Seatrade Group N.v v. Hakan Agro D.M.C.C “The Aconcagua Bay”
| Jurisdiction | England & Wales |
| Judge | Mr Justice Robin Knowles |
| Judgment Date | 26 March 2018 |
| Neutral Citation | [2018] EWHC 654 (Comm) |
| Docket Number | Case No: CL-2017-000196 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 26 March 2018 |
[2018] EWHC 654 (Comm)
IN THE HIGH COURT OF JUSTICE
THE BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
COMMERCIAL COURT (QBD)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Robin Knowles CBE
Case No: CL-2017-000196
In the Matter of the Arbitration Act 1996
And in the Matter of an Arbitration
Nevil Phillips and Ben Gardner (instructed by Birketts LLP) for the Claimant
Andrew Feld (instructed by Davies Battersby) for the Defendant
Hearing dates: 23 February 2018
Judgment Approved
Introduction
This is an appeal by the Owners of the “Aconcagua Bay” (“the Vessel”) under section 69 of the Arbitration Act 1996. In granting leave for the appeal, Leggatt J (as he then was) was satisfied that the question of law raised by the appeal was one of general public importance. It is common ground that there is no binding authority on the question.
The question of law is whether the warranty in a voyage charterparty that a berth is “always accessible” means that the vessel is always able not only to enter but also to leave the berth. In an Award dated 23 February 2017 (“the Award”) Mr Ian Kinnell QC as Umpire found that a warranty in those terms referred to entry and not to departure.
The charter of the Vessel was for carriage from the US Gulf to the Republic of Congo and Angola. The charterparty, on an amended GENCON 1994 form, provided:
“10. Loading port or place (Cl.1)
1 good safe berth always afloat always accessible 1–2 good safe ports in the USG in Charterers' option …”
Whilst the Vessel was loading, a bridge and lock were damaged. As a result the Vessel was unable to use a channel so as to be able to leave the berth until 14 days after she had completed loading. The Owners claimed damages for detention from the Charterers for the period of delay.
The applicable principles of interpretation were not in issue. In interpreting a contract the court is concerned to identify the intention of the parties by reference to what a reasonable person having all the background knowledge that would have been available to the parties would have understood them to be using the language in the contract to mean; the court focusses on the meaning of the words in their documentary, factual and commercial context: see Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38; [2009] AC 1101 at [14] per Lord Hoffmann; Arnold v Britton [2015] UKSC 36, [2015] AC 1619 at [14]–[23] per Lord Neuberger; Rainy Sky SA v Kookmin Bank [2011] UKSC 50, [2011] 1 WLR 2900 at [14]–[30] per Lord Clarke; Wood v Capita Insurance Services Ltd [2017] UKSC 24, [2017] AC 1173 at [8]–[15] per Lord Hodge.
There are judgments and awards which have examined the term “always accessible” in relation to a vessel's arrival, but have not needed to address the position on departure.
However in an arbitration award published at London Arbitration 11/97 (1997) LMLN 463 the term “always accessible” was found not to extend to leaving the berth. Even then the point was not decisive in that arbitration, as pointed out by Mr John Schofield in Laytime and Demurrage (7 th edition) and Sumerskill on Laytime (6 th edition by Professor Simon Baughen). The tribunal nonetheless addressed it.
The tribunal looked at textbooks, finding these “of little assistance”. It then looked at the Voylayrules 93, finding an inference from the absence of reference to a ship leaving a berth or port.
But as Mr Donald Davies points out in his book Commencement of Laytime (2006), the tribunal in 11/97 did not have the benefit of seeing the Baltic Code 2003 (and 2007, and see also 2014) which specified that “Where the charterer undertakes the berth will be ‘always accessible’, he additionally undertakes that the vessel will be able to depart safely from the berth without delay or at any time during or on completion of loading or discharge”. See also Laytime Definitions for Charterparties 2013 (BIMCO special circular no. 8 dated 10 September 2013).
The Umpire in the present case, as with the tribunal in 11/97, also looked at English dictionary definitions. So too in Seacrystal Shipping Ltd v Bulk Transport Group Shipping Co Ltd (The “Kyzikos”) [1987] 1 Lloyd's Rep 48 at 58, where the Court was examining arrival not departure, Webster J looked to the shorter Oxford English Dictionary for the meaning of “access” as “way or means of approach” and “accessibility” as “capable of being approached”.
Yet if...
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