Portolana Compania Naviera Ltd v Vitol SA Inc. and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Clarke,Lord Justice Laws,Lord Justice Ward |
| Judgment Date | 09 July 2004 |
| Neutral Citation | [2004] EWCA Civ 864 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2003/1836 |
| Date | 09 July 2004 |
[2004] EWCA Civ 864
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
The Honourable Mr Justice Tomlinson
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Ward
Lord Justice Clarke and
Lord Justice Laws
Case No: A3/2003/1836
Mr Nevil Phillips (instructed by Mills and Co) for the Claimant/Respondent
Mr Thomas Macey-Dare (instructed by Stephenson Harwood) for the Defendants/Appellants
Introduction:
This appeal raises two questions of some interest arising out of the Asbatankvoy form of voyage charterparty. The relevant charterparty, which is in amended Asbatankvoy form, was made on 3 May 2001 and is between the respondent owners of the 86,417 tonnes deadweight tanker Afrapearl ("the owners") and the appellant charterers. It is not necessary to distinguish between the two appellants, which I will together call "the charterers".
The contract voyage was from ports in the US Gulf to Dakar, Senegal and Gibraltar. The charterparty was amended by a number of addenda and Dakar became a permissible discharge port only by reason of addendum no 4, which was agreed on 21 June 2001. The vessel was loaded with a cargo of fuel oil. On 5 July the vessel was ordered to discharge at Dakar, where discharge was ordered to be in three parts as follows:
i) 20,000 tonnes min/max at 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 Société Africaine de Raffinage, who were the owners and operators of both the sealine and a terminal with a traditional discharging berth within the port at Dakar.
The owners claimed the disputed balance of demurrage in the sum of US$455,851.44 and additional agency fees and expenses in the sum of US$100,007.03, of which US$77,912.70 remained in dispute at the trial. Under the charterparty 84 hours were allowed for loading and discharging, of which 64 hours and 33 minutes were used at the loadports.
The judge held that the owners were entitled to demurrage under clause 8 and to additional fees and expenses under clause 9 of the charterparty, in each case in the amount claimed. He gave judgment accordingly. He refused permission to appeal but permission was subsequently granted by Longmore LJ.
The charterparty:
It is only necessary to set out clauses 6, 7, 8 and 9 of the charterparty which are in these terms:
'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 charterparty Part I 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 or princes, rulers or people, such delays shall count as half laytime or if on demurrage, the rate of demurrange 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 fire, explosion, storm, or by a strike, lockout, stoppage or restraint of labor, or by a breakdown of machinery or equipment in or about the plant of the Charterer, supplier, shipper or consignee of the cargo, such delays shall countas 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 demurrage or delay caused by strike, lockout, stoppage or restraint of labour for Master, officers and crew of the vessel or tugboats or pilots and/or awaiting tide and/or awaitingdaylight and/or awaiting pilot(s) and/or awaiting tug(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 pilotage 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.'"
[I have put the agreed amendments to clause 8 of the standard form of Asbatankvoy charterparty in italics. I have not done the same in the case of the other clauses because there is no need to do so.]
The facts
The judge set out the facts in paragraphs 7 to 19 of his judgment. Save as appears below, none of those findings of fact is in dispute in this appeal. It makes no sense for me to paraphrase them. I therefore quote them, with gratitude to the judge:
'7. 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.
8. 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. In July 2001 the sealine was in poor condition. It was poorly maintained and corroded and had leaked on earlier occasions. In about November 1999 the PLEM was pulled westwards either by a tug or by a ship. This movement bent the sealine out of position severely weakening it. No repairs were then carried out. In October 2000 when the vessel Front Driver was at the sealine there was a very considerable leak of oil from the pipeline, as a result of the hoses being pulled too far by the handling tug. I should explain that on each berthing there are potentially two opportunities for such damage to occur. Firstly, the hoses might be picked up by the tug and pulled clear of the area where the vessel is to moor in advance of her arrival. This operation would be unnecessary if the hoses were found already to be in the correct position, or at any rate not in a position whereby they were likely to be fouled by the mooring vessel. Then, after the vessel was secured to the buoys the hoses would again be lifted by the tug and brought for connection to the ship's manifold. After the incident involving Front...
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