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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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Saturday, 21 July 12
INDONESIAN COMPANIES ABM INVESTAMA AND AVRA ASIA WORK OUT LONG-TERM CONTRACT - THE JAKARTA GLOBE
The Jakarta Globe, one of the leading English news papaer in Indonesia reported that, ABM Investama, a company with diversified interests in coal mi ...
Friday, 20 July 12
INDONESIA-INDIA SUPRAS BEING FIXED AT $ 10K
Handy
After a stable last week, the Handysize market has experienced softening rates in the Atlantic. Ships are ballasting from India into the Atla ...
Friday, 20 July 12
HANDYSIZES PROVE RATHER ATTRACTIVE AMONG OTHER SHIPS, IN TERMS OF FUTURE RETURNS ON INVESTMENT - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING
The Handysize segment of the dry bulk market appears to offer the best incentive among other ship types, for a ship owners to invest in, says Interm ...
Wednesday, 18 July 12
TAIWAN POWER COMPANY TO IMPORT 0.588 MILLION TONS OF LOW ASH AND EXTRA LOW SULFUR SUB-BITUMINOUS COAL
COALspot.com - Taiwan Power Company intends to procure 588,000 MT tons of extra low sulfur sub-bituminous coal for Taipower thermal power plant thro ...
Wednesday, 18 July 12
SHIP PRICES HAVE FALLEN RAPIDLY THIS YEAR, FAVORING INVESTORS - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING
The price for a 5 year old Capesize dry bulk carrier of 172,000 dwt has fallen to about $33,4mil from $42.9 at the end of June 2011, while at end of ...
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- Power Finance Corporation Ltd., India
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- GN Power Mariveles Coal Plant, Philippines
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- Wilmar Investment Holdings
- McConnell Dowell - Australia
- Banpu Public Company Limited - Thailand
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- Bangladesh Power Developement Board
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- Australian Commodity Traders Exchange
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- CNBM International Corporation - China
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- VISA Power Limited - India
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- Global Business Power Corporation, Philippines
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- The State Trading Corporation of India Ltd
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- Heidelberg Cement - Germany
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- Mercuria Energy - Indonesia
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- Ceylon Electricity Board - Sri Lanka
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- Eastern Coal Council - USA
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- Ministry of Transport, Egypt
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- Aboitiz Power Corporation - Philippines
- Alfred C Toepfer International GmbH - Germany
- India Bulls Power Limited - India
- Holcim Trading Pte Ltd - Singapore
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- Petrochimia International Co. Ltd.- Taiwan
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- Antam Resourcindo - Indonesia
- Kaltim Prima Coal - Indonesia
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- CIMB Investment Bank - Malaysia
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- Miang Besar Coal Terminal - Indonesia
- Kapuas Tunggal Persada - Indonesia
- Trasteel International SA, Italy
- Coalindo Energy - Indonesia
- IHS Mccloskey Coal Group - USA
- Indian Oil Corporation Limited
- PTC India Limited - India
- Indika Energy - Indonesia
- Sree Jayajothi Cements Limited - India
- Siam City Cement PLC, Thailand
- Marubeni Corporation - India
- Videocon Industries ltd - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Chamber of Mines of South Africa
- IEA Clean Coal Centre - UK
- Directorate General of MIneral and Coal - Indonesia
- Chettinad Cement Corporation Ltd - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Medco Energi Mining Internasional
- LBH Netherlands Bv - Netherlands
- Aditya Birla Group - India
- New Zealand Coal & Carbon
- London Commodity Brokers - England
- GVK Power & Infra Limited - India
- Savvy Resources Ltd - HongKong
- Posco Energy - South Korea
- Thai Mozambique Logistica
- Larsen & Toubro Limited - India
- Straits Asia Resources Limited - Singapore
- Gujarat Sidhee Cement - India
- Mintek Dendrill Indonesia
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- ASAPP Information Group - India
- Indonesian Coal Mining Association
- Planning Commission, India
- Parliament of New Zealand
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- Coal and Oil Company - UAE
- Oldendorff Carriers - Singapore
- SMG Consultants - Indonesia
- Indian Energy Exchange, India
- ICICI Bank Limited - India
- Ministry of Finance - Indonesia
- Sarangani Energy Corporation, Philippines
- Bukit Baiduri Energy - Indonesia
- Gujarat Electricity Regulatory Commission - India
- Georgia Ports Authority, United States
- Siam City Cement - Thailand
- Eastern Energy - Thailand
- Interocean Group of Companies - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Semirara Mining Corp, Philippines
- Coastal Gujarat Power Limited - India
- Cement Manufacturers Association - India
- Wood Mackenzie - Singapore
- Sinarmas Energy and Mining - Indonesia
- Jaiprakash Power Ventures ltd
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- Indo Tambangraya Megah - Indonesia
- Global Green Power PLC Corporation, Philippines
- Maheswari Brothers Coal Limited - India
- Metalloyd Limited - United Kingdom
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- Standard Chartered Bank - UAE
- The University of Queensland
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- Bhatia International Limited - India
- Ministry of Mines - Canada
- Bhoruka Overseas - Indonesia
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- Renaissance Capital - South Africa
- Binh Thuan Hamico - Vietnam
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- Indogreen Group - Indonesia
- Ind-Barath Power Infra Limited - India
- SN Aboitiz Power Inc, Philippines
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- Altura Mining Limited, Indonesia
- Singapore Mercantile Exchange
- Grasim Industreis Ltd - India
- Leighton Contractors Pty Ltd - Australia
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- Latin American Coal - Colombia
- Tata Chemicals Ltd - India
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- Offshore Bulk Terminal Pte Ltd, Singapore
- MS Steel International - UAE
- Karaikal Port Pvt Ltd - India
- Xindia Steels Limited - India
- Rashtriya Ispat Nigam Limited - India
- The Treasury - Australian Government
- SMC Global Power, Philippines
- Goldman Sachs - Singapore
- Bharathi Cement Corporation - India
- Tamil Nadu electricity Board
- Energy Development Corp, Philippines
- Bayan Resources Tbk. - Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- Africa Commodities Group - South Africa
- Semirara Mining and Power Corporation, Philippines
- Commonwealth Bank - Australia
- Samtan Co., Ltd - South Korea
- Billiton Holdings Pty Ltd - Australia
- European Bulk Services B.V. - Netherlands
- Directorate Of Revenue Intelligence - India
- Cigading International Bulk Terminal - Indonesia
- Baramulti Group, Indonesia
- Minerals Council of Australia
- Vijayanagar Sugar Pvt Ltd - India
- Mjunction Services Limited - India
- Bulk Trading Sa - Switzerland
- Pendopo Energi Batubara - Indonesia
- OPG Power Generation Pvt Ltd - India
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- Bank of Tokyo Mitsubishi UFJ Ltd
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- Thiess Contractors Indonesia
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- Edison Trading Spa - Italy
- Globalindo Alam Lestari - Indonesia
- Kumho Petrochemical, South Korea
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