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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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Tuesday, 19 February 19
AUSTRALIA'S COAL FUTURE UNDER THREAT AS MORE CHANGES HIT FOSSIL FUELS GLOBALLY - ABC
Two disparate decisions from opposite corners of the world have sounded warnings for the future of Australia’s coal industry.
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Tuesday, 19 February 19
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Monday, 18 February 19
INDIA'S COAL IMPORT FALLS TO 17.25 MT IN JANUARY - PTI
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Monday, 18 February 19
THE ROLE OF COAL IN INDIA'S ENERGY AMBITIONS - WCA
India is the world’s second most populous country and figures among the world’s most rapidly growing economies.
The Sout ...
Saturday, 16 February 19
COALTRANS CHINA 2019, CHINA'S LARGEST COAL INDUSTRY GATHERING
Press Release: Coaltrans China 2019 | With the import ban likely to be lifted, it’s time for you to meet your potentia ...
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- Pendopo Energi Batubara - Indonesia
- Kideco Jaya Agung - Indonesia
- Power Finance Corporation Ltd., India
- Eastern Energy - Thailand
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- Ind-Barath Power Infra Limited - India
- London Commodity Brokers - England
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- The University of Queensland
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- Indian Energy Exchange, India
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- Attock Cement Pakistan Limited
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- Timah Investasi Mineral - Indoneisa
- Electricity Authority, New Zealand
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- White Energy Company Limited
- Global Green Power PLC Corporation, Philippines
- Electricity Generating Authority of Thailand
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- Aditya Birla Group - India
- Parliament of New Zealand
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- Neyveli Lignite Corporation Ltd, - India
- Vizag Seaport Private Limited - India
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- Thai Mozambique Logistica
- Edison Trading Spa - Italy
- Mjunction Services Limited - India
- OPG Power Generation Pvt Ltd - India
- Gujarat Sidhee Cement - India
- Bukit Makmur.PT - Indonesia
- Binh Thuan Hamico - Vietnam
- Global Coal Blending Company Limited - Australia
- Star Paper Mills Limited - India
- PowerSource Philippines DevCo
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- Petron Corporation, Philippines
- San Jose City I Power Corp, Philippines
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- Semirara Mining Corp, Philippines
- Indogreen Group - Indonesia
- Meenaskhi Energy Private Limited - India
- Merrill Lynch Commodities Europe
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- Ministry of Mines - Canada
- Commonwealth Bank - Australia
- Kobexindo Tractors - Indoneisa
- Jorong Barutama Greston.PT - Indonesia
- Dalmia Cement Bharat India
- Energy Development Corp, Philippines
- Economic Council, Georgia
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- Energy Link Ltd, New Zealand
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- Barasentosa Lestari - Indonesia
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- Manunggal Multi Energi - Indonesia
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- Billiton Holdings Pty Ltd - Australia
- Metalloyd Limited - United Kingdom
- Meralco Power Generation, Philippines
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Vedanta Resources Plc - India
- Goldman Sachs - Singapore
- Vijayanagar Sugar Pvt Ltd - India
- Cigading International Bulk Terminal - Indonesia
- Agrawal Coal Company - India
- Kumho Petrochemical, South Korea
- VISA Power Limited - India
- ASAPP Information Group - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- IHS Mccloskey Coal Group - USA
- Orica Australia Pty. Ltd.
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- AsiaOL BioFuels Corp., Philippines
- Deloitte Consulting - India
- SMC Global Power, Philippines
- Bulk Trading Sa - Switzerland
- Port Waratah Coal Services - Australia
- Petrochimia International Co. Ltd.- Taiwan
- Indonesian Coal Mining Association
- GMR Energy Limited - India
- New Zealand Coal & Carbon
- Directorate General of MIneral and Coal - Indonesia
- Savvy Resources Ltd - HongKong
- Indian Oil Corporation Limited
- Africa Commodities Group - South Africa
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Directorate Of Revenue Intelligence - India
- Sical Logistics Limited - India
- Mercuria Energy - Indonesia
- MS Steel International - UAE
- Minerals Council of Australia
- Ministry of Transport, Egypt
- Coal and Oil Company - UAE
- Mercator Lines Limited - India
- Trasteel International SA, Italy
- Gujarat Electricity Regulatory Commission - India
- SMG Consultants - Indonesia
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- Planning Commission, India
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- SN Aboitiz Power Inc, Philippines
- Semirara Mining and Power Corporation, Philippines
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- Leighton Contractors Pty Ltd - Australia
- Malabar Cements Ltd - India
- Central Electricity Authority - India
- Central Java Power - Indonesia
- Toyota Tsusho Corporation, Japan
- Karbindo Abesyapradhi - Indoneisa
- Banpu Public Company Limited - Thailand
- Interocean Group of Companies - India
- Chamber of Mines of South Africa
- Rashtriya Ispat Nigam Limited - India
- Wood Mackenzie - Singapore
- Bank of Tokyo Mitsubishi UFJ Ltd
- Altura Mining Limited, Indonesia
- ICICI Bank Limited - India
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- Anglo American - United Kingdom
- Baramulti Group, Indonesia
- Eastern Coal Council - USA
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- Kaltim Prima Coal - Indonesia
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- Bahari Cakrawala Sebuku - Indonesia
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