BIMCO’s 2020 Marine Fuel Sulphur Content Clause for Time Charters and 2020 Fuel Transition Clause.

 

BIMCO have produced two clauses for inclusion in time charterparties to deal with the new Annex VI MARPOL requirements on sulphur content in fuel that come into force on 1 January 2020, and the ban on carriage of non-compliant fuel that comes into force on 1 March 2020.

  1. The Marine Fuel Sulphur Content Clause deals with owners obligation to comply with the sulphur content requirements of MARPOL Annex VI and also the sulphur content requirements of ECAs, and replaces BIMCO’s previous sulphur content clause of 2005.

The clause contains an express requirement for the fuel provided by the time charterers to meet the “specifications and grades” which are commonly set out elsewhere in a time charter party and to ensure compliance by their suppliers with applicable regulation relating to sulphur content. Charterers will also provide an indemnity to owners in relation to non-compliance with MARPOL requirements and the vessel will remain on hire throughout. Owners warrant that the ship will comply with the sulphur content requirements of MARPOL Annex VI which means that the ship is able to consume fuels that meet such requirements. Provided the charterers have supplied compliant fuel, they shall not otherwise be liable for any losses, damages, liabilities, delays, deviations, claims, fines, costs, expenses, actions, proceedings, suits, demands arising out of the owners’ failure to comply with their obligation to comply with the MARPOL requirements.

  1. 2020 Fuel Transition Clause for Time Charter Parties

This deals with the advance planning needed before 1 January 2020. “Compliant Fuel” is defined by reference to the requirements of MARPOL as of 1 January 2020.

“Non-Compliant Fuel” is defined in the context of use or removal of fuel with a sulphur content greater than 0.50%. Such fuel would be MARPOL compliant before 1 January 2020 but the clause is designed to deal with the use or removal of such fuel before that date.

Charterers will need to have supplied the ship with sufficient compliant fuel on board before 1 January 2020 to enable the ship to reach a bunkering port after that date to bunker with compliant fuel. No later than 1 March 2020 there must be no non-compliant fuel carried for use by the vessels. The parties are to cooperate and use reasonable endeavours to ensure no non-compliant fuel is carried by the vessel no later than  1 January 2020. This is to be done preferably by burning, with off-loading of any remaining fuel by 1 March 2020.

Charterers’ obligation is to pay to offload and dispose of any remaining non-compliant fuel they have been unable to burn. Disposal of non-compliant fuel  must be done in accordance with local regulations. Owners’ obligation is to ensure the ship is fit to receive compliant fuel “taking into account the type of Compliant Fuel that will be loaded…”

 

The two clauses are not intended for use by vessel fitted with and operating exhaust gas cleaning systems (i.e. scrubbers).

Remedies for delivery without production of the bill of lading

A case in the CA of some interest today. Imagine carriers or forwarding agents have delivered goods to a buyer without getting payment for them. No point in suing the buyer in 99% of such cases: and often carriers and forwarding agents will be men of straw too (remember in addition that P&I clubs won’t sub up for this sort of thing). But had you thought of suing the rich man behind the buyer who sweet-talked the forwarding agent or carrier into letting the goods go without payment? You hadn’t? It’s actually a classic case, in most situations, of inducing breach of contract: a point confirmed by the Court of Appeal in Michael Fielding Wolff v Trinity Logistics [2018] EWCA Civ 2765, upholding Sara Cockerill QC at first instance. Happy hunting.

Back to bailment. A storm in a coffee cup.

 

In today’s decision in Volcafe Ltd and others (Appellants) v Compania Sud Americana De Vapores SA (Respondent) [2018] UKSC 61 the Supreme Court has overruled the decision of the Court of Appeal on the incidence of the burden of proof in relation to the exception of inherent vice in article IV (2)(m) of the Hague Rules.

The claim arose out of for nine separate consignments of bagged Colombian green coffee beans shipped at Buenaventura in Colombia between 14 January and 6 April 2012 on various vessels owned by the defendant shipowners for carriage to Bremen. They were stowed in a total of 20 unventilated 20-foot containers.

The bills of lading, which were subject to English law and jurisdiction and incorporated the Hague Rules, were on LCL/FCL (less than full container load/full container load) terms which meant that the carriers were contractually responsible for preparing the containers for carriage and stuffing the bags of coffee into them. If coffee is carried in unventilated containers from a warm to a cooler climate the beans will inevitably emit moisture which will cause condensation to form on the walls and roof of the container. This makes it necessary to protect the coffee from water damage by lining the roof and walls with an absorbent material such as cardboard, corrugated paper or “Kraft” paper. This was a common commercial practice in 2012 and was used by the carriers in this case, but when the containers were opened the bags in 18 of them were found to have suffered water damage from condensation.

The case raised the issue of the legal burden of proof at two stages. First, does the cargo-owner bear the legal burden of proving breach of  article III(2) of the Hague Rules, or is it for the carrier, once loss or damage to the cargo has been ascertained, to prove compliance? Second, as regards to article IV.2, and particularly exception (m), what is the burden of proof.. The carrier accepted that he must bear the burden of proving facts which bring the case within an exception, but submitted that once he had done so it is for the cargo-owner to prove that it was the negligence of the carrier which caused the excepted peril (in this case, inherent vice) to operate on the cargo. This was the analysis adopted by the Court of Appeal.

Lord Sumption gave the leading judgment and found that the questions must be resolved by examining the nature of a contract for the carriage of goods by sea. This was a contract of bailment under which the carrier is under an obligation is to take reasonable care of the goods accepted into its custody with a rule that the carrier would be liable for loss or damage to the goods while in its custody unless it could disprove negligence. The scheme of the Hague Rules assumes that the carrier does indeed have the burden of disproving negligence albeit without imposing that burden on him in terms.

In principle where cargo is shipped in apparent good order and condition but is discharged damaged the carrier bears the burden of proving that that was not due to its breach of the obligation in article III.2 to take reasonable care. The Hague Rules authorities, such as Gosse Millard v Canadian Government Merchant Marine Ltd [1927] 2 KB 432 and Silver v Ocean Steamship Co Ltd [1930] 1 KB, bear this out. The true rule is that the carrier must show either that the damage occurred without fault in the various respects covered by article III.2, or that it was caused by an excepted peril. If the carrier can show that the loss or damage to the cargo occurred without a breach of the carrier’s duty of care under article III.2, he will not need to rely on an exception.

As regards the second issue, the burden of proof under article IV (2), pre Hague Rules decisions such as Notara v Henderson (1872) LR 7 QB 225 and The Xantho (1887) 12 App Cas 503 and Hamilton, Fraser & Co v Pandorf & Co (1887) 12 App Cas 518 treated absence of fault as an integral part of the exception of perils of the sea. Against that there is the decision of the Court of Appeal in The Glendarroch [1894] P 226,  holding that the burden of proving that an excepted peril had been occasioned by the carrier’s negligence lay on the cargo owner.

Even if the decision was correct as regards the exception for perils of the sea, it would not apply to the exception for inherent vice. The distinction between the existence of the peril and the standard of care required of the carrier is impossible to make in that context. A cargo does not suffer from inherent vice in the abstract, but only in relation to some assumed standard of knowledge and diligence on the part of the carrier.  Lord Sumption stated:

  1. It follows that if the carrier could and should have taken precautions which would have prevented some inherent characteristic of the cargo from resulting in damage, that characteristic is not inherent vice. Accordingly, in order to be able to rely on the exception for inherent vice, the carrier must show either that he took reasonable care of the cargo but the damage occurred nonetheless; or else that whatever reasonable steps might have been taken to protect the cargo from damage would have failed in the face of its inherent propensities.

The Court of Appeal held that the Deputy Judge’s had misdirected himself in finding that article III (2) meant that the cargo had to be carried in accordance with a system that would prevent damage, and that inherent vice could be demonstrated only if damage was inevitable. The Deputy Judge had found that the evidence did not establish what weight of paper was used for these shipments, except that it was more than 80 gsm, and did not establish how many layers were used, and there was no evidence to show what thickness of paper ought to be used for a given number of layers, in order to avoid condensation damage, and no generally accepted commercial practice this point. The Court of Appeal had made two different findings of fact. First, that there was an accepted industry practice in 2012 for lining unventilated containers for the carriage of bagged coffee, either by using two layers of paper of at least 80 gsm or one layer of at least 125 gsm. Second, that two layers of paper had been used. It therefore followed that the containers had been lined in accordance with accepted industry practice. The Court of Appeal was not justified in overturning the deputy judge’s findings on either of these two critical points.

Lord Sumption concluded:

  1. I would hold that the carrier had the legal burden of proving that he took due care to protect the goods from damage, including due care to protect the cargo from damage arising from inherent characteristics such as its hygroscopic character. I would reinstate the deputy judge’s conclusions about the practice of the trade in the lining of unventilated containers for the carriage of bagged coffee and the absence of evidence that the containers were dressed with more than one layer of lining paper. In the absence of evidence about the weight of the paper employed, it must follow that the carrier has failed to prove that the containers were properly dressed.

 

Today’s decision is of great importance to both carriers and cargo owners. It reiterates the accepted wisdom as regards the operation of the burden of proof in respect of Article III(2), but departs substantially from that  position as regards the incidence of the burden of proof in respect of the exceptions afforded to the carrier under Article IV(2). Although the case concerned the specific exception of inherent vice, the Supreme Court’s decision would apply equally to all the exceptions in Article IV(2) – save for the nautical fault exception in (a) and the ‘catch-all’ exception in (q) which in terms specifically requires the carrier to prove absence of fault on its part or that of its servant or agents.

Where is General Average?

Jurisdiction decisions in the shipping context follow each other in close succession. Yesterday we had another, from Males J, of some interest to insurers: namely, Griffin Underwriting Ltd v Varouxakis (The Free Goddess) [2018] EWHC 3259 (Comm).

The Free Goddess, a 22,000 dwt bulker owned by Freeseas, was seized by Somali pirates while en route to Thailand with steel coils. K & R insurers Griffin, based in Guernsey but doing business in London, paid out something over $6 million to free her, whereupon she sailed to Oman. Griffin clearly had a right to take over from Freeseas a pretty cast-iron GA claim against cargo interests: on arrival it duly entered into a settlement agreement with Freeseas under which Freeseas agreed to furnish all assistance, including preservation of security, in claiming GA and also to account to Griffin for all sums received on that basis. GA, as might be expected, was settlable and payable in London.

According to Griffin’s (as yet unestablished) allegations, Freeseas did no such thing. Instead of the obvious course of oncarrying the cargo to Thailand and claiming GA in due course, it sold the ship in Oman, destroying any security for GA and providing cargo with a counterclaim for damages which was likely to dwarf the GA liability in any case. In addition it had allegedly trousered a large sum in interim GA contributions without accounting for it. 

Freeseas not being worth powder and shot, Griffin sued one Ion Varouxakis, the Greek-domiciled owner of the company, for inducing it to break the settlement agreement. They alleged that the damage had been suffered in London and therefore they could invoke Art.7, the tort article of Brussels I Recast. Mr Varouxakis insisted that he could only be sued in Greece, arguing for good measure that this was a suit by an underwriter in a matter relating to insurance under Art.14, so the other exceptions did not apply.

In fact Mr Varouxakis was held to have waived any jurisdiction point, so the claim is going ahead in London anyway. But Males J did go on to give a view on the other points. On the issue of the loss of the right to GA, he regarded the issue of where the loss had been suffered as finely balanced, but expressed the view that the direct damage had been suffered in Oman, where he opined that the right to enforce GA had been effectively lost: the fact that GA had not been paid in London he regarded as a remoter consequence and not in account because of decisions such as Kronhofer v Mayer [2004] All ER (EC) 939. So there would have been no jurisdiction. On the other hand, he thought the loss had been suffered in London as regarded the failure to account, and so would have allowed the claim under that head to go ahead on that head in any event. As for the suggestion that this was a matter relating to insurance, he smartly rebuffed the point: insurance might be the background, but this arose out of an independent settlement agreement.

The second point was fairly obvious: if someone infringes my right to an accounting in London, it is difficult to think of anywhere apart from London where the damage occurs. The third is also welcome: the insurance rules under under Art.14 are ill-thought-out even by Euro-standards, and anything that prevents their becoming any more bloated than they already are can only be a good thing.  

This blog is less sure about the first. Saying the damage occurred in Oman gets pretty close to conflating damage with the act giving rise to it; it also means that the place of the damage in cases of this sort becomes wildly arbitrary, depending on which port a vessel happens to be in at the time. On the other hand, if GA is settled and negotiated in London, it seems fairly convincing to argue that preventing it being settled and paid there causes a direct loss within the Square Mile. Unfortunately, because the claimants won in any case, we are unlikely to see an appeal here. But this shouldn’t be regarded as necessarily the last word.


IS THE COMMERCIAL PARADOX OF THE MONTREAL CONVENTION 1999 IN THE CARRIAGE OF GOODS BY AIR FINALLY RESOLVED?

In Underwriters at Lloyds Subscribing to Cover Note B0753PC1308275000 v Expeditors Korea Ltd 882 F 3d 1033 (11th Cir, 2018) the US Court of Appeals for the 11th Circuit examined the scope of application of the Montreal Convention 1999 (MC) over the combined air and land carriage of cargo. This is the first US decision to look carefully into Art 18(3)MC. This provision has caused quite a stir in the air cargo world as it was clumsily re-drafted in the MC by deleting the airport requirement of the Warsaw Convention System (WCS).  

Under the WCS, the carrier is liable for the Loss, Damage or Destruction(LDD) of goods that occurs during carriage by air, which is defined as the “period during which the … goods are in charge of the carrier, whether in an aerodrome or on board an aircraft or, in the case of a landing outside an aerodrome, in any place whatsoever”. This provision created a clear rule in that it applied the WCS on an airport-to-airport basis, with the prevailing view interpreting the term “airport” to cover the airside area (airport limitation). English courts, being in the minority, adopted a wider meaning to include both airside and landside areas of an airport (RollsRoyce plc v Heavylift-Volga DNEPR Ltd [2000] 1 Lloyd’s Rep. 653).

This clear rule was disturbed in the MC which deleted the phrase“whether in an aerodrome or on board the aircraft or,in the case of a landing outside an aerodrome, in any place whatsoever”. As such, carriage by air is defined as “the period during which the cargo is in the charge of the carrier”.Inevitably, this change opens up the possibility of applying the MC to LDDs that take place outside airports.

This change of wording should not have caused such turmoil as the MC(same as the WCS) expressly prohibits its application to land carriage: “[t]he period of the carriage by air does not extend to any carriage by land, by sea or by inland waterway performed outside an airport” (carriage by land restriction).  Only the following two exceptions are permitted: 1. The MC applies in cases of unlocalised LDDs provided an AWB covers both the air and land segments and the land segment takes place for the delivery, loading or transshipment of the goods (presumption of loss) ; and 2.The MC applies to land carriage if the carrier substitutes air carriage by road carriage without the consent of the consignor (unlikely scenario as courts, including the Expeditors one, have ruled that the standard AWB provides such authority). 

The following two reasons lie behind the continued controversy over the multimodal application of the MC:

  1. A strong minority of US courts have applied the air law conventions to land US carriage which follows international air carriage and is covered by the same AWB. With the Carmack Amendment not applicable in such cases, US courts have justified this application on reasons of commercial certainty (one contract-one law). They either do so by misapplying the “presumption of loss” or applying (without much analysis) the MC or WCS to the land carriage by means of contractual incorporation;  
  2. The MC does not provide for a clear-cut solution when an LDD occurs in a warehouse of the carrier (or its agents)outside the airport. Under the WCS, this LDD is not subject to its provisions as the warehouse is situated outside the airport. However, the “airport limitation”has been deleted in the MC and the “carriage by land restriction” is not applicable as the LDD occurs while the goods are stored in a warehouse rather than moved by land.

Resolving these two issues was the focal point of the recent decision of the US Court of Appeals for the 11th Circuit in Expeditors (the Court also dealt with the term “package or packages concerned” as used in the AWB but this discussion is outside the scope of this note). The facts were no more extraordinary than the average air cargo case.The defendants, Expeditors, arranged for the carriage of a silicon coating machine from Incheon, South Korea to Orlando, US. The machine belonged to TriQuint and the claimants are TriQuint’s subrogated insurers. Exercising their route liberty under the AWB, the defendants flew the machine in 10 crates from Incheon to Miami, Florida. When the crates arrived in Miami, they were transported by land by several of the defendant’s agents as follows:

  1. from the airside area of Miami airport to a warehouse situated in the airport’s vicinity but outside its physical boundary(off-airport warehouse);
  2. from the airport warehouse to a warehouse in Miami, further away from the airport (Miami warehouse);
  3. from the Miami warehouse to an Orlando warehouse (first Orlando warehouse) ;
  4. from the first Orlando warehouse to a second Orlando warehouse (second Orlando warehouse); and  
  5. from the second Orlando warehouse to the consignee’s delivery agent (with the last segment to the consignee performed by its delivery agent);

The damage to one of the crates, containing the robotic arm of the machine, took place either in the Miami warehouse (segment No. 2) or during the land carriage from Miami to the first Orlando warehouse(segment No.3).

The US District Court for the Southern District of Florida, in a short and unsophisticated judgment, applied the MC to the damage in question. The decision was based on the misapplication of the“presumption of loss” provision of the MC; a rather concerning trend among US courts. For the District Court the land carriage in question is part of the MC as it is performed by the air carrier (or its agents) in order to deliver the crates to the consignee and an AWB covers both the air and land segments. Following this logic, the MC applies every time an air carrier undertakes land carriage “outside an airport…if such carriage takes place in the performance of a contract for carriage by air”. Damage is presumed to have happened during this period, unless the claimant proves that it occurred outside the scope of the AWB, namely by a road carrier that is not acting for the air carrier. Such solution has the potential to apply the MC on a door-to-door basis and it is not surprising that has strong supporters in the industry. Yet, it is a blatant disregard of the text of the“presumption of loss” provision and the philosophy of the MC as a unimodal Convention. Furthermore, the District Court failed to discuss the possibility that the damage took place in the Miami warehouse, assuming that the MC applies therein.

The Courts of Appeals for the 11thCircuit, following close examination of the MC, was right to dismiss the finding of the District Court.

To deal with the land carriage from Miami to Orlando, Circuit Judge Jill Pryor focused on the “carriage by land restriction” rather than the “presumption of loss”. She examined whether this segment qualifies as carriage by land under the MC and answered in the affirmative. The damage occurred during the “multi-hour journey” from Miami to Orlando which is “part and parcel of the last step of the cargo’s journey,which was plainly carriage by land”. As she emphatically stated “if an intercity, multi-hour journey over land does not qualify as carriage by land,the term essentially would be meaningless”. As such, the presumption that the loss occurred in the air carriage is rebutted and the MC is not applicable. Still,the Court accepted that the MC can apply outside the strict boundaries of an airport.But, it rightly cautioned against its extensive application either by misapplying the “presumption of loss” provision or using the (controversial) argument of contractual incorporation.

What proved more difficult is dealing with the damage in the Miami warehouse. What would have been a straightforward answer under the WCS has been complicated by the new wording of what constitutes carriage by air in the MC.Under a literal interpretation the MC is applicable to this damage as the crates were in storage in the carrier’s charge and were not carried by land. This is what the Austrian Supreme Court in its decision of 19 January 2011 and the German Federal Court of Justice in its decision of 24 February 2011, when coming across similar cases, decided. Although this interpretation was rejected by the US Court of Appeals, it is based on the text of the MC. Its main deficiency is operational in that it creates, what I described elsewhere, as a commercial paradox: the application of the MC is suspended while the goods are carried by land and reestablished upon them reaching the warehouse. It respects the text of the MC but is certainly not elegant.

Circuit Judge Jill Pryor did not agree that the MC creates such a paradox. She rejected the approach of the Austrian and German courts as they do not reflect the modern realities of air cargo transportation which may require storage between two (lengthy) land carriages. Suspending the application of the MC does not make operational sense and the better (operational) solution would be to incorporate the period of storage into the carriage by land. In what was a policy-driven opinion, the Court filled the obvious textual gap of the MC by treating warehousing as a secondary operation, since the law applicable to it depends on the nature of the carriage segments before and after it. While the continental European Courts have it given it autonomy, the Court of Appeals wants to see it absorbed by one of the two modes of transport. Convenient as a solution this is, the Court offered no reasonable explanation about the reasons that led to the textual gap of the MC. It is surprising that neither the cargo insurers nor the carrier advocated for such solution which raises questions whether it reflects the modern realities of air transportation.

Furthermore, the Court categorically declined to import in the MC the“airport delimitation” of the WCS. There is little doubt that this is the right decision as the new wording of the MC demonstrates an intention to move away from it. Instead, the Court endorsed the dissenting opinion in Victoria Sales Corp. v. Emery Freight Inc 917 F.2d 705 (2d Cir. 1990) which advocated for a functional interpretation of the term airport under the WCS. Although not accepted in the US at the time, it found fertile ground in England following the Heavylift-Volga DNEPR case. For the US Court of Appeals these two cases “are especially persuasive” in identifying the scope of the term “carriage by air” in the MC.

This judicial statement sheds light on the law applicable to LDDs of goods while carried from the airside area of the airport to the off-airport warehouse or while stored inside the off-airport warehouse (segment No. 1). Most probably, the MC will apply to such LDDs as the goods are within the functional area of the airport. Especially with respect to the short road carriage, the Court seems to suggest that it would be absorbed by the air carriage as it is a land segment of minimum importance.

What remains a difficult decision is the law applicable to the land movement between the off-airport warehouse and the one in Miami. Such a situation tests the limits of application of the Expeditors decision which refused to adopt a bright line test. One cannot argue that this segment is closely linked to the last segment between Miami and Orlando, but it is also distanced from the prior air segment. It could be characterised as preparatory to the last land segment in which case it makes more sense to exclude the application of the MC over it.

The US Court of Appeals in Expeditors has issued a rare decision on carriage of goods by air and road which refocuses the relevant discussion in the US, long diverted from the text and philosophy of the air law conventions. Subject to the disagreement about the application of the MC to goods that are in stored by the air carrier during transit, the decision is welcoming news for the air cargo industry. Still, the refusal of the Court of Appeals to establish a bright line test is to be regretted. It would have given to the air cargo industry the certainty missing from the text of the MC. This could have been easily achieved by using the functional limit of an airport as the overarching limit of application of the MC. The Court endorsed it but did not elevate it to the level of principle as it refused to establish a clear cut-off point of application. It is to be hoped that other Circuits will now follow and maybe develop its ratio decidendi.

Rotterdam Rules in Cameroon’s hat-trick of international trade conventions.

 

Just over a year ago on 11 October 2017 Cameroon ratified or acceded to three UNCITRAL Conventions.

  1. Cameroon ratified the Rotterdam Rules. There are now four states that have ratified. Sixteen more to go before the Convention comes into force. At the current rate we’ll be there in 2058.
  2. Cameroon acceded to the he United Nations Convention on Contracts for the International Sale of Goods (1980) (CISG) which comes into force for Cameroon on 1 November 2018.
  3. Cameron acceded to the United Nations Convention on the Use of Electronic Communications in International Contracts (2005) which came into force for Cameroon on 1 May 2018.

Force majeure and counterfactuals

A nice force majeure issue — and one of considerable importance — came up before Teare J yesterday in Classic Maritime v Limbungan [2018] EWHC 2389 (Comm), argued by IISTL stalwart Simon Rainey QC. Imagine you conclude a contract (in this case a CoA under which you have to provide a number of iron ore cargoes) which in the event you can’t and don’t perform, and never could have performed. An exemption clause in the contract says that if you could have performed it but a force majeure event X (inundations in Brazilian iron ore mines) then occurs that stops you performing it, you are not liable for breach. Event X occurs. Are you (a) in breach of contract, (b) on the hook for substantial damages?

On (a) the answer is Yes. You promised to perform, you haven’t performed, and because you never could have performed in any case you can’t shelter behind the exemption clause.

But what about (b)? There are two ways to look at this. One is to say: this is a simple case of unexcused non-performance, and hence you must be liable to the shipowner for his lost profits on the carriage, a figure amounting to many millions. The other point of view runs thus. If, counterfactually, you could have performed but for X, the shipowner would in the event have had no claim to performance because of the exemption clause. Hence hence it’s no skin off his nose that you didn’t perform, and damages are nominal only. Teare J plumped for the second: nominals only.

This view is highly plausible and for the moment clearly represents the law. It also dovetails quite nicely with the general rule in cases such as The Golden Victory [2007] UKHL 12, [2007] 2 A.C. 353 and Bunge v Nidera [2015] UKSC 43, [2015] 2 CLC 120, that in assessing damages we take into account later events that would have taken away the right to demand performance.

But this case, or the issue in it, may go further. There is a respectable argument, that certainly can’t be dismissed summarily, which suggests a different answer. In so far as the inability to rely on a force majeure clause is due to a party’s own default, which was the case in Classic Maritime, should it be open to that party to argue that if he had acted differently he would have been able to invoke that very same clause? Suppose a force majeure clause requires notice to be given within 7 days after the force majeure event; a party prevented by force majeure nevertheless fails to give notice for 10 days, and thus loses the protection of the clause. Is it really open to the party then to say that if he had given the proper contractual 7 days notice he would have been protected by the clause, the counterparty would have had no right to demand performance, and hence damages are nominal only? I’m doubtful. And I’m equally not sure that this scenario is that different from what happened in Classic Maritime.  It’s just a thought. Whether it’s a good one, only time will tell.

Charter time bar not read  into charterers’ letter of indemnity.

 

In Navig8 Chemicals Pool Inc v. Glencore Agriculture BV (The Songa Winds) [2018] EWCA Civ 1901, the Court of Appeal had to consider whether a time bar clause in a voyage charter operated to bar claims under a letter of indemnity issued by charterers to owners in respect of delivery of cargo without production of bills of lading. Clause 38  of the charter required the owners to release the cargo  against charterers’ letter of indemnity  (LOI) if bills of lading were not available at the discharge port and the period of validity of any letter of indemnity was to be three months from date of issue. The LOI provided by charterers did not refer to any time bar and provided in clause 5 “. As soon as all original bills of lading for the above cargo shall have come into our possession, to deliver the same to you, or otherwise cause all original bills of lading to be delivered to you, whereupon our liability hereunder shall cease.”

Two points arose. Was the LOI provided by charterers subject to the three month time bar provided in the charterparty? If so, how did that time bar run?  Andrew Baker J, [2018] EWHC 397 (Comm) ,had found that the LOI was not subject to the time bar, and that the effect of the time bar was that the period within which the requested delivery of the cargo must take place was three months from the date of delivery.

The Court of Appeal has upheld the first finding. Charterers had the contractual right to insist that the LOI incorporated the terms set out in cl.38 but they had failed to do so. Clause 5 of the  LOIs was a self-contained provision which confines charterers’ liability, and which containeds no reference to any extraneous term which might impact on the time limit of that liability.Their LOIs were distinct agreements to the voyage charter, setting out self-contained obligations and rights which could be relied on by third parties, such as owners’ agents, as against charterers.

On the second point, however, the Court of Appeal rejected the judge’s construction  of cl. 38 and found that cl.38 meant that there was a time limit of three months for making claims.

Management of the vessel, or management of cargo? Effect of s4. of US COGSA on charterers’ claim for costs of unnecessary strapping required by master.

Clearlake Shipping Pte Ltd v Privocean Shipping Ltd (15 May 2018. QB D (Com Ct) is an unreported decision of Cockerill J on the effect of cl.2 of NYPE 1946 form and s.4(2)(a) of US COGSA 1936 which is applied as a paramount clause. Charterers incurred extra expenses due to unnecessary strapping insisted on by the master with a view to the ship’s stability. The master insisted on the strapping in order to ensure the stability of the vessel. In the arbitration the charterer produced expert evidence that the cargo strapping had been unnecessary and that adequate stability could have been achieved by distributing the cargo differently or by ballasting. The arbitrators found that the master had been negligent and in breach of cl. 8. However, they rejected charterer’s contention that the cost of strapping was for owner’s account by virtue of cl.2 of the charter which provided that “Charterers are to provide necessary dunnage and shifting boards, also any extra fittings requisite for a special trade or unusual cargo…”  The shipowners, though, had a defence to the claim under s.4(2) of the incorporated US COGSA 1936, since the neglect or default of the master was “in the management of the ship”.

On appeal Cockerill J upheld both findings.(i)  Clause 2 said nothing about the position where the charterer had paid for a fitting that turned out to have been unnecessary. (ii) The master’s default was in the management of the ship and owners had a defence under s.4(2) of the incorporated US COGSA 1936. The master’s breach was not any lack of care for the cargo during loading or discharge. His intervention came before loading. Since his action in requiring the cargo to be strapped was directed at the safety of the ship it was an act in the management of the vessel within the s.4(2) exemption. It was also clear that safe stowage without strapping could have been achieved by ballasting, and the same result should be reached whether the issue was one of different distribution of the cargo or of ballasting. Ballasting would be a matter in the management of the vessel and it followed that for that reason also the exemption from liability applied.

The case provides a salutary reminder to time charterers that they may be getting more than they bargained for with a clause paramount. The US COGSA exceptions in s4(2) and the Hague Rules exceptions in art IV(2), are not limited to breaches in respect of the activities listed in s2/art II. As stated by Robert Goff LJ in The Satya Kailash [1984] 1  Lloyd’s Rep 588, 596.

[o]n the approach of the majority of the House of Lords in the Adamastos case, even such general words of incorporation can be effective to give an owner the protection of the statutory immunities in respect not merely of those matters specified in s. 2, but also of other contractual activities performed by him under the charter.”