583. Triton Navigation v Vitol SA (“The Nikmary”) [2003] EWCA Civ 1715

Laytime and demurrage – oil tanker arriving after cancelling date and rejected twice for dirty tanks – charterers electing not to cancel, missing turn in regulated allocation of gasoil – delay for the account of the chrs

The facts

Asbatankvoy form with amendments.

Loadport Sikka, India. Cargo, gasoil.

By the time the vessel had arrived and presented with clean tanks, the supplier from whom the chrs had bought, became contractually entitled  to postpone delivery.

The effect was about a month’s delay after valid NOR.

Demurrage of US$291k was in dispute.

Findings

Moore- Bick J found in favour of shipowners.

Mance LJ agreed.

Chrs had the opportunity of cancelling but chose not to do so.

Providing cargo was an absolute obligation which they failed to perform.

Of interest

Clause 30(c) (v) indemnified the chrs for the consequences of the vessel not being clean to the satisfaction of a “jointly appointed inspector”.

Moore-Bick J rejected Timothy Hill QC’s reliance on this clause. He based his reasoning on the technicality that, although the inspectors separately appointed by the parties agreed, there was still no jointly appointed inspector.

Mance LJ preferred not to choose sides on the distinction but held that the “rough and ready” clause was too widely worded and could not excuse the chrs for their own breach, in this case, failing to provide cargo.

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