highlights the importance of carefully assessing the broader contractual consequences of seemingly straightforward amendments, particularly where standard terms are incorporated.
DAC Beachcroft's global shipping & trade team regularly advises traders, shipowners and charterers on the drafting, negotiation and interpretation of commodities, sale and maritime contracts, as well as disputes arising from them. If you would like to discuss any of the issues arising from this judgment or the drafting of sale and shipping contracts, please contact a member of our team.
