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Saturday, 12 April 14
HOW DO YOU CALCULATE LOSS OF EARNINGS FOLLOWING A COLLISION? - INCE & CO
 KNOWLEDGE TO ELEVATE
The recent case of Astipalaia vs Hanjin Shenzhen [2014] EWHC 120 (Admlty) has revisited the existing case law on assessment of damages following a collision and provided further clarification as to the appropriate test to be applied. On 26 March 2008 there was a collision between the fully laden VLCC tanker Astipalaia and the container ship Hanjin Shenzhen in the approaches to Singapore where Astipalaia was due to discharge. As a result of the collision, Astipalaia suffered damage to her hull, guard rails and mooring chock. Astipalaia was able to proceed into Singapore to discharge her cargo.
The background facts
At the time of the collision, Astipalaia was trading in the VLCC spot market which in early-mid 2008 was particularly buoyant and the vessel was acceptable throughout the industry to oil majors and other first class charterers. However, Astipalaia was unfixed for her next employment at the time of the collision.
As a result of the incident, the vessel’s oil major approvals were temporarily placed on “technical hold” by the majors pending the usual investigation into the collision. Astipalaia was also required by class to undertake permanent repairs before any further employment.
Astipalaia sailed from Singapore to Dubai in ballast and entered dry dock for permanent repairs which lasted around 10 days. On exiting dry dock, Astipalaia was still unable to resume trading on the VLCC spot market as the “technical hold” had not then been lifted. In the absence of oil major approvals, Astipalaia was fixed to NITC to be employed as floating storage off Kharg Island, Iran on a 60 day period charter, during which time the “technical holds” were dealt with and lifted. She completed the NITC fixture and was redelivered at Fujairah on 29 June 2008 after which she resumed her normal pattern of spot trading.
Accordingly, despite the time in dry dock only lasting some 10 days, Astipalaia was effectively unavailable for her primary trading market for the entire period from 26 March 2008 to 29 June 2008. Astipalaia brought a claim for loss of profits based on what the vessel would have earned had she traded on the normal VLCC spot market during that period, giving credit for the mitigation earnings obtained while on charter as floating storage to NITC. The total amount claimed by Astipalaia was approximately US$5,640,000 lost income during that period.
The Reference to the Registrar
Following agreement on liability, the quantum of Astipalaia’s claim was disputed and referred for determination by the Admiralty Registrar. The Court had to consider how to calculate loss of earnings of Astipalaia in circumstances where (1) the vessel did not have a specific next fixture concluded at the time of the collision such that there was no certainty as to what the vessel would have earned next, but for the collision, and (2) the vessel’s oil major approvals had been placed on “technical hold” and were not reinstated until the end of a less lucrative storage fixture.
Astipalaia’s position
Astipalaia’s Owners contended that damages should be assessed on the basis that the best evidence of Astipalaia’s potential earnings, but for the collision, were that Astipalaia would either (i) have been fixed to Indian Oil Corporation (IOC) with whom they had been negotiating for a West Africa-East Coast India fixture at the time of the collision, after which Astipalaia would have resumed a ‘typical’ spot trading pattern of a round voyage from Arabian Gulf (AG) to the Far East, or (ii) had Owners not secured the IOC fixture, the vessel would have undertaken two AG-Far East round voyages. Under either alternative, these two hypothetical voyages would have been completed within roughly the same period of time as the detention period, i.e. by 29 June 2008, such that a reasonable comparison could be drawn between what the vessel could have earned during that period, with what she did in fact earn.
Astipalaia’s Owners relied on the “time equalisation method” set out in The Vicky 1 [2008] 2 Lloyd’s Rep 45, which they argued supported their approach of comparing what the vessel would probably have earned but for the collision with what she did in fact earn in the same period. The hypothetical voyage schedule advocated by the Astipalaia’s Owners and prepared by their expert sought to provide comparable fixtures she could (but not necessarily would) have performed in the detention period in order to place a value on the vessel’s lost earnings. On that basis Astipalaia claimed damages of approximately US$5,640,000.
Hanjin Shenzhen’s position
In the Vicky 1, the claimant tanker owners had lost an actual fixture. Hanjin Shenzhen’s Owners argued that the principles from Vicky 1 only applied if the claimant ship owner had lost a secured fixture, not where there was no definite next business secured.
Their primary case was that the loss period should be split into two distinct periods: (i) the period during which the vessel was completely out of service, when repairs were being completed; and (ii) the period during which she performed the floating storage charter. On that basis, Hanjin Shenzhen argued that whilst they were liable in damages for lost income for approximately US$800,000 for period (i) during the dry docking, by the time of the floating storage charter being entered into after dry docking the spot market had in fact fallen such that no damages were recoverable for period (ii) as the rates achieved under the floating storage business successfully mitigated Astipalaia’s loss.
Hanjin Shenzhen interests also opposed the “time equalisation method” of seeking to model hypothetical voyages on the basis that it was too speculative to seek to calculate when the vessel might have been back in the AG after the first hypothetical voyage, and what the spot rate might have been at that time for the second hypothetical voyage.
During proceedings it was accepted by both experts that VLCCs operate in a well-defined and straightforward trading pattern. The largest loading area (around 72% of all VLCC cargoes) is the AG followed by West Africa, with a limited number of cargoes loading in the Caribbean or North Sea/Mediterranean. The Registrar accepted this evidence, and further evidence that of the 72% of cargoes lifted from the AG, around 70% of those cargoes are for Far East discharge. Accordingly, it could be established on the balance of probabilities what sort of business the vessel most likely would/could have achieved during the total detention period.
The Admiralty Court decision
The Registrar considered and analysed various leading cases, including The Argentino (1888) 13 PD 191 (C/A), 14 App Cas 519 (H/L), The Soya [1956] 1 WLR 714 (C/A) and The Vicky 1 [2008] 2 Lloyd’s Rep. 45 (C/A).
Having done so, the Registrar accepted Astipalaia’s approach to assessing damages. The court upheld Astipalaia’s argument that the detention period should include not only the repair period but also the additional period the vessel needed to obtain reinstatement of oil major approvals before returning to her normal employment, and that this detention period should be taken as a single period finishing on 29 June 2008, not broken into two parts. The arguments on behalf of Hanjin Shenzhen that there were principles of law curtailing or precluding such an assessment were rejected.
On the basis of the expert evidence before him, the Registrar assessed damages in the total sum of approximately US$ 4,960,000 (a loss of earnings of US$ 9,860,000 less US$ 4,900,000) earned during the floating storage contract.
Comment
This Judgment confirms that an owner can claim damages not just for the immediate loss of use of the vessel during the period of repairs but also for further knock-on effects to the vessel’s ability to return to normal trading, provided of course that such knock-on effects are not too remote or unforeseeable and that the loss can be proven by evidence.
The Judgment also confirms that there is no set rule as to the recoverability of damages for loss of use, and that such recovery is not dependent on proof of a specific lost fixture, nor (if such a fixture is established) that damages are limited to that one fixture but no more.
While there is no set methodology for calculating loss of profits, the methodologies used in earlier cases may be adapted to suit the facts of each case. The principles applied in this case were ultimately the same as those applied in The Vicky 1 and can be said to represent a recognised and well principled approach to modelling a vessel’s likely earnings over a given period which properly takes into account the relevant market position as at the time the hypothetical voyages would have been fixed.
It should be noted, however, that proving one’s loss may be more difficult in other trades. The VLCC trade is sufficiently well established and ‘predictable’, with enough data published, to allow a meaningful expert analysis of what the vessel could have earned. It would be more difficult to undertake the same exercise for ships with a more varied and unpredictable trading pattern.
Source: Ince & Co / Hellenic Shipping News
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Friday, 04 July 14
US: WEEKLY COAL PRODUCTION SLIGHTLY UP W-O-W
COALspot.com – United States the world's second largest coal producer, produced approximately 19.4 million short tons (mmst) of coa ...
Friday, 04 July 14
PARAM MITRA COAL RESOURCES SECURES US$ 7.5M INVESTMENT FROM TEMBUSU PARTNERS
Param Mitra Coal Resources Pte Ltd (“PMCR”), which owns two operating coal mines in Indonesia, has secured from Singapore private equit ...
Thursday, 03 July 14
BUMI TRANSFERS 19% OF KPC STAKE VALUED AT US$ 950 MILLION TO CIC
COALspot.com: PT. Bumi Resources announces that 19% of its holdings in Kaltim Prima Coal (KPC), valued at US$ 950 million, has been transferred to ...
Thursday, 03 July 14
PANAMAX : IN THE ATLANTIC, OWNERS ARE WILLING TO FIX AT ABOUT $2.5K PER DAY - FEARNEYS
Handy
In its latest weekly report, shipbroker Fearneys noted that, this week seems to have been more of a wait and see game between owners and ch ...
Wednesday, 02 July 14
NEWMONT FILES FOR INTERNATIONAL ARBITRATION ON ORE EXPORT BAN - THE JAKARTA POST
PT Newmont Nusa Tenggara (NNT), a subsidiary of United States-based Newmont Corporation, has filed for international arbitration against the govern ...
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Showing 3626 to 3630 news of total 6871 |
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- Star Paper Mills Limited - India
- Merrill Lynch Commodities Europe
- SMG Consultants - Indonesia
- San Jose City I Power Corp, Philippines
- Planning Commission, India
- International Coal Ventures Pvt Ltd - India
- Neyveli Lignite Corporation Ltd, - India
- Alfred C Toepfer International GmbH - Germany
- Barasentosa Lestari - Indonesia
- Directorate General of MIneral and Coal - Indonesia
- Orica Mining Services - Indonesia
- Madhucon Powers Ltd - India
- Electricity Generating Authority of Thailand
- South Luzon Thermal Energy Corporation
- Toyota Tsusho Corporation, Japan
- Straits Asia Resources Limited - Singapore
- GAC Shipping (India) Pvt Ltd
- Eastern Coal Council - USA
- Vizag Seaport Private Limited - India
- Carbofer General Trading SA - India
- Intertek Mineral Services - Indonesia
- Riau Bara Harum - Indonesia
- Indian Oil Corporation Limited
- Parliament of New Zealand
- Kobexindo Tractors - Indoneisa
- Romanian Commodities Exchange
- Marubeni Corporation - India
- Orica Australia Pty. Ltd.
- Kapuas Tunggal Persada - Indonesia
- Binh Thuan Hamico - Vietnam
- Semirara Mining Corp, Philippines
- Jorong Barutama Greston.PT - Indonesia
- Electricity Authority, New Zealand
- Banpu Public Company Limited - Thailand
- Eastern Energy - Thailand
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Karaikal Port Pvt Ltd - India
- Goldman Sachs - Singapore
- Sree Jayajothi Cements Limited - India
- Indonesian Coal Mining Association
- IHS Mccloskey Coal Group - USA
- The State Trading Corporation of India Ltd
- Ministry of Mines - Canada
- Commonwealth Bank - Australia
- Pendopo Energi Batubara - Indonesia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Sinarmas Energy and Mining - Indonesia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Tamil Nadu electricity Board
- Chettinad Cement Corporation Ltd - India
- Salva Resources Pvt Ltd - India
- Petrochimia International Co. Ltd.- Taiwan
- Leighton Contractors Pty Ltd - Australia
- Sakthi Sugars Limited - India
- Holcim Trading Pte Ltd - Singapore
- Kohat Cement Company Ltd. - Pakistan
- Miang Besar Coal Terminal - Indonesia
- Grasim Industreis Ltd - India
- Baramulti Group, Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- PTC India Limited - India
- Billiton Holdings Pty Ltd - Australia
- Global Coal Blending Company Limited - Australia
- Cigading International Bulk Terminal - Indonesia
- Krishnapatnam Port Company Ltd. - India
- Rashtriya Ispat Nigam Limited - India
- Meenaskhi Energy Private Limited - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Iligan Light & Power Inc, Philippines
- Vedanta Resources Plc - India
- Coalindo Energy - Indonesia
- Anglo American - United Kingdom
- Mjunction Services Limited - India
- Bukit Makmur.PT - Indonesia
- India Bulls Power Limited - India
- Sical Logistics Limited - India
- Standard Chartered Bank - UAE
- SN Aboitiz Power Inc, Philippines
- European Bulk Services B.V. - Netherlands
- Altura Mining Limited, Indonesia
- Central Electricity Authority - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Ind-Barath Power Infra Limited - India
- Kumho Petrochemical, South Korea
- Maheswari Brothers Coal Limited - India
- White Energy Company Limited
- London Commodity Brokers - England
- Ministry of Transport, Egypt
- Directorate Of Revenue Intelligence - India
- Karbindo Abesyapradhi - Indoneisa
- Global Business Power Corporation, Philippines
- Power Finance Corporation Ltd., India
- Simpson Spence & Young - Indonesia
- Savvy Resources Ltd - HongKong
- Kideco Jaya Agung - Indonesia
- GVK Power & Infra Limited - India
- Latin American Coal - Colombia
- Sarangani Energy Corporation, Philippines
- Central Java Power - Indonesia
- Samtan Co., Ltd - South Korea
- Posco Energy - South Korea
- PNOC Exploration Corporation - Philippines
- McConnell Dowell - Australia
- Port Waratah Coal Services - Australia
- Kartika Selabumi Mining - Indonesia
- Kalimantan Lumbung Energi - Indonesia
- Coal and Oil Company - UAE
- Jaiprakash Power Ventures ltd
- Bukit Asam (Persero) Tbk - Indonesia
- Renaissance Capital - South Africa
- Kaltim Prima Coal - Indonesia
- Borneo Indobara - Indonesia
- Georgia Ports Authority, United States
- Wood Mackenzie - Singapore
- Indika Energy - Indonesia
- Aboitiz Power Corporation - Philippines
- CNBM International Corporation - China
- ICICI Bank Limited - India
- Singapore Mercantile Exchange
- Malabar Cements Ltd - India
- Edison Trading Spa - Italy
- VISA Power Limited - India
- Oldendorff Carriers - Singapore
- OPG Power Generation Pvt Ltd - India
- Thai Mozambique Logistica
- IEA Clean Coal Centre - UK
- Indo Tambangraya Megah - Indonesia
- Bulk Trading Sa - Switzerland
- Kepco SPC Power Corporation, Philippines
- Australian Coal Association
- Bank of Tokyo Mitsubishi UFJ Ltd
- GMR Energy Limited - India
- Globalindo Alam Lestari - Indonesia
- Cement Manufacturers Association - India
- Jindal Steel & Power Ltd - India
- Bukit Baiduri Energy - Indonesia
- Ceylon Electricity Board - Sri Lanka
- Xindia Steels Limited - India
- Coastal Gujarat Power Limited - India
- Bhoruka Overseas - Indonesia
- Energy Development Corp, Philippines
- SMC Global Power, Philippines
- Meralco Power Generation, Philippines
- Gujarat Sidhee Cement - India
- Petron Corporation, Philippines
- Gujarat Mineral Development Corp Ltd - India
- Agrawal Coal Company - India
- The University of Queensland
- Australian Commodity Traders Exchange
- Timah Investasi Mineral - Indoneisa
- The Treasury - Australian Government
- PetroVietnam Power Coal Import and Supply Company
- Energy Link Ltd, New Zealand
- Pipit Mutiara Jaya. PT, Indonesia
- CIMB Investment Bank - Malaysia
- Bharathi Cement Corporation - India
- Attock Cement Pakistan Limited
- Chamber of Mines of South Africa
- Dalmia Cement Bharat India
- Larsen & Toubro Limited - India
- Vijayanagar Sugar Pvt Ltd - India
- New Zealand Coal & Carbon
- Siam City Cement - Thailand
- Bayan Resources Tbk. - Indonesia
- Formosa Plastics Group - Taiwan
- Trasteel International SA, Italy
- Interocean Group of Companies - India
- Bhatia International Limited - India
- Ministry of Finance - Indonesia
- Indian Energy Exchange, India
- GN Power Mariveles Coal Plant, Philippines
- Independent Power Producers Association of India
- Aditya Birla Group - India
- Tata Chemicals Ltd - India
- Heidelberg Cement - Germany
- Africa Commodities Group - South Africa
- Indogreen Group - Indonesia
- Metalloyd Limited - United Kingdom
- Global Green Power PLC Corporation, Philippines
- Thiess Contractors Indonesia
- Medco Energi Mining Internasional
- ASAPP Information Group - India
- Essar Steel Hazira Ltd - India
- AsiaOL BioFuels Corp., Philippines
- Siam City Cement PLC, Thailand
- Manunggal Multi Energi - Indonesia
- Minerals Council of Australia
- Therma Luzon, Inc, Philippines
- LBH Netherlands Bv - Netherlands
- Sojitz Corporation - Japan
- Uttam Galva Steels Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- Mercator Lines Limited - India
- Videocon Industries ltd - India
- Ambuja Cements Ltd - India
- Bhushan Steel Limited - India
- Lanco Infratech Ltd - India
- Economic Council, Georgia
- Mintek Dendrill Indonesia
- Price Waterhouse Coopers - Russia
- Antam Resourcindo - Indonesia
- Makarim & Taira - Indonesia
- Sindya Power Generating Company Private Ltd
- MS Steel International - UAE
- Bangladesh Power Developement Board
- Mercuria Energy - Indonesia
- Wilmar Investment Holdings
- Gujarat Electricity Regulatory Commission - India
- Semirara Mining and Power Corporation, Philippines
- Asmin Koalindo Tuhup - Indonesia
- Deloitte Consulting - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Rio Tinto Coal - Australia
- Parry Sugars Refinery, India
- PowerSource Philippines DevCo
- TeaM Sual Corporation - Philippines
- Maharashtra Electricity Regulatory Commission - India
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