Jan, 2018. Maritime Digest of Arbitration Awards and Court Rulings

Toptip Holding Pte Ltd v Mercuria Energy Trading Pte Ltd and Another (The “Pan Gold”) – Court of Appeal (Sundaresh Menon CJ, Andrew Phang Boon Leong and Judith Prakash JJA) SGCA 64 – 23 November 2017

REPUDIATORY BREACH – CHARTER PARTY – EXISTENCE OF A COMPLETED CONTRACT – PRO FORMA CHARTER PARTY – COURT OF APPEAL The claimant charterer filed damages against defendant disponent owner for repudiatory breach of a charter party. The defendant argued that the presence of a Subject Review clause implied no formal contract existed. optip Holding Pte Ltd (hereinafter, “Toptip”) as charterer claimed damages against Mercuria Energy Trading Pte Ltd (hereinafter, “Mercuria”) as disponent owner for repudiatory breach of a charter party. Toptip claimed for the difference in freight rate between the charter party with Mercuria and the substitute charter party. The...
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London Arbitration 2/18

SALE OF GOODS (CFR) - DEMURRAGE - TIMELY PAYMENT OF FREIGHT - OBLIGATIONS UNDER SALES CONTRACT VS UNDER CHARTERPARTY - OWNERS REFUSING TO RELEASE BILLS OF LADING UNTIL FREIGHT PAYMENT The CFR Sellers brought arbitration against their Buyers in order to indemnify themselves for demurrage caused by the Buyers delaying payment of the Owner’s freight.  Sellers argued that it was the Buyer’s responsibility to pay freight promptly under the contract. The Buyers countered that the obligation to pay freight accrued under the Seller’s charterparty, and therefore it was the Seller’s responsibility.  
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London Arbitration 3/18

VOYAGE CHARTER - DEMURRAGE – TIME BAR – VALID NOTICE OF READINESS – FAILURE TO PROVIDE CARGO Charterer cancelled a voyage charter party after failing to provide cargo. Owner claimed demurrage and damages from the alleged repudiatory breach.  Charterer countered that the claim was time barred, the Vessel’s NOR was invalid, and the damages if awarded, should be basis the C/P’s lowest freight option.
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Macsteel International USA Corp. v. Inter Merchant Marine Co. Ltd. – SMA 4322, 14 Aug 2017

PARTIAL FINAL AWARD - ARREST AND ATTACHMENT OF VESSEL - MARITIME LIEN - DEFAULT IN HIRE - UNSEAWORTHY The vessel was denied entry into a prior port for other charterers’ accounts which subsequently delayed her arrival at charterer’s disport. The panel was tasked to determine the party at fault for the delay and whether demurrage and other damages for barges awaiting the vessel at charterer’s disport for transshipment purposes were to be considered as consequential.
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London Arbitration 25/17

TIME CHARTER - VESSEL’S CONDITION UPON REDELIVERY - BREACH OF CHARTER When Charterer sat the Vessel at an equatorial port for 35 days, the Owner claimed underperformance damages incurred under a subsequent fixture and the cost to clean the hull.
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London Arbitration 23/17

DEMURRAGE - OIL SPILL - FORCE MAJEURE - PROCEED THERETO - REACHABLE ON ARRIVAL - ARREST OR RESTRAINT OF PRINCES - BPVOY3 Before the vessel’s arrival at port, a vessel at the vessel’s intended berth had an oil spill which delayed the vessel once she arrived at the port.  Charterer argued to split the delay 50/50 wherein owner stated that BPVOY3’s “proceed thereto” was to be read as “reachable on arrival”, the spill was not an exception, and the prior vessel’s arrest was not an “arrest or restraint of princes, rulers or people”.
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MT “Cape Bonny” Tankschiffahrts GmbH & Co KG v Ping An Property and Casualty Insurance Co of China Ltd – QBD (Comm Ct) (Teare J) [2017] EWHC 3036, 4 December 2017

ENGINE BREAKDOWN - TYPHOON - SEAWORTHINESS - GENERAL AVERAGE - REASONABLE EXPENDITURES After suffering an engine breakdown, the shipowner employed a tug to avoid a typhoon and to bring the vessel to port.   The owner then brought claim against the insurance company for general average contribution. The defendant argued that the vessel was unseaworthy at the beginning of the voyage and that the casualty was caused by actionable fault of the Owner and thus no contribution was due. Further, the defendant argued that owner’s expenditure as claimed under general average was unreasonable.
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London Arbitration 1/18

NYPE - NON PAYMENT OF HIRE - PREMATURE WITHDRAWAL BY OWNER - REPUDIATORY BREACH - BALANCE OF HIRE - ADDITIONAL HIRE After charterer missed making hire payments, the owner informed charterer of its “rights” under the C/P.  When no payments were made by the 3rd day after its notice, owner withdrew the vessel. Charterer pointed to a clause in the C/P requiring owner give “3 clear banking days notice” prior to withdrawal.  Charterer claimed the balance of hire and owner claimed additional hire.
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London Arbitration 27/17

CARGO SHORTAGE - OWNER PROACTIVELY SETTLED WITH CHARTERER’S RECEIVER - CHARTERER INDEMNIFY OWNER - NON REVERSIBLE - DEMURRAGE After discharging, the receiver claimed a cargo shortage and detained the vessel.  The shipowner settled the receiver’s claim in order to allow the vessel to depart the disport and in turn claimed reimbursement from the charterer.  Owner also claimed demurrage incurred at the disport despite laytime being saved at load given that the laytime was non-reversible.  
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