Alianca Navegacao E Logistica Ltda v Ameropa SA

Hearing dates: 13–17 May and 14 June 2019

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Andrew Henshaw QC

Mr Andrew Henshaw QC:

(A) INTRODUCTION

This judgment follows the trial of a claim by the Claimant (“ Alianca”), disponent owners of the M/V Santa Isabella (“the Vessel”), for demurrage and associated expenses totalling US$858,383.22 following extensive delays to the discharge of a cargo of 44,000 MT of white corn / maize (the “ Cargo”). The cargo was found to have suffered extensive damage on arrival at the ports of Durban and Richards Bay, South Africa, after a 39-day voyage from Topolobampo, Mexico to Durban from 24 June 2016 to 1 August 2016 (the “ Voyage”).

Although this is a demurrage claim for a relatively modest amount of money, it raises certain significant issues regarding the duties of shipowners as to (a) choice of voyage route and (b) cargo care including the ventilation of corn and other hygroscopic cargos.

The Defendant charterers (“ Ameropa”) allege that the damage to the Cargo, and the delays at Durban and Richards Bay, were caused by (a) the Vessel taking the Cape Horn route rather than the Panama Canal route from Topolobampo to Durban, (b) failure by the Vessel to ventilate the Cargo in accordance with a sound system, (c) failure by the Vessel to disinfest areas of the Vessel outside of the cargo holds following loading at Topolobampo and/or (d) the Vessel proceeding to Durban at less than her warranted speed.

Alianca's position is, briefly, that the delays at Durban and Richards Bay were the product of (i) the inability of the Vessel to ventilate the Cargo during the first 12 days of the Voyage (due to fumigation restrictions) and (ii) the fact the Vessel took the usual and contractually permitted route to Durban via Cape Horn, during which weather and sea conditions prevented ventilation for the majority of the time ventilation could otherwise have taken place. Alianca denies any failure properly to ventilate when ventilation was safe, or any failure to disinfest. It says the cargo damage, and consequent delays that put the Vessel on demurrage, occurred through no fault of its own.

Alianca initially made claims for freight (US$43,999.81) and load port demurrage (US$32,183.33), which were not disputed and have been paid. Alianca made but withdrew an expenses claim for US$25,430.21. Its live claim is for discharge port demurrage at Durban (US$770,188.89) and Richards Bay (US$27,244.44), net of address commission and broker commission (together 5%), thus amounting to US$757,561.66.

(B) FACTUAL BACKGROUND

(1) The Vessel

The Vessel is a 2006-built geared bulk carrier of 55,862 metric tonnes deadweight, with five holds served by five hatches forward of the engine room and superstructure.

Cargo hold ventilation is ‘natural’, meaning that there were no ventilators fitted with electric fans. The ventilators comprise rectangular openings in the hatch cover panels, closed by hinged doors/flaps. The total grain capacity of the cargo holds is stated to be 69,450.4 m ³.

(2) Head charter

Alianca was disponent owner of the Vessel pursuant to a time charter dated 6 December 2003 from Forever Shipping S.A. (the “ Head Owners”). The Vessel was managed by Misuga Kaiun (HK) Ltd.

(3) The subject Charterparty

By a Voyage Charterparty (“ the Charterparty”) dated 2 June 2016, Alianca agreed to charter the Vessel to Ameropa for the carriage of 40,000 mt (+/-10% at owners' option) of white corn in bulk from Topolobampo to Durban and Richards Bay.

The Charterparty was on the terms of an amended Synacomex Charterparty form. It was initially entered into in recap form, followed by a drawn up version. The material express provisions were as follows:

i) Pursuant to the recap, Alianca warranted that the speed of the Vessel was about 13.3 knots.

ii) Pursuant to the drawn up Charterparty:

“[Cargo/quantity]

40,000 metric tons (10% more or less in Owners' option) of corn in bulk …

2. That the said vessel being tight, staunch, and in every way fit for the voyage shall with all convenient speed proceed to…

3. Being so loaded, the vessel shall proceed with all convenient speed direct to 1/2 SB/SA DURBAN PLUS 1/2 SB/SA RICHARDS BAY

…

[Demurrage]

9. Demurrage is payable by Charterers at the rate of USD 8,000 per day of 24 consecutive hours or pro rata

…

[Address Commission]

16. An address commission of … 3.75 … percent on the gross amount of freight, deadfreight and demurrage earned is due to Charterers and is deductible from freight, deadfreight and demurrage.

[Law and arbitration]

17. This contract shall be subject to English law. Any dispute arising out of the present contract shall be referred to the exclusive jurisdiction of the High Court of Justice in London, to which each party hereby irrevocably agrees to submit …

…

23. Responsibilities and immunities

(1) The Hague Rules contained in the International Convention for the Unification of certain rules relating to Bills of Lading, dated Brussels 25 ^th August 1924, as amended by the Protocol signed at Brussels on February 23 ^rd 1968 (the Visby Protocol) shall apply to this contract…

(3) Save to the extent otherwise in this Charterparty expressly provided, neither party shall be responsible for any loss or damage or delay or failure in performance hereunder resulting from…quarantine…restraint of princes, rulers and peoples or any other event whatsoever which cannot be avoided or guarded against.

…

[Discharging rate/terms]

45. Cargo shall be discharged free of expense to the Owners at the rate of 5,000 metric tons per weather working day of 24 consecutive hours, at Durban for 50% of the cargo and at the rate of 3,000 metric tons per weather working day of 24 consecutive hours at Richards Bay for 50% of the cargo.

[Laytime at discharge]

46. …

Any delays caused by ice, floods, quarantine or by cases of force majeure shall not count as laytime unless the Vessel is already on demurrage.

[Discharging berth unavailable/discharging port]

47. …

At all ports any time lost shifting from waiting place to berth shall not count as laytime or as time on demurrage.”

Alianca alleges that the effect of the laytime and discharging provisions was that the charterers were permitted 6.4 days of laytime at Durban and 3.68 days of laytime at Richards Bay. Ameropa did not dispute those figures and I proceed on the basis that they are correct.

The Hague-Visby Rules incorporated by clause 23 of the Charterparty include the following provisions:

“Article III

1. The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to:

(a) Make the ship seaworthy;

(b) Properly man, equip and supply the ship;

(c) Make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation.

2. Subject to the provisions of Article IV, the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.

…

Article IV

1. Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped and supplied, and to make the holds, refrigerating and cool chambers and all other parts of the ship in which goods are carried fit and safe for their reception, carriage and preservation in accordance with the provisions of paragraph 1 of Article III. Whenever loss or damage has resulted from unseaworthiness the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this article.

2. Neither the...