424. Fercometal SARL v MSC Mediterranean Shipping Co. SA (the “Simona”) [1986] 1 Lloyd’s Rep 171; [1987] 2 Lloyd’s Rep 236; [1988] 2 Lloyd’s Rep 199

Anticipatory Breach – charterers’ repudiation not accepted – charterers still able to rely on cancellation clause.

 The Facts

The charterparty on a Gencon form, provided for the carriage of a part cargo of 6 000 metric tons of hot rolled steel coils from Durban to Bilbao with a laycan of 6 days.

Clause 10 read:

“Should the vessel not be ready to load (whether in berth or not) on or before the date indicated (the laycan), Charterers have the option of cancelling this contract, such option to be declared, if demanded, at least 48 hours before vessel’s expected arrival at port of loading.”

The loading system at Durban required advance notice of loading to the port authorities.

In order to accommodate a shipment of copper and granite, the owners requested an extension of the laycan. Such request was made before the laycan period and could, therefore, have been rejected by the charterers.  Charterers repudiated the charter.

Owners did not accept the repudiation and advised the charterers that they would present the vessel on time.

The vessel arrived within the laycan period and tendered notice of readiness, which was rejected by the charterers.

In the meantime, charterers had commenced loading their cargo on an alternative vessel.

Because of the owners’ obligation to load copper and granite, the vessel was in fact not ready to load the steel and charterers issued a fresh notice of cancellation.

Owners claimed deadfreight.

Findings

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