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 […]
Binding effect of non-variation except in writing clause endorsed by the UKSC The facts Rock Advertising Ltd entered into a contractual licence with MWB to occupy office space at Marble Arch Tower in Bryanston Street, London W1, for a fixed term of 12 months. The licence fee was £3,500 per month for the first three […]
Cargo damage – interpretation of NYPE ICA The Facts Agile Holdings Corporation let the vessel to Essar Shipping Ltd on a time charter for a single trip from Tunisia to India via Trinidad. The cargo was a consignment of direct reduced iron and the charter was on the NYPE 46 form. DRI is highly reactive […]
Straight bill of lading held to qualify as a bill of lading for the purposes of the Hague Visby Rules The facts Four containers of printing machinery were damaged in the course of their carriage by sea from Felixstowe to Boston, USA. No document was issued to record the contract for the carriage of the […]
Protective writ issued before sale of vessel upheld
The facts
Two German single-ship owning companies arrested this vessel as an associated ship in respect of charter claims against Hanjin.
As in the Mare Traveller, change of ownership took place before arrest but after issue of the protective writ.
Interested parties applied for the setting aside of the arrest on the same arguments presented to Burger AJ in the Cape High Court. (more…)
Proceedings in rem – properly brought by issue of writ and not affected by subsequent change of ownership of the vessel
The facts
In November 1966, the plaintiffs, cargo owners, issued a writ in rem against ship owners, Smith Rederi Aktiebolaget, the Monica Smith, claiming damages for breach of contract .
In January 1967, the ship owners sold the ship to the defendants, Rederi Aktiebolaget Tankoil, who renamed her the Monica S.
On 9 February 1967, the writ was amended to reflect the changed details.
Tankoil applied for an order setting aside the amended writ or service of it. (more…)
Protective writ set aside on basis that vessel no longer owned by entity liable
The facts
Creditors of Hanjin Shipping issued protective writs out of various South African courts against more than 70 Hanjin beneficially owned ships to facilitate their arrest in rem, as associated ships, when they called at local ports.
Tebtale, owners of Mount Meru, one of the vessels affected, applied to have her removed from the list.
Tebtale had purchased the Mount Meru after the issue of the writs and were not liable in personam to the particular creditor in question.
The Mount Meru found its way onto the list as a ship associated with the Mare Traveller, the vessel against which the creditor had a claim in personam. (more…)
Security arrest – seminal case on requirements
The facts
The Thalassini Avgi loaded general cargo in various ports in the Far East, for carriage to various ports in the Middle East, including Aden, in the People’s Democratic Republic of Yemen.
The owner was Astromando Compania Naviera SA.
Astromando time chartered the vessel to Nippon Yusen Kaisha.
NYK issued bills of lading in respect of the various consignments of goods taken on board the ship including goods destined for consignees in South Yemen.
At Aden, a fire broke out on board the vessel damaging much of the cargo and the vessel.
The Yemeni consignees, being the holders of the bills of lading, arrested the Dimitris in Port Elizabeth as an associated vessel.
It was common cause that the Dimitris was an associated vessel.
The West England Shipowners Mutual Protection and Indemnity Association (Luxembourg) issued a letter of undertaking to obtain the release of the vessel confined to judgments in Japan and South Africa. (more…)
“always accessible” applies to entry and departure The facts The charter of the vessel was for carriage from the US Gulf to the Republic of Congo and Angola. The charter party, on an amended GENCON 1994 form, provided: “10. Loading port or place (Cl.1) 1 good safe berth always afloat always accessible 1-2 good safe […]
Associated ship arrested to provide additional security – onus on applicant to prove reasonable and genuine need on a balance of probabilities
The facts
Bocimar NV, a Belgian corporation, concluded a contract with the International Colombia Resources Corporation of Colombia, a seller and shipper of coal, in terms of which Bocimar undertook to carry a cargo of between 60 000 and 64 000 metric tons of coal from Puerto Bolivar, Colombia, to Rotterdam in the Netherlands.
Bocimar chartered the Crna Gora to perform the contract of carriage.
She was owned and controlled by Zeta Ocean Shipping Ltd which was owned by Boka Ocean Shipping Corporation. Boka also owned Kotor which owned the MV Kordun.
The vessel was refused entry to the port of Rotterdam by reason of economic sanctions imposed by the Security Council of the United Nations Organization in respect of the Federal Republic of Yugoslavia (Serbia and Montenegro) and reinforced by a resolution of the European Community.
Application was made on behalf of Bocimar and Enerco BV of Holland, one of the consignees of the cargo of coal, to the District Court of Rotterdam for an order directing the State of the Netherlands to permit the Crna Gora to enter the port of Rotterdam and to discharge her cargo. The Court refused to grant the order sought.
The Dutch authorities were eventually persuaded that if the cargo was not discharged there was a serious danger that the coal would ignite spontaneously and cause damage to the vessel, ships in the vicinity and harbour installations. Later, on the application of Zeta the President of the District Court in Rotterdam ordered the release of the cargo.
Intercor held Bocimar responsible for losses caused by the delay. Bocimar, in turn sought an indemnity from Zeta.
Bocimar arrested the Crna Gora in Rotterdam in order to secure its claim against Zeta. At the same time arrests of the vessel were also effected by three banks, mortgagees of the vessel, in order to secure their interest in the vessel.
In addition, Bocimar made application ex parte to the Cape of Good Hope Provincial Division, exercising its Admiralty Jurisdiction in terms of the Admiralty Jurisdiction Regulation Act 105 of 1983, for an order under s 5(3) of the Act for the arrest of the MV Kordun, then at berth in the port of Saldanha Bay, for the purpose of providing further security for Bocimar’s claim. (more…)
Bill of lading holder entitled to full damages from ship owners for damaged cargo irrespective of compensation received from sellers in terms of separate contract of sale.
The facts
Bills of lading issued by the master of the vessel, a refrigerated cargo ship, acknowledged shipment at Guayaquil, Ecuador, in apparent good order and condition of 249,250 boxes of fresh bananas for carriage to Libya. The cargo deteriorated during the carriage and was discharged at Tripoli in that damaged condition. Altfadul, the consignee, received the cargo in its damaged state.
The difference between the value of the cargo as in fact discharged and its value had it been sound on arrival, was US$4,567,351.
Altfadul rejected the cargo, under the contract of sale and claimed a refund of the price.
The seller, CoMaCo. S.p.A., was also the charterer of the vessel under a voyage charter on the Gencon form with additional clauses. The bills of lading were on the Congenbill form issued for use with the Gencon form of charter. They referred to and incorporated the terms and conditions, liberties and exceptions of the voyage charter, including its arbitration clause.
CoMaCo agreed a credit of US$2,586,105.09 in favour of Altfadul, to be spread over three subsequent shipments.
SIAT was the cargo insurer, at the instance of CoMaCo.
Altfadul, as holder, assigned its rights under the bill of lading to CoMaCo who assigned them to SIAT.
Ship owners claimed that damages had to be reduced by the credit given by CoMaCo ie US$ 2 586 105. (more…)
Associated ship arrest – arbitration award obtained to invoke indemnity under LOI – such award held to be a maritime claim justifying the arrest of an associated vessel
The facts
Hilane Ltd was the owner of the Sheng Mu.
It concluded a voyage charter party on the Gencon form with Phiniqia International Shipping LLC, for the carriage of a cargo of coking coal from Bandar Abbas, Iran, to Vizag, India.
The charter party contained the following clause:
‘Clause 38
Owners agree for charterers to issue 2nd set of bills of lading in Dubai against charterers’ simple LOI & charterers undertake to surrender the first set of original bills of lading issued at loadport to owners within 21 days. If required owners agree to issue bs/l showing loadport Middle East Port or Persian Gulf Port or Ras Al Khaimah instead of actual loadport Bandar Abbas.
. . .
Tradeline LLC, Phiniqia’s parent company, purchased the coking coal that was to be carried on the Sheng Mu from Golden Waves FZC.
The first set of bills of lading was issued showing Golden Waves as the shipper, the load port as ‘Persian Gulf Port’ and the notify parties as Tradeline and Fairway Trading Co (Pty) Ltd of Chennai, India.
The following day Tradeline, requested a second set of bills of lading to be issued showing the load port as Ras Al Khaimah in the United Arab Emirates and identifying Tradeline as the shipper with notify parties as Gupta Coal India Ltd and IDBI Bank Ltd, both of Nagpur, India.
Phiniqia executed an LOI in favour of Hilane indemnifying it in respect of any liability, loss, expenses or damage of whatsoever nature that Hilane might sustain by reason of having issued two sets of bills of lading in accordance with Phiniqia’s request.
At Vizag a second LOI was issued to cover owners for delivering without the production of any bills of lading at all.
Golden Waves who remained in possession of the first bill of lading caused the Sheng Mu to be arrested in Napier, New Zealand. (more…)
Associated ship arrest-vessel owners ordered to provide security to slot charterers for judgment obtained by slot charterers in Brazil – slot charterers qualifying as charterers for the purposes of associated ship arrest provisions in the AJRA
The facts
By a time charter party Kien Hung Shipping Co Ltd chartered the Andhika Loreto from its owners, Lady Loreto Shipping Inc.
Northern Endeavour Shipping assumed the rights and obligations of the owners under the charter party, renaming the vessel, the Northern Endeavour.
Kien Hung, Nippon Yusen Kabushiki Kaisha and CSAV concluded a slot-exchange agreement for the operation of a regular container service from the Far East to the East Coast of South America, via South Africa.
Kien Hung nominated the Northern Endeavour to undertake this service for a voyage from Pusan, South Korea, to Santos, Brazil, via various ports including Singapore and Durban.
At Singapore NYK loaded a number of containers on board the vessel in bay 22.
The vessel then sailed for Brazil. Near Cape Town the container stack in bay 22 collapsed and eleven containers were washed overboard and lost in storm.
Cargo underwriters, acting under rights of subrogation, instituted action against NYK in Brazil to recover the losses suffered. NYK was the carrier of the cargo under the bills of lading. NYK joined NES to the proceedings, claiming an indemnity.
The Brazilian court upheld both the cargo underwriters’ claim and NYK’s claim against NES. An appeal against that judgment failed. There was a further appeal pending before the highest court in Brazil.
NES aggrieved by this result sought to hold NYK responsible. They alleged that the reason for the collapse of the containers was improper stowage.
They contended that any amount they were ordered to pay NYK pursuant to the Brazilian judgment would constitute damages suffered in tort or delict, based on negligence.
They arrested the NYK Isabel, a vessel owned by Mercurius Shipping Pte Ltd, but controlled by its parent, NYK, as an associated ship, when she called at Durban. Security was furnished to secure the release of the vessel and there was then a deemed arrest in place in terms of s 3(10) of the Admiralty Jurisdiction Regulation Act 105 of 1983.
A writ of summons was served in the action and an appearance to defend delivered on behalf of both Mercurius and NYK. Particulars of claim were delivered as was a plea embodying a number of special pleas including one of res judicata.
NYK brought an application against NES claiming security for its claim in Brazil. (more…)
Delivery without the production of bills of lading – construction of LOI’s – relevant belief in the identity of receiver that of the master – limitation of duration of indemnity in charter party not replicated in LOI construed on its own wording The Facts Pursuant to a pool agreement, the vessel was time chartered on […]
Cargo released without bills of lading – LOI’s issued – typical case study The Facts On 21 October 2013 SCIT Trading agreed to sell a cargo of 70,000 mt of iron ore to Xiamen on CFR China Main Port terms with Koolan Island as the loading port. Clause 9 of the contract of sale provided […]
Multiple LOI”s back to back – cargo discharged to receivers without bills of lading – typical case study
The facts
By an amended NYPE 1946 form of charterparty the vessel was chartered by the Owners to COSCO Bulk Carrier Co.Ltd. (“Cosbulk”). The vessel was sub-chartered under back-to-back charters to the Claimant, Farenco Shipping Co.Ltd. (“Farenco”), the Defendant, Daebo Shipping Co.Ltd. (“Daebo”), the Third Party, Dampskibsselskabet Norden A/S (“Norden”) and the Fourth Party, Deiulemar Shipping SPA (“Deiulemar”)
A cargo of 70,888 metric tonnes of Brazilian origin sinter feed was loaded on board the vessel at Tubarao, Brazil for carriage to and delivery at Bourgas, Bulgaria. Ten bills of lading were issued by the Owners in respect of the cargo. The bills named the consignee as “to the order of HSH Nordbank AG, London.” The notify address was “G and M-5, Bourgas, Bulgaria as agent and Kremikovtzi AD, Sofia, Botunetz”.
On arrival of the vessel at Bourgas the bills of lading were not available.
Clause 68 of each of the charterparties provided as follows:
“In case original Bills of Lading are not available at discharge port(s), Master/Owners to allow discharge and release the cargo on board against Charterers’ single Letter of Indemnity signed by Charterers only with wording as per Owners’ Protection and Indemnity Club recommendation.”
The Owners were requested to deliver the cargo without production of the bills. A letter of indemnity was provided by each charterer to its disponent owner. Each such letter was in the same form. Thus the letter provided by Daebo to Farenco provided as follows:
“The above cargo was shipped on the above ship by COMPANHIA VALE DO RIO DOCE and consigned to THE ORDER OF HSH NORDBANK AG, LONDON for delivery at the port of BOURGAS, BULGARIA but the bill of lading has not arrived and we, DAEBO SHIPPING CO., LTD, hereby request you to deliver the said cargo to KREMIKOVTZI AD, SOFIA – BOTUNETZ at PORT OF BOURGAS, BULGARIA without production of the original bill of lading.
In consideration of your complying with our above request, we hereby agree as follows:-
To indemnify you, your servants and agents and to hold all of you harmless in respect of any liability, loss, damage or expense of whatsoever nature which you may sustain by reason of delivering the cargo in accordance with our request.
In the event of any proceedings being commenced against you or any of your servants or agents in connection with the delivery of the cargo as aforesaid, to provide you or them on demand with sufficient funds to defend the same.
If, in connection with the delivery of the cargo as aforesaid, the ship, or any other ship or property in the same or associated ownership, management or control, should be arrested or detained or should the arrest or detention thereof be threatened, or should there be any interference in the use or trading of the vessel (whether by virtue of a caveat being entered on the ship’s registry or otherwise howsoever), to provide on demand such bail or other security as may be required to prevent such arrest or detention or to secure the release of such ship or property or to remove such interference and to indemnify you in respect of any liability, loss, damage or expense caused by such arrest or detention or threatened arrest or detention or such interference, whether or not such arrest or detention or threatened arrest or detention or such interference may be justified.
If the place at which we have asked you to make delivery is a bulk liquid or gas terminal or facility, or another ship, lighter or barge, then delivery to such terminal, facility, ship, lighter or barge shall be deemed to be delivery to the party to whom we have requested you to make such delivery.
As soon as all original bills of lading for the above cargo have come into our possession, to deliver the same to you, or otherwise to cause all original bills of lading to be delivered to you, whereupon our liability hereunder shall cease.
The liability of each and every person under this indemnity shall be joint and several and shall not be conditional upon your proceeding first against any person, whether or not such person is party to or liable under this indemnity.
This indemnity shall be governed by and construed in accordance with English law and each and every person liable under this indemnity shall at your request submit to the jurisdiction of the High Court of Justice of England.”
The cargo was discharged at Bourgas. There is no evidence to whom the cargo was delivered.
Thereafter Stemcor UK Ltd. (“Stemcor”) informed the Owners that they were the holders of the bills of lading and asked the Owners to confirm that they were ready to deliver up possession of the cargo in return for the bills of lading. (more…)
Shipowners held entitled to claim on back to back letters of indemnity issued by charterers and receivers to cover release of cargo in the absence of original bills of lading
The facts
The vessel was voyage chartered under an amended sugar charterparty to carry a cargo of sugar from Brazil to Yemen
Clause 42 provided as follows:
“In the event of the Original Bills of lading are not being available at discharge port on vessel’s arrival, if so required by Charterers, Owners/Master to release the cargo to Receivers on receipt of Faxed letter of Indemnity. Such letter of Indemnity to be issued on Charterers head paper, wording in accordance with the usual P&I Club wording, and signed by Charterers only always without a bank counter-signature.”
The master signed bills of lading in respect of the shipment of 14,000 metric tons of white crystal sugar in bags at Santos in Brazil for carriage to Hodeidah or Aden in Yemen. The shipper was named as Cargill Agricola SA (“Cargill”) and the goods were consigned “to order” of the shipper. The receivers were named as the notify party.
Cargill sold the sugar to the charterers which was on sold to the receivers.
The receivers opened a letter of credit with the Yemen Kuwait Bank for Trade Investment YSC (“the Yemen Bank”) as the issuing bank. There was no confirming bank. Credit Agricole Indosuez Suisse SA (“CAI”) was the advising bank.
On the issuing of back to back letters of indemnity by receivers and charterers the cargo was released without bills of lading.
The receivers’ LOI read as follows: (more…)