В статье проанализировано конкретное дело, рассмотренное английским судом по жалобе на решение арбитража, а именно дело Ladytramp  EWHC 2879 (Comm) ED & F Man Sugar Ltd v Unicargo Transportgesellschaft MBH. Из решения по делу следует вывод о необходимости тщательно прописывать в контракте оговорку о форс-мажоре, поскольку в данном случае оговоркой о форс-мажоре не было предусмотрено пожара в качестве обстоятельства непреодолимой силы, и суд согласился с мнением арбитража о том, что демередж подлежит взысканию, если сталийное время было прервано в результате пожара.
In June 2010, the vessel I Ladytramp was chartered for a voyage «1 -2 safe berths, 1 safe port (intention Santos) but not south of Paranagua». On June 9,2010 the charterers declared the load port as Paranagua. On June 14, a fire occurred at the terminal where the charterers had scheduled the vessel to load, which destroyed the conveyor belt system linking the terminal to the warehouse, rendering it inoperable.
On June 15, the local agents informed the parties that they had been instructed to change the vessel’s berthing programme to another terminal in Paranagua. The vessel actually arrived in Paranagua on June 20 and tendered NOR (Notice of Readiness). She was then forced to remain off the port until July 14. At that stage it was decided that the charterers could use a third berth. Loading commenced on July 18 and was completed on July 20.
The owners claimed demurrage from the expiry of laytime on June 25 until July 20. The charterers said they were not responsible for the laytime demurrage during that period because of the force majeure clause 28 which provided:
«In the event that whilst at the or off the loading place … the loading … of the vessel is prevented or delayed by any of the following occurrences: strikes, riots, civil commotion, lock-outs of men, accidents and/or breakdowns on railways, stoppages on railway and/or river and/or canal by ice or frost, mechanical breakdowns at mechanical loading plants, government interferences… time so lost shall not count as laytime.»
The charterers claimed that the loading of the vessel was prevented or delayed by mechanical breakdowns and government interferences, because the port authority had rescheduled the loading of vessels following the fire.
However, the arbitration tribunal rejected that claim and awarded the owners US$397,912.77 in demurrage. It decided that the charterers were entitled to nominate any berth in Paranagua to load but they could only rely upon the force majeure clause if a specific berth had been named in the charterparty. The fact that the first berth was unusable did not mean that the charterers were unable to nominate a safe berth at the port at which to load the cargo. They were therefore obliged to nominate an alternative berth.
In addition, the inoperability of the conveyor belt was not due to mechanical breakdown but to the fire and, moreover, government interferences did not include simple administrative rescheduling of cargoes due to a fire. The tribunal did not accept that the charterers could bring themselves into the force majeure exceptions. The clause did not refer to fires and it was not a mechanical breakdown.
The charterers were given leave to appeal by the English Court. The Court decided that the arbitrators had been wrong to decide that the force majeure exceptions clause could only be used if the charterparty named a particular berth. If the charterers had been prevented from loading as a result of fire, there was no reason why the force majeure exceptions clause could not have been used to interrupt laytime.
In this particular case, the exception clause did not mention «fires», nor was it easy to see how «mechanical breakdowns at mechanical loading plants» could apply. The Court therefore agreed with the arbitrators’ analysis on that issue.
Force majeure clauses need to be drafted with care. As a rule, the English arbitrators and judges require the event relied upon to fall into the exact wording of a force majeure clause.
Linda Jacques is a partner of law firm Lester Aldridge’s specialist shipping division LA Marine (www.la-marine.co.uk).
Container Management. — 2013. — April. — P. 27.