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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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Sunday, 04 November 12
SUB-BIT INDONESIA COAL SWAPS FOR DECEMBER' 12 DELIVERY FALLS TO $ 59.78
COALspot.com - Sub-Bit Indonesia coal swaps (FOB ) for December 2012 delivery fell -1.02 percent on WoW but gained 0.08 percent on D-D on Friday, 2 ...
Saturday, 03 November 12
THE SUPRAMAX FREIGHT EXPECTED TO BE SOFT NEXT WEEK - VISTAAR
COALspot.com - This week the market remained soft with all the sectors soft.
The BDI and was down by 6 pct closing at 986 points. The cape index ...
Saturday, 03 November 12
DEMOLITION IS THE KEY FOR DRY BULK SHIPPING'S RECOVERY SAYS SHIPBROKER - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
With the number of new building deliveries so far in 2012 already having surpassed the total of 2011, it's more than clear that the dry bulk sector ...
Thursday, 01 November 12
INDONESIA HAS REVISED DOWN ITS 2012 DOMESTIC MARKET OBLIGATION REQUIREMENT FOR COAL
COALspot.com - Minister of Energy and Mineral Resources of Indonesia has revised down its 2012 domestic market obligation requirement due to lower d ...
Thursday, 01 November 12
SOUTH KOREAN POWER UTILITY EWP TO PURCHASE 670,000 MT OF COAL FOR JAN - FEB 2013 DELIVERY
COALspot.com: Korea East-West Power Co. Ltd. on behalf of Korea South-East Power Co. Ltd., Korea Southern Power Co. Ltd., Korea Midland Power Co. Lt ...
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- GAC Shipping (India) Pvt Ltd
- Ministry of Mines - Canada
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- Vizag Seaport Private Limited - India
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- Carbofer General Trading SA - India
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- Thiess Contractors Indonesia
- Tata Chemicals Ltd - India
- Petron Corporation, Philippines
- Orica Mining Services - Indonesia
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- Barasentosa Lestari - Indonesia
- Metalloyd Limited - United Kingdom
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- The Treasury - Australian Government
- Central Electricity Authority - India
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- Filglen & Citicon Mining (HK) Ltd - Hong Kong
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- Chettinad Cement Corporation Ltd - India
- ICICI Bank Limited - India
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- Merrill Lynch Commodities Europe
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- Georgia Ports Authority, United States
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- Xindia Steels Limited - India
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- Dong Bac Coal Mineral Investment Coporation - Vietnam
- European Bulk Services B.V. - Netherlands
- Trasteel International SA, Italy
- Energy Link Ltd, New Zealand
- Medco Energi Mining Internasional
- Eastern Coal Council - USA
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- Electricity Generating Authority of Thailand
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Economic Council, Georgia
- Alfred C Toepfer International GmbH - Germany
- Bahari Cakrawala Sebuku - Indonesia
- Sree Jayajothi Cements Limited - India
- Independent Power Producers Association of India
- The State Trading Corporation of India Ltd
- Port Waratah Coal Services - Australia
- Global Green Power PLC Corporation, Philippines
- Asmin Koalindo Tuhup - Indonesia
- Directorate Of Revenue Intelligence - India
- SN Aboitiz Power Inc, Philippines
- Posco Energy - South Korea
- Gujarat Sidhee Cement - India
- Australian Commodity Traders Exchange
- Bukit Makmur.PT - Indonesia
- Banpu Public Company Limited - Thailand
- Bukit Asam (Persero) Tbk - Indonesia
- CNBM International Corporation - China
- Thai Mozambique Logistica
- Karaikal Port Pvt Ltd - India
- Bhatia International Limited - India
- Kohat Cement Company Ltd. - Pakistan
- Gujarat Mineral Development Corp Ltd - India
- Pipit Mutiara Jaya. PT, Indonesia
- Kapuas Tunggal Persada - Indonesia
- SMC Global Power, Philippines
- Rio Tinto Coal - Australia
- Ambuja Cements Ltd - India
- Mercuria Energy - Indonesia
- London Commodity Brokers - England
- Intertek Mineral Services - Indonesia
- Bhushan Steel Limited - India
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- Samtan Co., Ltd - South Korea
- Madhucon Powers Ltd - India
- PetroVietnam Power Coal Import and Supply Company
- GVK Power & Infra Limited - India
- Manunggal Multi Energi - Indonesia
- Price Waterhouse Coopers - Russia
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- SMG Consultants - Indonesia
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- Orica Australia Pty. Ltd.
- Makarim & Taira - Indonesia
- Jindal Steel & Power Ltd - India
- Indian Energy Exchange, India
- Siam City Cement PLC, Thailand
- Ministry of Finance - Indonesia
- Bukit Baiduri Energy - Indonesia
- Ind-Barath Power Infra Limited - India
- Kaltim Prima Coal - Indonesia
- Jaiprakash Power Ventures ltd
- LBH Netherlands Bv - Netherlands
- Mjunction Services Limited - India
- Maharashtra Electricity Regulatory Commission - India
- Indonesian Coal Mining Association
- Straits Asia Resources Limited - Singapore
- Offshore Bulk Terminal Pte Ltd, Singapore
- Bangladesh Power Developement Board
- Bank of Tokyo Mitsubishi UFJ Ltd
- Vedanta Resources Plc - India
- Kideco Jaya Agung - Indonesia
- Cigading International Bulk Terminal - Indonesia
- Africa Commodities Group - South Africa
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- Malabar Cements Ltd - India
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- Electricity Authority, New Zealand
- Edison Trading Spa - Italy
- Agrawal Coal Company - India
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- Singapore Mercantile Exchange
- GN Power Mariveles Coal Plant, Philippines
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- Latin American Coal - Colombia
- Sical Logistics Limited - India
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- Miang Besar Coal Terminal - Indonesia
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- Coalindo Energy - Indonesia
- IEA Clean Coal Centre - UK
- Mintek Dendrill Indonesia
- CIMB Investment Bank - Malaysia
- Globalindo Alam Lestari - Indonesia
- Bhoruka Overseas - Indonesia
- Bulk Trading Sa - Switzerland
- MS Steel International - UAE
- Wilmar Investment Holdings
- The University of Queensland
- Power Finance Corporation Ltd., India
- Chamber of Mines of South Africa
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- Borneo Indobara - Indonesia
- Antam Resourcindo - Indonesia
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- TNB Fuel Sdn Bhd - Malaysia
- Uttam Galva Steels Limited - India
- Indogreen Group - Indonesia
- Bharathi Cement Corporation - India
- Star Paper Mills Limited - India
- Global Coal Blending Company Limited - Australia
- Semirara Mining and Power Corporation, Philippines
- Commonwealth Bank - Australia
- Karbindo Abesyapradhi - Indoneisa
- Sakthi Sugars Limited - India
- Anglo American - United Kingdom
- Binh Thuan Hamico - Vietnam
- Kartika Selabumi Mining - Indonesia
- Leighton Contractors Pty Ltd - Australia
- Kalimantan Lumbung Energi - Indonesia
- Parliament of New Zealand
- TeaM Sual Corporation - Philippines
- Petrochimia International Co. Ltd.- Taiwan
- Australian Coal Association
- Siam City Cement - Thailand
- Attock Cement Pakistan Limited
- Semirara Mining Corp, Philippines
- Indika Energy - Indonesia
- Sarangani Energy Corporation, Philippines
- India Bulls Power Limited - India
- Indo Tambangraya Megah - Indonesia
- Videocon Industries ltd - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Coal and Oil Company - UAE
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- Eastern Energy - Thailand
- Simpson Spence & Young - Indonesia
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- Baramulti Group, Indonesia
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- Planning Commission, India
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- New Zealand Coal & Carbon
- Tamil Nadu electricity Board
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- White Energy Company Limited
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