Suek AG v Glencore International AG [QBD (Comm)]
| Jurisdiction | England & Wales |
| Judge | Burton J |
| Judgment Date | 27 May 2011 |
| Neutral Citation | [2011] EWHC 1361 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 27 May 2011 |
[2011] EWHC 1361 (Comm)
Queen's Bench Division (Commercial Court).
Burton J.
Philip Edey QC (instructed by Thomas Cooper) for the claimant.
David Foxton QC (instructed by Holman Fenwick Willan) for the defendant.
The following cases were referred to in the judgment:
Bulk Transport Group Shipping Co Ltd v Seacrystal Shipping Ltd (The Kyzikos)UNK [1987] 1 Ll Rep 48; [1989] 1 Ll Rep 1 (HL).
Northern Shipping Co v Deutsche Seereederei GmbH (The Kapitan Sakharov) [2000] CLC 933.
Northfield Steamship Co v Compagnie L'Union des GazELR [1912] 1 KB 434.
Palm Shipping Inc v Kuwait Petroleum Corp (The Sea Queen)UNK [1988] 1 Ll Rep 500.
Shipping — Sale contract — Laytime and demurrage — Notice of readiness — Sale of coal CIF — In case berth occupied on arrival, vessel could tender notice of readiness at usual waiting place — When vessel arrived at discharge port berth occupied and tidal conditions also such that vessel unable to reach berth — Exception not only applicable if unavailability of berth the only reason why vessel could not access it — Notice of readiness valid.
This was a claim by Suek as seller against Glencore as buyer to determine an issue of construction relating to the running of laytime and demurrage under a contract for the sale of coal in six shipments across the four quarters of 2010 on a cif basis.
When the vessel (Hang Ta), in which one of the shipments under the contract was carried, arrived at the discharge port (Amsterdam) the berth at which the vessel was to discharge was occupied by another vessel, and the Hang Ta was therefore unable to reach the berth and the tidal conditions were such that the vessel was unable to reach the berth, and the master of the vessel gave notice of readiness (“NoR”) at the usual waiting place.
Clause 7.13 of the contract provided that in case the berth was occupied on arrival “vessel can tender NOR at the usual waiting place ATDN SSHINC, whether in berth or not, whether in port or not, whether in free pratique or not, whether customs cleared or not.”
The issue was whether the 7.13 exception, allowing for the NoR to be given at the usual waiting place, left the responsibility for delay with the buyer who did not have the berth available or on the seller whose vessel could not access the berth, when both causes applied.
The defendant submitted, relying on The Kyzikos [1989] 1 Ll Rep 1, that the reference to “whether in berth or not” meant that the exception applied if the unavailability of the berth was the sole reason why the vessel could not proceed to the berth.
Held, Ruling In Favour Of The Claimant Seller:
The defendant's interpretation would require a rewriting of the clause so that the 7.13 exception should only apply if the unavailability of a berth were the only reason why the vessel could not access it, and there was no need for such rewriting, nor for spelling it out of the second part of the sentence. The presence in the second part of the sentence of the words “whether in berth or not, whether in port or not” did not override the first part of the sentence, which was entirely clear. Therefore, notwithstanding the presence of tidal conditions also preventing access to the berth, the unavailability of that berth entitled the master of the Hang Ta to give NoR. (The Kyzikos [1989] 1 Ll Rep 1 considered.)
Burton J:
1. This has been the hearing of a Part 8 claim, by which the parties have submitted to the jurisdiction of this Court a dispute as to construction arising out of a contract dated 1 December 2009 for the sale by the Claimant to the Defendant of 390,000 Metric Tons +/-10% at the Claimant's option of unclean coal in six shipments across the four quarters of 2010 on a cif basis. The claim is brought by Suek AG as Seller, against Glencore International AG as Buyer, to determine on agreed facts the issue of construction relating to the running of laytime and demurrage under the sale contract. Mr Philip Edey QC for the Claimant/Seller submits that the issue of construction is straightforward, because the contract means what it says. Mr David Foxton QC for the Defendant/Buyer submits that his construction can and should be arrived at by reference to the contract as a whole, and is what he calls the “most businesslike construction”, and, although both sides agree that there is no decided authority on point, he submits that his construction is more consistent with such authority as there is.
2. The factual scenario is that when the HANG TA, the vessel in which one of the shipments under the contract was carried, arrived at the discharge port, Amsterdam, at 00.30 hours on 19 February 2010, the berth at which the vessel was to discharge was occupied by another vessel, and the HANG TA was therefore unable to reach the berth and the...
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