Ocean Pride Maritime Ltd Partnership v Qingdao Ocean Shipping Company (The "Northgate")
| Jurisdiction | England & Wales |
| Judgment Date | 27 November 2007 |
| Neutral Citation | [2007] EWHC 2796 (Comm) |
| Docket Number | Case No: 2006 Folio No. 789 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 27 November 2007 |
[2007] EWHC 2796 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Mr. Richard Siberry QC
Sitting as a Deputy High Court Judge
Case No: 2006 Folio No. 789
Mr Michael Coburn (instructed by Homan Fenwick & Willan) for the Claimant
Miss Rebecca Sabben-Clare (instructed by Middleton Potts) for the Defendant
Hearing date: 29 October 2007
Introduction
This case concerns a claim by Ocean Pride Maritime Limited Partnership, as disponent owners (“Owners”) of the M.V. NORTHGATE, against Qingdao Ocean Shipping Company as voyage charterers (“Charterers”), for demurrage, alternatively damages for detention, alleged to have become payable by Charterers in respect of the call of the NORTHGATE at Guaiba Island Terminal, Sepetiba, Brazil, in November 2005, to load a cargo of iron ore. Charterers are part of the Chinese state-owned COSCO shipping group (“COSCO”), and the cargo was one of a long succession of iron ore shipments from South America to China. The claim is brought under a clause in the charter in question providing that the charter was governed by English law and that disputes were to be submitted to the exclusive jurisdiction of the High Court.
The vessel arrived and anchored at the outer anchorage off Guaiba Island Terminal (“the Terminal”), and tendered notice of readiness (“NOR”), at 0550 on 17 November 2005. Owners contend that laytime commenced, after the expiry of a 12-hour notice period, at 1750 the same day. As a result of congestion at the Terminal, the vessel was unable to berth until 0935 on 27 November 2005. Charterers contend that laytime commenced at 1155 that day, when the vessel commenced loading. Loading operations were completed at 0357 on 29 November 2005, whereupon the NORTHGATE sailed for China.
If laytime did commence at 1750 on 17 November 2005, as Owners contend, it was common ground that it expired before the vessel berthed, and that demurrage for 8.179861 days, in the sum of US$449,892.35, became payable by Charterers. On Charterers' case, however, the vessel completed loading before the expiry of laytime, and they earned despatch, in the sum of US$43,274.31, which they deducted from the balance of freight payable to Owners after completion of discharge.
The voyage charter fixture pursuant to which the vessel loaded at the Terminal, and discharged at Qingdao, China, in January 2006, was concluded on 17 October 2005, through Clarkson Asia Limited's Shanghai representative office (“Clarksons”) as brokers: it was on that date that Clarksons sent both parties a fixture recap email confirming that they had “fully fixed” the M.V. MEYNELL, or at Owners' option the M.V. NORTHGATE, on the terms set out in the recap. Clarksons' fixture recap included reference to an earlier voyage charter fixture to Charterers of a vessel, the M.V. BRAZIL STAR, in the same management as the NORTHGATE – that of Zodiac Maritime Agencies Limited of London (“Zodiac”), who, like Clarksons, had a representative office in Shanghai. In the event, Owners exercised their option to perform the voyage with the NORTHGATE, and I shall henceforth refer to the 17 October 2005 fixture as “the NORTHGATE Charter”.
Although various drafts of a charterparty for the NORTHGATE Charter were prepared and circulated by Clarksons after the fixture had been concluded, no charterparty was ever signed by Charterers. Likewise, although the BRAZIL STAR fixture had been concluded on 10 May 2005, and although various drafts of a charterparty recording that fixture were circulated, it does not appear that Charterers ever signed a BRAZIL STAR charterparty.
Against this background, one of the disputes that I have to resolve is as to precisely what terms were agreed between Owners and Charterers, under the NORTHGATE Charter, with regard to the commencement of laytime at the Terminal. I shall also have to decide issues as to the proper construction of such terms as I find were agreed. This will involve considering the evidence relating to the terms, not only of the NORTHGATE and BRAZIL STAR Charters, but also of a voyage charterparty dated 27 October 2004 between Charterers as (in this instance) the owners of the MV CAPE SATURN, and Jinan Iron and Steel Company Limited as charterers.
That charterparty (“the CAPE SATURN Charter”) was signed by both parties thereto, and there was no dispute as to its terms. However, the manner in which clause 6B thereof, dealing with when NOR could be tendered, was set out in the CAPE SATURN Charter resulted in subsequent confusion, at least in the minds of Owners, as will appear below.
In brief, it was Owners' case that, having regard to what they described as the “main terms” of the NORTHGATE Charter, which allowed for the tender of NOR “Whether in berth or not, whether in port or not, whether customs clearance or not, whether in free pratique or not” (commonly, and hereinafter, abbreviated as, respectively, WIBON, WIPON, WCCON, and WIFPON), NOR could validly be tendered at the outer anchorage off the Terminal, as the Master of the NORTHGATE had done; and that time counted from the expiry of the prescribed 12-hour notice period after tender of such NOR. They contended that clause 6B of the NORTHGATE Charter was agreed in terms which did not conflict with this; or, alternatively, that clause 6B had to yield to the WIBON, WIPON, WCCON, WIFPON provisions of the “main terms” of that Charter. Charterers for their part contended that clause 6B was agreed in terms which made clear that NOR could only be tendered at the outer anchorage if (no loading berth then being available) the vessel was compelled to wait for a berth at the outer anchorage due to unavailability of space at the inner anchorage. It was common ground that in the present case, however, it would have been possible, though more costly for Owners, for the NORTHGATE to have waited at the inner anchorage. Accordingly, so Charterers submitted, the NOR tendered at the outer anchorage was a nullity, and time only commenced to count when the vessel berthed and loading commenced some 10 days later.
In the alternative to their primary case that the NOR tendered on 17 October 2005 when the NORTHGATE arrived at the outer anchorage was valid, Owners contended that Charterers must be taken to have waived any defect in the NOR and/or were estopped from contending that it was invalid, by reason of its having been accepted by the Terminal upon tender at 0550 on 17 November 2005. Charterers riposted that any such acceptance had been by the Terminal, not by Charterers themselves; and that there had been no clear and unequivocal representation by Charterers, and in any event no reliance by Owners, capable of giving rise to any such waiver or estoppel.
In the further alternative, if the NOR was invalid and Charterers were not precluded from so contending, Owners claimed damages for detention on the basis that Charterers were in breach of another of the “main terms” of the NORTHGATE Charter, whereby Charterers had undertaken that a berth at the Terminal would be “always accessible” (“AA”). Charterers' response to this damages claim was that it was not open to Owners to advance such a claim where, as here, it was Owners' own decision that the NORTHGATE should remain at the outer (rather than the inner) anchorage, waiting for a berth to become available, that had resulted in Owners not having tendered a valid NOR, which they could have done had the NORTHGATE proceeded immediately to, and waited for a berth at, the inner anchorage, where space had been available. There were also issues as to the quantum of Owners' damages claim.
The evidence comprised two bundles of contemporaneous documentation, together with some additional documents, and the witness statements exchanged by the parties. Owners served two witness statements each from Stephen Kunzer, chief representative at Zodiac Shanghai, and Paul Shields, Operations Director of Zodiac in London, and a witnesss statement (relating only to the quantum of Owners' alternative damages claim) from Andrew Hamish Matthews, a senior broker at Zodiac in London. Charterers served two witness statements from Li Zhao Hui, who works in the chartering department of COSCO Qingdao, and a witness statement of Rodrigo Kill, a ship's agent based in Rio, who works for Brazshipping Maritima Ltda. (“Brazshipping”), a Brazilian shipping agency which acted as agents in respect of the Vessel's call at the Terminal. The parties sensibly agreed that, in a case which turned very largely on the documents, there was no need for any oral evidence. The witness statements were agreed to be admissible in evidence, though no admissions were made as to their contents.
The trial took place on 29 October 2007, and (as a result of the parties' agreement that no oral evidence would be called) was concluded within the day (though some additional documents were submitted by the parties shortly after the trial, on which I invited and received short supplementary written submissions). Owners were represented by Mr Michael Coburn, instructed by Homan Fenwick & Willan. Charterers were represented by Miss Rebecca Sabben-Clare, instructed by Middleton Potts.
Although Mr Coburn invited me first to consider what the position would have been under what he described as the “main terms” of the NORTHGATE Charter, it is more logical, as Miss Sabben-Clare submitted, and as I shall do, to grapple with the issue as to what were the agreed terms of the NORTHGATE Charter with regard to when NOR could properly be tendered, and then to address the issue as to the proper construction of those terms, having regard to the parties' respective submissions, including...
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