UK: Shipping Newsletter - November 2015

Last Updated: 1 December 2015
Article by Clyde & Co LLP

Expert legal advice in uncertain waters

Written by legal experts, the Clyde & Co Shipping Newsletter regularly reports on recent legal developments within the marine sector.

In this issue, Marcia Perucca reviews the recent ruling in the “MTM HONG KONG” on the calculation of damages following the repudiation of a charterparty, where an award of damages to a shipowner was upheld.

Peter Ward goes on to comment on the “MSC EUGENIA” in which the court examined whether a carrier, which had provided a shipper’s agent with pin codes for an electronic release system, had fulfilled its obligations under the bill of lading.

Miranda Karali and Natalie Johnston analyse the issue in “NAVIGAS 1” of whether the parties had concluded an agreement for a charterparty which included a London arbitration clause.

Heidi Watson then reports on a judicial review of the Maritime & Coastal Agency’s alleged failure to enforce a key provision of the Maritime Labour Convention.

Two cases, the “SEA WELLINGTON” and the “ANNA BO”, in which Clyde & Co acted for the successful parties, both relating to anti-suit injunctions, are reviewed by Beth Bradley and by Martin Hall and Thomas Forkin, respectively.

Jennifer Wheeler looks at the importance of the correct choice of forum in the “AFRICA REEFER” in circumstances where a tight limitation period applied.

Conor McStravick comments on the court’s decision to vary an order recognising South Korean insolvency proceedings involving a shipping company in order to support London arbitration, in the “UNIVERSAL QUEEN”.

In the “ CELTIC EXPLORER”, Catherine Baddeley considers the consequences of a 12 month delay in the publication of an arbitration award.

Links to our most recent client briefings can be found in the “What’s new?” section of the newsletter. These provide commentary on cases such as the “RES COGITANS” and Bunge v Nidera SV (2015), as well as on other topics of interest to the marine sector.

"MTM HONG KONG" – New ruling on the calculation of damages following the repudiation of a charterparty

By Marcia Perucca

In the "MTM HONG KONG", the Commercial Court upheld an award of damages to a shipowner that included losses arising from the loss of the benefit of two voyages that the ship would have undertaken but for the charterer's repudiation.

Charterers Louis Dreyfus Commodities Suisse SA had chartered the MTM HONG KONG from MT Maritime Management BV to carry a cargo from South America to the Gibraltar-Rotterdam area. The vessel's previous employment had taken her to Boma, in the Democratic Republic of Congo, where she had grounded. This led to delay and exchanges between the parties, with owners accepting the charterers' latest message as a repudiation, bringing the charter to an end.

After discharging at Boma, the vessel proceeded to South America on 19 January 2011. The charter came to an end on 21 January 2011. The vessel continued to South America, where owners believed they would find substitute business, and arrived in Uruguay on 2 February 2011. However, the vessel was only fixed on 24 February 2011 for a voyage from Argentina to Rotterdam ("the substitute fixture"), where it completed discharge on 12 April 2011. If the original charter had been performed, the voyage would have completed on 17 March. The vessel would then have carried a cargo from the Baltic to the United States, followed by a cargo from the United States to Europe.

The arbitrators held that the charterers had repudiated the charter and that the owners' decision to direct the vessel to South America and to wait there until the substitute fixture could be performed was reasonable. They awarded damages consisting of the difference between (a) the profit which the vessel would have earned if not only the contract voyage but also the next two voyages had been performed and (b) the substitute fixture. Charterers appealed on quantum under section 69 of the Arbitration Act 1996.

The Commercial Court decision

The question of law before the Commercial Court was:

"If a voyage charter is repudiated by charterers in circumstances where the substitute employment begins after the contract voyage would have begun, and ends after the contract voyage would have ended, should damages be assessed by reference to the vessel's (actual or hypothetical) earnings up to the end of the contract voyage, or such earnings up to the end of the substitute employment?"

Males J reviewed the authorities on damages for repudiation of a voyage charter (Smith v M'Guire, The Concordia, The Noel Bay, The Elbrus, as well as textbooks Scrutton on Charterparties and Cooke on Voyage Charters) and on remoteness and assumption of responsibility (Hadley v Baxendale, Siemens Building Technologies Ltd v Supershield Ltd, The Achilleas, John Grimes Partinership Ltd v Gubbins and The Sylvia) and said that he did not think it was possible to give an answer to the above question which would hold good in all circumstances. Rather, the question must be answered in accordance with the following principles applicable in the present case:

  • The fundamental principle is the compensatory principle - the innocent party is so far as possible to be placed in the same financial position as if the contract had been performed
  • Smith v M'Guire provided the prima facie measure of damages – the starting point was the amount of freight which the ship would have earned if the charter had been performed, and from this amount there should be deducted the expenses which would have been incurred in earning it together with what the ship earned (if anything) during the period which would have been occupied in performing the voyage
  • On appropriate facts, it may be necessary to depart from the above measure to give full effect to the compensatory principle
  • The net freight and demurrage represent a cap on the owners' damages for loss of the profit which would have been obtained from performance of the repudiated charter
  • The position is different if the owner suffers a different kind of loss, that is to say something different from the loss of the profit described above. In such a case, there is in general no reason why such loss should not be recoverable subject to the principles of causation, mitigation and remoteness. On the contrary, failure to award such damages would be contrary to the compensatory principle
  • Such losses must be sufficiently proved. If this required complex hypothetical calculations about the future employment of a vessel, the likely conclusion will be that such losses are too speculative to be recovered
  • An example of such a different kind of loss arises when a vessel is redelivered to an owner in the wrong location or when a substitute fixture is completed at a different discharge port. The ability of a vessel to earn freight will depend to a large extent on the vessel being in a place where appropriate cargoes may be had. The package of rights for which an owner contracts when concluding a charter includes not only the freight but also the right to have the vessel back again and ready for her next employment. The Smith v M'Guire measure of damages does not address the latter

Applying the above principles to the present case, Males J said that the consequence of the charterers' repudiation was twofold: they had to make do with the lesser freight earned under the substitute fixture, but they also suffered a delay in repositioning the vessel in Europe and thereby lost the benefit of the two transatlantic voyages which the vessel would have been able to perform. There was no reason in law why damages for the consequence of the vessel's delay in returning to the North Atlantic market should not be awarded, since the arbitrators had found that the loss was suffered by owners, that it was caused by the charterers' repudiation, and that there was no failure to mitigate. There was no error of law in the arbitrators' reasoning.

Comment

Males J's decision provides an in-depth review of the authorities and also an interesting reasoning. When addressing the last principle set out above, Males J said that these were "important commercial considerations which the law of damages needs to recognise". This appears to have been the basis for his conclusion. In a postscript, he emphasised that he should not be taken as deciding that on similar facts an owner's claim for loss of future employment would always succeed. He said three factors had been important for owners to succeed in this case: 1) the finding that owners acted reasonably in sending the vessel to South America, because the lack of immediate employment was unexpected; 2) there was no suggestion in the arbitration that the losses were too remote; and 3) it was possible to predict the vessel's immediate future employment if the contract had been performed.

"MSC EUGENIA" – Pin codes for Electronic Cargo Release Systems: Handle with care

By Peter Ward

The Court held that a carrier, which had provided a shipper's agent with pin codes for an electronic cargo release system, had not fulfilled its obligations under a bill of lading pursuant to which the bill was to be exchanged either for the goods or for a delivery order.1

Background

MSC Mediterranean Shipping Co SA (MSC) carried three cargo containers from Fremantle to Antwerp under a bill of lading which named Glencore International AG (Glencore) as the shipper, and C Steinweg NV (Steinweg), Glencore's agents, as a notify party. A few days before the vessel's arrival at the discharge port, Steinweg lodged with MSC one of the bills of lading and soon after, MSC emailed to Steinweg a release note and pin codes for the electronic cargo release system (ERS) that MSC operated at that port.

After the vessel arrived at Antwerp, and the containers were discharged and stored at MSC's terminal, Steinweg sought delivery of the cargo but it transpired that two of the containers had already been collected by unknown, unauthorised recipients. The shipper brought a claim for damages against MSC.

Decision

The bill of lading contained an express term that it had to be "surrendered by the Merchant to the Carrier ... in exchange for the Goods or a Delivery Order". The Court found that the pin codes did not constitute a "delivery order", which was taken to refer to a "ship's delivery order" as defined in s.1(4) of the Carriage of Goods by Sea Act 1992. Such an order contains an undertaking given by the carrier to deliver the goods to an identified person. It was held to be unlikely that a bill of lading holder would agree to surrender its rights without receiving either the goods or an undertaking in return.

MSC's contention that the provision of a pin code constituted a "Delivery Order" relied on the pattern of previous dealings between the parties. However, the Court rejected this argument. Negotiable bills have to be understood by various people other than the original parties so that, in this case, the original parties were taken to have intended the bill to have the meaning conveyed by its wording, in light of the knowledge available to the range of people to whom it was addressed. In addition, the shipper (as opposed to its agent) was found not to have been aware, at the time it entered into the bill of lading contract, that MSC used the ERS in Antwerp. But even if it had been, it did not follow that forwarding the pin codes constituted delivery.

MSC also submitted that a term should be implied into the bill of lading to the effect that a pin code would be a valid substitute for a delivery order. MSC further maintained that Steinweg had agreed to vary the bill of lading so that it might be exchanged for ERS pin codes. However, the Court rejected this argument, stating that the proposed implied term sat awkwardly with the express provision in the bill that the goods, or a delivery order, were to be provided in exchange for it. In addition, it was held that Steinweg did not have authority to vary the bill of lading contract by accepting the terms of the release note sent by MSC.

MSC also brought an estoppel argument, to the effect that, since the shipper gave the appearance that it was content for the ERS to be used for the 69 previous shipments, it was not open to it to complain that it was used for the three containers under the bill of lading. However, the shipper's complaint was that MSC had wrongfully delivered the containers to an unauthorised recipient, not that it had released the containers on presentation of the pin codes. In order to be estopped, the shipper would have had to have represented clearly that it was content for goods to be delivered to anyone who presented the relevant pin code. It had made no such representation and its claim, therefore, succeeded.

Comment

This case is a helpful reminder to carriers of the need to comply with their precise obligations under a negotiable bill of lading. In this case, nothing less than delivery of the goods or a ship's delivery order, in exchange for an original bill of lading, was sufficient to discharge the carrier's duty. Use of a discharge port's ERS does not release carriers of their duty to surrender the goods only to the person entitled to take delivery of them. The decision also emphasises the potential risks involved with the electronic cargo release system.

Footnote

1 Glencore International AG v MSC Mediterranean Shipping Co SA and Another (2015)

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