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Friday, 17 July 15
DO CANCELLATION RIGHTS UNDER VOYAGE CHARTERPARTY SURVIVE RE-NOMINATION OF LOAD PORT? - INCE&CO
 KNOWLEDGE TO ELEVATE
Do cancellation rights under voyage charterparty survive re-nomination of load port?
St Shipping & Transport Inc v. Kriti Filoxenia Shipping Co SA [2015] EWHC 997 (Comm) (MT Kriti Filoxenia)
The Commercial Court has considered whether cancellation provisions in the BEEPEEVOY3 charterparty form were applicable in the event of re-nomination of a load port by charterers under the charter. In this case, the Charterers re-nominated the load port which the Owners were not able to reach by the cancellation date. The Charterers cancelled the charterparty. In arbitration proceedings, the Tribunal found that the cancellation provisions were not applicable where the Charterers had exercised the contractual option to re-nominate a load port. The Charterers appealed the decision to the Commercial Court, which upheld the findings of the Tribunal and dismissed the appeal.
The background facts
This case concerned a voyage charterparty under the BEEPEEVOY 3 standard form. The key clauses in the charterparty provided as follows:
“17.… If it appears to Charterers that the Vessel will be delayed beyond the Cancelling Date Charterers may require Owners to notify Charterers of the date on which they expect the Vessel to be ready to load whereupon Charterers shall have the option to cancel this Charter…
24.… If after any loading or discharge port or place has been nominated Charterers desire to vary such port or place, Owners shall issue such revised instructions as are necessary at any time to give effect to Charterers’ revised orders and any period by which the steaming time taken to reach the alternative port or place exceeds the time which should have been taken had the Vessel proceeded thither directly shall count as laytime or, if the Vessel is on demurrage, as demurrage.”
The vessel proceeded to a nominated load port within the range provided for under the charterparty. The Charterers then nominated an alternative load port under clause 24. The Owners could not reach that load port by the cancellation date and the Charterers cancelled the charterparty in reliance upon clause 17. The Owners denied that the Charterers had a right to cancel and accepted the cancellation as a repudiation of the charterparty. The dispute went to arbitration.
The arbitration award
The Tribunal found in favour of the Owners and held that the cancellation provisions in clause 17 did not apply where the Charterers exercised the liberty given under clause 24 to re-nominate the load port. The Tribunal further held that, even if the cancellation provisions did apply, the Charterers may not cancel where the re-nomination was made at a time when the estimated time of arrival for the re-nominated port was after the cancellation date under the charterparty. The Charterers appealed to the Commercial Court.
The Commercial Court decision
When it came to construing the words in clauses 17 and 24 of the charterparty, the Court took as its starting point the ordinary and natural meaning of the words used in those clauses as they would be understood by reasonable charterers and owners in the context in which the agreement was made. The Court highlighted the importance of the fact that the parties to a charterparty were involved in a venture which required a degree of co-operation in order to work successfully. Regarding clause 17, the cancellation clause, the Charterers’ ability to cancel necessarily entailed that the Charterers would do what is necessary on their part to enable the vessel to achieve that cancellation date and not impair the
Owners’ ability to comply with that date
The Court also looked at the reasons why it is in the interests of both sides to agree a cancellation date. At common law, subject to the express terms of a charterparty, both parties are bound by the contract until the delay is such that it frustrates the commercial purpose of the venture. Agreeing a cancellation date provides certainty to both parties in that it avoids disputes as to when that delay has frustrated a contract, which is a matter of fact in each case.
The Court referred to the “broad commercial interpretation” it has previously taken in the construction of these types of clauses, in order to achieve the parties’ commercial objectives. In this regard, the Court examined the commercial considerations which underlie the re-nomination clause. For the Charterers, the main advantage of this clause is to have greater flexibility to revise their orders so as to tailor their shipping arrangements according to their cargo arrangements. On the other hand, absence of the load port re-nomination provision would be advantageous to the Owners since it would give them the certainty of an irrevocable nomination. The Court also noted the commercial value of the cancellation clause from the Charterers’ perspective. On balance, the Court placed more importance on the Owners’ concerns of losing the certainty of an irrevocable nomination, whilst at the same time remaining exposed to the Charterers’ right to cancel.
The Court also noted that clause 24 made no express reference to the cancellation rights under clause 17. The Court recognised that the BEEPEEVOY 3 charterparty, being a standard form, is a document drafted with considerable care. Had the draftsmen of this form intended for the clause 17 cancellation rights to apply to a re-nomination of the load port under clause 24, express words would have been used to that effect and would have provided for how such rights would apply and in what circumstances. No such words were present in this case.
The appeal was therefore dismissed.
Comment
This case serves as a useful reminder of the English Court’s approach to the interpretation of charterparty provisions and, in particular, to consideration of the interplay between a cancellation clause and a load port re-nomination provision under a voyage charterparty. This decision also highlights the Court’s commercial approach to such issues, in particular its reference to the Charterers’ duty to co-operate with the Owners and to do what is necessary to enable the vessel to achieve the cancellation date if they wish to be able to rely upon the cancellation clause.
Source: INCE&Co
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Wednesday, 02 December 20
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- Kartika Selabumi Mining - Indonesia
- Orica Australia Pty. Ltd.
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- Energy Link Ltd, New Zealand
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- ICICI Bank Limited - India
- Africa Commodities Group - South Africa
- Petron Corporation, Philippines
- SMC Global Power, Philippines
- Chamber of Mines of South Africa
- Global Business Power Corporation, Philippines
- Ceylon Electricity Board - Sri Lanka
- Global Green Power PLC Corporation, Philippines
- European Bulk Services B.V. - Netherlands
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- Edison Trading Spa - Italy
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- Vedanta Resources Plc - India
- San Jose City I Power Corp, Philippines
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- MS Steel International - UAE
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- India Bulls Power Limited - India
- Binh Thuan Hamico - Vietnam
- New Zealand Coal & Carbon
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- McConnell Dowell - Australia
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- Formosa Plastics Group - Taiwan
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- Goldman Sachs - Singapore
- Directorate General of MIneral and Coal - Indonesia
- Global Coal Blending Company Limited - Australia
- Directorate Of Revenue Intelligence - India
- Ministry of Mines - Canada
- Meenaskhi Energy Private Limited - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Coal and Oil Company - UAE
- Merrill Lynch Commodities Europe
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- Kumho Petrochemical, South Korea
- Australian Coal Association
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- Neyveli Lignite Corporation Ltd, - India
- Simpson Spence & Young - Indonesia
- Indogreen Group - Indonesia
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- Iligan Light & Power Inc, Philippines
- Anglo American - United Kingdom
- Independent Power Producers Association of India
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- Alfred C Toepfer International GmbH - Germany
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- Antam Resourcindo - Indonesia
- Meralco Power Generation, Philippines
- Therma Luzon, Inc, Philippines
- Sarangani Energy Corporation, Philippines
- Port Waratah Coal Services - Australia
- Bangladesh Power Developement Board
- CNBM International Corporation - China
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- Videocon Industries ltd - India
- Central Electricity Authority - India
- Timah Investasi Mineral - Indoneisa
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- Kohat Cement Company Ltd. - Pakistan
- Madhucon Powers Ltd - India
- Maharashtra Electricity Regulatory Commission - India
- IHS Mccloskey Coal Group - USA
- Offshore Bulk Terminal Pte Ltd, Singapore
- Power Finance Corporation Ltd., India
- Kaltim Prima Coal - Indonesia
- AsiaOL BioFuels Corp., Philippines
- Central Java Power - Indonesia
- Metalloyd Limited - United Kingdom
- Larsen & Toubro Limited - India
- Agrawal Coal Company - India
- ASAPP Information Group - India
- Altura Mining Limited, Indonesia
- Billiton Holdings Pty Ltd - Australia
- Wood Mackenzie - Singapore
- Sical Logistics Limited - India
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- Xindia Steels Limited - India
- Asmin Koalindo Tuhup - Indonesia
- Parry Sugars Refinery, India
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- Banpu Public Company Limited - Thailand
- Bukit Asam (Persero) Tbk - Indonesia
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- Commonwealth Bank - Australia
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- The State Trading Corporation of India Ltd
- Globalindo Alam Lestari - Indonesia
- Planning Commission, India
- TeaM Sual Corporation - Philippines
- VISA Power Limited - India
- GN Power Mariveles Coal Plant, Philippines
- Baramulti Group, Indonesia
- Jaiprakash Power Ventures ltd
- Riau Bara Harum - Indonesia
- Straits Asia Resources Limited - Singapore
- Tamil Nadu electricity Board
- Energy Development Corp, Philippines
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- Essar Steel Hazira Ltd - India
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- Australian Commodity Traders Exchange
- Gujarat Electricity Regulatory Commission - India
- Aboitiz Power Corporation - Philippines
- White Energy Company Limited
- Makarim & Taira - Indonesia
- OPG Power Generation Pvt Ltd - India
- Indonesian Coal Mining Association
- Indian Oil Corporation Limited
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- Carbofer General Trading SA - India
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- Eastern Energy - Thailand
- The University of Queensland
- Maheswari Brothers Coal Limited - India
- Krishnapatnam Port Company Ltd. - India
- Siam City Cement - Thailand
- PowerSource Philippines DevCo
- Coastal Gujarat Power Limited - India
- Sojitz Corporation - Japan
- Bhushan Steel Limited - India
- Savvy Resources Ltd - HongKong
- Wilmar Investment Holdings
- Mercator Lines Limited - India
- Ministry of Finance - Indonesia
- Renaissance Capital - South Africa
- LBH Netherlands Bv - Netherlands
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Medco Energi Mining Internasional
- Pendopo Energi Batubara - Indonesia
- Indo Tambangraya Megah - Indonesia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Kobexindo Tractors - Indoneisa
- Gujarat Sidhee Cement - India
- Rio Tinto Coal - Australia
- Borneo Indobara - Indonesia
- Latin American Coal - Colombia
- Siam City Cement PLC, Thailand
- Bukit Makmur.PT - Indonesia
- Grasim Industreis Ltd - India
- Trasteel International SA, Italy
- London Commodity Brokers - England
- Orica Mining Services - Indonesia
- Manunggal Multi Energi - Indonesia
- IEA Clean Coal Centre - UK
- International Coal Ventures Pvt Ltd - India
- Salva Resources Pvt Ltd - India
- Sinarmas Energy and Mining - Indonesia
- Dalmia Cement Bharat India
- Karbindo Abesyapradhi - Indoneisa
- Kepco SPC Power Corporation, Philippines
- Electricity Authority, New Zealand
- The Treasury - Australian Government
- Sakthi Sugars Limited - India
- Cigading International Bulk Terminal - Indonesia
- Thai Mozambique Logistica
- GAC Shipping (India) Pvt Ltd
- Bahari Cakrawala Sebuku - Indonesia
- Sree Jayajothi Cements Limited - India
- GMR Energy Limited - India
- Jorong Barutama Greston.PT - Indonesia
- Standard Chartered Bank - UAE
- Indika Energy - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Minerals Council of Australia
- Economic Council, Georgia
- Electricity Generating Authority of Thailand
- Kapuas Tunggal Persada - Indonesia
- TNB Fuel Sdn Bhd - Malaysia
- Toyota Tsusho Corporation, Japan
- Barasentosa Lestari - Indonesia
- Marubeni Corporation - India
- Aditya Birla Group - India
- Rashtriya Ispat Nigam Limited - India
- Intertek Mineral Services - Indonesia
- Coalindo Energy - Indonesia
- Tata Chemicals Ltd - India
- Holcim Trading Pte Ltd - Singapore
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- Ambuja Cements Ltd - India
- Singapore Mercantile Exchange
- Indian Energy Exchange, India
- Gujarat Mineral Development Corp Ltd - India
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- Eastern Coal Council - USA
- Thiess Contractors Indonesia
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- Posco Energy - South Korea
- Bharathi Cement Corporation - India
- Price Waterhouse Coopers - Russia
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