NYK Bulkship (Atlantic) N.V. v Cargill International S.A.
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE GROSS
- SIR STANLEY BURNTON
Areas of Law
- Commercial Law
- Maritime Law
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
The case primarily dealt with the interpretation of a proviso to an off-hire clause in a time charterparty between NYK Bulkship and Cargill International. The issue arose when the vessel was detained due to an arrest order on cargo imposed by Transclear against IBG. The court upheld that the proviso's scope includes acts or omissions not necessarily performed in the course of a delegated task, thus denying Cargill's right to withhold hire during the arrest period.
Judgment
Lord Justice Gross:
INTRODUCTION
The central issue before this Court concerns the true construction and application of a proviso to an off hire clause in a time charterparty, dealing with the capture, seizure, detention or arrest of the vessel. The issue thus raises the familiar question as to the allocation of risk of delay as between owners and time charterers.
By a charterparty dated 11 th September, 2008, on the NYPE form as amended (“the charterparty”), the (now) Respondents, NYK Bulkship (Atlantic) N.V. (“NYK”), as owners, chartered the vessel, “GLOBAL SANTOSH” (“the vessel”), to the (now) Appellants, Cargill International SA (“Cargill”), as charterers, for one time charter trip from Sweden to West Africa on the terms and conditions therein set out.
Disputes arose under the charterparty and were duly referred to arbitration, pursuant to cl. 17 thereof. By an arbitration award dated 7 th February, 2012 (“the award”), the arbitrators, by a majority, dismissed the claim brought by NYK against Cargill for hire withheld in circumstances to which I shall come.
Pursuant to s.69 of the Arbitration Act 1996 (“the Act”), NYK appealed from the award to the Commercial Court. The matter came before Field J. I adopt, with respect, from his judgment dated 1 st February, 2013 (“the judgment”), Field J’s concise summary of the facts underlying the dispute between the parties (which are not or not significantly in dispute):
“ 2. …..Cargill sub-chartered the vessel to Sigma Shipping Ltd (‘Sigma’) by way of a voyage charter. The cargo was one of six shipments of cement sold by Transclear SA (‘Transclear’) to IBG Investments Ltd (‘IBG’) on C&FFO terms under a contract of sale dated 14 December 2007. IBG were named as the notify party on the relevant bill of lading, which also specified the discharge port as ‘Port Harcourt (Ibeto jerry)’. Pursuant to the ‘FO’ (‘free out’) part of the sale terms, IBG were responsible for the unloading of the cargo. IBG were also liable to pay Transclear demurrage if unloading of the cargo was delayed. It seems reasonably clear that Transclear were also a sub-charterer under a voyage charter but whether by way of charter from Sigma or by a more indirect route is not apparent.
3. The vessel arrived at Port Harcourt on 15 October 2008 but was held at anchor due to congestion caused in part by the breakdown of IBG’s unloader. On 18 December 2008 she was called in to berth but she was sent back because, on the previous day, Tr