Approach voyages and voyage charterparties

27 Фев

В настоящей публикации рассматривается недавнее решение английского суда по делу CSSA Chartering and Shipping Services SA v. Mitsui OSK Lines Ltd “PACIFIC VOYAGER” [2017] EWHC 2579 (Comm).

Судно было зафрахтовано с использованием проформы «Shellvoy 5» («Шеллвой 5») для перевозки груза из Роттердама. В это время судно совершало рейсы в интересах другого фрахтователя, причем получило повреждения при отсутствии вины судовладельцев и вошло в сухой док, что предполагало длительный ремонт. Новый фрахтователь расторг чартер и заявил требование об убытках. Судовладельцы не согласились, сославшись на отсутствие в чартере расчетного времени прибытия (ETA) в Роттердам. Суд не согласился с этим аргументом, утверждая, что рейс должен был быть совершен в разумное время. Суд удовлетворил требование нового фрахтователя в сумме USD 1 202 812,50.

In a recent case involving Mitsui Osk Lines Ltd and CSSA Chartering and Shipping services SA, the English Court was asked to consider the nature of the obligations on the owners of the vessel on an approach voyage, into a fixture. The charterparty did not include any ETA dates for the ship at the delivery port, but did include a cancelling date.

The ship “Pacific Voyager” has been chartered on the “Shellvoy Form 5” for an intended voyage between Rotterdam and Asia. At the time of the negotiations for that charter, the vessel was engaged in carrying cargo for another charterer and under that contract the ship had several voyages to complete.

Those voyages were between various ports in Egypt as well as then proceeding to Antifer in Le Havre for redelivery under the existing charterparty. Unfortunately the ship suffered contact damage with a submerged object and had to go into dry-dock whilst carrying cargo on one of those voyages. The owners were not at fault for the contact damage.

The owners of the ship kept the new charterers appraised of developments but at the time of the cancellation date in the new charter, the ship was due to be dry-docked in order to carry out the repairs caused by the contact damage. Those repairs were intended to take many months and the owners were keen to complete the charter.

The charterers had the option of relying on the cancellation clause. Instead, they chose to terminate the charterparty and brought a claim against the owners for damages. The charterers relied upon two charterparty clauses:

Clause 3 which required the vessel to perform her service with utmost despatch to proceed to Rotterdam and load a full cargo.
Clause 11 which said that unless the vessel was ready to load by 3 November – the charterers had the option of terminating the charter.
The printed part 1(B) of the Shellvoy 5 Form had been amended and the recap gave details of the position of the vessel at the time the ship was fixed, its ETA at three ports including the final discharge port under the existing contract. The charter provided “ETA Suez Canal 10.Jan, ETA Sidi Kerir 12 Jan. ETA Antifer 25 JAN 2015 (Discharging)” The charter clause also contained the words “IAGW/WP” – If all goes well. The charterers argued that the laycan window, which was the time the parties expected the ship to arrive at the load port, combined with the cancelling date, meant there was an absolute obligation on the owners to commence the approach voyage. The owners’ failure to do that, before the expiry of the cancelling date, was a breach of the charterparty.
The owners argued that the charterparty did not contain an express ETA at the first load port, Rotterdam. Therefore all they had to do was exercise due diligence to start the approach voyage by some date which would reasonably have been expected to ensure the vessel arrived at the load port. The owners did accept that if the charter had contained an ETA for the new load port, they would have been under an implied absolute obligation to start the approach voyage by a date, when the ship could be guaranteed to arrive on time.

The Judge decided that there was an absolute duty on the owners to commence an approach voyage at a reasonable time. Identifying that time required a review of all of the charterparty terms. He decided that time was to be determined by the ETA’s the owners had given for the intermediate ports. Those ETA’s were to be used to determine the ETA at the load port. As the owners had undertaken to give intermediate port estimates up the arrival of the ship at Antifer, La Havre on 25 January, that estimate would be construed as to contain a requirement that the ship would take a reasonable time after arrival at Antifer to arrive at Rotterdam. As the owners failed to proceed with utmost despatch, the charterers succeeded in their claim for damages in the sum of USD1,202,812.50.