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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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Monday, 14 April 14
CHINA'S MEASURES TO STIMULATE ECONOMY'S GROWTH COULD OFFER ROOM FOR STABILITY IN SHIPPING MARKETS - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
Since the outbreak of the 2008-crisis, the shipping industry, in most of its aspects, i.e. dry bulk and tanker markets alike, has been dealing w ...
Sunday, 13 April 14
INDONESIA TO INDIA FREIGHT MARKET DECLINE CONTINUES
COALspot.com: The freight market continued to drop this week and BDI almost touched 1000 points. BDI closed at 1002 points fell 16.85 pct week o ...
Friday, 11 April 14
US COAL PRODUCTION IN MARCH INCREASED 9.69% TO 82.6 MMST MONTH ON MONTH
COALspot.com – United States the world's second largest coal producer, produced approximately 19.10 million short tons (mmst) of coal ...
Thursday, 10 April 14
DRY BULK MARKET IS RISING CLAIMS BIMCO - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
Despite the recent fall of the Baltic Dry Index (BDI), when one compares the first quarter of 2014, to similar quarters of the recent past, it i ...
Wednesday, 09 April 14
DRY BULK MARKET STRUGGLED THROUGHOUT THE WEEK - INTERMODAL
The Dry Bulk market struggled throughout the week but the poor performance across the board didn't allow for any positive reversal, pushing ...
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- PowerSource Philippines DevCo
- Goldman Sachs - Singapore
- OPG Power Generation Pvt Ltd - India
- Bayan Resources Tbk. - Indonesia
- Ministry of Mines - Canada
- Bukit Baiduri Energy - Indonesia
- Electricity Authority, New Zealand
- Singapore Mercantile Exchange
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- Mercator Lines Limited - India
- Indogreen Group - Indonesia
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- Ministry of Finance - Indonesia
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- Economic Council, Georgia
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- GAC Shipping (India) Pvt Ltd
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- Attock Cement Pakistan Limited
- Cement Manufacturers Association - India
- Toyota Tsusho Corporation, Japan
- Romanian Commodities Exchange
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- Asia Pacific Energy Resources Ventures Inc, Philippines
- Eastern Coal Council - USA
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- Independent Power Producers Association of India
- New Zealand Coal & Carbon
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- TeaM Sual Corporation - Philippines
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- Bhoruka Overseas - Indonesia
- Billiton Holdings Pty Ltd - Australia
- Global Business Power Corporation, Philippines
- ICICI Bank Limited - India
- AsiaOL BioFuels Corp., Philippines
- Aditya Birla Group - India
- Iligan Light & Power Inc, Philippines
- Thai Mozambique Logistica
- Meenaskhi Energy Private Limited - India
- Chamber of Mines of South Africa
- Siam City Cement PLC, Thailand
- Ind-Barath Power Infra Limited - India
- Power Finance Corporation Ltd., India
- Pipit Mutiara Jaya. PT, Indonesia
- Gujarat Mineral Development Corp Ltd - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Kepco SPC Power Corporation, Philippines
- GMR Energy Limited - India
- Planning Commission, India
- Energy Development Corp, Philippines
- Georgia Ports Authority, United States
- Orica Australia Pty. Ltd.
- Lanco Infratech Ltd - India
- IEA Clean Coal Centre - UK
- Xindia Steels Limited - India
- Semirara Mining Corp, Philippines
- Oldendorff Carriers - Singapore
- Petrochimia International Co. Ltd.- Taiwan
- Pendopo Energi Batubara - Indonesia
- Deloitte Consulting - India
- Holcim Trading Pte Ltd - Singapore
- Energy Link Ltd, New Zealand
- Africa Commodities Group - South Africa
- Barasentosa Lestari - Indonesia
- Salva Resources Pvt Ltd - India
- Bahari Cakrawala Sebuku - Indonesia
- Bhushan Steel Limited - India
- Central Electricity Authority - India
- White Energy Company Limited
- Sinarmas Energy and Mining - Indonesia
- SMG Consultants - Indonesia
- Carbofer General Trading SA - India
- Antam Resourcindo - Indonesia
- Semirara Mining and Power Corporation, Philippines
- Karbindo Abesyapradhi - Indoneisa
- Port Waratah Coal Services - Australia
- Commonwealth Bank - Australia
- Therma Luzon, Inc, Philippines
- Dalmia Cement Bharat India
- Sarangani Energy Corporation, Philippines
- Parliament of New Zealand
- Coal and Oil Company - UAE
- Star Paper Mills Limited - India
- CNBM International Corporation - China
- Electricity Generating Authority of Thailand
- Heidelberg Cement - Germany
- Vizag Seaport Private Limited - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Maheswari Brothers Coal Limited - India
- Manunggal Multi Energi - Indonesia
- IHS Mccloskey Coal Group - USA
- Ceylon Electricity Board - Sri Lanka
- Marubeni Corporation - India
- Latin American Coal - Colombia
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- Posco Energy - South Korea
- Straits Asia Resources Limited - Singapore
- The State Trading Corporation of India Ltd
- Maharashtra Electricity Regulatory Commission - India
- SN Aboitiz Power Inc, Philippines
- Bulk Trading Sa - Switzerland
- CIMB Investment Bank - Malaysia
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- Indonesian Coal Mining Association
- Wilmar Investment Holdings
- Bhatia International Limited - India
- Wood Mackenzie - Singapore
- Savvy Resources Ltd - HongKong
- Petron Corporation, Philippines
- Kobexindo Tractors - Indoneisa
- Simpson Spence & Young - Indonesia
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- Essar Steel Hazira Ltd - India
- Ministry of Transport, Egypt
- TNB Fuel Sdn Bhd - Malaysia
- Standard Chartered Bank - UAE
- Merrill Lynch Commodities Europe
- Chettinad Cement Corporation Ltd - India
- Indika Energy - Indonesia
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- Medco Energi Mining Internasional
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- Sindya Power Generating Company Private Ltd
- Eastern Energy - Thailand
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- McConnell Dowell - Australia
- MS Steel International - UAE
- Indian Oil Corporation Limited
- Edison Trading Spa - Italy
- Anglo American - United Kingdom
- Cigading International Bulk Terminal - Indonesia
- Mjunction Services Limited - India
- Karaikal Port Pvt Ltd - India
- Aboitiz Power Corporation - Philippines
- PNOC Exploration Corporation - Philippines
- The Treasury - Australian Government
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- Malabar Cements Ltd - India
- Coastal Gujarat Power Limited - India
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- Bangladesh Power Developement Board
- Kaltim Prima Coal - Indonesia
- Minerals Council of Australia
- Directorate Of Revenue Intelligence - India
- Bank of Tokyo Mitsubishi UFJ Ltd
- Formosa Plastics Group - Taiwan
- PTC India Limited - India
- Sree Jayajothi Cements Limited - India
- India Bulls Power Limited - India
- Kumho Petrochemical, South Korea
- Directorate General of MIneral and Coal - Indonesia
- Sical Logistics Limited - India
- Baramulti Group, Indonesia
- Neyveli Lignite Corporation Ltd, - India
- Meralco Power Generation, Philippines
- Makarim & Taira - Indonesia
- Siam City Cement - Thailand
- Krishnapatnam Port Company Ltd. - India
- Global Coal Blending Company Limited - Australia
- Bharathi Cement Corporation - India
- Coalindo Energy - Indonesia
- Timah Investasi Mineral - Indoneisa
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- VISA Power Limited - India
- SMC Global Power, Philippines
- PetroVietnam Power Coal Import and Supply Company
- Ambuja Cements Ltd - India
- Metalloyd Limited - United Kingdom
- Kideco Jaya Agung - Indonesia
- Madhucon Powers Ltd - India
- Globalindo Alam Lestari - Indonesia
- Leighton Contractors Pty Ltd - Australia
- Thiess Contractors Indonesia
- Australian Coal Association
- Orica Mining Services - Indonesia
- Riau Bara Harum - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Banpu Public Company Limited - Thailand
- Interocean Group of Companies - India
- Grasim Industreis Ltd - India
- Tamil Nadu electricity Board
- Indian Energy Exchange, India
- London Commodity Brokers - England
- Asmin Koalindo Tuhup - Indonesia
- Bukit Makmur.PT - Indonesia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Jaiprakash Power Ventures ltd
- Parry Sugars Refinery, India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- European Bulk Services B.V. - Netherlands
- Kohat Cement Company Ltd. - Pakistan
- Jorong Barutama Greston.PT - Indonesia
- Kartika Selabumi Mining - Indonesia
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- Australian Commodity Traders Exchange
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- Samtan Co., Ltd - South Korea
- Gujarat Electricity Regulatory Commission - India
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- Kapuas Tunggal Persada - Indonesia
- The University of Queensland
- Agrawal Coal Company - India
- Tata Chemicals Ltd - India
- Price Waterhouse Coopers - Russia
- Rio Tinto Coal - Australia
- Intertek Mineral Services - Indonesia
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