Author: Haugen Consulting

BP Oil International Ltd. v. Target Shipping Ltd. (The “Target”) – English Court of Appeal, 14 Mar 2013

BPVOY 4 -- “REASONABLE” OVERAGE FREIGHT -- INCORRECT FREIGHT CALCULATION -- RECOVERY OF OVERPAYMENT -- Owner Award Owner and Charterer appealed a judgment that found Charterer was liable for a "reasonable" amount (subject to further inquiry) of freight that was overpaid on the Owner’s purportedly miscalculated invoice. At issue is whether freight overage applies for cargo carried in excess of the minimum volume stipulated when the additional port/region was not named in the Overage Section of the contract.
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Trafigura Beheer BV v. Ravennavi SpA (The “Port Russel”) – QBD (Comm. Ct.), 1 Mar 2013

BPVOY 3 -- NOR VALIDITY -- DEMURRAGE -- NOTICE OF READINESS BY EMAIL -- Charterer Award At issue is whether Owner may tender a valid Notice of Readiness (NOR) by email. The governing BPVOY 3 charter party, Clause 19, provides a list of six methods by which a valid NOR may be tendered – email is not one of them.
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London Arbitration 2/13

NYPE -- TIME CHARTER -- BACK-TO-BACK CHARTERS -- 1986 US TAX REFORM ACT -- INEMNITY FOR US FREIGHT TAX -- Charterer Award Tax payable under U.S. Tax Code for transportation income earned by a nonresident alien or foreign corporation is potentially payable for the hire earned by the head owner as well as the income earned by the disponent owner, subject to any exemptions. In this instance the disponent owner was found to be exempt and, therefore, their request for indemnity from the sub-charterer had to fail.
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Kelso Enterprises Ltd. v. LauritzenCool AB (The “St. Lucia”) – SMA No. 4208, 1 May 2013

COA -- SEAWORTHINESS -- CARGO DAMAGES -- INDEMNITY -- Owner Award Charterer seeks market damages due to a one week delay in cargo delivery because of Vessel repairs. Owner rejects the Charterer’s damages claim on the basis that the Charterer sold the cargo under a CIF contract (title and risk of loss to the cargo is transferred when the cargo passes the ship’s rail at the loadport) and is therefore not the injured party.
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Sangamon Transportation Group v. OSL Steamship Corp. (The “Genco Carrier”) – SMA No. 4206, 12 Apr 2013

NYPE -- LOSS MITIGATION -- UNSAFE BERTH -- VESSEL DAMAGE -- CHARTER HIRE RATE -- PROTRACTED VOYAGE -- WITHOUT GUARANTEE PROVISION -- Partial Owner Award The Disponent Owner’s claim was a summation of five different issues recapped below as (1) Vessel damage while alongside the discharge berth; (2) disputed daily hire rate for transit time to Santos to conduct repairs; (3) unsafe berth; (4) time charter trip exceeding the estimated voyage days fixed; and (5) indemnity for a third-party claim for underperformance attributable to bottom-fouling (due to prolonged waiting time at Charterer’s disport).
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Frescati Shipping Co., Ltd. v. Citgo Asphalt Refining Co. (The “Athos I”) – US Court of Appeal (Third Circuit), 16 May 2013

ASBATANKVOY -- SAFE PORT WARRANTY -- "APPROACH" DEFINED -- Owner Award Owner appealed the U.S. District Court ruling for exoneration from or limitation of liability resulting from the Vessel striking a partially submerged anchor in its approach to the Charterer’s discharge terminal. Per Owner, Charterer breached the safe berth warranty. Per Charterer, the incident occurred outside its area of control and the Owner is responsible for port draft restrictions by virtue of the port being named in the charter party.
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America Metals Trading, LLP v. Phoenix Bulk Carriers, Ltd. (The “Captain P. Egglezos”) – SMA No. 4201, 25 Feb 2013

GENCON -- CONDITION OF PERFORMANCE -- ADDITIONAL FREIGHT FOR REPLACEMENT VESSELS -- Owner Award Charterer seeks compensation for the freight differential paid on substitute tonnage when the Owner failed to perform in their obligation to nominate two vessels as required in the charter party. Conversely, Owner counters that due to cargo issues (railcar allocation, export documentation, etc.) and berth operational issues, the Charterer would not have been able to supply the cargo even if the Owner complied with the Vessel nominations.
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Breffke & Hehnke GmbH & Co. KG and Ors v. Navire Shipping Co. Ltd. and Ors (The “Saga Explorer”) – QBD (Comm. Ct.), 7 Nov 2012

BILLS OF LADING PHRASING -- APPARENT GOOD ORDER -- CARGO QUALITY -- CONDITION OF GOODS -- RETLA CLAUSE -- COGSA -- CONTRACT CONSTRUCTION -- Consignee Award The Vessel was chartered to carry a cargo of steel pipes. At the loadport, the cargo was inspected and found to be in poor condition as stated in the Survey report and Mates Receipt, however, the Bills of Lading reflected "apparent good order". Consignee claimed for damages stemming from the misrepresented cargo condition in the Bills of Lading. Owner claimed that they were excused from liability under a protective “Retla clause” incorporated in the B/Ls.
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Profindo Pte. Ltd. v. Abani Trading Pte. Ltd. (The “Athens”) – High Court, 14 Jan 2013

CFR SALES CONTRACT -- DEMURRAGE -- SHORT-DELIVERY OF GOODS -- LOSS OF EARNINGS -- DAMAGES -- Partial Seller Award Demurrage resulted when the port authorities forced the Vessel to leave the berth during discharge operations in order to berth a tanker deemed to be a higher priority. The CFR Buyer denied responsibility for the demurrage and excess port charges; and, counterclaimed against the CFR Seller for short-delivery of goods totaling 4 M.T. and unsatisfactory product quality. The Seller also claimed for loss of earnings resulting from the Owner blacklisting them due to the late demurrage payment and their resultant inability to fulfill a subsequent sale contract.
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