Novologistics Sarl v Five Ocean Corporation [QBD (Comm)]
| Jurisdiction | England & Wales |
| Judge | Gross J. |
| Judgment Date | 27 November 2009 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 27 November 2009 |
[2009] EWHC 3046 (Comm)
Queen's Bench Division (Commercial Court).
Gross J.
Michael Coburn (instructed by Swinnerton Moore LLP) for the claimant.
Lawrence Akka (instructed by Mays Brown Solicitors) for the defendant.
The following cases were referred to in the judgment:
Associated Provincial Picture Houses Ltd v Wednesbury CorporationELR [1948] 1 KB 223.
Compania Argentina de Navegacion de Ultramar v Tradax Export SA (The Puerto Rocca)UNK [1978] 1 Ll Rep 252.
Cosmar Compania Naviera v Total Transport Corp (The Isabelle)UNK [1982] 2 Ll Rep 81.
EL Oldendorff & Co GmbH v Tradax Export SA (The Johanna Oldendorff)ELR [1974] AC 479.
Kershaw Mechanical Services Ltd v Kendrick Construction LtdUNK [2006] EWHC 727 (TCC); [2006] 4 All ER 79.
Nea Tyhi Maritime Co of Piraeus v Compagnie Graniere SA of Zurich (The Finix)UNK [1975] 2 Ll Rep 415.
North River Freighters Ltd v President of India (The Radnor)UNK [1955] 2 Ll Rep 668.
Stag Line Ltd v Board of TradeUNK (1950) 83 Ll L Rep 356.
Shipping — Voyage charter — Whether charter berth or port charter — Owners' demurrage claim failed.
This was an appeal by the claimant charterers from an award of arbitrators holding that the voyage charterparty entered into between the charterers and the defendant owners was a port rather than a berth charterparty. The arbitrators went on to allow owners' claim for demurrage in the amount of US$502,267.24, together with interest and costs.
The charterparty was for the carriage of a part cargo of steel plates, from Xingang to Cadiz and Bilbao. It was solely contained in a “recap”. The opening term provided “one good and safe chrts berth terminal 4 … Xingang to one good and safe berth Cadiz and one good and safe berth Bilbao”. Clause 2 provided, first, for the vessel “to load at one good and safe port/one good and safe charterers' berths Xingang and to discharge at one good and safe port/one good and safe charterers' berth Cadiz and at one good and safe port/one good and safe charterers' berth Bilbao”; and secondly for “shifting from anchorage/warping along the berth at port of load and at ports of discharge to be for owners' account, while all time used to count as lay time”.
The arbitrators found that clause 2 clearly provided for a port charter in that it qualified the wording contained in the terms set out earlier in the recap by referring to both safe ports and berths. Furthermore, clause 2 provided for shifting time from the anchorage to the berth to count as laytime which must have been on the basis of an ability for the master to tender a valid NOR upon arrival as indeed occurred; there would have been no need for such a provision in a berth charter.
The charterers submitted that if the opening term stood alone, then it was as clear as it could be that this was a berth charterparty. Clause 2[1] was not inconsistent with the opening term; it did no more than add a safe port warranty and had nothing to do with the contractual destination. As to clause 2[2], the arbitrators had it the wrong way round; the provision as to time spent shifting made sense in a berth, not a port, charterparty.
Held, allowing the appeal:
1. The opening term concisely defined the contractual destinations: both as to place of loading and place/s of discharge. It did so in a manner which, if it stood alone, made it plain that it was a berth charterparty. First, the opening term was in a form which identified the destination as the berth: the specified destination was not Xingang; it was one “good and safe … berth … Xingang”. Secondly, on its true construction, the opening term provided expressly for charterers to nominate the berth at Xingang. That express right was given to charterers by the wording “chrs” berth' in the opening term.
2. If cl. 2[1] had the meaning attributed to it by the arbitrators, then the opening term was deprived of any meaning or purpose. It was not simply “qualified”. So far as concerned the contractual destination, it was, on the arbitrators' construction, negated. Having regard to the structure of the charterparty, that would be odd. The charterparty would have commenced with the opening term, pointing overwhelmingly to it being a berth charterparty. Without more ado, cl. 2[1] would then have brought about a fundamental alteration and converted the charterparty into a port charterparty. There was no apparent reason why the parties should have done that. Nor could the opening term be preserved as a “summary” or “recital”; on owners” construction, cl. 2[1] departed radically from the opening term, rather than simply expanding upon it. Instead cl. 2[1] had to be regarded as introducing a safe port/s warranty and reiterating the safe berth/s warranty. There was then no inconsistency between the opening term and cl. 2[1]. The charterparty remained a berth charterparty.
3. Clause 2[2] was neutral. It signified no more than that the parties had made express provision for the costs and the time involved in shifting and warping. If that was wrong, then the arbitrators had fallen into further error in holding that, had this been a berth charterparty, there would have been no need for a provision such as cl. 2[2]. If the charterparty was a berth charterparty, then the provision in cl. 2[2] as to time counting did have a real meaning — absent some such or other express provision, no time would have counted prior to the vessel actually berthing.
4. The charterparty was a berth not a port charterparty. The appeal was allowed and owners' claim for demurrage failed.
Gross J:
1. This is an appeal by the Claimant (“Charterers') from a Final Arbitration Award of two very experienced arbitrators, dated 20 April 2009 (“the award” and “the arbitrators”, as appropriate). The arbitrators held that a voyage charterparty, dated 5 February 2007 (“the charterparty”), of the vessel, MV Merida (“the vessel”), entered into between Charterers and the Defendant (“owners'), was a port rather than a berth charterparty. As is well-known, the primary relevance of this distinction goes to the allocation, as between owners and charterers, of the risk of delay caused by congestion, at load and discharge ports. The arbitrators went on to allow owners' claim for demurrage in the amount of US$502,267.24, together with interest and costs.
2. The sole question of law arising on this appeal is whether the arbitrators were right to conclude that the charterparty was a port and not a berth charterparty. Mr Coburn, for Charterers, submits that they were wrong in law to do so; Mr Akka, for Owners, defends the arbitrators' conclusion. I was grateful to both counsel for their helpful and concise submissions.
3. The key underlying facts can be very shortly summarised:
(i) The charterparty was for the carriage of a part cargo of steel plates, from (put neutrally) Xingang to Cadiz and Bilbao.
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