Carboex SA v Louis Dreyfus Commodities Suisse SA [QBD (Comm)]
| Jurisdiction | England & Wales |
| Judge | Field J. |
| Judgment Date | 12 May 2011 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 12 May 2011 |
Queen's Bench Division (Commercial Court).
Field J.
Charles Kimmins QC and Socrates Papadopoulos (instructed by Thomas Cooper) for the Claimant/Appellant.
Siobán Healy QC and Jessica Sutherland (instructed by Reed Smith) for the Defendant/Respondent.
The following cases were referred to in the judgment:
Bulk Transport Group Shipping Co Ltd v Seacrystal Shipping Ltd (The Kyzikos)[1989] 1 Ll Rep 1.
Central Argentine Railway v MarwoodELR [1915] AC 981.
Federal Commerce and Navigation Co Ltd v Tradax Export SAELR [1978] AC 1. Harper, Re[1974] 1 QB 614.
Leonis Steamship Co Ltd v Joseph Rank Ltd (No. 2)UNK (1908) 13 Com Cas 161; (1908) 13 Com Cas 295 (CA).
London and Northern Steamship Co Ltd v Central Argentine Railway Ltd (1913) 108 LT 527.
Mostyn, The [1928] AC 57.
Northfield Steamship Co v Compagnie L'Union des GazELR [1912] 1 KB 434.
Reardon Smith Line Ltd v East Asiatic CoUNK (1938) 62 Ll L Rep 23.
Reardon Smith Line Ltd v Ministry of Agriculture, Fisheries and FoodELR [1962] 1 QB 42 (CA).
Reederij Amsterdam NV v President of India (The Amstelmolen)[1961] 2 Ll Rep 1.
Shipping — Demurrage — Congestion — Strike — Contract of affreightment — COA on amended version of AmWelsh voyage charterparty form — Berth charter — Carriage of coal from Indonesia to Spain — Discharge delayed by strike — Strike over when vessels eventually berthed — Whether delay excluded from computation of laytime — Whether only delay suffered once vessel had berthed by reason of strike then in progress excluded — Effect of WIBON provision — Delay caused by congestion in aftermath of strike excused.
This was an appeal by charterers against an award of arbitrators for demurrage in respect of four vessels chartered under a contract of affreightment (COA) for the carriage of coal from Indonesia to Puerto de Ferrol in Spain.
The COA was on an amended version of the AmWelsh voyage charterparty form. It was a berth as distinct from a port charter. Clause 9 of the standard printed clauses provided inter alia that in case of strikes, lockouts, civil commotions or any other causes beyond the control of the charterers which prevented or delayed the discharging, such time was not to count unless the vessel was already on demurrage.
Clause 40 was an additional clause providing inter alia: “If the berth is not available when vessel tenders Notice of Readiness, but provided vessel/Owners not at fault in relation thereto, then laytime shall commence twelve (12) hours after first permissible tide, Notice of Readiness received and accepted, whether in berth or not…'
The charterers contended that the discharge of the four vessels was delayed by reason of strikes, official and unofficial, and that period was excluded from the computation of laytime by virtue of clause 9 of the COA.
The owners contended that the combined effect of clauses 9 and 40 was that the charterers took the risk of delay caused by congestion at the port, so that it was only delay suffered once the vessel had berthed by reason of a strike then in progress that was excluded by clause 9. Since the strike was over when each of the vessels eventually berthed, no period stood to be deducted from the laytime and demurrage calculated accordingly was due.
The arbitrators held that a vessel which was delayed by the after effects of a strike which had ended and a vessel which had arrived after the strike had ended could not take advantage of clause 9.
The owners submitted that the effect of the WIBON provision within the bespoke clause 40 was that the risk of delay due to congestion at the discharge port was on the charterers.
The charterers submitted that WIBON had no bearing on the construction of an exception clause in the nature of AmWelsh clause 9. The only significance of WIBON was that it provided for when the laytime clock was to start ticking. Clause 9 should accordingly be construed as a self-standing provision.
Held, allowing the appeal:
On their ordinary meaning, the words “In case of strikes…beyond the control of the charterers which prevent or delay the discharging” covered delay in discharging caused by congestion due to the after effects of a strike that had ended. They also covered delay in discharging caused by congestion due to a strike where the vessel arrived after the strike had ended. The strike exception in clause 9 also applied to a vessel which was unable to berth due to berth congestion caused by a strike. The arbitral tribunal erred in law in deciding that the charterers did not have the protection of clause 9. (Reederij Amsterdam NV v President of India (The Amstelmolen) [1961] 2 Ll Rep 1, Leonis Steamship Co Ltd v Joseph Rank Ltd (No. 2) (1908) 13 Com Cas 295 (CA) and Reardon Smith Line Ltd v Ministry of Agriculture, Fisheries and Food [1962] 1 QB 42 (CA) applied; Central Argentine Railway v MarwoodELR[1915] AC 981 considered.)
Field J:
1. This is the Claimant's appeal under s. 69 of the Arbitration Act 1996 against an award of an arbitral tribunal dated 11 June 2010 (“the Award”). The claim referred to the tribunal was for demurrage alleged to be due in respect of four vessels, the Co-op Phoenix, the Alpha Glory, the C Young and the Royal Breeze, each of which was chartered by the Defendant to the Claimant under a Contract of Affreightment dated 6 March 2008 (“the COA”) for the carriage of coal from Indonesia to Puerto de Ferrol in Spain, to be discharged at the terminal of Endesa SA (“Endesa”), the largest power utility company in Spain. The Claimant is a subsidiary of Endesa for which it imports coal for use in Endesa's power stations.
2. The COA was on an amended version of the AmWelsh voyage charterparty form. It was a berth as distinct from a port charter. The relevant clauses of the COA are clauses 9 and 40. They are set out below. Clause 9 is one of the standard printed clauses of the AmWelsh Charterparty. It was amended by the parties as shown by underlining for words added and striking through for words excised. Clause 40 is a bespoke typed amendment to the standard clause 9 agreed by the parties.
“9. The cargo to be discharged by consignee at port of discharge, free of expense and risk to the vessel, at the average rate of 25,000 metric tons per day weather working day of 24 consecutive hourspermitting, Sundays and holidays and after noon on Saturdays included, excluded Superholidays, see also CL 40excepted provided vessel can deliver at this rate. If longer detained, Charterers consignee to pay vessel demurrage at the rate of See Cl 68…per running day (or pro rata for part thereof). If sooner dispatched, vessel to pay Charterer or his agentsSee Cl 68…per day (or pro rata for part thereof) dispatch money for all working time saved. Time to commence twenty-four (24) hours, Sundays and holiday excepted, after vessel is ready to unload and written notice given, whether in berth or not, even if vessel is already on demurrage, and the time allowable for discharging to be calculated on the basis of bill of lading quantity. In Case of strikes, lockouts, civil commotions or any other causes included but not limited to breakdown of shore equipment or accidents beyond the control of the Charterersconsigneewhich prevent or delay the discharging, such time is not to count unless the vessel is already on demurrage.
Cl. 40 At port of discharge, time to commence twelve (12) hours after the vessel's arrival at berth, vessel is ready to unload and Notice of Readiness received and accepted, unless sooner commenced in which case time actually used to count. If the berth is not available when vessel tenders Notice of Readiness, but provided vessel/Owners not at fault in relation thereto, then laytime shall commence twelve (12) hours after first permissible tide, Notice of Readiness received and accepted, whether in berth or not, whether in free pratique or not, whether in customs clearance or not, unless no customs clearance or no free pratique due to vessel's fault, unless sooner commenced in which case only time actually used to count. Notices to be tendered in writing Telex, Cable, Fax or Radio form from usual waiting place, any time day or night Sundays and Holidays included excepting Superholidays as below.…”
3. Co-op Phoenix tendered NOR at 12:30 on 14 June 2008. At that time, there were two vessels ahead of her in the line-up waiting to discharge coal, Double Progress and Iron Manolis, which had arrived on 14 June. These vessels respectively berthed on 19 June and 26 June and completed discharge on 22 and 29 June 2008. Co-op Phoenix commenced discharge at 14:45 on 30 June and completed discharge by 18:20 on 2 July 2008.
4. The Alpha Glory tendered NOR at 13:30 on 15 June, at which time the above-named 3 vessels were ahead of her in the line-up. Discharge of the Alpha Glory commenced at 17:33 on 3 July and was completed by 09:00 on 7 July 2008.
5. The C Young tendered NOR at 20:30 on 7 July. There were 3 vessels ahead of her in the line: the Red Seto (NOR on 28 June, discharge completed on 12 July); the Island Globe (NOR on 28 June, discharge completed on 13 July); and the Bellatrix (NOR on 6 July, discharge complete on 22 July).
6. The Royal Breeze tendered NOR at 16:00 on 16 July, at which time the Island Globe, the Bellatrix and the C Young were ahead of her in the line. Discharge of the Royal Breeze commenced on 10:00 on 26 July and was completed by 29 July. (Paragraphs 3–6 are in accordance with the facts stated in the Award.)
7. The Charterers contended that the discharge of the four vessels was delayed by reason of the strike, official and unofficial, and this period was excluded from the computation of laytime in virtue of clause 9 of the COA, particularly the last sentence thereof.
8. The Owners contended that the combined effect of clauses 9 and 40 was that Charterers took the risk of delay caused by congestion at the port...
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Carboex SA v Louis Dreyfus Commodities Suisse SA
...Strike exception applied to vessel unable to berth due to congestion caused by strike. This was an appeal from a decision of Field J ([2011] 1 CLC 954) concerning liability for delay to four vessels waiting to discharge cargoes of coal at Ferrol, north-west Spain, in June and July The appel......