Portolana Compania Naviera Ltd v Vitol SA Inc. and Another
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Tomlinson,Mr Justice Tomlinson,TO |
| Judgment Date | 09 July 2004 |
| Neutral Citation | [2003] EWHC 1904 (Comm) |
| Docket Number | Case No: 2002 Folio No 384 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 09 July 2004 |
[2003] EWHC 1904 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London WC2A 2LL
The Honourable Mr Justice Tomlinson
Case No: 2002 Folio No 384
Nevil Phillips (instructed by Mills and Co, Newcastle) for the claimants
Thomas Macey-Dare (instructed by Stephenson Harwood) for the defendants
Hearing dates: 8 and 9 July 2003
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.
The claimants are the owners of the vessel "Afrapearl". I shall refer to them hereafter as "the Owners".
By a charterparty in amended Asbatankvoy form dated 3 May 2001 and various addenda thereto the Owners chartered their vessel to one or other of the defendants for the performance of a laden voyage carrying fuel oil from, in the event, two loading ports in the US Gulf to Dakar, Senegal and Gibraltar at which latter ports the vessel discharged. Dakar became a permissible discharge port only by reason of Addendum no 4 agreed on 21 June 2001. The vessel was in fact ordered to discharge at Dakar only on 5 July 2001. Discharge at Dakar was ordered to be in three parts:
(i) 20,000 tonnes min/max at the M'bao sealine;
(ii) 10,000 tonnes min/max at the SAR terminal for account of SAR; and
(iii) 5,250 tonnes min/max at the SAR terminal for account of Addax/Oryx Senegal.
SAR is an acronym for Societe Africaine de Raffinage, owners and operators of both the sealine and a terminal in the port with a traditional discharging berth.
The Owners say that Vitol SA Inc were the charterers, and indeed at the initial stages of the transaction they undoubtedly were. The defendants say that by reason of a novation agreement Vitol SA became the charterers and that Vitol S.A Inc agreed to guarantee performance of the charter. It is thus agreed to be unnecessary for me to resolve this dispute. Accordingly, I shall simply hereafter refer to the defendants compendiously as "the Charterers".
The substantive dispute which has arisen concerns delay and extra expense incurred at Dakar in consequence of the unfitness of the sealine, without necessary repairs, to be used in the initial discharge contemplated thereat. This translates into a claim by the Owners for (i) outstanding disputed demurrage in the sum of US$455,851.46 and (ii) additional agency fees and expenses in the sum of US$100,007.03.
Under the charterparty 84 hours' laytime was allowed for loading and discharging. 64 hours and 33 minutes there of was used at the loadports.
Further relevant provisions of the charterparty which contains various amendments to the standard form are:
6. NOTICE OF READINESS, Upon arrival at customary anchorage at each port of loading or discharge, the Master or his agent shall give the Charterer or his agent notice by letter, telegraph, wireless or telephone that the vessel is ready to load or discharge cargo, berth or no berth, and laytime, as hereinafter provided, shall commence upon the expiration of six (6) hours after receipt of such notice, or upon the vessel's arrival in berth (ie finished mooring when at sealoading or discharging terminal and all fast when loading or discharging alongside a wharf) whichever first occurs. However, irrespective of whether the berth is reachable on arrival or not, except where berth is not reachable due to another vessel occupying berth and carrying out cargo operations, otherwise after tendering Notice of Readiness where delays are incurred due to circumstances which fall under charter party Part 1 additional clauses 5/29/31/35/36/38 and Part II Clause 7 and 8 as amended. The reductions and exceptions so provided will prevail regardless of whether or not the berth was reachable on Vessel's arrival. Furthermore, where delays occur and/or demurrage shall be incurred at ports of loading and/or discharge by reason of act of god, act of war, act of public enemies, riot, civil commotion or arrest or restraint of princes, rulers or people, such delays shall count as half laytime or if on demurrage, the rate of demurrage shall be reduced 1/2 of the amount stated in Part I per running hour or pro rata for part of an hour for demurrage so incurred.
Where delay is caused to Vessel getting into berth after giving notice of readiness for any reason over which Charterer has no control, such delay shall not count as used laytime or demurrage. In any event Charterer shall be entitled to six hours' notice of readiness at loading and discharging ports, even if the vessel is on demurrage.
7. HOURS FOR LOADING AND DISCHARGING. The number of running hours specified as laytime in Part I shall be permitted the Charterer as laytime for loading and discharging cargo…. Time consumed by the vessel in moving from loading and discharge port anchorage to her loading or discharging berth…. shall not count as used laytime or time on demurrage.
8. DEMURRAGE. Charterer shall pay demurrage per running hour and pro rata for a part thereof at the rate specified in Part I for all time that loading and discharging and used laytime as elsewhere herein provided exceeds the allowed laytime elsewhere herein specified. If, however, delays occur and/or demurrage shall be incurred at ports of loading and/or discharge by reason of… storm. breakdown of machinery or equipment in or about the plant of the Charterer or consignee of the cargo, such delays shall count as half laytime or, if on demurrage, the rate of demurrage shall be reduced one half of the amount stated in Part I per running hour or pro rata for part of an hour for demurrage so incurred …. The Charterer shall not be liable for any delays caused by awaiting tide and/or awaiting daylight and/or awaiting pilot(s) and/or awaiting tugs(s).
9. SAFE BERTHING —SHIFTING. The vessel shall load and discharge at any safe place or wharf, or alongside vessels or lighters reachable on her arrival. The Charterer shall have the right of shifting the vessel at ports of loading and/or discharge from one safe berth to another on payment of all towage and pilot age shifting to next berth, charges for running lines on arrival at and leaving that berth, additional agency charges and expenses, customs overtime and fees, and any other extra port charges or port expenses incurred by reason of using more than one berth. Time consumed on account of shifting shall count as used laytime except as otherwise provided in Clause 15.
10. PUMPING IN AND OUT. The cargo shall be … pumped out of the vessel at the expense of the vessel, but at the risk and peril of the vessel only so far as the vessel's permanent hose connections, where delivery of the cargo shall be taken by the Charterer or its consignees…
11. HOSES: MOORING AT SEA TERMINALS. Hoses for loading and discharging shall be furnished by the Charterer, and shall be connected and disconnected by the Charterer, or, at the option of the Owner, by the Owner at the Charterer's risk and expense. Laytime shall continue until the hoses have been disconnected.
12. DUES, TAXES —WHARFAGE. … The vessel shall be free of charges for the use of any wharf, dock, place or mooring facility arranged by the Charterer for the purpose of loading or discharging cargo…
ADDITIONAL CLAUSES
8. Claims Clause
Charterer shall be discharged and released from all liability in respect of any claims Owner(s) may have under this Charter Party (such as but not limited to, claims for deadfreight, demurrage, port expenses, shifting expenses), unless claim has been presented in writing to Charterer with all available supporting documents within 90 (ninety) days from completion of discharge of cargo carried under this Charter Party.
31. Operational Compliance Clause
Owner shall indemnify Charterer for any damages, delays, costs and consequences of not complying with Charterer's voyage instructions given in accordance with the Charter Party…
If a conflict arises between terminal orders and Charterer's voyage instructions, the Master shall stop cargo operations and contact Charterer immediately. The terminal orders shall never supersede Charterer's voyage instructions and any conflict shall be resolved prior to resumption of cargo operations…."
The vessel arrived at Dakar and tendered Notice of Readiness at 1500 on 10 July. Shortly afterwards a pilot came on board and the vessel began manoeuvring towards the M'bao sea berth with the assistance of two tugs.
The M'bao sealine berth at which vessels discharge into the terminal of SAR is in the Port of Dakar roads in the middle of the Bay of Gorée. On the western side of the bay is the Port of Dakar and on the eastern side is the town of M'bao. The sealine runs from the SAR oil terminal, slightly north of M'bao on the coast of the Bay, to the sealine berth. The pipeline extends from the SAR terminal about 2.3 nautical miles south west and then 0.7 nautical miles south. The pipeline is made of a series of sections of API 5L x 24 inch steel pipe, coated in polyethylene of about 2cms, which in turn is encased in a concrete sleeve of 5 —10cm thickness. For about the first 200 metres the sealine is buried underground but then it runs along the seabed rather than being buried beneath it. At the end of the pipeline is the pipeline end manifold or "PLEM" which forms a connection between the pipeline and two 16-inch diameter flexible hoses. The PLEM is not and has never been anchored to the seabed. The hoses are 60 metres long and are made of six lengths of flexible hose each ten metres long which are fitted together. They are made by reputable companies such as Dunlop and Trelleborg and have a breaking point of 42 tonnes....
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