Shipping

Expert legal advice in uncertain watersWritten by legal experts, Clyde & Co’s Shipping Newsletter is a regular publication designed to keep you informed of recent legal developments.

In this issue, we review:

• ED&F Man Sugar Ltd v Unicargo Transportgesellschaft GmbH (The “LADYTRAMP”) [2013]. The Court of Appeal takes a narrow approach over the interruption of laytime

• Caresse Navigation Ltd v Office National de L’Électricité and 5 others (The “CHANNEL RANGER”) [2013]. How accurate should a reference to a charterparty law and jurisdiction clause, within a negotiable bill of lading, be?

• London Steam-Ship Owners’ Mutual Insurance Association Ltd v (1) Spain (2) France (The “PRESTIGE”) [2013]. The High Court dismisses Spain and France’s challenge to the arbitration tribunal’s jurisdiction

• Flame SA v Glory Wealth Shipping Pte Ltd (The “GLORY WEALTH”) [2013]. The compensatory principle which applies to the assessment of damages is upheld

• Venetico Marine SA v International General Insurance Co Ltd and 19 Others (The “IRENE EM”) [2013]. The High Court holds grounding to be a peril of the seas

• Cargo liquefaction: A review of the issues relating to the transport of particular types of cargoes prone to liquefy

• What’s new? A compilation of recent legal updates:

• Arrest of the “HENNA”: Commercial dispute and consumer protection

• Sanctions against Iran eased

• Sale & purchase under the Norwegian Saleform: Seller’s right to sue for unpaid deposit

• Court of appeal clarifies issue of jurisdiction over successive carriers under the CMR convention

• Difficulties with time charterparty restructuring agreements

• Commission to investigate shipping lines for alleged “price signalling”

• The “ALEXANDROS T”: Jurisdictional battle – success for insurers in the English supreme court

• Australia affirms that international arbitration references in voyage charterparties are enforceable

• Transport and Logistics Newsletter – Winter 2013

We hope you find our newsletter informative. If you would like to discuss any of the issues raised, you can email us on info@clydeco.com or liaise with your usual contact or the authors in this newsletter.

Clyde & Co – A leading international law firm with over 1,500 lawyers operating over 6 continents.

NewsletterJanuary 2014

ContentsIntroductionPage 1

Force majeure: Damage by fire does not constitute mechanical breakdownPage 2

Court flexible in the incorporation of law and jurisdiction charterparty clauses into negotiable bills of ladingPage 3

“PRESTIGE”: A welcome decisionPage 4

Assessment of damages: Compensatory principle upheldPage 6

Grounding: A peril of the seas under the Marine Insurance Act 1906 Page 7

Cargo liquefaction remains a riskPage 9

What’s new? A compilation of recent legal updatesPage 11

Meet the authorsPage 13

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Shipping Newsletter January 2014

Force majeure: Damage by fire does not constitute mechanical breakdownTom Kelly

In the recent case of ED&F Man Sugar Ltd v Unicargo Transportgesellschaft GmbH (The “LADYTRAMP”) [2013], the Court of Appeal took a narrow approach to interpreting provisions of a clause that provided for interruptions to laytime in the event of certain force majeure circumstances.

Clause 28 of the Sugar Charter Party 1999 provided “In the event that whilst at or off the loading place … the loading … of the vessel is prevented or delayed by … mechanical breakdowns at mechanical loading plants, government interferences ... time so lost shall not count as laytime”.

Shortly before the arrival of the vessel, the terminal to which the vessel had been ordered was damaged by fire, and in particular, the conveyor belt system linking the terminal to the warehouse was destroyed. Charterers alleged that this amounted to mechanical breakdown pursuant to Clause 28, since the conveyor belt no longer operated. In doing so, charterers relied on the earlier Court of Appeal decision in The “AFRAPEARL”1, in which it was held that “breakdown of machinery” covered any situation in which the machinery no longer fulfilled its purpose.

The Court of Appeal however chose to focus on the narrower wording of Clause 28, which required “mechanical breakdown”, as opposed to “breakdown”. The Court considered that to fall within clause 28, the breakdown had to be mechanical in nature, and so destruction by outside elements such as fire did not fit within the wording of the clause. Destruction by fire was not therefore sufficient to interrupt laytime, and charterers were liable for demurrage.

There have been several incidents recently in which ports were damaged in similar ways, such as by fire in Santos, and by weather, in the Pacific, as a result of Typhoon Haiyan. These disasters have given rise to disputes over whether or not laytime/demurrage was interrupted by damage to the port, and this decision will be decisive for some of those disputes where the laytime clause may be interpreted narrowly. Where the clause is wider, decisions such as that in The “AFRAPEARL” should still apply and provide protection for charterers.

It is also worth remembering that, following the 2012 case of Carboex SA v Louis Dreyfus Commodities Suisse SA, where an event does fall within a force majeure or interruption to laytime clause, the aftermath of that event is also likely to be covered. In that case, the vessel arrived after a strike in the port, but was caught in the congestion caused by that strike. The court held that this was sufficient to interrupt laytime, provided it could be shown that the delay was caused by the strike.

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1 Portolana Compañía Naviera Ltd v Vitol SA Inc. (The “AFRAPEARL”) [2004]

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Court flexible in the incorporation of law and jurisdiction charterparty clauses into negotiable bills of lading Jennifer Wheeler

It has long been established that in order for a law and jurisdiction clause in a governing charterparty to be incorporated into a negotiable bill of lading, specific reference must be made to the clause. The courts have required this level of clarity in order to protect the consignee, who will almost always not be a party to the original contract of carriage.

In the case of Caresse Navigation Ltd v Office National de L’Électricité and 5 others (The “CHANNEL RANGER”) [2013], the Court considered the question of how accurate such a reference to a charterparty law and jurisdiction clause needs to be.

FactsThe claim concerned alleged damage to a cargo of coal, shipped from Rotterdam to Morocco, as a result of self-heating and consequent dousing with sea water. The claimant shipowners (who were also the contractual carriers of the cargo) commenced proceedings in the English courts for a declaration of non-liability as against the defendant cargo interests for damage to the coal. Cargo interests contested the jurisdiction of the English courts on the grounds that the clause providing for English jurisdiction in the underlying voyage charter was not adequately incorporated into the bill of lading.

The bill of lading (in the Congenbill 1994 form) provided that the “Law and Arbitration” clause of the voyage charter was incorporated. The problem was, however, that the underlying voyage charter (in the Amwelsh form 1979) contained a “Law and Jurisdiction” clause as opposed to a “Law and Arbitration” clause. Cargo interests argued that there was a need for clarity and certainty and, as such, the wording in the bill of lading should be taken literally. They therefore argued that as there was no “Law and Arbitration” clause in the charterparty to incorporate, no other clauses in the charterparty should be deemed incorporated in its place, including the “Law and Jurisdiction” clause. As a result, they contended, no inference as to English jurisdiction could be made, and the proper forum should instead be Morocco, this being the location of discharge.

DecisionThe claimant argued that a certain amount of verbal manipulation should be permitted, in order to achieve the result which the parties had originally intended. Mr Justice Males agreed with this approach, stating that the question was one of construction, not incorporation; the requisite “specific reference” to a clause in the charterparty had been made, and it was therefore for the Court to decide to which clause this referred. Mr Justice Males concluded that as there were no other clauses in the charterparty dealing with dispute resolution, the “Law and Jurisdiction” clause was the only possible clause which a reasonable person would have understood as having been intended. As a result, it was possible to correct an error by the parties in mistakenly using the word “arbitration” instead of “jurisdiction.” However, he added the caveat that the consignee would only be bound by such charterparty clauses to the extent they were usual in the trade.

Mr Justice Males made it clear in his judgment that his decision was not inconsistent with the prevailing view that clarity and certainty are required in order to protect a third-party consignee. He maintained that as a result of his decision, a consignee is put in no worse position than if the underlying charterparty had in fact contained a “Law and Arbitration” clause which had been straightforwardly incorporated in the usual manner, as, in both circumstances, a consignee would still need sight of the charterparty before being able to ascertain the terms incorporated. It therefore seems to be the case that as long as a specific reference is made in the bill of lading to a discernable clause in a charterparty, which is usual in the trade, minor mistakes in the reference wording are likely to be overlooked. However, it should be noted that the decision is subject to appeal.

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Shipping Newsletter January 2014

The “PRESTIGE”: A welcome decisionLiz Turnbull and Jaime Albors

The Spanish Courts handed down judgment in the “Prestige” case acquitting the Master, but most importantly, making it clear that the Spanish Courts will uphold the CLC limit even in cases where civil liability for pollution damage arises ex delicto.

It is a welcome decision because it reaffirms what was already established law in Spain: the rules that stem from the Civil Liability Convention (CLC) of 1969 and 1992 also apply in the case of civil liability arising out of a criminal offence (liability ex delicto).

In the London insurance market, and in particular amongst the Protection and Indemnity (P & I) Clubs, there was concern in relation to the “Prestige” case. The basis of the Spanish prosecution’s arguments was that the limits of liability of the CLC should not apply if the pollution damage arose out of a criminal offence, and therefore, were the captain to be convicted of an offence against the environment, the CLC limits of liability should not apply. So much so, that during the course of the trial, the prosecution argued that the conviction of the master should be considered instrumental to pursuing the claim against the insurer.

On the basis of the argument put forward by the prosecution, the liability insurer of the “Prestige”, the London Steamship (the “Club”), could have faced liability up to its policy limit – 1 billion US dollars – even though the CLC limit was approximately 22 million euros (the amount had already been placed into an escrow account in the Spanish Court in 2003).

Against this risk, and to protect its position, the Club started and successfully completed London arbitration proceedings against Spain, seeking a declaration of non-liability in excess of the CLC limit. Spain refused to participate in these proceedings.

Faced with the imminent publication of the Spanish judgment, insurers subsequently sought permission to enforce the award as a judgment under s. 66 of the Arbitration Act 1996. The application was granted on 22 October 20131.

The insurer argued that any claim in excess of the CLC limit should be heard in London, in accordance with the exclusive arbitration clause of the Club’s Rules, and also that it could make use of all the defences available under its P&I policy. These included the “pay to be paid” clause, which meant the insurer would only indemnify sums which had been previously paid out by its insured. Following the handing down of the English judgment, with an insolvent shipowner unable to pay, the insurer was shielded against a possible Spanish judgment in excess of the CLC’s limit.

Spain took part in the s. 66 application and argued that they had a right to a direct action against the insurer based on the Spanish Insurance Act (Art.76 of the Ley 50/1980, de 8 de octubre, de Contrato de Seguro) and on the grounds of public policy, and therefore, the Club’s Rules were unenforceable as against Spain. In addition, Spain claimed immunity from the jurisdiction clause by reason of its status as a sovereign state. The arguments were dismissed.

Compliance with International Conventions On 11 November 2013, the publication TradeWinds predicted a potential conflict between the Spanish judgment – not yet issued at the time – and the English one; the English decision upholding the CLC’s limitation of liability, and the Spanish judgment potentially making the insurer liable to pay 1 billion US dollars.

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1 London Steam-Ship Owners’ Mutual Insurance Association Ltd v (1) Spain (2) France sub nom The “PRESTIGE” [2013]

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It is for this reason that we now return to the beginning. It is a welcome decision because Spain has abided by the CLC Convention, clearly demonstrating that Spanish courts apply and comply with international conventions. In the end, aside from any political consideration, both decisions have complied with the legal framework that the international legislator established in respect of civil liability arising out of marine pollution.

This is very important because the risks are pre-defined in the CLC. When an insurer agrees to provide cover to an owner in respect of liability arising out of oil pollution, it does so knowing that it is a strict liability (the polluter

pays) but, at the same time, is aware that its liability is limited under the Convention in accordance with the tonnage of the vessel. From a legal certainty point of view, so essential for the insurance market and the shipping industry, a judgment contrary to that handed down by the Provincial Court of La Coruña would have had catastrophic consequences, seriously jeopardizing the market’s ability to take on this type of risk and would have caused shock waves across the industry.

This article was first published in the Spanish magazine Actualidad Aseguradora, 25 November 2013.

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Assessment of damages: Compensatory principle upheldCatherine Baddeley

The case of Flame SA v Glory Wealth Shipping Pte Ltd (The “GLORY WEALTH”) [2013] emphasises the importance of the compensatory principle in the assessment of damages. The Court showed its reluctance to find that an innocent party be placed in a better position than it would have been in, had the party in breach not repudiated the contract.

Glory Wealth as “disponent owners of the Glory Wealth to be nominated motorship” (the Owner) and Flame AS (the Charterer) entered into a contract of affreightment dated 19 August 2008 (the COA). Following the collapse of the market shortly thereafter, the charterer failed to declare laycans in respect of a number of shipments under the COA. The Owner commenced London arbitration proceedings, and claimed that the measure of loss that it was entitled to was the difference between the COA rate and market rate, this being USD 5,426,608.60. The Charterer argued that, as a result of the market collapse, the Owner would have been incapable of providing the required vessels had laycans been declared, and the Owner should prove that it would have been able to perform the voyages in order to be entitled to damages.

The arbitration tribunal found that the Charterer was in repudiatory breach of the COA, and awarded the Owner the damages claimed. The tribunal reached its finding on the following grounds:

(a) It was not open to the Charterer as “contract-breaker”, to allege that the Owner, as the innocent party, still bore the burden of proving its loss on the balance of probabilities after Owner’s acceptance of the Charterer’s repudiatory breach

(b) The words “disponent owners of the Glory Wealth to be nominated motorship” meant only that the Owner was obliged to nominate vessels at its disposal (by whatever means) that would perform the voyage, and the Owner was not required to own or actually to have time or voyage chartered the vessels

The Charterer challenged these two points of law in the High Court under section 69 Arbitration Act 1996. In addition, the Charterer challenged the award on the grounds of three heads of serious irregularity under section 68.

In respect of the first point of law, the Owner submitted that in assessing loss, it had to be assumed that the innocent party would have performed its obligations, had there been no repudiatory breach by the contract-breaker. Once the innocent party has accepted the repudiation, it is excused from future performance. The Charterer submitted that this was “based upon a logical fallacy” and that in order to determine the loss, it is necessary hypothetically to consider what would have happened had the contract been performed.

The Court took the starting point that the compensatory principle governs the assessment of damages; the award of damages is to put the innocent party in the same position, and in no better position, than it would have been in had the contract been performed. The Court then gave detailed consideration to the relevant authorities in order to determine whether it should adopt a different approach and, in particular, to assume that an innocent party would have performed its obligations if there had been no repudiatory breach.

The Court held that it was not bound by any clear authority providing an exception to the compensation principle, the principle should apply and therefore the arbitration tribunal had erred. The innocent party, as the party claiming damages, has the burden of proving its loss. When hypothetically assessing damages, it is necessary to assume that the party in breach has performed its obligations, not that the innocent party would have performed its obligations.

The tribunal had found as a matter of fact that the Owner would have been able to perform the COA if called upon to do so. Accordingly, there was no cause to reconsider the assessment of quantum.

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Shipping Newsletter January 2014

Grounding: A peril of the seas under the Marine Insurance Act 1906 Peter Ward

In Venetico Marine SA v International General Insurance Co Ltd and 19 Others (The “IRENE EM”) [2013], the High Court held that a vessel which had grounded was a constructive total loss because the cost of repairs would have exceeded the repaired value - s.60(2)(ii) Marine Insurance Act 1906. The grounding was deemed to be a peril of the seas and a proximate cause of the damage to the vessel, the damage being consequently covered by the owner’s insurance policy.

FactsThe “IRENE EM” was insured under hull and machinery policies with an agreed total value of USD 12 million, incorporating the Institute Time Clauses – Hulls 1/11/95 (ITCH), while further policies provided cover for an additional USD 6 million. Clause 6 of ITCH states, inter alia, that “This insurance covers loss of or damage to the subject-matter caused by… perils of the seas…”

The vessel grounded in the Gulf of Khambhat, just off her discharge port of Dahej, India. The grounding was not noticed by the crew at the time of the incident. Once discovered, the crew tried unsuccessfully to refloat the vessel using the main engine, although she later refloated on the next high tide. She was able to berth and to discharge her cargo, but significant damage to the vessel was subsequently discovered. The claimant and Owner (Venetico) gave notice of abandonment and sold the vessel for scrap. She was dismantled soon afterwards.

Claim for reliefVenetico sought damages on the basis that the “IRENE EM” was an actual total loss (ATL) or, alternatively, a constructive total loss (CTL), and that such damage had been proximately caused by a peril of the sea.

The underwriters contended that Venetico had not proved how the grounding had occurred; that the level of damage had been exaggerated; and that the vessel was neither an ATL nor a CTL as, it was alleged, she could have been repaired for less than USD 12 million (her agreed value under the hull and machinery policy).

DecisionSmith J held that the grounding, or alternatively the action of the ocean’s currents, was a peril of the seas. The currents had caused the grounding, and it was irrelevant whether or not they were to be expected. The grounding was held to be a fortuity as it would not have been inevitable, whether because of the state of the engines or for any other reason.

The grounding, or the action of the current, was held to be a proximate cause of the damage, the standard required under s.55(1) of the Act. A proximate cause is one which is proximate to the loss in terms of “efficiency”, not the cause that is the last in time before the loss. The causal impact of e.g. the Master and crew’s negligence (in failing to notice the dragging anchor or to keep a proper look out) was not so potent as to displace the action of the current as the proximate cause of the damage.

The vessel was held not to be an ATL as it was still physically and legally possible to repair the damage, even if it would have been prohibitively expensive to do so. However, Smith J accepted that the estimated cost of repairs would have exceeded USD 12 million. As such, the vessel was held to be a CTL.

Judgment was therefore entered for the claimant, who was awarded USD 18 million plus statutory interest, subject to giving credit for the proceeds of selling the vessel as scrap.

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CommentAlthough the case largely turns on its particular facts, it provides useful commentary on the interpretation of the terms “perils of the seas,” “proximate cause” and “fortuity,” as employed in the Act. Of particular note are the judge’s obiter comments that grounding itself, and not just the

strong currents causing it, is deemed to be a “peril of the seas.” It was also noted that a current could be a “peril of the seas” whether or not it was anticipated. The tests for actual total loss and constructive total loss are also re-stated and discussed in the decision.

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Shipping Newsletter January 2014

Cargo liquefaction remains a riskMartyn Haines James Addison

The continued demand to source the most competitive price for iron and nickel ore has highlighted the need for ship owners to exercise contractual prudence and for ship’s crew and master to be vigilant during loading.

On 25 July 2012, BIMCO published its “Solid Bulk Cargoes that Can Liquefy Clause for Charter Parties”. The clause was designed to help ensure the safe transportation of solid bulk cargoes, which is a particular issue in the case of cargoes prone to liquefaction or combustion. However, a recent ship loss and severe delays in port whilst resolving contractual responsibilities means the risk of carrying such cargoes remains as real as the need to be reminded what should be done.

Parties’ obligationsObligation to nominate and load a safe cargoThe primary obligation of charterers is to nominate and present for loading a cargo that is safe for transportation. This may be expressly stated in the charterparty, although it is not always. If not expressly stated, there is a fallback position under English law which provides that dangerous cargoes may not be transported unless owners have sufficient notice of the character of the cargo to enable them to take the necessary precautions to carry it safely.

What is a “safe” or “dangerous” cargo?This may be provided for in the charterparty and may also be agreed by incorporation of the Hague or Hague-Visby Rules, which specifically prohibit the shipment of certain types of dangerous goods. Further, English law broadly defines dangerous goods to include goods which “as a result of their inflammable, explosive, corrosive, noxious or other properties are likely to cause personal injury or physical damage to the ship or other cargo”.

Subject to agreement between the parties, it is very likely that charterers by tendering a cargo that, by virtue of its water content or combustibility will jeopardise the safety of the crew, vessel or cargo, will be in breach of the above warranty of safety.

Information in relation to the cargoWhether the cargo is “dangerous” or not, charterers have an obligation under chapter VI the International Convention for the Safety of Life at Sea, 1974 (SOLAS) and Section 4 of the International Maritime Solid Bulk Cargoes (IMSBC) Code to provide the owners, master or owners’ agent with certain information about the cargo. This includes (but is not limited to) information (where applicable) about the:

– Bulk cargo shipping name – Cargo Group (e.g. Group A – Cargoes which may liquefy) – IMO class of cargo – UN number – Total quantity of the cargo. – Stowage factor – Self-heating properties of the cargo – Need for trimming and the trimming procedures – Likelihood of shifting and the angle of repose – A certificate on the Transportable Moisture Limit (TML) of the cargo

There are for certain cargoes additional notice requirements under the International Maritime Dangerous Goods Code (IMDG). It is imperative that charterers supply the information required by these conventions so that owners can be aware of the risks (if any) associated with carrying that specific cargo and either prepare the vessel and brief the master and crew accordingly, or decline to carry the cargo. The IMSBC is mandatory and applies to all solid bulk cargoes whether or not they are specifically named in its schedules (which describe specific cargoes).

If charterers do not provide the said information to the owners, unless it can be shown that the owners already had it, it will be difficult for the charterers to defend a claim by the owners in the event that the cargo causes loss or damage to the crew, owners or other cargo. It is therefore in the interests of both charterers and owners to comply with the IMSBC and/or IMDG.

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ClaimsUnfortunately, unsafe cargoes are sometimes loaded and claims can result between the parties. If discovered to be dangerous, owners could have a claim for delay in the event that the vessel cannot sail or discharge the cargo at the load port. This could be a claim for hire (and bunkers) under a time charter, or demurrage/damages for detention under a voyage charter. It could also be a claim for market losses in the event the vessel is discharged after its redelivery date.

Both parties will be aware that, once on board, it can take weeks or even months to discharge a cargo, e.g. customs formalities may be difficult to obtain; the vessel may have to go to the back of the berthing queue; some load ports do not have the equipment to discharge or to receive the cargo, or storage facilities. Consequently, these claims can be significant, and costs such as stevedoring, berth charges or storage will still need to be paid in the interim, often by the owners, in circumstances where charterers may refuse to pay hire, or money for demurrage or detention will not have been received (assuming the voyage is not cancelled or a replacement cargo available).

Further, if the vessel subsequently capsizes or is lost, owners may potentially face claims in respect of any loss of life and compensation payable to the families of the deceased, hull and machinery, salvage, and possibly significant liability if there is any pollution damage caused by escaped bunkers.

Waiver There are of course arguments that charterers can employ to seek to avoid liability. One possible argument is that the master, by loading the cargo, waived owners’ rights to bring a claim in respect of the transportation of that particular cargo and/or accepted the risks associated with it.

Whether these arguments will succeed depends on the facts and what was discussed and agreed. Subject to that position, English law provides that, unless the master consents to the shipment of dangerous cargo with knowledge of its nature and character, he does not waive owners’ rights under the charterparty.

Whether the owners, master or owners’ agent had sufficient knowledge of the nature or character is a matter of fact and depends on what information was provided by charterers, and what was discussed and agreed between the parties.

The difference between the “nature” and the “character” of goods is arguable, although it is likely that the former refers to knowledge in relation to the cargo generally (e.g. some cargoes such as grain or iron ore fines are liable to shift, or some seedcakes liable to heat) and the latter, to the specific information on the particular cargo being carried (such as the TML or Cargo Group, and other information charterers must provide under the IMSBC or IMDG).

If charterers have not provided the required information, owners, the master or owners’ agent are unlikely to be found to possess the relevant knowledge and to have waived their rights or accepted the risks by loading the cargo. It is therefore in the interests of both parties for detailed information in relation to the cargo to be provided to the owners.

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What’s new? A compilation of recent legal updatesArrest of the “HENNA”: commercial dispute and consumer protectionThe “HENNA”, a luxury cruise ship carrying 1,659 passengers and a crew of 650 on board, on a voyage between China and Korea, was arrested by an order of the Jeju Court and detained for over 40 hours with its passengers on board. A difficult situation in which commercial disputes came into conflict with consummer rights and interests.

Sanctions against Iran eased The first stage of the Geneva Joint Plan of Action (JPOA), agreed by Iran and the P5+1 on 24 November 2013, came into effect on 20 January 2014 following co-ordinated action by the EU and US. The update reviews the modest sanctions relief which was implemented on 20 January 2014 by an amendment to EU Regulation 267/2012 and by the release by the US of “key documents to begin implementation” of the JPOA.

Sale & purchase under the Norwegian Saleform: Seller’s right to sue for unpaid depositThe Court of Appeal recently upheld the Commercial Court’s ruling that a seller has a right to sue for an unpaid deposit under the Norwegian Saleform 1993. The buyers of a vessel were unsuccessful in their attempt to resist the sellers’ claim for the unpaid deposit after the agreement was terminated for repudiatory breach by the buyers. Griffon Shipping LLC v Firodi Shipping Limited (The “GRIFFON”) [2013].

Court of Appeal clarifies issue of jurisdiction over successive carriers under the CMR conventionThe Court of Appeal examined the issue of choice of jurisdiction in a claim for loss of goods transported by road internationally, where the principal carrier was an English registered company, but none of the successive carriers were. The Court overturned the first instance decision, and held that it was possible for cargo owners to bring proceedings in England not only against the primary carrier, under article 31(1) of the CMR Convention, but also against the non-English based successive carriers, by virtue of article 36 of the CMR Convention. British American Tobacco Switzerland SA v (1) Exel Europe Ltd & (2) Ors: British American Tobacco Denmark A/S & Ors v Exel Europe Ltd & Kazemier Transport BV [2013].

Difficulties with time charterparty restructuring agreementsThe High Court decision in DS-Rendite-Fonds Nr.106 VLCC Titan Glory GmbH & Co Tankschiff KG v Titan Maritime SA [2013] EWHC 3492 (Comm) considers the effect of a Charter Restructuring Agreement (CRA). The case illustrates that the task of restructuring hire payments in response to significant fluctuations in market rates is often far from straightforward and can lead to problems of interpretation. The decision is of particular interest because the Court opted to rectify the CRA to reflect the agreement reached by the parties.

Commission to investigate shipping lines for alleged “price signalling”The European Commission has confirmed that it is investigating potential infringements of the European competition rules by container shipping lines on routes between Europe and Asia. The alleged offences are reported to comprise public announcements on websites, by shipping lines, of increases to charges a few weeks prior to their implementation, thus, according to the Commission, signalling their price intentions to competitors.

The “ALEXANDROS T”: jurisdictional battle – success for insurers in the english supreme courtInsurers have succeeded in a complex jurisdictional battle concerning their claims for breach of a settlement agreement governed by English law and exclusive English jurisdiction. Insurers’ case was that various civil claims issued against them in Greece in April 2011 by a Greek shipowner and various associated entities and individuals had already been settled in England some three years earlier.

Australia affirms that international arbitration references in voyage charterparties are enforceableThe Full Court of the Federal Court of Australia affirms that contractual references to international arbitration in voyage charterparties are valid and enforceable.

Transport and Logistics Newsletter – Winter 2013Inaugural issue of the Transport and Logistics Newsletter.

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Jennifer WheelerE: jennifer.wheeler@clydeco.com

Elizabeth TurnbullE: elizabeth.turnbull@clydeco.com

Peter WardE: peter.ward@clydeco.com

James AddisonE: james.addison@clydeco.com

Jaime AlborsE: jaime.albors@clydeco.com

Tom KellyE: tom.kelly@clydeco.com

Catherine BaddeleyE: catherine.baddeley@clydeco.com

Martyn HainesE: martyn.haines@clydeco.com

Our team of 170 marine lawyers provides legal expertise across jurisdictions across all key maritime regions. Our team covers:

– Marine finance

– Owners, operators and P&I Clubs

– Shipbuilding and offshore construction

– Marine insurance & cargo

– Charterparties, international trade and commodities

– Global governance (risk management, regulation, sanctions)

– Dispute resolution and international arbitration

– Ports and terminals

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