FOB sale – demurrage clause – the nature of demurrage as liquidated damages The facts A parcel of wheat was sold FOB Damman, Saudi Arabia. The contract provided for demurrage, a guaranteed loading rate, sellers’ carrying charges if vessel arrived late and a right on behalf of the buyers to extend the delivery date. The […]
Formation of charterparty – lifting of subjects THE PROCEEDINGS This was a trial conducted by video link before Foxton J. Trafigura claimed damages from Nautica, owners of the oil tanker, managed by NJ Goulandris Maritime, for the reduction in profit obtained in a replacement voyage in a falling market. Nautica relied on repudiatory breach by […]
Bill of lading – named shipper found not to be party to the contract The proceedings This was an appeal in terms of section 67 of the Arbitration Act 1996, challenging the jurisdiction of a panel of arbitrators consisting of Clare Ambrose, Daniella Horton and Clive Aston. A voyage charterparty with an arbitration clause had […]
Charterers instructing master to discharge without presentation of original bills of lading – deemed indemnity clause – owners held entitled to invoke – mandatory injunction granted to put up security to allow for the release of arrested VLCC The proceedings A Trafigura subsidiary, as claimant sought an urgent mandatory injunction against a Gunvor subsidiary, Clearlake Shipping, […]
Clause 38 Asbatankvoy form – demurrage claim – “all supporting documents” to include bills of lading The facts The vessel was let on an amended Asbatankvoy form. Clause 38 read in part: “… Any claim/invoice which Owner may have under this Charter Party shall be waived and absolutely barred, if claim/invoice and all supporting documents are […]
Withdrawal – BIMCO non-payment for hire clause not deployable for historic debt The facts The vessel was leton an amended NYPE form incorporating the BIMCO non-payment of hire for charterparties, entitling owners to withdraw the vessel for failure to pay hire timeously. Hire was US$9000 per day payable every 15 days (ie US$ 130 652) in […]
Notice of Readiness required to be given during office hours – laycan dates falling on Sunday – office hours provision determinative under sub-charter but not under head-charter The facts The vessel was let under a Norgrain 1973 form for two voyages from South America to China and sub-let on a Baltimore Form C Berth Grain […]
Demand guarantee – Floating Storage and Offloading Facility (FSO) – works relating to covered by a written guarantee given by parent company of the obligee – interpretation of guarantee and compliance decided – 2 Court of Appeal authorities cited as providing assistance in determining whether guarantees were “demand” or secondary obligation “see to it” guarantees […]
BIMCO SupplyTime 2017 Charterparty for Offshore Support Vessels – clause 12 (e) -failure to dispute invoices precludes later recovery for off-hire events The facts Clause 12(e) required charterers to notify owners of disputed amounts in invoices presented and to pay undisputed amounts . Clause 12(g) provided for an audit of the owners’ books of account […]
FOB sale – payment obligation on buyers to pay into account nominated by sellers – buyers’ email account hacked resulting in payment to incorrect account – buyers liable for loss suffered by sellers The facts 5000 metric tonnes of Romanian sunflower meal was sold FOB Galati, Romania. Payment was to be in cash within 2 […]
Capture by pirates connected to Gulf of Aden crossing an off-hire event – construction of special clauses The facts The vessel was time chartered back to back with a time charter trip on top. The vessel was ordered to load iron-ore for carriage from the Ukraine to Xiamen, China. The vessel transited Suez and the […]
Clause 9A BARECON ’89 – obligation to maintain vessel in class an innominate term and not a condition The facts The vessel was classed by Bureau Veritas. On 17 October 2012 the vessel was let for 15 years . Her class certificates expired on 6 November 2017 while the vessel was in dry dock for […]
Clause 21 GAFTA 100 – prohibition affecting loadport chosen by sellers – no proof that they could not have, by reasonable endeavours, obtained goods from another port within the agreed range The facts Warinco sold 1000 tonnes soya bean meal to Fritz, CIF Weser ex Mediterranean port. Warinco had bought 2000 tonnes of meal shipped […]
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 charterers The facts Asbatankvoy form with amendments. Loadport Sikka, India. Cargo, gasoil. By the time the vessel had arrived […]
Force Majeure clause – contract of affreightment – charterers not able to perform for reasons other than the force majeure event not entitled to rely on clause – substantial damages awarded on appeal to the Court of Appeal The facts A long term contract of affreightment was entered into between Classic Maritime, ship owners, and […]
Arbitration – long delay by claimant in prosecuting claim – application by defendant for injunction refused The facts In August 1964, Bremer Vulkan agreed to build 5 bulk carriers for South India Shipping. The contract was governed by German law and contained a London arbitration clause. There was a 12 month guarantee. The last of […]
Holder of a bill of lading becoming party to the contract of carriage by virtue of s2 of COGSA 1992 bound by arbitration clause despite not having incurred liability by triggering events mentioned in s3 The voyage Seven thousand mt soyabean meal was shipped from San Lorenzo, Argentina, to Agadir and Casablanca (originally) and (eventually) […]
Per Lord Pearce: “… Credibility involves wider problems than mere “demeanour” which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something […]
per Leggatt J: Evidence based on recollection An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century […]
Time bar – back to back VCP’s – notice of claim for cargo damage served on cusp of expiry date – too late for voyage charterers to pass down in time – court willing to grant extension in terms of section 12 of the Arbitration Act 1996 provided parties acted with commercial expedition ie immediately […]