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Monday, 04 April 16
THE LOADING, AND SUBSEQUENT DISCHARGE, OF UNSAFE NICKEL ORE - ALL TIME TO 'COUNT' - THE STANDARD CLUB
 KNOWLEDGE TO ELEVATE
In a recent, published, London arbitration award the English tribunal has held that all time lost as a result of loading, and then discharging, a confiscated (unsafe) cargo will be for the charterer’s account.
Background facts
Under a contract of affreightment (CoA), the owner was required to carry eight shipments of nickel ore. The ship promptly arrived at the nominated load, with loading commencing the very next day. Loading stopped two weeks later, however, and the local navy issued a confiscation order, resulting in the ship being compounded in a nearby naval base. The confiscation order was issued due to the cargo being mined outside the parameters of the locally granted permits. Only three months later was the ship released to discharge the cargo already on board the ship, which took two more months to complete.
When the ship was released the charterer emailed the owner requiring it to organise the remaining discharge operation. In addition, the charterer advised that it would not provide any cargo for the next shipment. In response, the owner advised the charterer that it had wrongfully repudiated the CoA and claimed, through London arbitration, demurrage for the entire duration of delay.
The Tribunal’s decision
The arbitration tribunal would only consider the claim for demurrage, not the claim for possible wrongful termination.
The charterer’s primary defense to the demurrage claim was based upon the following CoA clause (our emphasis):
‘In case any acts of God, riots, civil commotions, fire or any other causes comprehend in the Force Majeure terms which may delay or prevent to provide the cargo at the port of loading and load/discharge of the cargo, such time lost is not to count as laytime as neither Charterers nor Shipper nor Suppliers nor Receivers shall be liable for any loss of demurrage, unless vessel already on demurrage. Once on demurrage always on demurrage.’
The tribunal found that the above clause did not aid the charterer in its defence. It was held that the confiscation of the ship by the local navy did not fall within the boundaries of ‘any acts of God, riots, civil commotions, fire or any other causes comprehend in force majeure terms’.
Also, the tribunal found that because the subject cargo had been illegally mined, the charterer had failed to meet its primary contractual obligation under the CoA to provide a safe cargo, which could not be ‘excused’ by other contractual defences.
Finally, as the intervention by the navy was after the ship fell on demurrage, it was found that as per the above wording, ‘once on demurrage always on demurrage’, the charterer remained liable for the entire period of detention and delay.
On the other hand, the tribunal refused to accept that the charterer should not be allowed load time. This was on the basis that cargo had been partially loaded. The charterer was therefore allowed laytime, on a pro rata basis, irrespective of it being considered an unsafe cargo.
Concluding remarks
Following the above decision, members acting in a charterer’s capacity should take all precautions to ensure that the cargo to be loaded on board a ship is safe, legal and that all applicable documentation is in order to best prevent similar situations from arising in the future. It should also be noted that if the subject charter includes the phrase ‘once on demurrage, always on demurrage’ the charterer will remain liable for all time used until the load or discharge operation is completed. Charterer members should, therefore, be proactive and continue to use their best efforts to minimize any time lost.
This article intends to provide general guidance on the issues arising as a matter of English law. It is not intended to provide legal advice in relation to any specific query. Members requiring further information on this topic should direct their enquiries to either their usual contact at the club, or to the authors of this article.
Defence cover is, by its very nature, discretionary in that the club must be satisfied as to the merits and quantum of the claim in question and the likelihood of achieving a successful outcome, if it is to lend support.
Source: The Standard Club
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Wednesday, 06 July 16
KOMIPO INVITES BIDS FOR 780000 MT OF BITUMINOUS COAL
COALspot.com: South Korea state-owned utility Korea Midland Power (KOMIPO) issued a new tender for 780,000 Metric Tons of Bituminous Coal for its B ...
Wednesday, 06 July 16
MARKET INSIGHT - VASSILIS VASSILIOU
After a fairly silent first half of the year in the ship repair sector, we have finally a harmonized workload in the shipyards around the world. Ma ...
Tuesday, 05 July 16
DRY BULK SHIPPING'S RECOVERY NOT SEEN UNTIL 2018 - SGX
SGX freight derivative volumes totaled 36,542 contracts in June (-28% m/m; +52% y/y), while open interest averaged 121,189 contracts during the mon ...
Tuesday, 05 July 16
SPOT COAL INDEXES FOR INDONESIAN COAL CONTINUE TO HOLD FIRM - CS COAL INDEX
COALspot.com: Average 5000 GAR coal index of Indonesian origin was up by 0.83 percent week over week to averaging $39.98 per ton this past week, sh ...
Monday, 04 July 16
INDONESIA COAL PRICE REFERENCE CLIMBED 2.30% IN JULY
COALspot.com: The Indonesia Coal Benchmark Price increased in July 2016.
The Director General of Mineral and Coal of Indonesia, the r ...
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- Samtan Co., Ltd - South Korea
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- Eastern Coal Council - USA
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- Economic Council, Georgia
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- The State Trading Corporation of India Ltd
- Ministry of Transport, Egypt
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- Power Finance Corporation Ltd., India
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- Dong Bac Coal Mineral Investment Coporation - Vietnam
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- Sakthi Sugars Limited - India
- Siam City Cement PLC, Thailand
- Xindia Steels Limited - India
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- Global Coal Blending Company Limited - Australia
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- Australian Coal Association
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- Cigading International Bulk Terminal - Indonesia
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- Directorate General of MIneral and Coal - Indonesia
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- Merrill Lynch Commodities Europe
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- Chettinad Cement Corporation Ltd - India
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- Standard Chartered Bank - UAE
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- Chamber of Mines of South Africa
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