Cereal Investments Company SA v ED&F Man Sugar Ltd [2007] EWHC 2843 (Comm) (7 December 2007) BILLS OF LADING – where letter of credit require presentation of bill by certain date – where seller required option that bill be dated after that date – whether seller’s conduct amounted to repudiation of contract of sale.
Air and General Finance Limited v RYB Marine Limited [2007] CSOH 177 (9 November 2007) ADMIRALTY AND MARITIME – sale of vessel under finance – where vessel purportedly sold to subsequent party – where registered mortgagee sought to enforce rights of sale upon default of original purchaser – where subsequent purchaser’s claim for breach of warranty as to title not yet determined – whether subsequent purchaser’s claim for breach of warranty could amount to a special lien over the vessel – whether mortgagee’s power to sell affected by subsequent purchaser’s claimed lien.
Premium Nafta Products Limited v Fili Shipping Company Limited [2007] UKHL 40 (17 October 2007) CHARTERPARTIES – Shelltime 4 form – where charters allegedly obtained by bribery – where owners purported to rescind charterparties – whether validity of attempt to rescind to be determined by arbitration or by a court.
Meditteranean Shipping Company SA v Trafigura Beheer BV [2007] EWCA Civ 794 (27 July 2007) BILLS OF LADING – inability of cargo owner to obtain delivery of goods through acts of fraudster – whether shipowner entitled to limit liability pursuant to Hague Visby Rules for period after cargo discharged from ship.
AIC Limited v Marine Pilot Limited [2007] EWHC 1182 (17 May 2007) ARBITRATION - charterparty (voyage) – Asbatankvoy form - appeal from tribunal under s69 of Arbitration Act 1996(UK) - whether charter liable for deadfreight – whether words “1 Safe Port Ventspils” constitutes a warranty by the charterer of the safety of the port.
Trafigura Beheer BV & Anor v Mediterranean Shipping Company SA [2007] EWHC 944 (Comm) (26 April 2007) BILLS OF LADING - conspiracy - fraudulent second bills of lading – conversion – whether the Hague Rules or Hague Visby Rules apply to the bill of lading contract - whether the Hague Rules or Hague Visby Rules apply after the cargo is discharged from the ship whilst the cargo is still subject to instructions from the carrier – whether the Hague Rules or Hague Visby Rules limitation of liability can be relied upon – whether the bill of lading limitation of liability clause can be relied upon - measure of damages for conversion.
ASM Shipping Ltd of India v TTMI Ltd of England [2007] EWHC 927 (Comm) (20 April 2007) ARBITRATION –charterparty (voyage) - Exxonvoy ’84 form- application to remove arbitrators – whether charter should be debarred from resiting resisting application – whether charters are guilty of contempt of court – whether court has discretion to hear the application.
West Tankers Inc v RAs Riunione Adriatica di Sicurta SpA & Ors [2007] UKHL 4 (21 Februrary 2007) PRACTICE & PROCEDURE - anti-suit injunction- whether insurers claiming right by subrogation are bound by an arbitration clause in a charterparty – whether a member state of the European Community can restrain a party from commencing an action in another European Member State on grounds that to do so breaches an arbitration agreement.
Transfield Shipping Inc v Mercator Shipping Inc, The “Achilleas” [2006] EWHC 3030 (Comm) (1 December 2006) CHARTERPARTY (Time) - NYPE 1946 form - appeal against arbitration award – amount of damages recoverable for late redelivery – whether loss of earning under subsequent charterparty is recoverable under first limb of Hadley v Baxendale (1854) 9 Exch 341.
AIC Ltd v ITS Testing Services (UK) Ltd (the “Kriti Palm”) [2006] EWCA Civ 1601 (26 November 2006) MARITIME – consignment of petroleum tested by independent contractor, results inconclusive - whether reliance by contractor on certificate of quality amounted to deceit – whether contractor had a duty to disclose to shipper the inconclusive results and follow-up tests performed.
Kallang Shipping SA v Axa Assurances Senegal, The “Kallang” [2006] EWHC 2825 (Comm) (7 November 2006) ANTI-SUIT INJUNCTION – application to set aside anti-suit injunction - bill of lading incorporated a charterparty English law and arbitration clause – cargo insurer demanded provisional guarantee for alleged missing cargo – P & I Club refused to offer the guarantee but offered a Letter of Undertaking subject to English and London Arbitration proceedings and gave notice of anti-suit injunction proceedings - cargo insurer commenced security proceeding – Senegal court order authorised vessel to be arrested upon failure to pay sum for security - whether security proceeding and the requirement of a bank guarantee in a foreign country avoid or frustrate London Arbitration proceedings.
Almatrans SA v The Steamship Mutual Underwriting Association (Bermuda) Ltd, The “Tutova” [2006] EWHC 2223 (Comm) (31 August 2006) Practice and procedure –arrest of vessel petition commenced in Italy - P & I Club Letter of Undertaking – Italian writ for arrest – difficulties with Italian court service in Cyprus – whether properly served - refusal to pay undertaking - whether implied term of Letter of Undertaking that adequate notice be given for later proceeding - incorrect name on Letter of Undertaking - law of misnomer – whether claim for rectification should fail.
Edwinton Commercial Corporation & Anor v Tsavliriss Russ (Worldwide Salvage & Towage) Ltd, The "Sea Angel" [2006] EWHC 1713 (Comm) (26 July 2006) CHARTERPARTY (time) – amended SHELLTIME 4 form, clause 7 – Lloyd’s Standard Form of Salvage, LOF 2000 Form – SCOPIC clause 9 – frustration – vessel chartered for salvage operation – state authorities detained chartered vessel as security against third parties’s pollution damage – state not party to CLC – state authorities unlawfully refused issue of No Demand Certificate – nature and length of delay – whether salvor assumes risk of governmental intervention and unreasonable detention – discussion of whether charterparty precludes frustration or whether frustration self-induced.
26 May 2006 Select Commodities Ltd v Valdo SA (The Florida) [2006] EWHC 1137 (Comm)
Appeal against an arbitration award - charterparty (Vegoilvoy) – claimed frustration of charterparty - owners relied on the liberty clause - liberty clause does not exclude the doctrine of frustration where no cargo is brought forward for loading.
Compania Sud American Vapores v MS ER Hamburg, Schiffahrtsgesellschaft MBH & Co, KG [2006] EWHC 483 (Comm) QBD (Comm) (14 March 2006) CHARTERPARTY (time) – NYPE (1946) form, clause 8 - seaworthiness and stowage obligations – cargo (calcium hypochlorite) exploded severely damaging the vessel – whether clause requiring charterers to stow cargo under the captain’s supervision relieves charterers of duty to stow safely – whether heating of oil bunker adjacent to cargo considered failure properly to care for cargo.
Ease Faith Ltd v Leonis Marine Management Ltd [2006] EWHC 232 (Comm) (23 February 2006) Dispute arising under head- and sub-towing contracts.
Towcon and sub-towcon to tow a salved vessel to China for scrap – delays en route – ship owner incurred charges due to delay and had to accept a reduced purchase price for the vessel – whether the tug proceeded with ‘proper despatch’ (two delays; using only one of two engines) – liability of party to head towcon for breach of sub-towcon.
Held: Claim for damages arising from lack of proper despatch allowed; sub-towcon party was able to claim from head towcon party.
Galaxy Special Maritime Enterprise v Prima Ceylon Ltd MV "Olympic Galaxy" [2006] EWCA Civ 528 (03 May 2006) Service outside jurisdiction - general average claim after change of ownership of vessel – no charterparty or contract of affreightment between the new ship owner and cargo owner – after grounding of vessel, cargo owners obtained discharge of the cargo by way of Lloyd’s Average Bond and Average Guarantee with ship managers – cargo owners commenced proceedings in Sri Lanka against ship owners for entering into a salvage agreement without notice – ship managers sought to invoke English arbitration clause in charterparty contract – relationship dictated by later agreements between ship owner and cargo owner.
Held: Court’s discretion; English proceedings set aside in favour of Sri Lankan jurisidiction. The Abidin Daver [1984] AC 398 applied, at 411-412 per Lord Diplock.
GE Frankona Reinsurance Ltd v CMM Trust No.1400 the "Newfoundland Explorer" [2006] EWHC 429 (Admiralty) (22 March 2006) This trial raised a question as to the true construction of the express term "Warranted fully crewed at all times" contained in a contract of marine insurance for a yacht, valued at US$3 million. The warranty obliged the Defendant to keep at least one crew member on board the vessel 24 hours a day, subject to (i) emergencies rendering his departure necessary or (ii) necessary temporary departures for the purpose of performing his crewing duties or other related activities.
Heesens Yacht Builders BV v Cox Syndicate Management Ltd. & Anor [2006] EWCA Civ 384 (06 April 2006) Claim under guarantee in shipbuilding contract – shipyard covered by Builders Risk Insurance policy at the time of delivery of the yacht but not when construction began – construction of contractual term ‘as per’.
Held: ‘As per’ should be given its natural construction; the ship was not covered by the Risk insurance, and the fact that she was delivered during the subsistence of the contract was immaterial.
Horn Linie GmbH & Co v Panamericana Formas E Impresos SA & Anor [2006] EWHC 373 (Comm) (06 March 2006) Challenge to jurisdiction and cross-application for an anit-suit injuction, arising from a contract for carriage.
Bill of lading – carriage from Germany to Colombia – cargo stowed contrary to instructions and became constructive total loss – bill of lading specified that the contract was to be governed by English law – one defendant initiated proceedings in Colombia, on the basis that a contract for goods to be delivered to Colombia is governed by Colombian law; a choice of foreign law and jurisdiction would be contrary to public policy; reliance on Article 8.2 of the Rome Convention.
Held: Egon Oldendorff v Liberia Corporation [1995] 2 Lloyd's Reports 64 at pages 70 – 71 per Mance J followed: the jurisdiction to be decided not by reference to the disputed laws but by the court adopting a dispassionate, internationally minded approach, with the onus on the party seeking to invoke Article 8.2 –English law was the governing law of the contract and the English Court a proper forum. An anti-suit injunction relating to the proceedings in Colombia was a proper form of relief.
Hyundai Merchant Marine Co Limited v Furness Withy ( Australia) Pty "Doric Pride" [2006] EWCA Civ 599 CA (Civ Div) (25 January 2006) CHARTERPARTY (time) – off-hire clause – vessel considered off-hire when detained unless the detention occasioned by the charterer – charterer could occasion detention by calling port of trading – vessel detained in New Orleans for inspection under US Coastguard policy to inspect first-time callers to a port – the detention was the responsibility of the owner as it went to the vessel’s status.
North Star Shipping Ltd & Ors v Sphere Drake Insurance Plc & Ors [2006] EWCA Civ 378 (07 April 2006) Appeal from North Star Shipping Ltd & Ors v Sphere Drake Insurance Plc & Ors [2005] EWHC 665 (Comm) (22 April 2005).
Marine insurance – war risks policy – whether insurers entitled to avoid the policy - whether certain facts used by the trial judge, which had not been disclosed by the underwriters to the owners of the ship, were material.
Appeal dismissed.
Offshore Nautical (CI) Ltd. v Quality Time Training Ltd. & Ors [2006] EWHC 347 (Comm) (08 March 2006) Negligence case – boat collided with a grade 2 buoy and was a constructive total loss – person driving the boat at the time of the collision was qualified, although relatively inexperienced, and was the former student of the skipper – apportionment of responsibility – defendants uninsured.
Held: ‘It seems obvious to me that the person at the helm must take responsibility for a collision with a bouy, save in exceptional circumstances.’ At [13]. The skipper was held partially liable, 15%, for failing to properly brief crew members.
Pentonville Shipping Ltd. v Transfield Shipping Inc (MV Johnny K) [2006] EWHC 134 (Comm) (10 February 2006) Appeal from arbitration under s 69 of the Arbitration Act 1996. Owners claimed for freight/deadfreight/damages against charterers – charter for voyage from Port Hedland to China with cargo of iron ore in bulk – vessel ordered to sail before fully loaded in order to avoid being neaped – dispute as to the rate at which the charterers had agreed to load the vessel – whether the order to sail was given by the shippers or the port authority.
Held: Decision remitted to the arbitrators to properly address the question whether the shippers were responsible for the order to leave the berth, in line with proper authorities: Cosmar Compania Naviera S.A. v. Total Transport Corp. "The Isabelle" [1984] 1 Lloyd's Rep.366; Mediolanum Shipping Co. v. Japan Lines Ltd "The Mediolanum" [1984] 1 Lloyd's Rep.136 (C.A.); Newa Line v. Erechthion Shipping Co. S.A. "The Erechthion" [1987] 2 Lloyd's Rep.180.
Sun Alliance & London Insurance Plc & Ors v PT Asuransri Dayin Mitra TBK [2006] EWHC 812 (Comm) (11 April 2006) Marine insurance.
Ship ran aground during a typhoon whilst anchored off South Korea prior to delivery – marine hull insurance for trading in Indonesian waters only – delivery insurance cover subject to ship being in class - insurers were told that ship was classed with Korean Registry of Shipping when it was actually registered with International Maritime Bureau.
Insured began proceedings in Indonesia – jurisdiction of contract was English – applicable law was English law
Held: Insurers not liable to indemnify the insured; appropriate for court to exercise discretion to make negative declarations.
Talbot Underwriting Ltd v Nausch, Hogan & Murray Inc [2006] EWCA Civ 889 (29 June 2006) MARINE INSURANCE – builders all risks insurance – MAR 91 / Slip policy – ship flooded when refloated – insurance brokers failed to name shipbuilders in policy as co-assured – extension clause not effective to create additional unnamed assureds – shipbuilder unable to sue as an undisclosed principal – whether any loss suffered by shipyard and vessel owners – intention to relieve contractors and sub-contractors from liability – reduction of loss – whether benefit given by third party to assured reduces the liability of insurer – part-assured can claim full insured value when whole interest has been insured and claimant is accountable to other assured parties
Ullises Shipping Corporation v Fal Shipping Co Ltd, The "Greek Fighter" [2006] EWHC 1729 (Comm) QBD (Comm) (14 July 2006) CHARTERPARTY (time) – Shelltime 4 form – carriage of unlawful merchandise (clause 4) – carriage of cargo that would expose vessel to capture or seizure by rulers or governments (clause 28) – owner’s contractual (clause 13) and implied indemnity against loss due to compliance with orders of charterer – restraint of princes (clause 27) – safe port warranty – vessel confiscated and sold by authorities of the United Arab Emirates on suspicions that the vessel had on board oil of Iraqi origin which was being dealt with by the charterer in contravention of UN sanctions – whether action of authorities justified – whether vessel on hire during detention (clauses 8 and 20) – whether charterer in breach of redelivery obligation – duty to mitigate loss
2005
Action
Navigation Inc v Bottiglieri Navigation
Spa [2005]
EWHC 177 (Comm) (16 February
2005) Timecharter
- NYPE form amended- two questions
of law: (a) extent of implied owner's
indemnity in obeying charterer's
lawful orders where trading limits
expanded simply to be “within Institute Warranty
Limits” and in ordinary course of service
hull was fouled by growth at a warm
water port; and (b) was time taken to
clean marine growth off hull time lost
of cl 15?
Advent
Capital Plc v GN Ellinas
Imports-Exports Ltd & Anor
[2005] EWHC 1242
(Comm) (16
June 2005) Exclusive
jurisdiction clause
- anti-suit injunction
- A vessel sank,
resulting in the total
loss of cargo carried.
The certificate of
insurance contained
an English jurisdiction
clause. The assured
instituted proceedings
in Cyprus, the insurers
then obtained an
anti-suit injunction
in England and launched
a stay application
in Cyprus. The application
was dismissed, and
the appeal still
pending when this
judgment was delivered.
Subsequent to the
above proceedings,
Cyprus became a member
of the EU, and was
thus bound by the
Judgments Regulation.
The assured sought
a declaration that
the Court had no
jurisdiction to entertain
the insurer's claims
and to set aside
the anti-suit injunction.
Held: For the purpose
of the application
of Article 66 of
the Judgments Regulation,
the court was to
yield to the jurisdiction
of the court first
seised,
therefore
jurisdiction in
respect of the insurer's
declaration action
was declined. Cyprus'
accession to the
EU did not amount
to a sufficiently
fundamental change
of circumstances
to justify the revocation
of the injunction.
American
International Marine Agency of New
York Inc & Anor v Dandridge [2005]
EWHC 829 (Comm) (5 May 2005) REINSURANCE – FOLLOW
THE LEADER CLAUSE – Claimants
were reinsured in respect of Hull & Machinery
insurance which contained a “follow
the leader clause”. The vessel ran aground
and was declared a total loss. Whether
the general words of incorporation in
the Reinsurance, "…subject to the
same clauses and conditions and against
the same perils as in the original policy
or policies…" were sufficiently
wide to incorporate the follow the leader
clause. Held: the clause was neither
germane nor apposite to the Reinsurance,
it did not make sense in the context
of the Reinsurance, and was inconsistent
with the express terms. The clause was
not incorporated and the claim was not
within the risks covered by the Reinsurance.
Anton Durbeck GMBH v Den Norske Bank ASA [2005] EWHC 2497 (Comm) QBD (Comm) (11 November 2005) SHIPPING – vessel arrested by bank as enforcement of mortgage – perishable cargo (bananas) thrown into the sea as they had rotted during arrest – whether bank liable to cargo owners – choice of law – Private International Law (Miscellaneous Provisions) Act 1995 ss 11, 12 – liability under English and Panamanian law.
Borgship Tankers Inc. v Product Transport Corporation Ltd. [2005] EWHC 273 (Comm) (28 February 2005) TIME-CHARTERER - TIME BAR - Whether claimant’s (charterer’s) claims in arbitration (for breach of charter party in relation to poor condition of cargo tanks) were time-barred. Terms of charter party were contained in a fixture recap on the Shelltime 4 form. Clause provided that all claims arising out of loss or damage to cargo are subject to Hague-Visby Rules (the Rules). Article III rule 6 of the Rules provides one year time limitation. The relevant clause was concerned with cargo claims. In this case no claim was made for loss/damage of cargo. Charterers claim damages for loss of use of vessel - therefore not time-barred.
C
V Scheepvaartonderneming Flintermar
v Sea Malta Company Ltd [2005] EWCA
Civ 17 (25 January 2005) Whether an injury to a ship's chief
officer is responsibility inter se
of its owners or time charterers under
Baltime 1939 form. Injury occurred
while the chief officer was engaged
in the closing of the ship's hatch,
but was caused by the negligence of
the charterers' stevedores. Discussion
of respective roles and responsibilities
at general law and under the charter,
in particular for batch handling.
Carisbrooke Shipping CV 5 v Bird Port Limited (The 'Charlotte C') [2005] EWHC 1974 (Comm) (13 September 2005) An action for damages by the owner of the MV Charlotte C against the owner and operator of Bird Port in Newport. While berthed at Bird Port in May 2003 the vessel sat on a steel coil causing indentations and fractures in her bottom shell plating and buckling of her internals. The berth was known as a NAABSA Berth (not always afloat but safely aground).
Datec Electronic Holdings Ltd & Anor. v United Parcels Service Ltd & Anor. [2005] EWHC 221 (Comm) (22 February 2005) CARRIAGE OF GOODS BY ROAD, CMR ARTICLES 17, 23 - Datec (consignors and consignees) sought damages from carriers (UPS) for loss of goods. Argued that carriage of the goods for portion of journey was subject to the Convention on the Contract for the International Carriage of Goods by Road, the schedule to the Carriage of Goods by Road Act, 1965 (CMR) (namely, Article 17.1 of the CMR). On evidence concluded goods not delivered and not taken by employee of UPS. UPS contend that their terms only provided for liability for goods worth less than $50,000, while goods carried were greater than this value and therefore no contract for carriage of consignment was concluded. Held that there was a contract, the terms were incorporated into the agreement, but not a warranty. CMR held to apply. Claim succeeds but limited by Article 23 of the CMR.
Equitas
Ltd & Anor v Wave City Shipping
Company Ltd & Ors [2005]
EWHC 923 (Comm) (13 May 2005) REINSURANCE –DECLARATION
AS TO LIABILITY - A ship insured against
war risks sank in January 1991. The
owner claimed on insurance, contending
that the vessel had sunk after striking
a mine- the insurer refused to pay.
In December 1999, R&L had ceased
to be members of the insurer. The insurer
was, up to and including the date of
the loss, reinsured by a number of Lloyd's
Syndicates. The liabilities of Lloyd's
reinsurers arising under these contracts,
were reinsured by ERL and retroceded
by ERL to Equitas. Equitas and ERL sought
declarations that they were not liable
to the owners and R&L in respect
of losses which the owners claimed
arose out of wrongful interference
with the contracts of insurance. Held:
The Court had jurisdiction to hear
the claim. Declaration in favour of
the claimants was made.
Global Mariner, Owners and Bareboat
Charterers of v Atlantic Crusader,
Owners and Bareboat Charterers of
[2005] EWHC 380 (Admlty) (23 March
2005) COLLISION – QUESTION OF FAULT.
Two boats (“AC” and “GM”)
collided on a river in broad daylight.
The GM sank. GM had been berthed,
collision occurred while she was undertaking
a 180 starboard turn. Held that AC
dragged her anchor and was at fault
in failing to control her yaw and
sway. Nonetheless held that GM’s
conduct of the turn was the major
cause of the collision; and collision
would most probably have occurred
even if AC had controlled its yaw.
Therefore GM held solely to blame
for the collision – thus no
need to address the question of apportionment.
The Manzanillo II applied - practice
and procedure in relation to assessors.
Golden
Strait Corporation v Nippon Yusen
Kubishika Kaisha "The Golden
Victory" [2005]
EWHC 161 (Comm) (15 February
2005) Seven year
time charter – repudiation
after 3 years – assessment of damages-
question of principle –whether damages
assessed once and for all at date of
breach for remainder of charter – or
could facts be taken into account that
meant under the war clause charterer
could have terminated two years after
it had in fact repudiated – latter position
accepted as correct.
Hyundai Merchant Marine Co. Ltd. v Furness
Withy (Australia) Pty [2005]
EWHC 945 (Comm) (20 May 2005) OFF-HIRE
CLAUSE –DETENTION OF VESSEL
- Vessel was hired to carry cargo from
the US Gulf to South Korea. The ship
had to be inspected by the US Coast
Guard before entering the port, however
inspection was delayed due to a collision.
The charter-party contained a clause
providing for the suspension of hire
payments for any period during which
the vessel was detained, providing such
detention was not the fault of the charterers.
Held: Detention may mean prevention
from entering a port. However, if the
prohibition was the result of the nomination
of the port by the charterer, the proviso
would apply. On the evidence, there
was no causal link between the nomination
of the port and detention. Chartere
rs were entitled to a declaration that
the vessel was off-hire.
JI MacWilliam Company Inc v. Mediterranean Shipping Company SA [2005] UKHL 11 (16 February 2005) HAGUE - VISBY RULES - STRAIGHT BILL - Goods damaged while being shipped. Straight bill of lading, which provides for delivery of goods to a named consignee and not to order or assigns or bearer. Whether a straight bill of lading is "a bill of lading or any similar document of title" within the meaning of article I(b) of the Hague-Visby Rules (the Rules). Otherwise, would be covered by the limits in the US Carriage of Goods by Sea Act. Discussion of straight bills of lading. When a carrier or shipper can contract out of the Rules. Expansive interpretation given to the phrase in question - straight bill of lading held to fall within the meaning of the Rules.
King v Brandywine Reinsurance Company [2005] EWCA Civ 235 (10 March 2005) MARINE INSURANCE - LIABILITY OF UNDERWRITERS - A boat owned by ESC, a subsidiary of Exxon went hard aground - 11 million gallons of oil spilt. Exxon incurred more than $2 billion worth of costs in cleaning up. Exxon and affiliates had cover under a policy. Nearly two years after the grounding, Exxon made insurance claims - underwriters entered into a settlement. Certain reinsurers contended that they were not liable for all the sums paid by their reinsureds under those settlements. Whether underwriters have a liability to ESC, whether they have a liability to Exxon for any third party liabilities. Consideration of whether words "Removal of Debris" in policy cover Exxon for the costs incurred. Consideration of "Notwithstanding clauses " and a seepage and pollution exclusion. Question as to proper law - English or New York. Held that the proper law of the policy was New York law. Policy did not cover pollution clean up-costs, appeal dismissed.
Lady
Navigation Inc v Lauritzencool AB & Anor [2005]
EWCA Civ 579 (17 May 2005) T IME
CHARTER – INJUNCTIVE RELIEF - The
respondent charterers managed a
pool of vessels of which the two
ships in question were a part. The
owners of these vessels claimed
mismanagement and a breach of various
duties by the charterers and sought
to take the ships out of the pool.
The owners appealed from the grant
of injunctive relief, which precluded
them from employing their vessels
outside the pool pending the outcome
of arbitration. Citation of longstanding
principle that specific performance
of a time charter is not to be ordered.
Discussion of authorities on injunctive
relief which would in effect compel
the other party to perform. Held:
Fact that the contracts were for
services in the form of a time charter,
which created fiduciary relationship
did not preclude injunctive relief.
Laemthong
International Lines Company Ltd
v Abdullah Mohammed Fahem & Co [2005]
EWCA Civ 519 (5 May 2005) CHARTER-PARTY – LETTER OF INDEMNITY – THIRD
PARTY CLAIM
Charterparty provided that
if original bills of lading were not
available at the discharge port, cargo
could be released to receiver by faxed
letters of indemnity (LOI). Cargo was
delivered to the receivers through this
mechanism. After discharge essel was
arrested by the creditor bank, which
alleged it held all the original bills
of lading. Shipowners claimed for indemnification
under the LOIs, claiming that they were
entitled to enforce the terms of the
receivers' LOI in their own right by
reason of the Contracts (Rights
of Third Parties) Act 1999. Held:
The owners acted as the charterer's
agents for the purpose of delivering
the cargo. The terms of the receivers'
LOI entitled the shipowners to enforce
the LOI in their own name.
Linelevel Ltd v Powszechny Zaklad Ubezpieczen SA (The 'Nore Challenger') [2005] EWHC 421 (Comm) (17 March 2005) MARINE INSURANCE - insurable interest of demise charterers, owners and managers -
whether loss from a peril of the sea
- duty to sue and labour.
Mora Shipping Inc v AXA Corporate Solutions Assurance S.A. & Ors [2005] EWHC 315 (Comm) (16 March 2005) MARINE INSURANCE - AVERAGE ADJUSTMENT - JURISDICTION - Claimant company (incorporated in Liberia) was the demise charterer and owner of vessel when it sustained serious damage. Claim bought against defendant for their respective proportions to an Average Guarantee (for goods damaged). Defendants incorporated in various countries in Europe. General average adjustment was sent to defendants who did not pay. Whether the Average Guarantee obliged the defendants to pay contributions to the general average within the jurisdiction of this court. In law an adjustment is not conclusive nor binding. Held, the UK had no connection with the factual issues at hand. If no jurisdiction clause, the established rule is that the place of domicile has jurisdiction. Claimant failed to establish that the court had jurisdiction.
North
Star Shipping Ltd & Ors v Sphere
Drake Insurance Plc & Ors [2005]
EWHC 665 (Comm) (22 April 2005) MARINE INSURANCE – WAR RISKS POLICY
- An explosive device was attached to
a ship – the explosion resulted in seawater
damage to the engine. The boat was insured
under a war risks policy. Issue: whether
the explosion was caused by an outsider
(in order to cause malicious damage)
or whether the owners organised the
explosion. Held: one of the shipowners
lodged the explosive device. Underwriters
were induced to enter into the war risks
policy by non-disclosure of material
facts. Therefore the insurers were entitled
to avoid the policy.
OT
Africa Line Ltd. v Magic Sportswear
Corporation & Ors [2005]
EWCA Civ 710 (13 June 2005) EXCLUSIVE
JURISDICTION CLAUSE – STAY - ANTI-SUIT
INJUNCTION Dispute over short delivery
of goods. Insurance taken out with Canadian
insurers. Contract of carriage contained
an exclusive jurisdiction clause – contract
to be governed by English law. Insurers
invoked the jurisdiction of Canadian
courts on the basis of Canadian legislation,
which incorporated Article 21 of the
Hamburg Rules, and rendered an exclusive
jurisdiction clause nugatory in certain
circumstances. Question: Whether the
Court should decline to grant a stay
of English proceedings and grant injunctive
relief to restrain the parties from
continuing proceedings in Canadian courts.
Held: Question was to be determined
by reference to English law. The conflict
of jurisdictions was no justification
for a stay. The Canadian legislation
did not provide strong enough reason
to decline to give effect to the exclusive
jurisdiction clause. There were no grounds
for refusing the injunction.
Primetrade AG v Ythan Ltd (The "Ythan") [2005] EWHC 2399 (Comm) QBD (Comm) (1 November 2005) ARBITRATION – jurisdiction – charter party – owners alleged loss from shipment of dangerous cargo and wished to claim against holder of bill of lading – whether Primetrade was the lawful holder of bills of lading – whether as lawful holder of bills of lading Primetrade accrued rights of suit – Carriage of Goods by Sea Act 1992, ss 2, 3 and 5 – whether a new ground of objection was fell under ‘any objection’ for s 73 of the Arbitration Act 1996 – requirements for raising new objections at judicial review of arbitration.
R v Goodwin [2005] EWCA Crim 3184 CA (Crim Div) (7 December 2005) CRIMINAL LAW – defendant injured another person while riding a jet ski – Merchant Shipping Act 1995 s 58(2)(a) – consideration of terms ‘sea-going’, ‘ship’ and ‘used in navigation’ in relation to a jet ski – whether a person riding a jet ski is the ‘master’ of a ship. Held: A jet ski is not "used in navigation" and is therefore excluded from the definition of "ship or vessel". The defendant was not the master of the ship – this applies only to people who are employed as such.
Sabo SA v United Arab Shipping Company (SAG) [2005] EWHC 307 (Comm) (03 March 2005) TRANSHIPMENT - BILL OF LADING - Shipment of goods. Letter of credit specified that transhipment not allowed. Goods loaded on a feeder vessel (not owned by UASC) for transhipment to the UASC vessel. Bill of lading issued to feeder vessel, also one issued to Sabo (manufacturer of goods) by UASC’s agents on behalf of UASC naming carrying vessel as the UASC vessel. No entries in bill regarding feeder voyage. Feeder vessel was stranded, seawater seeped in damaging goods. Salvage, salvors exercised lien, demanded salvage security, insurers refused to pay. Whether UASC, through the agent, deceived Sabo or whether both attempted to deceive buyer of goods and its bank, (the paying bank). Held there was no misrepresentation by UASC to Sabo or any breach in contract. On the evidence, found that Sabo knew what the position was - misrepresentation in B/L was intended to mislead the receivers and paying bank. UASC counterclaimed storage costs of salvaged goods - not made out.
Sea
Success Maritime Inc v African Maritime
Carriers Ltd [2005] EWHC 1542 (Comm) (15 July 2005) Time charterparty (NYPE (1981)) - Masters
right to clause bills of lading. A chartered
vessel tendered damaged cargo for shipment
and the Master refused to accept the
cargo. The Master justified refusal
on the grounds of a cluase int he charter,
which provided that a 'Master has the
right and must reject any cargo that
are subject to clausing of the BS/L'.
Discussion of the meaning of 'clausing'
and when the cargo became 'subject to
clausing of the bill of lading'. Held:
The Master was entitled to reject the
cargo if it was described in the B/L
in a way that would require the statement
of the apparent order and condition
of the cargo to be qualified, so that
the B/L as signed by the Master would
be accurate. As the charterers had proposed
to incorporate in the B/L the apparent
order and description of the cargo,
the Master did not have the right to
reject the cargo. Appeal dismissed.
Seismic
Shipping v Total E & P UK Plc
[2005] EWCA Civ 985 (29 July 2005) Collision
- Limitation of liability under Merchant
Shipping Act 1995 - question whether
limitation suit could be brought independently
of legal or arbital proceedings in the
jurisdiction - no such requirement.
Appeal from Mr Julian Flux QC [2005]
EWCH 460 (Comm) dismissed.
SHV Gas Supply & Trading SAS v Naftomar Shipping & Trading Co Ltd Inc, (The "Azur Gaz") [2005] EWHC 2528 (Comm) QBD (Comm) (15 November 2005) SALE OF GOODS – contract included a layday canceling date (‘laycan’) period but no shipping period – an unusually long spell of bad weather prevented vessels from loading – defendant purported to cancel the contract under the laycan period – whether laycan period clause could replace absent shipment period – whether breach of implied term that goods would be shipped within reasonable time – whether discharge ETAs given honestly and on reasonable grounds.
Thor
Navigation Inc. v Ingosstrakh Insurance
Company Ltd. & Anor [2005] EWHC
19 (Comm) (14 January 2005) Marine insurance. Whether valued
or unvalued policies. Marine Insurance
Act (UK) s 27. (see Marine Insurance
Act 1909 (Cth ) s33). Discussion of
cases concerning agreed value and
sum insured. Claims for estoppel and
rectification. Insurable value.
Thyssen
Canada Ltd. v Mariana Maritime SA & Anor [2005]
EWHC 219 (Comm) (23 February 2005) ARBITRATION
AWARD – SETTING
ASIDE - Owners of cargo (the owners)
onboard a vessel sought to set aside
an Award under the Arbitration Act 1996
(‘the Act'). The Tribunal found that
the defendants had exercised due diligence
and were not responsible for damage
to the cargo (caused by a fire). Application
of s 68(2)(g) and s 73 of the Act. Owners
contended that new statements in their
possession (which they did not have
at the time of arbitration) demonstrated
that the defendants' case at the Arbitration
as to causation of the fire was false
and was based upon perjured evidence.
On the evidence it was found that that
the owners participated in the arbitration
proceedings with knowledge of these
grounds or at least the capacity to
discover them (with reasonable diligence).
Application dismissed.
Tidebrook Maritime Corporation v Vitol SA, (The "Front Commander") [2005] EWHC 2582 (Comm) QBD (Comm) (9 November 2005) CHARTER PARTY – terms of charter on amended Asbatankvoy form - laytime specified not commence before earliest layday without charterer’s consent – whether charterers effectively consented to laytime commencing early by instructing vessel to berth and tendering Notice of Readiness.
TTMI Ltd of England v ASM Shipping Ltd of India [2005] EWHC 2666 (Comm) QBD (Comm) (23 November 2005) SHIPPING – ARBITRATION – vessel arrived late – charterers claimed damages due to increase in cargo price and loss of purchase contract – owners claimed unpaid freight and demurrage – owner sought to enforce arbitration award – owners in parlous financial state – charterers sought to vary order to include costs and a freezing order – whether security for costs should be part of order – freezing order not to be used as security for costs even if there is a risk that any award may be less effective.
West
Tankers Inc v Ras Riunione Adriatica
Di Sicurta Spa & Anor [2005] EWHC
454 (Comm) (21 March 2005) MARINE
INSURANCE – ARBITRATION
AGREEMENT – ANTI-SUIT INJUNCTION.
Vessel collided with oil jetty at
refinery. Application by insurers
to set aside an interim anti-suit
injunction, which restrained the insurers
from proceeding with their claim against
ship owners in Italy. Asbatankovy
charterparty - contained an agreement
to arbitrate in London. Whether the
subrogated insurers are bound by the
arbitration agreement, what law determines
this question. Discussion of The Jay
Bola. Held: by reference to English
Law, insurers bound by arbitration
agreement. Application of Through
Transport and Angelic Grace makes
it unnecessary to consider what weight
should be attached to the negative
reaction of the Italian courts (to
the injunction) in this case. Under
English conflicts rules, Article II.3
of New York Convention does not provide
a ground for refusal of an anti-suit
injunction.
Western Bulk Carriers K/S v Li Hai Maritime Inc (The ‘Li Hai’) [2005] EWHC 735 (Comm) (5 May 2005) Time charter – NYPE form for 5/7 months with anti-technicality clause. The owners sought to withdraw for an asserted (minor – $500) underpayment. There was discussion of whether the sum in dispute was a cross-claim (The Nanfri [1978] 2 Lloyd’s Rep 132 and other cases). The anti-technicality notice however was found to be invalid, withdrawal was therefore wrongful.
CMACGM
SA v Classica Shipping [2004] EWCA Civ 1114 (overtuning
Steel J) (12 February 2004) Limitation of liability
available to charterer in action against it by shipowner
in respect of dangerous goods loaded in breach of
charterparty.
Appeal dismissed
Jindal Iron and Steel Co Ltd v Islamic Solidarity Shipping Co Jordon Inc. [2004] UKHL 49 on appeal from [2003] EWCA Civ 144
Interpretation of the Hague and Hague-Visby Rules, in particular, article III,
r. 2 and 8. An agreement, which transfers responsibility for loading, stowage
and discharge from the shipowners to shippers, charterers or consignees, is not
invalidated by article III, r. 8. Pyrene v Scindia Navigation [1954]
2 QB 402 and G H Renton & Co Ltd v Palmyra Trading Corporation of Panama [1957]
AC 149 followed. Discussion of interpretation of international conventions.
More Og Romsdal Fylkesbatar AS v The Demise Charterers of the Ship "Jotunheim" [2004] EWHC 671 DEMISE CHARTERER - WITHDRAWAL FOR LATE PAYMENT OF HIRE - WHETHER VALID - WAIVER - RELIEF AGAINST FORFEITURE
Charter-party, hire-purchase agreement. Clause providing for return of vessel to owner in the event of buyer-default. Late instalment, owners withdrew vessel. Barecon 89 form. Held: owners had right to withdraw vessel; constant pressing for hire, coupled with the threat of withdrawal, could not mean that a reasonable time had passed, therefore no waiver; the Court had jurisdiction to grant relief against forfeiture, however it was not appropriate to do so in this case.
Welex
A.G. v Rosa Maritime Ltd. [2003] EWCA Civ 938 claimant
seeking declaration that no arbitration agreement was
incorporated into a contract of carriage contained
in or evidenced by a bill of lading, anti-suit injunction.
North
Range Shipping Ltd. v Seatrans Shipping Corp. [2002]
EWCA Civ 405; [2002] 2 Lloyd's Rep 1
appeal from
arbitration dismissed, ship owner purported to terminate
charter for non-payment of hire and withdrew vessel,
charterer contended no proper notice under anti-technicality
clause in charter.
Voaden
v Champion [2002] EWCA Civ 89 ; [2002] 1 Lloyd's
Rep 623
ship negligently moored caused another ship
and pontoon to sink and damaged trot mooring, appeal
on value of loss.
Welex
AG v Rosa Maritime Ltd. [2002] EWHC 762 (Comm); [2002] 2 Lloyd's Rep 81
claimant seeking declaration
that no arbitration agreement was incorporated into
a contract of carriage contained in or evidenced by
a bill of lading, anti-suit injunction.
Delos,
owners of cargo v Delos Shipping Ltd [2001] EWHC 486
(Comm) claims that cargoes delivered underweight, short-delivered
and contaminated with sea-water, manipulation of arbitration
clause, arbitration clause in charterparty incorporated
in bills of lading by express reference.
Demand
Shipping Co Ltd [2001] EWHC Commercial 403 crew
member moved the control lever of the fuel tank's emergency
shut-off system causing vessel to ground which damaged
the vessel, liability, contract of carriage.
Jones & Co
Ltd v Vangemar Shipping Co Ltd 'The Apostolis' [2000]
EWCA Civ 213; [2000] 2 Lloyd's Rep 337
cargo and
ship damaged by fire, claim by cargo owners that ship
owners in breach of contract on the basis of Hague-Visby
Rules, counter-claim by ship owners that cargo owners
in breach of contract in failing to load cargo carefully
and contractually responsible for fire, demurrage.
Tradigrain
SA & Ors v King Diamond Marine Ltd 'The Spiros
C' [2000] EWCA Civ 217; [2000] 2 Lloyd's Rep
319
bill of lading, shipper's liability to pay owner
freight "payable
as per" a charter, shipowner's entitlement to demand
payment under bill of lading when it stipulates payment
to a third party, implied term in bill of lading that
shipper will discharge goods and in a reasonable time.
Gray & Stead
[1999] EWCA Civ 1887; [1999] 1 Lloyd's Rep 377
whether
standard of care required of an employer to his employee
fisherman extended to a duty to provide him with a
single chamber inflatable life jacket and a duty to
instruct him to wear it whenever alone on deck.
Effort
Shipping Company Ltd v Linden Management SA and Others
[1998] UKHL 1 ; [1998] 1 Lloyd's Rep 337
meaning
of the words 'goods of an inflammable,
explosive or dangerous nature' in Article IV, r.
6 of The Hague Rules, whether the shipper's liability
for shipping dangerous goods under Article IV, r. 6 is
qualified by the provisions of Article IV, r. 3, escape
of liability by relying on section 1 of the Bills of
Lading Act 1855, the nature and scope of any implied
obligation at common law as to the shipment of dangerous
goods.
Islamic
Investment Company ISA v Transorient Shipping Ltd & Anor
[1998] EWCA Civ 1287; [1999] 1 Lloyd's Rep 1
cargo
didn't comply with obligations under voyage charter
and deviation from contractual route extended period
of voyage, whether cargo which complied with the contractual
description would have survived a voyage which was itself
within the scope of the voyage sub-charterparty without
suffering the kind of damage which in fact occurred.
