No maritime lien against demise chartered vessel for claim for disbursements made to vessel on time charterer’s orders.

 

The Irish Court of Appeal has recently decided in The Almirante Storni [2020] IECA 58 that a claim against the demise charterer by a ship’s agent in respect of  disbursements made to the vessel on the orders of the time charterer does not constitute a “maritime claim” within the meaning of article 1 of the International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships done at Brussels on 10 May 1952 (The Arrest Convention). Insofar as the claim involved “disbursements” they were not disbursements made by the master but by the ship’s agents.

Article 1(n) of the Arrest Convention did not entitle an agent to maintain a claim against the owner of the vessel for disbursements made by such agent “on behalf of a ship”, in the absence of any personal liability on the part of the owner. The argument that the time charterer ordered services from the plaintiff as agent of the owners was not tenable. There was no evidence of any actual or ostensible authority to support a finding of agency.

 

Abandoning the myth that decisions rendered by international arbitral tribunals are not binding

Against the backdrop of China recently renaming several disputed insular features in the South China Sea, which led to protests from Vietnam, the suggestion has been raised that Vietnam might to turn to “the world arbitration court” to have the matter adjudicated. Although a court by that name does not exist, it may be inferred that reference is made here to an international court or tribunal. A myth rears its head in the same news article, one that has been perpetuated particularly after the Arbitral Tribunal established pursuant to Annex VII of the 1982 Law of the Sea Convention (LOSC) rendered its award in the South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China) in 2013. The myth being that “Arbitral rulings aren’t binding”. To reinforce this seriously flawed argument, the news article does indeed invoke the South China Arbitration.

After the Arbitral Tribunal delivered its decision on the merits in South China Sea Arbitration, some have used it to argue that this arbitral decision, and arbitral decisions in general, are not binding. Having declared under Article 298(1)(a) of the LOSC its non-acceptance of arbitration with respect to maritime boundary disputes or those involving historic titles, China argued that the Arbitral Tribunal could not consider the case on the merits. It also abstained from participating in the proceedings. After the Tribunal assumed that it had jurisdiction over the dispute, and went on to hand down its final decision on the merits, China reinforced its earlier expressed intentions that it would not follow the final outcome of the award.

However, from the fact that China did not recognise the validity of the Tribunal’s decision, the inference cannot be drawn that it is therefore not legally binding. To the contrary, Article 296(1) of the LOSC leaves no doubt in this regard: any decision rendered by a court or tribunal assuming jurisdiction over the dispute “shall be final and shall be complied with by all the parties to the dispute”. This is reinforced in Article 11 of Annex VII of the LOSC:  an “award shall be final and without appeal, unless the parties to the dispute have agreed in advance to an appellate procedure. It shall be complied with by the parties to the dispute”. In this light, rather than perpetuating this myth that decisions of international tribunals are not binding, the opposite, that is abandoning this rhetoric, is far more appropriate.

Demand guarantees: interpretations and paradoxes.

Cases about letters of credit and performance bonds often raise points of intellectual interest in commercial law. Waksman J’s decision in Técnicas Reunidas Saudia Ltd v Korea Development Bank [2020] EWHC 968 (TCC), decided 12 weeks ago but only up on BAILII this week, is a case in point. It raised nice issues of contractual interpretation, and also discussed the old chestnut of what to do about non-documentary conditions. And in both cases it got the answer right: a good thing, given that quite big money (something like £8 million) turned on it.

TRS were a big construction company involved in a mega-project in Saudi Arabia. One of its subcontractors was S. The bank, a Korean corporation, issued TRS with what was effectively an advance payment guarantee, operable on first written demand by TRS, to cover TRS’s cash-flow advances to S. The guarantee, which was subject to URDG758, went on to say: “It is a condition for any claim and payment under this guarantee to be made that the funds paid as advance payments subject to the terms of the subcontract must have been received by the sub-contractor on its account number 042-117994-03 held with HSBC.”

S ceased work in circumstances at best murky. TRS called on the guarantee and provided evidence of advances made to the named account number at SABB, a Saudi associate of HSBC which traded on the connection and indeed used the HSBC logo. Meanwhile a court in Korea was asked to issue an injunction preventing the bank from paying. Caught between a rock and a hard place (it being clear that the English court would ignore any Korean court order, Korea being the place neither of the governing law nor of payment), the bank thrashed around for a reason not to pay. It eventually refused on the basis that, payment to an account at SABB was not payment to HSBC and hence the condition was unsatisfied. Waksman J was unimpressed and gave summary judgment for TRS. This he did for two reasons.

First, he said that the generic reference to “HSBC” had to be interpreted to mean HSBC or its associated banks. Not only was this what a reasonable man present at the time of contracting would have understood; it also avoided the awkwardness that would follow from any other answer, which was that the guarantee would have been waste paper from the beginning because it was subject to a condition that could not be complied with. He also added a reference to a further point, often forgotten by busy lawyers, known as the principle of misnomer. If a document referred to an entity by an incorrect name and the reference was not ambivalent between two separate entities, extrinsic evidence was admissible to show which entity was meant. This was the case here.

More interestingly, his Lordship also took the point that the condition in the guarantee was non-documentary, and said that TRS could invoke Art.7 of the URDG, equivalent to Art.14.h of the UCP600, which provides that “[i]f a credit contains a condition without stipulating the document to indicate compliance with the condition, banks will deem such condition as not stated and will disregard it”. The non-documentary condition, he held, simply fell to be excised; from which it followed that even if TRS had failed to comply with it this was irrelevant.

This has always been a matter of controversy, raising the same sort of paradoxical issue as Odysseus’s order to his crew to tie him to the mast as they sailed past the Sirens and to ignore any subsequent commands he might give (they duly disobeyed a subsequent order to untie him, thus assuring his safe arrival in Ithaca). On one argument, parties inserting a non-documentary condition are to that extent contracting out of Art.7 and so the condition still takes effect; but although accepted in Singapore (see Kumagai-Zenecon v Arab Bank [1997] 3 S.L.R. 770), this solution does have the disadvantage of leaving the provision like Cinderella: all dressed up, but with nowhere to go. In the present case Waksman J emphatically rejected it. Even if the UCP and URDG technically became binding on traders by contractual incorporation and were in no way legislative, they were a special kind of instrument not necessarily subject to the ordinary rules of contractual interpretation. And, whatever the logical problems, a court should interpret them so as to give effect as far as possible to all their provisions.

This may not be the last word, especially on Art.7 and its UCP equivalent. It is nevertheless a very sensible word. We at IISTL hope future courts will take it up, amplify and confirm it.

INTERTANKO Covid-19 Clause- Tailor Made Solution to the Pandemic in Voyage Charters

One of the main legal challenges emerging from the ongoing Covid-19 pandemic for shipowners in the context of voyage charterparties is whether a valid NOR can be tendered to enable the running of laytime clock before a “free pratique” certificate is obtained from authorities. Reports suggest that there are significant delays in some ports in obtaining this certificate. Some charterparties might include a “WIFPON” clause (Whether in free pratique or not) and some commentators believe that such a clause removes the need for obtaining a “free patique” certificate so a vessel which is physically ready becomes an “arrived ship” in legal sense of the word. However, as discussed by my colleague Professor Simon Baughen (https://www.youtube.com/watch?v=1wcjbGYwW7o&t=52s) this position has been doubted in a number of authorities (e.g. The Delian Spirit [1971] Lloyd’s Rep 64) although such a finding seems to contradict plain meaning of a “WIFPON” clause.

The most recent clause released by INTERTANKO seems to offer a clarification and much needed certainty for shipowners. If incorporated into the contract, under Clause 2© of the INTERTANKO Covid-19 Clause for Voyage Charterparties, ship owners are able to serve a valid and effective NOR whether or not free pratique certificate has been granted, thereby passing the risk of any delay on to charterers who ordered the chartered vessel to that particular port.

covid
It needs to be noted that the Clause deals with other issues that can arise in ports that are affected from the current situation. Clause 1 enables the shipowner to refuse an order to proceed to a port affected from the pandemic. An interesting point here is that the right to refuse to proceed is left to the reasonable judgment of the owners or master by taking into account whether there is a risk of exposure of the crew or other personnel on board to Codivid-19. From legal perspective, this subjective test means that owners and masters are likely to be given the benefit of any doubt as to the state and condition of the port in question if the matter becomes the subject of litigation at a later stage. Clause 2 is designed to protect the interest of the owners further. For example, by virtue of Clause 2(a) if the chartered vessel sails towards a Coronavirus-affected port, the master can request fresh orders should the level of risk become unacceptable prior to arrival at the load or discharge port. Similarly, Clause 2(b) provides that the chartered vessel may still depart and proceed to a safe waiting place if the risk escalates after the arrival of the chartered vessel at the port and even after the tendering of NOR. Clause 2(d) addresses the issues which arise due to the Coronavirus risk, e.g. quarantine and any delay thereby caused, and indicates that such expenses are passed to charterers.

In addition to risks associated in a port that has been directed by the charterer, the clause goes on to allocate the risk of losses that the vessel might suffer after the completion of the voyage (i.e. in the course of its future employment). Clause 3, therefore, provides:

“Should the Vessel be boycotted, refused admission to port, quarantined, or otherwise delayed in any manner whatsoever by reason of having proceeded to a Coronavirus Affected Area, for all time lost Owners to be compensated by Charterers at the demurrage rate and all direct losses, damages and/or expenses incurred by Owners shall be paid by Charterers. In the event that the Vessel is boycotted, refused admission, or otherwise delayed as stated above within 30 days after having completed discharge under this charterparty, then Charterers are to compensate Owners for all time lost as a result at the demurrage rate in addition to compensating Owners for all direct losses, damages, and or expenses which may arise as a result of the above.”

Front-Shanghai

This is a very bold provision and it essentially offers a protection for owners for a period of 30 days after the completion of discharge under a previous fixture so that any delays or expense under a subsequent fixture will fall to the previous charterer.

Needless to say, the INTERTANKO Covid-19 Clause is rather owner friendly and is designed to apply to this particular pandemic unlike BIMCO Infectious or Contagious Disease Clause for Voyage Charter Parties 2015 which has a much wider application, i.e. the latter can apply in any instance when there is “a highly infectious or contagious disease that is seriously harmful to humans”. That said, the INTERTANKO Covid-19 Clause offers a tailor made solution to the legal and practical problems facing the sector at the moment and no doubt some owners might be able to slip it in their charter agreements!

Gaps in the Limitation Regime

Whilst the adoption of the 1976 Limitation Convention has brought much clarity to the implementation of limitation rights, it is not a complete code and there are a number of important issues that are not regulated by the Convention and which are left to be determined by the lex loci of the place where the fund is constituted. Article 14: Governing Law, of the Convention specifies that:

“Subject to the provisions of this Chapter the rules relating to the constitution and the distribution of a limitation fund, and all rules of procedure in connection therewith, shall be governed by the law of the State Party in which the fund is constituted”.

In the recent case of As Fortuna Opco BV and another v Sea Consortium Pte Ltd and Others[1] the Singapore High Court has given helpful guidance in relation to two such issues.

The Supreme Court Building, Singapore (where CA and HC cases are heard)
  1. Limitation fund interest

Article 11 of the Convention specifies that a limitation fund should include interest “from the date of the occurrence giving rise to liability until the date of the constitution of the fund” but makes no provision for subsequent interest. This is, presumably, since the fund has traditionally been established by way of deposit and it was assumed that the fund would continue to earn its own interest thereafter in accordance with the law of the country of deposit. However, this assumption has been undermined by the fact that the courts of (at least some) countries[2] are now prepared to allow a limitation fund to be established by the provision of security in the form of a guarantee or P & I letter of undertaking (LOU) if satisfied of the sufficiency of that security[3]. In such circumstances, a fund constituted by a LOU would not automatically earn interest during the period of its currency.

In the As Fortuna Opco case the parties agreed that:

  • the LOU should include interest from the date of the incident to the date of the constitution of the fund at the same rate as that which would have applied if the fund had been constituted by payment into court; and that
  • provision ought to be made for post-constitution interest where a limitation fund is constituted by way of a guarantee or LOU.

The Convention itself does not specify what rate of interest should apply to the constitution of the fund. Accordingly, the rate is to be determined pursuant to Article 14 in accordance with the law of the place where the fund is constituted. In the case of the UK the relevant rate is that specified by the Secretary of State in the Merchant Shipping (Liability of Shipowners and Others (New Rate of Interest) Order 2004. i.e. one per cent more than the base rate quoted from time to time by the Bank of England. Since there was no equivalent legislation in force in Singapore, the Singapore court held that the pre-constitution interest rate should be that which corresponded to the statutory interest rate on judgement debts in Singapore, namely 5.33%.

However, the parties disagreed regarding the rate of post-constitution interest. The ship owners argued that the rate should approximate that which would actually be earned by a payment into court, which they considered to be 2%. However, the cargo interests argued that a fair interest rate should be that which applied to the pre-constitution period (i.e. 5.33%) since by not making a payment into court, the ship owners would gain an advantage by their ability to benefit from the higher interest rate that the money could probably earn on deposit in the open market.

In determining this issue the court was guided by the fact that article 11.2 of the Convention provides that the guarantee or LOU should be “acceptable under the legislation of the State Party where the fund is constituted and considered to be adequate by the Court or other competent authority” . In considering what is “acceptable” and/or “adequate” the judge held that:

“…it should place the claimants in a position no worse than if the limitation fund had been constituted by payment into court. I therefore considered that an LOU ought to make provision for post-constitution interest at a rate which approximates the interest which could be earned on a limitation fund paid into court during the period that the fund remains in court.”

The court also opined that since the ship owners were entitled under the Convention to establish a limitation fund by the provision of a guarantee or LOU rather than by a payment into court, the court’s role was to ensure that the claimants against the fund should not be in a worse position in such circumstances. However, provided they were not put in a worse position, there was no reason why the court should restrict any benefit that the ship owners might incur as a result of proceeding in this manner. Consequently, having made enquiry as to the rate of interest earned previously on moneys paid into court pursuant to other types of proceedings, held that the appropriate post- constitution interest rate should be 2.5%.

  • Limitation proceedings Costs

The fundamental principles relating to the allocation of costs in a limitation action brought under the 1976 Convention were described by Clarke J in the “Captain San Luis”[4] At pages 578-9 of the judgement the judge emphasised the difference that has been brought by Article 4 of the 1076 Convention as follows:

“There is a radical difference between the case where the shipowner must prove that the damage occurred without his actual fault or privity before he is entitled to a decree and the case where the shipowner is entitled to a decree unless the claimant proves either that he intended to causethe loss or that he acted recklessly and with knowledge that damage would probably result.”[5]

He then went on to conclude:

“a fair balance is struck between the parties if it is held that the shipowner must pay the costs of proving those matters which he must prove in order to obtain a decree and that the claimant must pay the costs of investigating and determining the facts which the Convention provides that he must prove if, at the end of the day, he fails to establish those facts.

However, the Captain San Luis was a case in which the shipowner’s right to limit was contested and in the As Fortuna Opco case the Singapore High Court considered allocation of costs in a case in which the right to limit was uncontested. Having distinguished the Captain San Luis on this ground he court made the following detailed order:

36 “In the light of the foregoing discussion, the following principles should apply to costs of uncontested limitation decrees:

(a) The shipowner should pay the claimants’ costs in relation to those matters for which the burden of proof lies on the shipowner. These would include establishing the shipowner’s prima facie right to limit liability pursuant to Arts 1, 2 and 3 of the 1976 Convention and determining the limitation amount pursuant to Arts 6 and 7 of the 1976 Convention. Where an LOU is used to constitute the limitation fund, it will also include establishing the LOU’s adequacy and acceptability.

(b) In respect of matters for which the burden of proof lies on the claimant (eg, facts required to break limitation pursuant to Art 4 of the 1976 Convention), while the claimant is entitled to seek and be given such information as to enable it to decide whether or not to dispute the shipowner’s right to limit its liability, each party should bear its own costs in this regard.

(c) Where an application for discovery is made pursuant to O 70 r 37(6), the costs of such discovery application should follow the event.

(d) The foregoing principles are subject always to costs being in the discretion of the court.

37 For the foregoing reasons, I ordered the Plaintiffs to pay the Defendants’ costs in relation to:(a) the establishment of the Plaintiffs’ prima facie right to limit liability pursuant to Arts 1, 2and 3 of the 1976 Convention;(b) the calculation of the size of the limitation fund; and(c) the consideration of the adequacy and acceptability of the draft LOU”

Such clarification is sensible and welcomed albeit that there may still inevitably be cases in which the demarcation line between the various heads of costs will be blurred.

The Captain San Luis
  • The cost of providing the fund

A more complex problem which was not considered in the As Fortuna Opco case arises in relation to the cost of establishing a limitation fund particularly where that fund has to be established in the form of a cash deposit or guarantee.

Article 11 of the Convention provides that:

“Any person alleged to be liable may constitute a fund”

and that

“A fund constituted by one of the persons (that are entitled to limit pursuant to Article 1) or his insurer shall be deemed constituted by all (such) persons…

In most cases the fund will be established by the shipowner since that is the “person” that is most vulnerable to arrest. However, once established, the fund will be available to protect the interest of any of the other “persons” that are entitled to limit pursuant to Article 1. For example, cargo claims may be brought against both ship owners and charterers and charterers may wish to limit their liability by relying on a limitation fund that has been constituted by the ship owners.

David Steel J, observed at first instance in the “CMA Djakarta”[6] that whilst the Convention provides expressly that the limitation fund would protect the “common exposure” of the various parties that were defined under the rubric of “shipowner”:

no provision is made for allocation of the cost of putting up the fund among the members of the class.”

and again at para 60:

“Not only are questions of responsibility for supplying funds outside the convention…”

Therefore, how is the cost of providing and subsequently administering the fund to be allocated if it is proved in due course that parties other than the “person” that has constituted the fund seek to take advantage of the fund either wholly or partly in order to limit their liability? Since the Convention does not regulate this issue it is presumably to be determined pursuant to article 10 in accordance with the law of the forum, and the answer to the problem may, therefore, differ depending on what that law provides.

If the issue were to be determined in accordance with the law of England and Wales it may be that the most fruitful avenue to follow is the law relating to unjust enrichment. In a nutshell, there is unjust enrichment when one person acquires a benefit at the expense of another in circumstances which are unjust and is required to make restitution to the person that has provided the benefit.

In the case of Benedetti v Sawiris[7] the Supreme Court held that four factors must usually be established in order to establish a case of unjust enrichment, namely:

  1. the defendant has been enriched; and
  2. this enrichment is at the claimant’s expense; and
  3. this enrichment at the claimant’s expense is unjust; and
  4. there is no applicable bar or defence.

The provision of a limitation Fund that is intended to protect the interests of “persons” other than those of the ship owners is likely to satisfy requirements 1 and 2. However, requirements 3 and 4 may be more difficult to justify.  On the one hand, it was held in Owen v Tate[8] and McDonald v Coys of Kensington (Sales) Ltd[9] that the person that has benefitted need not have specifically requested the benefit and it is sufficient that he has freely accepted the benefit.

However, it may be argued that by electing to establish a limitation fund, the ship owners do so fully appreciating and accepting that such a fund will automatically benefit not only them but also all the other “persons” identified in articles 9 and 11.3 of the Convention and that, consequently, although there is enrichment of such “persons”, there is no ”unjust” enrichment. Or, to make the same point differently, it cannot be said that the enrichment is “unjustified” if it is simply a voluntary bestowal of a benefit.

Nevertheless, it is noteworthy in this regard that Scarman LJ said the following in Owen v Tate:

“The fundamental question is whether in the circumstances it was reasonably necessary in the interests of the volunteer or the person for whom the payment was made, or both, that the payment should be made – whether in the circumstances it was “just and reasonable” that a right of reimbursement should arise.”

The underlined words would seem to suggest that there is a case for unjust enrichment even if the relevant voluntary act benefits the volunteer as well as the receiver of the benefit.

The concept that since there is a “common exposure” and a “common interest” of all “persons” that are entitled to limit, such “persons” should share the cost of providing the fund  was emphasised by David Steel J at first instance in the “CMA Djakarta”[10]:

“These provisions are only consistent with all those identified as within the class of shipowner having a common potential exposure to the relevant claims and a common interest in funding the limit of liability,…”

 Furthermore, given the references to, the “just result” and the “fair balance” for allocating costs that was adopted in the “Captain San Luis”, it would appear that a creditable argument could be raised to satisfy criteria numbers 3 and 4.


[1] (2020) SGHC 72

[2] The Court of Appeal of |England and Wales recognised the sufficiency of a limitation fund established  by a P and I letter of undertaking in the case of the “Atlantic Confidence”

[3] For a more detailed commentary see Chapter 10 entitled “Limitation of Liability: Recent important developments in the United Kingdom other common law jurisdictions” of Maritime Liabilities in a Global and Regional Context, Informa 2019

[4] (1993) 2 Lloyd’s Rep 573.

[5] (1993) 2 Lloyd’s Rep 573 at 578-9

[6] (2003) 2 Lloyd’s Rep. 50

[7] (2014) AC 938

[8] (1976) QB 402

[9] (2004) EWCA Civ 47

[10] At paragraph 45

COVID-19: An Occupational Disease?

On April 28, 2020, the global trade union movement urged governments and occupational health and safety bodies around the world to recognise SARS-CoV-2 as an occupational hazard, and COVID-19 as an occupational disease.

In practice, this means that the employer’s duty to take reasonable measures to protect the health and safety of their employees will cover COVID-19 related risks. Furthermore, it means that employees will be able to benefit from compensation schemes provided for those injured, or the dependants of the deceased, whenever there has been injury or death due to work-related accidents or occupational diseases.

Recognising COVID-19 as an occupational disease will be crucial to ‘key workers’, such as seafarers. For that it will ensure that adequate preventive measures are adopted and, if they contract COVID-19 at work, that existing compensation and liability regimes remain applicable.

The murky world of anti-suit injunctions — with a new twist

When it comes to remedies in international litigation, what matters in most cases is not whether the court can give them, but when it will. The point is nicely illustrated in a decision yesterday from Cockerill J about anti-suit injunctions (see Times Trading Corporation v National Bank of Fujairah [2020] EWHC 1078 (Comm)). Essentially the issue was this. A person who sues abroad in blatant breach of an arbitration or jurisdiction agreement will be enjoined almost as of course on the basis of The Angelic Grace [1995] 1 Lloyd’s Rep 87 and Donohue v Armco Inc [2002] 1 All ER 749. But what if this is not so (for instance, where the injunction defendant is an assignee, or where the existence of a direct contract between the two is controverted)? Jurisdiction is not in doubt: but does the ASI run almost as of course as before, or does the person seeking it have to jump the fairly high hurdle of showing oppression? Cockerill J plumped for the former solution.

To over-simplify, a cargo of coal carried in the 57,000 dwt bulker Archangelos Gabriel was delivered without production of the bills of lading, which were held by NBF, a Fujairah bank financing the buyer. It was common ground that the bills incorporated a London arbitration clause. NBF, mindful that the twelve-month Hague-Visby time-bar expired in June 2019, intimated a claim to the vessel’s owners R in December 2018; they issued in rem proceedings in Singapore in January 2019 and served them ten months later. In addition they issued arbitration proceedings in London against R in June, just within the time-bar. Then came a bombshell: after some procedural skirmishing R alleged with considerable plausibility that the vessel had actually been bareboat chartered to T, with which it seemed to have fairly close relations, and that the relevant bills, issued on behalf of the master, were charterers’ bills and not theirs.

Caught on the hop, and with a claim against T now out of time, NBF made it clear that they would add T to the Singapore proceedings and attempt to add them as a respondent to the London arbitration. T, fairly confident that it could resist the latter attempt, sought an ASI to prevent continuation of the Singapore proceedings against it, relying on the arbitration clause.

Had it been admitted that T and NBF were both party to a contract containing the arbitration clause, the case would have been easy: but it was not. However incongruously given its claim against T in Singapore under the bill of lading, in London NBF put in issue the question whether T was party to that document at all. Was this a case where the ASI should normally run as of course? T said it was: NBF that it was not. Having discussed the authorities, Cockerill J fairly unhesitatingly supported T’s position. The claim for the ASI here was “quasi-contractual” in the same way as if the injunction defendant were an assignee of some sort seeking to enforce an obligation without respecting an arbitration clause in it (as in cases like The Yusuf Cepnioglu [2016] 1 Lloyd’s Rep 641); true that here the claim was that T rather than NBF was a technical third party, but that was irrelevant. And in all such cases, she said, the rule in The Angelic Grace [1995] 1 Lloyd’s Rep 87 applied. And rightly so in our view; what should matter in international litigation cases is a clear illegitimate attempt to make an end-run around a clear contractual arbitration or jurisdiction clause, not technical questions of rights to enforce, or duties to perform, a particular contractual obligation.

Not that this mattered in the event. Had push come to shove, her Ladyship would, in a no-nonsense way reminiscent of Bertie Wooster’s Aunt Agatha, have decided T was the carrier under the bill of lading and so applied The Angelic Grace anyway (see at [80]). But that is beside the point for our purposes.

We should add the final twist to the story. In the event T’s victory on this point was for another reason entirely Pyrrhic, the only gainers being the lawyers. NBF had acted fairly reasonably in proceeding against R, and T’s merits were not entirely sparkling. In the circumstances the judge, while clearly willing to injunct NBF, did so only on terms that T would not take any time-bar points in the London arbitration. Ironically these were exactly the terms on which NBF had offered to discontinue the Singapore proceedings in the first place. But at least we now know that their judgment was right; and in addition we have some very useful clarification on the subject of ASIs generally.

Understanding the Oil Crisis: Why Did Prices Fall Below Zero?

Anyone watching the news last week will have heard about ‘negative’ oil prices and producers paying people to take their oil off their hands – but what exactly does that mean, and how was it caused?

For starters, it’s a case of applying the basic economic principle of supply and demand. There is currently too much oil and nobody wants it. The reason for the latter is easy enough to identify: Covid-19 and the ensuing global shut down. People aren’t leaving their homes, no one’s flying anywhere, bulk products aren’t being shipped across the globe, factories aren’t running. Demand for oil has dried up. Oil production, however, has not, and aside from the obvious explanation of it being very difficult (sometimes impossible) and very expensive to turn off the tap, there are actually several other, complex reasons for why prices fell so drastically:

BAD TIMING AND GLOBAL POLITICS:

Covid-19 hit while global oil production was already high.

As a result of the development of fracking and shale oil in the USA over half a decade ago, there has been a glut of oil permeating the market. This (amongst other reasons) led to a significant downturn in prices in 2016 and as a result, the Saudi led OPEC – a legal cartel which aims to stabilise global oil prices – cooperated with several non-OPEC states (most notably Russia) to co-ordinate production cuts in order to counter the increase in American oil exports, and thus raise oil prices to a more stable, economic level. This alliance (known as OPEC+) fell apart once Covid-19 hit China. The Chinese shut down caused a major drop in the demand for oil and triggered a summit where OPEC agreed to further cut production, requiring also that OPEC+ members follow suit. Russia, however, refused. The official stance was that they wanted to wait for a better understanding of the pandemic before taking action. They also argued that there was already a shortfall as a result of political issues in Libya, which would help to offset the slump in prices.

Many analysts believe that Russia’s unwillingness to cut production was due in large part to it being disgruntled towards the United States, who have been one of the main beneficiaries of the OPEC+ cuts over the past four years (since they have had no such limitations on their production). Political relations between the two states have also not helped matters, especially with Trump’s general propensity for using oil as a political weapon against states and in particular the US sanctions targeting the building of the Russian Nord Stream 2 pipeline.

In retaliation for their lack of cooperation, Saudi Arabia then initiated an unexpected price war against Russia, turning on their taps and causing another massive drop in prices.

Making Sense of the Saudi-Russian Oil War

Meanwhile, producers in the United States kept producing in spite of the slump, even reaching record output highs in March 2020 – this seemed clearly counter-intuitive, not least because the US’ development of shale oil moved it from being one of the world’s largest importers to being the world’s biggest exporter (and thus it benefits far more from higher oil prices). The problem was twofold: one, production costs in the US are generally much higher than those found in rival, Middle Eastern states, and two, many American companies had secured billions of dollars’ worth of debt finance over the past few years to fund their increase in production. They simply could not afford to slow down.

The drop in market price quickly hit so low, however, that US ventures became commercially unfeasible and had no alternative but to begin shutting down operations. As a result, in early April the US, Russia and OPEC agreed to a deal to cut production. This agreement, while historic, seems to have done almost nothing to assure the market in the face of a global shut down – with many considering it too little, too late: there is a substantial amount of excess oil already on the market and even when quarantine restrictions are lifted, it will be some time before demand catches up to match/exceed supply.

A LACK OF STORAGE AND THE MAY FUTURES

At this point it is worth briefly explaining the two main oil grades which are used to set the majority of the world’s crude oil prices: Brent Crude and West Texas Intermediate (WTI). The former sets the prices of approximately two thirds of the global market, but WTI is produced in the US and is the US benchmark. It is this latter one which fell into negative prices – and while both Brent and WTI tend to move in lockstep (with Brent also having dropped to its lowest figures in over two decades) there were additional incidents relating to WTI which exacerbated the situation.

The other thing worth explaining quickly is the concept of a futures contract (often simply referred to as ‘futures’). Futures themselves are standardised, regulated, derivative financial contracts that oblige parties to transact a good at a specified price (‘strike price’) on a future date, with their specifications allowing market participants to trade them uniformly: each oil futures covers 1,000 barrels; dates for delivery are available up to nine years later; and title is officially transferred with the physical movement of the oil. They provide certainty for those who wish to sell or purchase crude physically (and who also need time to actually produce the oil/prepare to receive it), since the parties are able to contract with set, pre-determined prices that will not change based on the naturally volatile market price at the date of delivery (contracting for this purpose is known as ‘hedging’).

On the other hand, traders make a profit (and equally risk suffering losses) through market fluctuations. Some might retain the futures contract until it expires, requiring them to take delivery (these are usually traders who buy/sell for industry-related clients, such as producers or refineries), but most traders have no intention of doing so and instead sell the contracts forward to take advantage of the (hopefully) higher contango prices (i.e. when the price of futures is higher than the spot price) on later-dated contracts.

The vast majority of crude oil transactions take place via futures, but that does not mean the spot market (where trading for large, one-off transactions for near-term delivery takes place) should be underestimated, in fact it is vital: reported prices on the spot market are the basis of pricing for other forms of transaction, including futures. Additionally, as the expiration date of a futures contact approaches, it should become more liquid and the price should quickly begin to converge with the spot price.

The May futures for the WTI market were due to expire (and did) on Tuesday 21 April 2020 (the final day of trading for May). When that happened, whoever was still holding a futures contract would obliged to take physical delivery of the goods. Traders who had initially held off selling futures for this month began to panic as they realised their mistake: when futures are so close to expiration the only interested buyers tend to be companies who might otherwise have purchased oil on the spot market, i.e. they want to take possession of the oil and use it relatively quickly (like airlines, refineries etc.) Due to the glut, the earlier drop in prices and, most significantly, the sudden plunge of demand due to Covid-19 (which also severely weakened the spot market), these kinds of buyers for futures had dried up, and any who were willing to purchase the futures realised that they could take advantage of the situation by waiting until prices fell even further. Exacerbating the situation were the bulk exchange-traded fund rollovers (see below) and a lack of storage space (which continues to be a problem) – most notably in the terminals of Cushing, Oklahoma.

Cushing OK would be a tiny, inconsequential city (population: 8,000), were it not for the fact that it is the delivery point for WTI crude (and thus the pricing point for WTI futures). It is also where several main oil pipelines converge, essentially making it a key transhipment location between producers and refineries in the southern Gulf coast and buyers in the north. At full capacity (its current state) it stores up to 76 million barrels, which is over 10% of all US oil storage space.

Unlike Brent, which is a waterborne crude and does not suffer the same storage constraints (ships, after all, can come and go – to an extent), WTI is mostly onshore, with Cushing itself being a landlocked location in the centre of the United States. With the surplus in oil already filling the terminals there, not only were traders afraid of being forced to take delivery once the futures expired, they also realised they would have nowhere to store any of it (analysts have likened the situation in Cushing to a clogged bottle neck or traffic jam).

Main oil terminals and pipelines in the USA

With the obligation to take delivery looming, those who still had May futures began paying companies to take the oil off their hands. The price they paid was calculated by what the buyers’ projected storage, insurance, transport costs etc. would be to do so. This was ultimately what dropped the WTI benchmark to below zero.

ETFS AND THE UNITED STATES OIL FUND

As the price war between the Saudis and the Russians drove prices low, it was natural to assume that this was an ideal time to invest in oil (based on the premise that crude prices will rise again since economies will, inevitably, have to reopen). This kind of thinking is not necessarily wrong but, as is the case with any financial investment, would-be venture capitalists should always undertake their due diligence before investing their money. Many didn’t and a great number of bullish speculators unfamiliar with the market (colloquially referred to by some as ‘oil tourists’) pumped over one and a half billion dollars into the United States Oil Fund (‘USO’), the largest exchange-traded fund (‘ETF’) in America (typically, ETFs are companies which use pooled investor money – similar in concept to a mutual fund – to invest in stocks, bonds and other assets). The USO ETF is designed specifically to follow price movements of WTI futures and, if futures are within two weeks of expiration, it will roll over the front month contracts to the second front contracts (this means that, when futures approach the expiration date they will be sold and the next month’s contracts purchased, usually simultaneously, thereby avoiding taking delivery). The USO is not a direct bet on oil prices and it incurs costs when it rolls its futures over. Not many of its new investors were aware of any of this.

The massive increase in investment quickly made the USO ETF one of the biggest players in the WTI market: according to a Bloomberg report, over the course of the last few months it held almost 30% of all WTI May and June futures. With such a huge and sudden injection of cash for the May futures (amidst the events which led to a crash in demand for oil) their prices swiftly rose; but then the USO sold all their May futures during their mandated rollover, buying June and July ones instead. When that happened, prices for the May futures dropped and, accordingly, they rose for June and July. Any traders left still holding May contracts suddenly found themselves in a state of trouble (see above) and when the market opened there was a huge differential in spread.

As an interesting side note, one of the companies that suffered unexpectedly from the USO’s actions was the Bank of China, which had pre-set the date to roll over its May WTI futures as the day before expiration (unlike other Chinese banks which had rolled over earlier in April). Specifically it was scheduled for Monday 20 April at 10:00 (ET), which was when the May futures were still trading at US$0, but the lack of demand (and thus liquidity) meant they took losses anyway. It’s unclear how many May futures they had to sell, but they suspended trading the next day and there was a flurry of angry investors on various Chinese social media platforms claiming that as a result of the day’s events they owed the Bank of China money (despite investors being forbidden from borrowing money to buy Bank of China funds). Additionally, Bloomberg reported the Bank’s oil related funds suffered losses of 600 million yuan.

WAS THIS A ONE OFF?

To a certain extent WTI prices dropping to such unprecedented levels was the consequence of a perfect storm of unfortunate events and it is therefore not unreasonable to conclude what happened was a localised, one-off incident. Having said that, until (at the very least) the storage issue is resolved we’re likely to continue seeing massive fluctuations in price. Case in point: S&P Global has instructed its clients to roll over all their WTI June futures into July to avoid What they believe will be a second plunge below zero for this front month. In doing so, June futures have now suffered a drop in prices and at the time of writing, almost 50% of them have been liquidated. July and September prices are more stable, but they will almost certainly fall into the same pattern until the global economy starts moving again, or at least until storage space is opened and the planned international production cuts reduce global supply to meet demand.

One recent idea to help alleviate the US glut – at least from a national perspective – was for the American government to purchase a large amount of the excess oil. It would do so via the Strategic Petroleum Reserve (‘SPR’), which is an inland oil reserve holding the largest supply of petroleum on the planet. The oil is owned and stored by the US government specifically with the aim of reducing disruptions in American supplies (the idea was conceived in the 1970s when the US suffered from an oil embargo resulting from difficulties in US-Arab relations). As and when it is deemed necessary by the President, the stored oil is released at a competitive rate, to avert potential short term crises (petroleum has been released, successfully fulfilling the SPR’s purpose, on a number of occasions in recent history).

The SPR currently has almost 80 million barrels’ worth of spare storage, and considering all oil purchased for the SPR is paid for with taxpayer’s money, it seemed economical to take advantage of the rock bottom prices. The Trump administration instructed the Department of Energy to start purchasing the oil in March 2020, but was made impossible when Congress refused to include funds for them to do so when they passed their most recent stimulus package (with federal funds channelled to areas of higher priority, given the effects of Covid-19 and the resulting shutdown).

Instead the government has decided to lease 23 million barrels’ worth of space to private oil companies. This will certainly help but the other factors remain unresolved, which means this might not be a one-off, but it’s hoped the lesson of what happened with the May futures will at least mitigate some of the volatility.

COULD THIS HAPPEN TO BRENT?

The fact that this happened to the American WTI benchmark, which has arguably less global influence than Brent does, and that the situation was exacerbated by the uniquely acute inland storage issue there, would suggest that this is a concern for the United States only. Brent, however, has already been affected by the fallout from the Covid-19 crisis, but the good news is it’s unlikely its prices will fall to the same extent that they have for WTI.

The Economist explains - What is Brent crude? | The Economist ...

First, Brent futures are somewhat different in that they’re for cash, not physical, settlement, unlike WTI (physical settlement requires physical delivery of the crude once the futures expires, but with a financial settlement contract, the holder is merely either credited/debited the difference between their entry price and the final settlement). Secondly, Brent is a waterborne crude, with its pricing being based heavily on the Dated Brent index, which in turn bases its prices on crude from terminals at various coasts along the North Sea.

Using the North Sea as the primary location for which to base prices has its advantages: production there has been seeing a slow decline over the past few years (although prior to the pandemic, one of the terminals withdrew its plans to shut down for maintenance, which would actually push the North Sea supply to some of its highest levels in nearly a decade). Additionally, the North Sea terminals, unlike those in landlocked Cushing, have the infrastructure to allow for tankers to take delivery of the crude oil (i.e. they can take it away). As a result, Brent hasn’t suffered from the same storage-induced panic felt by the WTI traders in April – although that doesn’t mean it hasn’t suffered at all, there is still a global glut and therefore a storage issue that isn’t likely to improve until the agreed OPEC+ and US production cuts kick in, and even then the effects won’t be felt immediately. In the meantime, there are global reports that oil is being stored in every conceivable space, from the more conventional salt mines and caverns, to disused railcars.

Storage space if filling up fast, everywhere, the North Sea terminals have nowhere near the capacity that Cushing does and things might also be made worse if there were to be a sudden influx of cheaper, American produced ‘Brent-style’ crude flooding into Europe (indeed, why wouldn’t American companies sell to Europe and alleviate their storage issue? And being cheaper than Brent is currently, why would European companies choose not buy it?)

Of course, tanker owners have benefitted from this: the cost of chartering a VLCC has temporarily skyrocketed, with some shipowners set to experience their best quarters in history (which is welcome relief after the Covid-19 shutdown and the ensuing drop in demand for oil caused a massive slump in freight rates). How have companies been able to pay for this? The contango market has meant that oil prices have fallen faster on the spot market than the futures market (see above), in doing so, traders have been able to finance their storage by buying oil on the cheap in the spot market and then make a profit on it by selling it for higher prices in the futures market (for back month contracts).

Things, however, do seem to be looking up for Brent: in the past week prices have begun to rebound as global lockdowns and travel bans have slowly eased, but the fact still remains that the OPEC+ and US deal came too late. The lowest dip in the world’s demand for oil might be behind us, but the surplus is already out there and until the market can find that balance between supply and demand again, prices aren’t going to get much higher. The only saving grace producers – especially smaller and medium sized companies – will have, is to obtain a solid offtake agreement with a company that has a strong credit rating and a sure way of disposing of the oil… good luck getting one of those in this economy.

Security clauses in charters — by hook or by crook they will be enforced

Behind Teare J’s decision today in Trafigura Maritime Logistics PTE Ltd v Clearlake Shipping PTE Ltd (Rev 1) [2020] EWHC 995 (Comm) lies a fairly standard series of shipping lawyer’s nightmares.

Trafigura time-chartered the Miracle Hope, a big (320,000 dwt) VLCC, from Ocean Light. They voyage-chartered her to Clearlake and Clearlake sub-voyage-chartered to Petrobras, both charters being back-to-back under Shellvoy 6. Petrobras demanded that the cargo be delivered without production of the bill of lading; the demand was passed up the chain and the cargo (worth, before the recent oil debacle, something over $70 million) released.

Thereupon Natixis, a Dutch bank which had financed Petrobras’s buyers, emerged brandishing a bill of lading apparently issued by Ocean Light, demanded the value of the cargo, and arrested the ship in Singapore. Ocean Light immediately demanded an indemnity from Trafigura: Trafigura, relying on a duty in the charterer in such cases to “provide an LOI as per Owners’ P&I Club wording”, demanded an LOI from Clearlake and Clearlake did the same from Petrobras. Following clear practice (e.g. The Laemthong Glory [2004] EWHC 2738 (Comm); [2005] 1 Lloyd’s Rep. 632), Henshaw J granted mandatory orders down the line requiring the charterers to provide such bail or other security required to secure the release of the vessel.

Unfortunately at this point problems arose. Clearlake and Petrobras negotiated with Natixis; the result was deadlock. Furthermore, owing to the worldwide contagion the Singapore courts could not break the deadlock for some weeks. And, of course, all the time the Miracle Hope was mewed up in Singapore: something which, with tanker hire rates now sky-high, would not do.

In other words, Henshaw J’s order was unworkable. As a result the matter came back to the Commercial Court. To order the provision of a guarantee satisfactory to Natixis would be unsatisfactory: furthermore, since the matter was likely eventually to reach the Singapore courts, it risked prejudging the issue in that forum.

The solution reached was workmanlike. The court had to do something. Security to obtain the release of a vessel could take the form of a payment into court; and, faute de mieux, Teare J ordered just that. Clearlake and Petrobras were ordered to arrange for payment into the Singapore court of $76 million within 8 days, no doubt with Petrobras bound to indemnify Clearlake, who in the circumstances were little more than piggy-in-the-middle. If this was necessary to secure the release of the vessel, this would be what was ordered.

And rightly so, in our view. As the title of this blogpost implies, an obligation to secure the release of a vessel has to be given effect. As with Coronavirus, so with the release of a ship: it is a case of doing all that it takes. Even if that takes a slightly unorthodox form.

Brexit and civil jurisdiction. EU unlikely to consent to UK joining the 2007 Lugano Convention in time for the end of the implementation period.

 

Once the news was all “Brexit, Brexit, Brexit”. Halcyon days. Now it is nothing but the public health emergency. Except, there are still a few pieces of news about Brexit. One of which concerns the arrangements for civil jurisdiction and enforcement of judgments between the UK and the EU Member States after 1 January 2021.

Absent an agreement with the EU on jurisdiction, the UK will revert to its common law rules on jurisdiction on 1 January 2021. This assumes that the UK does not avail itself of the opportunity under the EU Withdrawal Agreement to seek an extension to the implementation period by the end of June, something Mr Johnson has repeatedly stated he will not do, and something which has been specifically ruled out in the statute implementing the Withdrawal Agreement. But there are two other civil jurisdiction regimes to which the UK can become a party, and that is certainly the government’s intention.

The first is the 2005 Hague Convention  on Choice of Court Agreements 2005 (Hague Convention), which came into force as between the Member States and Mexico on 1 October 2015 (for intra EU matters the Recast Regulation prevails).  The Convention deals with exclusive jurisdiction clauses in favour of a Contracting State and for recognising and enforcing judgments within Contracting States in respect of contracts with such clauses. The Convention does not apply to contracts for the carriage of goods ( bills of lading and voyage charters) or passengers, although it would apply to time charters and demise charters. The EU has exclusive competence over anything jurisdictional, and agreements with third party states must be made by the EU acting on behalf of the Member States – hence it was the EU that ratified the 2005 Hague Convention and not the Member States. The UK government previously submitted its accession to this back in December 2018, to come into effect on ‘exit day’, but this has, for the time being, been withdrawn. Doubtless it will re-accede in September to allow for the UK to join the Convention in its own right as of 1 January 2021.

The second is the 2007 Lugano Convention between the EU and three third states, Norway, Iceland and Switzerland. This is basically the original 2001 Brussels Regulation, an inferior regime to the 2012 Recast version, but better than nothing. On 8 April the UK applied to join the Lugano Convention. For this to happen the consent of all the existing contracting parties must be forthcoming. The three third states seem quite happy about this but what about the EU? The signs are that it is not going to consent to the UK’s application.

An article in today’s FT states “EU diplomats said the European Commission had advised the bloc’s member states earlier this month that a quick decision was “not in the EU’s interest”. The diplomats said the commission raised the issue during a meeting with EU member-state officials on April 17, saying that granting the request would be a boon for Britain’s legal sector. A commission official told the meeting there were other international rules that Britain could use as a fallback, and that current signatory countries were all part of the EU’s single market, the diplomats said. With the UK determined to leave the single market after the transition expires, the commission “will surely not make a positive recommendation,” said one national official who took part in the meeting.”