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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, 28 September 21
THE MAIDEN EDITION OF DIVE TECHNOLOGY SUMMIT 2021 CONCLUDES SUCCESSFULLY
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Monday, 27 September 21
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Thursday, 23 September 21
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Thursday, 23 September 21
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- Minerals Council of Australia
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- Directorate General of MIneral and Coal - Indonesia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Baramulti Group, Indonesia
- Manunggal Multi Energi - Indonesia
- Uttam Galva Steels Limited - India
- Maharashtra Electricity Regulatory Commission - India
- GVK Power & Infra Limited - India
- Coalindo Energy - Indonesia
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- Ministry of Transport, Egypt
- Wood Mackenzie - Singapore
- White Energy Company Limited
- Price Waterhouse Coopers - Russia
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- Indian Energy Exchange, India
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- Directorate Of Revenue Intelligence - India
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- Parliament of New Zealand
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- Ministry of Finance - Indonesia
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- European Bulk Services B.V. - Netherlands
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- Sarangani Energy Corporation, Philippines
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- Global Green Power PLC Corporation, Philippines
- Standard Chartered Bank - UAE
- Africa Commodities Group - South Africa
- Globalindo Alam Lestari - Indonesia
- Kartika Selabumi Mining - Indonesia
- Deloitte Consulting - India
- Jorong Barutama Greston.PT - Indonesia
- SMC Global Power, Philippines
- Ambuja Cements Ltd - India
- Bangladesh Power Developement Board
- PTC India Limited - India
- Energy Link Ltd, New Zealand
- Karbindo Abesyapradhi - Indoneisa
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- Coal and Oil Company - UAE
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- Dr Ramakrishna Prasad Power Pvt Ltd - India
- PowerSource Philippines DevCo
- IEA Clean Coal Centre - UK
- Essar Steel Hazira Ltd - India
- Marubeni Corporation - India
- Indogreen Group - Indonesia
- Aditya Birla Group - India
- PNOC Exploration Corporation - Philippines
- GAC Shipping (India) Pvt Ltd
- Leighton Contractors Pty Ltd - Australia
- Kobexindo Tractors - Indoneisa
- Energy Development Corp, Philippines
- Bhushan Steel Limited - India
- Siam City Cement PLC, Thailand
- Maheswari Brothers Coal Limited - India
- Savvy Resources Ltd - HongKong
- Borneo Indobara - Indonesia
- Intertek Mineral Services - Indonesia
- Mjunction Services Limited - India
- Kideco Jaya Agung - Indonesia
- Xindia Steels Limited - India
- VISA Power Limited - India
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- Anglo American - United Kingdom
- Offshore Bulk Terminal Pte Ltd, Singapore
- International Coal Ventures Pvt Ltd - India
- Timah Investasi Mineral - Indoneisa
- Neyveli Lignite Corporation Ltd, - India
- Asmin Koalindo Tuhup - Indonesia
- San Jose City I Power Corp, Philippines
- Heidelberg Cement - Germany
- Port Waratah Coal Services - Australia
- Cigading International Bulk Terminal - Indonesia
- Rashtriya Ispat Nigam Limited - India
- Singapore Mercantile Exchange
- Eastern Coal Council - USA
- Sinarmas Energy and Mining - Indonesia
- Therma Luzon, Inc, Philippines
- Bharathi Cement Corporation - India
- Commonwealth Bank - Australia
- CNBM International Corporation - China
- Ministry of Mines - Canada
- Posco Energy - South Korea
- ASAPP Information Group - India
- Lanco Infratech Ltd - India
- Jindal Steel & Power Ltd - India
- Goldman Sachs - Singapore
- The State Trading Corporation of India Ltd
- Australian Coal Association
- Orica Mining Services - Indonesia
- Truba Alam Manunggal Engineering.Tbk - Indonesia
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- Bank of Tokyo Mitsubishi UFJ Ltd
- AsiaOL BioFuels Corp., Philippines
- Gujarat Mineral Development Corp Ltd - India
- TNB Fuel Sdn Bhd - Malaysia
- Vizag Seaport Private Limited - India
- Billiton Holdings Pty Ltd - Australia
- Pipit Mutiara Jaya. PT, Indonesia
- Economic Council, Georgia
- Trasteel International SA, Italy
- Semirara Mining Corp, Philippines
- Malabar Cements Ltd - India
- Kalimantan Lumbung Energi - Indonesia
- Siam City Cement - Thailand
- GN Power Mariveles Coal Plant, Philippines
- Global Business Power Corporation, Philippines
- Mercuria Energy - Indonesia
- Merrill Lynch Commodities Europe
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- Simpson Spence & Young - Indonesia
- CIMB Investment Bank - Malaysia
- MS Steel International - UAE
- Power Finance Corporation Ltd., India
- Gujarat Sidhee Cement - India
- SN Aboitiz Power Inc, Philippines
- Coastal Gujarat Power Limited - India
- Straits Asia Resources Limited - Singapore
- Alfred C Toepfer International GmbH - Germany
- Medco Energi Mining Internasional
- Toyota Tsusho Corporation, Japan
- The Treasury - Australian Government
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- Ceylon Electricity Board - Sri Lanka
- Meenaskhi Energy Private Limited - India
- India Bulls Power Limited - India
- Altura Mining Limited, Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Star Paper Mills Limited - India
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- Petron Corporation, Philippines
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- Planning Commission, India
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- Karaikal Port Pvt Ltd - India
- Cement Manufacturers Association - India
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- Samtan Co., Ltd - South Korea
- Banpu Public Company Limited - Thailand
- Edison Trading Spa - Italy
- Kapuas Tunggal Persada - Indonesia
- Bukit Makmur.PT - Indonesia
- Parry Sugars Refinery, India
- Metalloyd Limited - United Kingdom
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- Videocon Industries ltd - India
- Bukit Baiduri Energy - Indonesia
- Krishnapatnam Port Company Ltd. - India
- Indian Oil Corporation Limited
- Sree Jayajothi Cements Limited - India
- IHS Mccloskey Coal Group - USA
- Riau Bara Harum - Indonesia
- Dalmia Cement Bharat India
- Sindya Power Generating Company Private Ltd
- Chamber of Mines of South Africa
- Global Coal Blending Company Limited - Australia
- Thiess Contractors Indonesia
- Thai Mozambique Logistica
- Kepco SPC Power Corporation, Philippines
- Vedanta Resources Plc - India
- Central Electricity Authority - India
- Tata Chemicals Ltd - India
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- Eastern Energy - Thailand
- Orica Australia Pty. Ltd.
- Attock Cement Pakistan Limited
- Semirara Mining and Power Corporation, Philippines
- Vijayanagar Sugar Pvt Ltd - India
- Aboitiz Power Corporation - Philippines
- Chettinad Cement Corporation Ltd - India
- London Commodity Brokers - England
- Oldendorff Carriers - Singapore
- Wilmar Investment Holdings
- Salva Resources Pvt Ltd - India
- Electricity Authority, New Zealand
- McConnell Dowell - Australia
- Bahari Cakrawala Sebuku - Indonesia
- Australian Commodity Traders Exchange
- Romanian Commodities Exchange
- Sakthi Sugars Limited - India
- OPG Power Generation Pvt Ltd - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- New Zealand Coal & Carbon
- Kumho Petrochemical, South Korea
- Barasentosa Lestari - Indonesia
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- Tamil Nadu electricity Board
- Formosa Plastics Group - Taiwan
- Kohat Cement Company Ltd. - Pakistan
- Indo Tambangraya Megah - Indonesia
- LBH Netherlands Bv - Netherlands
- SMG Consultants - Indonesia
- Renaissance Capital - South Africa
- The University of Queensland
- Mintek Dendrill Indonesia
- Indonesian Coal Mining Association
- Central Java Power - Indonesia
- Grasim Industreis Ltd - India
- Rio Tinto Coal - Australia
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