Taokas Navigation Sa (Owners) v Komrowski Bulk Shipping Kg (Gmbh & Co) (Charterers)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Teare |
| Judgment Date | 11 July 2012 |
| Neutral Citation | [2012] EWHC 1888 (Comm) |
| Docket Number | Case No: 2011 FOLIO 12252011 FOLIO 13152011 FOLIO 1344 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 11 July 2012 |
[2012] EWHC 1888 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Teare
Case No: 2011 FOLIO 12252011 FOLIO 13152011 FOLIO 1344
and
Malcolm Jarvis (instructed by Stockler Brunton) for the Sub-Sub-Charterers, Solym Carriers Ltd.
Charlotte Tan (instructed by Holman Fenwick Willan LLP) for the Sub-Charterers, Kent Line International Ltd
Christopher Wood (of Winter Scott LLP) appearing for the Charterers, Komrowski Bulk Shipping KG (GmbH & Co)
Robert Bright QC (instructed by Reed Smith LLP) for the Owners, Taokas Navigation SA.
Hearing dates: 31 May 2012
This is an appeal on a question of law pursuant to section 69 of the Arbitration Act 1996 arising out of an award on a preliminary issue made by Messrs. Sheppard, Martin-Clark and Siberry QC dated 16 September 2011. The arbitrators in fact made three such awards in references arising out of three charterparties of the vessel PAIWAN WISDOM on materially identical terms. The lead Appellant is the sub-sub charterer Solym Carriers Ltd. and was represented by Mr. Malcolm Jarvis. The lead Respondent is the owner Taokas Navigation SA and was represented by Mr. Robert Bright QC. The intervening charterers, Komrowski Bulk Shipping and Kent Line, were represented by Mr. Christopher Wood and Miss Charlotte Tan who took no active part in the hearing beyond passing the respective submissions up and down the chartering line.
For the purposes of the argument the terms of the charterparties were taken from the charterparty between Kent Line as disponent owners and Solym Carriers as charterers. It was dated 25 March 2010 and was on the NYPE 93 form. It provided for a charter period of 11–13 months trading via safe ports from delivery at Hakodate dock, Japan. The vessel was delivered on 22 April 2010 and the Charterers' instructions for the first voyage were given on 23 April 2010. They were for the vessel to proceed to Hoping, Taiwan and there load a cargo of cement clinker for discharge in Mombasa, Kenya. The Owners refused to perform those voyage instructions in reliance on the CONWARTIME 2004 clause.
The most material terms of the charterparty were:
Clause 5 Trading Limits
The Vessel shall be employed in such lawful trades between safe ports and safe places within (See Clause 50).
Clause 50 Trading limits / exclusions
Vessel always to trade within I.W.L., Charterers' option breach of LW.L. subject to Owners' underwriters approval and invoice (Owners will assist to obtain the rate lower or approximate to London scale. it is however WOG), always afloat at any time of tide, Charterers' option NAABSA, always via safe port(s)/berth(s)/anchorage(s) excluding:
Abkhazia, Angola, Cambodia, C.I.S. Far Eastern ports, Eritrea, Ethiopia, Georgia but the port of Poti is allowed, Great Lakes, Haiti, Lebanon, but Iraq will be allowed as soon as situation normalizes, Israel, Liberia, North Korea, Serbia, Somalia, Syria is allowed provided vessel is not flying Liberian flag, Yemen, Zaire, places subject to U.N. sanctions, areas prohibited by vessel's war risks underwriters due to war-like activities, and places which may be excluded by the authority of the vessel's flag. Passing Gulf of Aden always allowed with H&M insurance authorization.
Cuba is included in the trading of the vessel but to be redelivered to the Owners free of any U.S.A. ban.
No direct trade between People's Republic of China and Taiwan.
Clause 94 – BIMCO War Risks Clause for TimeCharters 2004
Code Name: CONWARTIME 2004
(a) For the purpose of this Clause, the words:
(i) "Owners" shall include the Shipowners, Bareboat Charterers, Disponent Owners, managers or other operators who are charged with the management of the Vessel, and the Master; and
(ii) "War Risks" shall include any actual, threatened or reported: war; act of war; civil war; hostilities; revolution; rebellion; civil commotion; warlike operations; laying of mines; acts of piracy; acts of terrorists; acts of hostility or malicious damage; blockades (whether imposed against all vessels or imposed selectively against vessels of certain flags or ownership, or against certain cargoes or crews or otherwise howsoever); by any person; body; terrorist or political group, or the Government of any state whatsoever, which, in the reasonable judgement of the Master and/or the Owners, may be dangerous or are likely to be or to become dangerous to the Vessel, her cargo, crew or other persons on board the Vessel.
(b) The Vessel, unless the written Consent of the Owners be first obtained, shall not be ordered to or required to continue to or through, any port, place, area or zone (whether of land or sea), or any waterway or canal, where it appears that the Vessel, her cargo, crew or other persons on board the Vessel, in the reasonable judgement of the Master and/or the Owners, may be, or are likely to be, exposed to War Risks. Should the Vessel be within any such place as aforesaid, which only becomes dangerous, or is likely to be or become dangerous, after her entry into it, she shall be at liberty to leave it.
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(d) (i) The Owners may affect war risks insurance in respect of the Hull and Machinery of the Vessel and their other interests (including but not limited to, loss of earnings and detention, the crew and their protection and Indemnity Risks), and the premiums and/or cans therefore shall be for their account.
(ii) If the Underwriters of such insurance should require payment of premiums and/or call because, pursuant to the Charterers' orders, the Vessel is within, or is due to enter and remain within, or pass through any area or areas which are specified by such Underwriters as being subject to additional premiums because of War Risks, then the actual premiums and/or calls paid shall be reimbursed by the Charterers to the Owners at the same time as the next payment of hire is due, or upon redelivery, whichever occurs first.
(e) If the Owners become liable under the terms of employment to pay to the crew any bonus or additional wages in respect of sailing into an area which is dangerous in the manner defined by the said terms, then the actual bonus or additional wages paid shall be reimbursed to the Owners by the Charterers at the same time as the next payment of hire is due, or upon redelivery, whichever occurs first.
(f) If in accordance with their rights under the foregoing provisions of this Clause, the Owners shall refuse, to proceed to the loading or discharging ports, or anyone or more of them, they shall immediately inform the Charterers. No cargo shall be discharged at any alternative port without first giving the Charterers notice of the Owners intention to do so and requesting them to nominate a safe port for such discharge. Failing such nomination by the Charterers within 48 hours of the receipt of such notice and request, the owners may discharge the cargo at any safe port of their own choice,
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(h) If in compliance with any of the provisions of sub-clauses (b) to (g) of this Clause anything is done or not done, such shall not be deemed a deviation, but shall be considered as due fulfilment of this Charter Party.
When refusing to perform the instructions to proceed to Mombasa, Kenya the Owners referred to "recent developments in Indian Ocean in respect of piracy." They also referred to "piracy getting more severe and extending further along the coast/waters of ...
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