Marimpex Mineraloel-Handelsgesellschaft mbH & Company KG v Compagnie de Gestion et d'Exploitation Ltd ('The Ambor'/'The Once') [QBD (Comm)]
| Jurisdiction | England & Wales |
| Judge | Peter Gross |
| Judgment Date | 25 October 2000 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 25 October 2000 |
Queen's Bench Division (Commercial Court).
Peter Gross QC (sitting as a deputy High Court judge).
Timothy Hill (instructed by Lawrence Graham) for the claimant.
Claire Blanchard (instructed by Richards Butler) for the defendant.
The following cases were referred to in the judgment:
Alma Shipping Corp of Monrovia v Mantovani (“The Dione”)UNK [1975] 1 L1 Rep 115.
Bucknall Brothers v MurrayUNK (1900) 5 Com Cas 312.
Chiswell Shipping Ltd v National Iranian Tanker Co (“The World Symphony”)UNKUNK [1991] 2 L1 Rep 251; [1992] 2 L1 Rep 115 (CA).
Dene Steam Shipping Co v Bucknall BrosUNK (1900) 5 Com Cas 372.
Hyundai Merchant Marine Co Ltd v Gesuri Chartering Co Ltd (“The Peonia”)UNK [1991] 1 L1 Rep 100.
Pacific Sun, TheUNK [1983] AMC 830.
Torvald Klaveness A/S v Arni Maritime Corp (“The Gregos”)WLR [1994] 1 WLR 1465.
Shipping — Charterparty — Time charter — Shelltime 4 form — Last voyage clause — Whether charterers entitled to order vessel to perform last voyage ending after period for redelivery.
These were rival applications for summary judgment by owners and charterers after owners refused to comply with charterers' instructions for a last voyage which contemplated redelivery after the last date for redelivery under a charterparty on the Shelltime 4 form as amended.
The defendant owners chartered a vessel to the claimants for a time charter on the Shelltime 4 form. Clause 4 of the charterparty defined the charterparty period as 12 months; pl/-20 days at charterers' option with an additional option of six months. The vessel was to be redelivered under the charter between 8 January and 17 February 1989. On or about 16 December 1988 charterers purported to give voyage orders which contemplated redelivery on or about 7 March 1989 relying on the provisions of cl. 19 of Shelltime 4. Owners refused to accept the orders and the vessel was redelivered in time. Charterers issued proceedings alleging repudiatory breach by owners in refusing to comply with the orders which they argued were for a legitimate last voyage by virtue of cl. 19 which provided that if at the time the charter would otherwise terminate in accordance with cl. 4 the vessel was upon a laden voyage charterers would continue to have the use of the vessel for as long as necessary to complete such laden voyage and return to a port of redelivery. Both parties relied on the decision in Chiswell Shipping Ltd v National Iranian Tanker Co (“The World Symphony”)UNK [1992] 2 Ll Rep 115 on cl. 18 of Shelltime 3, the predecessor to cl. 19 but differently worded.
Held, giving judgment for owners:
1. If a last voyage clause, such as cl. 19, was to protect a charterer from being in breach by late redelivery in circumstances in which he had ordered a voyage which was likely to or must have that result, the intention to provide that protection had to be clearly expressed. ( Hyundai Merchant Marine Co Ltd v Gesuri Chartering Co Ltd (“The Peonia”)UNK [1991] 1 Ll Rep 100 and Chiswell Shipping Ltd v National Iranian Tanker Co (“The World Symphony”)UNK[1992] 2 Ll Rep 115applied.)
2. In The World Symphony it was held that the charterer was entitled to give the order for the final voyage in the knowledge that it would overrun the time otherwise stipulated for redelivery, because the last voyage clause in that case (cl. 18 of Shelltime 3) was introduced by the words “Notwithstanding the provisions of clause 3 hereof” and accordingly overrode the provisions for the duration of the charterparty in cl. 3. Those words were not reproduced in cl. 19 of Shelltime 4. Without those words the last voyage clause protected charterers from the consequences of late redelivery but did not entitle them to order the vessel on an otherwise illegitimate last voyage, i.e. one which could not reasonably be expected to result in redelivery before the terminal date. The wording of cl. 19 of Shelltime 4 did not disclose an intention to override the otherwise finite duration of the charterparty.
Peter Gross QC: Introduction
1. There are rival CPR, Pt. 24 applications before the court for summary judgment; the claimants (“charterers”) say that there is no answer to their claim; the defendants (“owners”) say that the claim should be struck out or dismissed on the ground that charterers have no real prospect of succeeding on the claim.
2. The context is the familiar battleground of the final or last voyage of a time charterparty; in particular, it concerns the true construction of cl. 19 in the standard Shelltime 4 form of time charterparty, which, in so far as material, provides as follows:
“If at the time this charter would otherwise terminate in accordance with Clause 4 the vessel is on a ballast voyage to a port of redelivery or is upon a laden voyage. Charterers shall continue to have the use of the vessel at the same rate and conditions as stand herein for as long as necessary to complete such ballast voyage, or to complete such laden voyage and return to a port of redelivery as provided by this charter, as the case may be.”
3. In essence, the issue between the parties is this: is cl. 19 of the Shelltime 4 form a “last voyage” clause which not only (i) absolves charterers from liability for late redelivery at the conclusion of a legitimate last voyage, but also (ii) permits the giving of orders for what would otherwise have been an illegitimate last voyage. Charterers' case is that cl. 19 extends to both (i) and (ii); owners argue that cl. 19 covers (i) only. (For convenience, the terminology of “legitimate” and “illegitimate” last voyages is explained in para. 8 below.)
4. A number of matters are common ground:
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(1) The orders in question were for an illegitimate last voyage unless cl. 19 has the meaning for which charterers contend.
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(2) Whatever the decision, the case is suitable for determination under Pt. 24.
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(3) There is no reported decision on cl. 19 of the Shelltime 4 form.
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(4) Chiswell Shipping Ltd v National Iranian Tanker Co (“The World Symphony”)UNK[1992] 2 Ll Rep 115 (CA) is binding authority on cl. 18 of the Shelltime 3 form of charterparty, the predecessor clause to cl. 19 of the Shelltime 4 form but differently worded; as will be seen, each party (i) relies on The World Symphony as supporting its case while (ii) reserving its position to argue that The World Symphony was wrongly decided, should the present case go significantly further.
5. The case has a tangled (and extended) factual and procedural history. For present purposes, however, none of that matters and the essential facts can be shortly summarised:
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(1) The charterparty, on the Shelltime 4 form as amended, was dated 3 July 1987; initially it concerned the vessel “AMBOR”; later the vessel “ONCE” was substituted for the “AMBOR”; as it is unnecessary for me to distinguish between these two vessels, I shall simply refer throughout to “the vessel”.
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(2) Clause 4 of the charterparty defined the charterparty period as follows:
“Owners agree to let and Charterers agree to hire the vessel for a period of 12 months (;pl/-20 days charterers option) with additional option of 6 months to be declared at least 45 days prior to end of the first period, commencing from the time and date of delivery of the vessel …
The vessel shall be delivered by Owners off roads Khor Fakkan … and redelivered to Owners off roads Khor Fakkan …”
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(3) As is common ground:
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(i) The vessel was delivered under the charterparty on 28 July 1987;
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(ii) Accordingly, the redelivery window under the charterparty was 8 January–17 February 1989.
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(4) On about 16 December 1988, charterers purported to give voyage orders for the vessel which contemplated redelivery off Khor Fakkan on or about 7 March 1989 (well outside the redelivery window).
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(5) Thereafter, a debate ensued as to the validity of these orders. In the event, owners refused to accept them and, on or about 12 January 1989, instructed the master not to comply with them. In response, charterers redelivered the vessel on 14 January 1989.
6. In these circumstances, charterers argue that, by reason of cl. 19 of the charterparty, their orders were for a legitimate last voyage; that owners were in repudiatory breach of the charterparty by instructing the master...
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