353. BP Oil International Limited v Target Shipping Limited (the “Target”) [2012] EWHC 1590 (Comm); [2013] EWCA Civ 196

Interpretation– email recap voyage charterparty – overage related to multiple discharge options – CA rejecting interpretation adopted by Commercial Court

 The facts

 Close onto 80 000 mts of fuel oil and 26 000 mts of fuel oil were shipped from Odessa and Marmara, Turkey to Galveston and Houston on an amended BPVoy4 form recorded in an email, subject to any later variation arising from exchanges or the parties’ conduct in the course of the voyage.

 Freight was agreed as follows:

 “31.1 The Freight Rate

31.3 shall be that stated in Section H of PART 1.

If the cargo quantity stated in Section C of PART 1 is a minimum quantity, then the freight payable for any cargo loaded in excess of the said minimum quantity shall, notwithstanding this Clause 31, be at the Overage rate stated in Section H of PART 1, unless a lump sum freight has been agreed in which case no Overage shall be payable.

Where the Freight Rate stated in Section H of PART 1 is expressed as a percentage of Worldscale, the Worldscale rate shall be the rate in force at the date of this Charter.

If a lumpsum freight is agreed for the voyage this shall be in respect of the overall voyage of the Vessel from the first loading port to the final discharge port…

31.4 Freight shall be payable immediately after completion of discharge, on the gross quantity of cargo loaded by the Vessel as evidenced in the bills of lading … “.

 Section C of Part 1 read:

“Minimum 80,000 mts CHOPT [sc. charterers’ option] up to full cargo of fuel oil.

…Owners warrant vessel loads 87,000 metric tonnes basis 12.5m Odessa, 112,000 metric tonnes basis no restrictions.”

Section H of Part 1 as amended in the recap read:

“Basis load Odessa/Singapore : USD3,000,000 lumpsum 1 to 1

Euromed : WS [Worldscale] 120 basis mfr [minimum flat rate] Augusta

USG [US Gulf] WS 135

USAC [US Atlantic Coast] /CARIBS [Caribbean Sea] WS 140

If discharge east of Singapore charterers to pay lumpsum rate agreed for Singapore minus USD 20,000 plus additional freight coming out of following formula:

80.000 mt x flat rate Spore [Singapore] to actual discharge port(s) x WS 110 with no overage

Suez Canal transit costs to be for Owners account

All lumpsum freight rates basis 1st load to last discharge port,

Worldscale 2010 to apply

Overage: Overage 50pct applicable for Euromed discharge only

Address Commission: 1.25 pct address on F/DF/D [freight, dead freight, demurrage]

Brokerage Commission: 1.25 pct [Charterers’] Shipbrokers on F/DF/D.”

 Specific Additional Clause 6 read as follows:

“(a) Charterers shall have the option of instructing Owners to:-

(i) divert the vessel to any port(s)/place(s) en route, even where such port(s)/place(s) is/are not within the Ranges stated in Section E or F of PART 1, but provided that such port/place is within the rotation of discharge port(s)/place(s) previously nominated, and there load additional cargo or discharge cargo carried under this Charter, or any part thereof, and backload a cargo, as described in the Charter Party, or as otherwise agreed, for final discharge at a port(s)/place(s) within the Ranges stated in Section F of PART 1; or

(ii) backload a cargo as described in the Charter Party, or as otherwise agreed, after the vessel has discharged the cargo described in Section C and D of PART 1, or any part thereof, at a port(s)/place(s) within the Ranges stated in Section F of PART 1, for final discharge at a port(s)/place(s) within the Ranges stated in Section F of PART 1.

(b) If Charterers exercise either option under paragraph (a) above, the port(s)/place(s) at which the Vessel calls for backloading a cargo shall constitute either an additional loadport (under (a)(i) above) or an additional discharge port (under (a)(ii) above) and any additional time used in loading or discharging a backload cargo, including without limitation, time used performing any shifting or tank cleaning required, shall count as laytime or, if the Vessel is on demurrage, as demurrage.

(c) If freight in respect of the voyage is:-

(i) on a Worldscale basis, freight shall be calculated on the cargo quantity originally loaded but in respect of the voyage ultimately performed;

(ii) on a lump sum basis the call at the additional port shall be compensated in accordance with Clause 31.3 of this Charter, together with any port costs incurred at the additional port.”

 Marmara was a port that was en route for all possible destinations for the “Target” after she had sailed from Odessa.

Charterers  paid against the owners’ invoice hire of US$3,651,215.32, a sum calculated on the basis that freight was payable in respect of all the fuel oil carried, that is to say on 86,821.957 mts of fuel oil loaded at Odessa and on 26,021.543 mts loaded Marmara.

Charterers sought to re-claim freight paid allegedly by mistake based mainly on an interpretation of the charter that no freight was payable on overage (ie the volume of cargo exceeding the agreed minimum) on a voyage to the US Gulf. The rival contention of the owners was that freight was payable on all the cargo on the agreed Worldscale rate.

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