Category: Uncategorized

Brexit and the 2001 Bunker Oil Pollution Convention.

 

Another legislative casualty of the EU referendum will be the UK’s implementation of the 2001 International Convention on Civil Liability for Bunker Oil Pollution Damage (Bunkers Convention). This was done by inserting s.153A into the Merchant Shipping Act 1995, pursuant to The Merchant Shipping (Oil Pollution) (Bunkers Convention) Regulations SI 2006/1244. As this secondary legislation was made pursuant to the Secretary of State’s powers under s.2(2) of the European Communities Act 1972, it will fall away when the Act is repealed at the culmination of the withdrawal process. Section.153A will then cease to have effect.

 

Demurrage cannot last forever – but can go on for a bit longer.

 

MSC v Cottonex Anstalt was the case we reported last autumn about the containers of cotton that nobody came to collect from their discharge port in Bangladesh. Leggatt J held that the carrier was entitled to claim demurrage from the shipper under the bill of lading up to the point at which the contract came to an end due to its repudiation by the shipper. The Court of Appeal has upheld the first instance finding but has overturned the finding that the repudiation took place on 27 September 2011 when the shipper advised the carrier that it would not be able to collect the containers. At this time the delay was between two and a half to four months from discharge and the carrier argued that this was not a long enough period of delay to go to the root of the contract.

 

The Court of Appeal agreed ([2016] EWCA Civ 789). No reason had been given as to why the contract should be taken to have been repudiated on 27 September 2011. Instead, the Court of Appeal fixed on 2 February 2012 as the date of repudiation. That was when the carrier offered to sell the containers to the shipper in an attempt to break the impasse. That was the clearest indication that the commercial purpose of the adventure had by then become frustrated. The sale would have discharged the shipper’s obligation to redeliver the containers and with it the final obligations under the contracts of carriage which still remained to be performed. Accordingly, the shipper was liable for demurrage up to that date and for the value of the containers by way of damages.

 

A trap for the unwary. Service of proceedings in other Member States.

 

 

CPR 6.40(3) lists service in accordance with EU Regulation 1393/2007 (the “Service Regulation”) as one of several permissible methods of service of proceedings out of the jurisdiction. However, service under the Service Regulation is actually the only permissible method of service where proceedings are served on the territory of a Member State in respect of a civil or commercial matter (see C-325/11 Alder v Orlowska [24-25]).

 

In Asefa Yusuf v A.P. Moller [2016] EWHC 1437 (Admlty) cargo claimants’ English solicitor purported to serve proceedings on shipowners in Denmark in which the Service Regulation applies by virtue of a declaration made by Denmark ([2008] OJ L331/21).  However, art. 15 of the Service Regulation provides that service may be made “through the judicial officers, officials or other competent persons of the member state addressed, where such direct service is permitted under the law of that member state.” In the case of Denmark this meant service through a bailiff. Accordingly service was not within art.15 and Simon Bryan Q.C. , acting as a Deputy Judge of the English High Court, held that there could be no exercise of discretion under any English CPR Rule (such as CPR 6.15, 6.16 or 3.10). This could only be done if there was service within Article 15 with minor errors of procedure, but this was not the case here where service was effected through an English solicitor, rather than through a Danish bailiff.

 

Accordingly the High Court had no jurisdiction to try cargo’s claim against owners and the Admiralty Claim Form and service of the Admiralty Claim Form were set aside.