Tagged: Vol. 21 No. 4

Trammochem Asia Pte Ltd. and Trammochem AG v. Desert Orchid Shipping Pte Ltd. (The “LPG/Desert Orchid”) – SMA No. 4253, 10 April 2015

ASBATANKVOY – STS TRANSFER - CONTAMINATED CARGO – HAGUE VISBY & COGSA - BURDEN OF PROOF – DEMURRAGE - FAULT OF THE VESSEL - TIME-BAR – Charterer Award The vessel was loading LPG via a ship-to-ship transfer when it was discovered that the cargo she had loaded was contaminated by moisture. Both the charterer and the owner held each other responsible for the burden of proof. The dispute was over who was liable for the damages due to the contamination and if demurrage, detention and deviation were to be incurred. And if incurred, whether owner’s claims for same were time-barred.
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London Arbitration 13/15

SHELLVOY 5 – PUMP WARRANTY – PERFORMANCE OR CAPABILITY – PUNITIVE - DEMURRAGE – Owner award This dispute revolved around whether the pump warranty was breached during the discharge of crude oil. The owner submitted its demurrage claim with the belief that the pump warranty had been met. Charterer however contended that the vessel had not met its requirements and thus excess pump time should be deducted from time counting.
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Maritime Industry News…In Brief

PANAMA CANAL DRAFT RESTRICTIONS… The Panama Canal Authority has been closely monitoring the water levels of lakes Gatun and Alhajuela in order to determine if draft restrictions are to be needed as a result of an “El Nino” weather event. This weather phenomenon typically results in a reduction in rainfall in the area, causing the water levels of lakes Gatun and Alhajuela to fall below average levels. The Panama Canal has prepared a daily adjusted short and long range forecast in order to predict lake water levels. If it is determined that draft restrictions are necessary the appropriate parties will...
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Glencore International AG v. MSC Mediterranean Shipping Co. SA and Another – QBD (Comm Ct.), 10 Jul 2015

ELECTRONIC RELEASE SYSTEM (ERS) - CARRIAGE OF GOODS BY SEA (COGSA) - CONTAINERIZED GOODS - BILLS OF LADING - LOCAL AGENTS - Shipper Award An electronic release system was implemented at the MSC terminal in Antwerp, Belgium with intention to streamline processes and remove paper release notes. An electronic PIN would be provided for each container once a bill of lading was presented in order to take delivery of cargo at the terminal. However when two of the shipper’s containers were misappropriated, the parties disputed whether the carrier had met their requirement of submitting a valid “delivery order” upon receipt of the bill of lading.
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London Arbitration 14/15

GENCON 76 - DUNNAGE: OWNER’S OR CHARTERER’S RESPONSIBILITY - NOTICE OF READINESS - COMMENCEMENT OF LAYTIME - DEMURRAGE - DETENTION - Charterer award A cargo of steel H-beams were to be loaded on top of a previously loaded part cargo of rebar. Charterer and Owner could not agree as to which party should be responsible for costs and time associated with building a false deck, whether the vessel’s NOR was valid, and thus when laytime commenced counting.
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Louis Dreyfus Commodities Suisse SA v MT Maritime Management BV (The “MTM Hong Kong”) – QBD (Comm Ct) (Males J) [2015] EWHC 2505 (Comm) – 1 September 2015

REPUDIATED VOYAGE CHARTER - SMITH v M’GUIRE - THE COMPENSATORY PRINCIPLE - Owner award When the charterer wrongfully repudiated a voyage charter, an arbitration panel awarded owner damages basis the vessel’s actual earnings versus hypothetical earnings up to the conclusion of the mitigating employment despite the mitigating employment ending well after when the repudiated voyage charter would have concluded. In doing so, the arbitrators awarded owner for its losses suffered whilst returning to an area of more profitable employment. The charterer appealed.
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London Arbitration 15/15

DISPONENT OWNER CLAIMING DAMAGES FROM SHIPPER - IDENTIFICATION OF CARRIER UNDER COGEN FORM BILL OF LADING - DOCTRINE OF ESTOPPEL- IMPLIED CONTRACTS After loading a bulk cargo shipper ran into difficulties with its sales contract which the FOB buyer / charterer ultimately repudiated. At the request of the shipper the vessel was detained and waited at the load port until she eventually discharged the cargo on instruction from a local court. The disponent owner claimed damages from the shipper stating that under the bill of lading the disponent owner was the carrier. The shipper, i.e. seller under FOB terms, denied the basis of owner’s claims with the implication being that the shipper’s contract was not with the disponent owner and thus no arbitration clause existed between the disponent owner and shipper.
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NS United Kaiun Kaisha Ltd. (Daishin Maru) v. Cogent Fibre Inc. – SMA 4249 23 Jan 2015

CONSECUTIVE VOYAGE CHARTER – VESSEL DRY DOCKED WITHOUT MUTUAL AGREEMENT - IN TURN CARGO NOT PROVIDED – MATERIAL & REPUDIATORY BREACH – Owner Award Charterer claimed owner’s dry docking of the Vessel without obtaining mutual agreement for same equated to a material and repudiatory breach of the contract and subsequently refused to provide a cargo or assurances for the continuance of the charter. After waiting 66 days for the cargo and assurances owner canceled the charter and claimed for damages.
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Avonwick Holdings Ltd v Webinvest Ltd and Another [2014] EWCA Civ 1436

LOAN AGREEMENT – WITHOUT PREJUDICE RULE – CORRESPONDENCE – DOES RULE APPLY – Claimant award When a Claimant requested correspondences to be admissible in evidence, Defendant objected given they were headed “Without Prejudice and Subject to Contract” and thus privileged.
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NS United Kaiun Kaisha, Ltd. v. Cogent Fibre Inc. – SMA 4259, 14 Jul 2015

PETITION TO CONFIRM AWARD – CONSECUTIVE VOYAGE CHARTER – VESSEL DRY DOCKED WITHOUT MUTUAL AGREEMENT - IN TURN CARGO NOT PROVIDED – MATERIAL & REPUDIATORY BREACH – Owner Award Owner petitioned to confirm an earlier arbitration award in which the arbitrators held that the Charterer had breached the Charter by not providing cargo for the Vessel. Charterer argued that the arbitrators had acted with complete disregard of past precedent in assessing damages against them and filed a cross-motion to vacate the award.
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