В сборнике аналитических материалов помещены статьи, посвященные английскому морскому праву, в частности, институтам автономии арбитражной оговорки, права банка на иск по коносаменту в соответствии с COGSA 92, морского страхования и общей аварии. Особый интерес вызывает публикация, в которой рассматриваются права банка – правомерного держателя коносамента на требования, вытекающие из этого коносамента, “BILLS OF LADING IN THE HANDS OF BANKS: SHIPOWNERS DELIVER AGAINST A LOI AT THEIR PERIL”. Причем делается вывод о том, что COGSA 92 значительно укрепил такие права. Все публикации редакционные и содержат основательно разработанный анализ соответствующей судебной практики и законодательства.
IN THIS ISSUE
• Chinese guarantors and SAFE registration – beware!
• Bills of lading in the hands of banks: shipowners deliver against a LOI at their peril
• Marine insurance claims, perils of the sea and fraud
• General average liens and storage costs
CHINESE GUARANTORS AND SAFE REGISTRATION – BEWARE!
In Beijing Jianlong Heavy Industry v Golden Ocean Group (and others) [2013] EWHC 1063
(Comm) five separate arbitrations were referred to the court on the issue of whether, if
an English law guarantee is unenforceable because it involves acts in a foreign country
which are illegal under local law, the London arbitration clause contained in that
guarantee is also unenforceable.
The claimant had entered into five letters of guarantee guaranteeing the obligations of its subsidiary Hong Xiang Shipping (“HXS”) under charterparties of fi ve vessels. Arbitrations were commenced alleging that HXS repudiated its obligations under the charterparties and that the claimant was liable under the guarantees. The claimant’s response was that the parties knew that it is illegal under Chinese law for a Chinese legal
person to give a guarantee to a foreign entity without having obtained the prior authorisation of the State Administration for Foreign Exchange (“SAFE”). It was known that these guarantees did not have such authorisation, and the funds needed to meet any demand on the guarantees would have to be transferred
from China, in breach of Chinese law.
Therefore, it was argued, the guarantees are unenforceable as a matter of English public policy. The claimant lost in all fi ve arbitrations, and applied to the court under s67 of the Arbitration Act 1996 (which allows a party to challenge the substantive jurisdiction of arbitral tribunals), arguing that the arbitration clauses were also unenforceable.
On the assumed facts before the court, the parties agreed that the guarantees were unenforceable because they were entered into as part of a scheme the object or intention of which was to procure the carrying out of illegal acts in China. The facts were only agreed for the purpose of the hearing, and would be contested at trial.
The court held that the arbitration clauses were enforceable. The nature and function of an arbitration clause is distinct and different from that of other contractual provisions. The arbitration provisions must be evaluated to see whether they are impeached by the illegality. The judge pointed out that if the assumed facts are proved in the arbitrations the illegality will be established and the guarantees will not be enforced. Nothing about that would off end against the principle that English tribunals should respect other legal
systems. The fact that the task faced by the arbitrators is less favourable to the claimant than it would have been if the issue had been fought on Chinese law before the Chinese courts is irrelevant.
Cases of this kind have to be examined on their own facts to see what, if any, action is required in the light of the applicable public policy considerations.
The position is not aff ected by what are assumed to be the bad motives and intentions in adopting arbitration to conceal wrongdoing under Chinese law.
There is no public policy requiring the exposure of criminals for punishment in China. The powerful commercial factors in support of upholding arbitration provisions, respecting the parties’ choice and providing a one stop process applied to this otherwise conventional charterparty guarantee case.
On one level, this case is an illustration of the doctrine of separability applied to arbitration clauses – the English courts treat them separately from the contract of which they are a part, even where the
contract has been held to be void. On a more practical level, it highlights the importance of ensuring that any local formalities applicable to contracts such as guarantees are investigated and addressed when they are negotiated in order to avoid problems later with their enforcement. In this case, the court made it clear that if there is serious illegality surrounding the guarantees then it may be the case that the London arbitrators
would refuse to enforce the guarantees on public policy grounds.
BILLS OF LADING IN THE HANDS OF BANKS: SHIPOWNERS DELIVER AGAINST A LOI AT
THEIR PERIL
The Carriage of Goods by Sea Act 1992 “COGSA 92” represented a policy shift from the
previous Bills of Lading Act 1855. Under the old Act, the transfer of contractual rights in a bill
of lading (and therefore rights of suit) was linked with the passing of property. Under COGSA
92, rights of suit are transferred to the “lawful holder of the bill of lading”, and the link with
ownership of the cargo has been broken.
In the “ERIN SCHULTE” [2013] EWHC 808 (Comm) the claimant bank (SCB) claimed against a shipowner for misdelivery or conversion of a cargo of 9,208mt of gasoil off Benin. The principal issue was whether the bank had title to sue under COGSA 92 as the lawful holder of the bills of lading.
Cirrus had bought a cargo of gasoil from UIDC. UIDC had sourced the gasoil from the shippers, Gunvor and it was loaded onto two ships the “ERIN SCHULTE” and the “MARIA E”. A letter of credit in UIDC’s favour on UCP
600 terms was opened by the United Bank of Africa (“UBA”) confi rmed by SCB to UIDC.
This prime letter of credit was transferred so that Gunvor became the benefi ciary, with Societe Generale acting as Gunvor’s agent for the purpose of drawing under the letter of credit. The bills of lading for
the cargo recorded Gunvor as shipper and the consignee as “to the order of Societe Generale, Paris”.
After loading, however, the cargo on the “ERIN SCHULTE” was rejected by Cirrus for quality reasons. As a result of this there was a renegotiation of the original sale contract between Cirrus and UIDC so that Cirrus
only paid for the cargo on the “MARIA E”, UBA advised SCB of an amendment to the letter of credit which reduced the value and quantity of the cargo covered by it to that shipped on the “MARIA E”. UIDC as
sellers confi rmed their agreement to that amendment. In the meantime Gunvor had presented documents to SCB under the letter of credit in respect of both ships.
SCB (unwisely) advised UBA that UIDC had consented to the amendment, before establishing whether Gunvor had consented to it. Gunvor did not consent. This meant that SCB remained obliged to honour the letter of credit to its full value, but could not recover in full from UBA.
The cargo on the “ERIN SCHULTE” was then sold by UIDC to new buyers, Chase and UBI Energy. The original bills of lading had been indorsed in favour of SCB and received by their London offi ce on 4 June 2010, scanned and sent to their service centre in Chennai for checking. The “ERIN SCHULTE” delivered the cargo to the new buyers between 15 and 19 June 2010, without presentation of the bills of lading, on the instructions of and against letters of indemnity from Gunvor.
On 7 July 2010 SCB agreed to pay Gunvor the money owed to them under the letter of credit and then sought to recover its loss from the owners of the “ERIN SCHULTE” on the basis that it was the lawful holder of
the bills of lading and the cargo had been misdelivered to the new buyers. If the claim succeeded, shipowners would have to pursue Gunvor under the letters of indemnity given to procure discharge of the cargo.
Section 5(2)(b) of COGSA provides that a holder of a bill of lading includes “a person with possession of the bill as a result of the completion, by delivery of the bill, of any indorsement of the bill or, in the case of a bearer bill, of any other transfer of the bill…”.
The court held that SCB had title to sue the shipowner. Delivery of an indorsed bill of lading is a simple act although both transferor and transferee need to intend the delivery to take place. SCB had received the
bills on 4 June 2010 and retained possession of them. It did not send them back, but scanned and sent them to Chennai for checking. It therefore “accepted” them, notwithstanding that they were sent by Gunvor as part of a submission under a letter of credit. SCB held the bills of lading to Gunvor’s order but still had title to sue.
Rights of suit operated separately to the banking arrangements between parties in the chain and their banks. The judge also held that alternatively, SCB gained title to sue when it took up the documents as compliant and honoured the letter of credit on 7 July 2010.
This is quite a striking illustration of the operation of COGSA 92 and its intention to simplify the transfer of rights of suit under contracts of carriage. It was not necessary to look at the underlying (and, as in this case,
often complicated) sale arrangements to determine whether the bank was a lawful holder within the Act. This case serves as a salutary reminder to shipowners that the security rights of a bank as pledgee of a bill of lading are valuable and indeed stronger under COGSA 92 than they were under the old law. When considering whether to discharge cargo without production of a bill of lading, the possibility of an intervention by
a bank seeking to enforce their security is a real risk which must be taken into account.
MARINE INSURANCE CLAIMS, PERILS OF THE SEA AND FRAUD
Whilst the Law Commission continues its deliberations over possible reforms to the Marine
Insurance Act 1906, the courts continue to grapple with the principles derived from it.
Most recently in the “DC MERWESTONE” [2013] EWHC 1666(Comm) the High Court has
considered the fraudulent claims rule in the context of an otherwise valid insurance claim.
Cases such as this emphasise the care that must be taken by assureds to present a
completely accurate picture when making a claim under a marine insurance policy. As will
be seen, even if an insurance claim is valid for 100% of the amount claimed, if an assured
dishonestly bolsters the evidence in support of it, the entire claim may be barred.
The vessel was on a laden voyage from Klaipeda, Lithuania to Bilbao, Spain when she suff ered an ingress of water which flooded her engine room. Seawater had remained in the emergency fi re pump after the crew had used the emergency fi re hose at Klaipeda to de-ice the hatch covers. The water froze, cracking the emergency fi re pump casing and distorting the bar restraining the lid on the fi lter. After the vessel sailed, the ice melted and seawater entered the bowthruster space from the open sea inlet valve through the crack in the fire
pump casing and the displaced fi lter cap. From there, the water entered the duct keel tunnel and into the engine room, through various spaces in the vessel. The crew had been negligent in not closing the sea suction valve and draining the pump after using the emergency fi re pump system in Klaipeda.
The vessel’s main engine was damaged beyond repair and owners claimed some €3m under their hull and machinery insurance policy, which was on ITC Hulls 1/10/83 and Institute Additional Perils Clauses terms. They argued that the ingress of seawater was a peril of the seas and therefore covered by the policy, or that it was covered by the “Inchmaree” clauses in the policy because the crew negligence did not result from
want of due diligence by owners or the vessel’s managers. In two letters to the underwriters in connection with their claim, owners had suggested that the bilge alarm in the engine room had gone off prior to the crew discovering the water ingress, but this was not true.
Underwriters advanced three defences to the claim: (i) the loss was not caused by perils of the seas, but by crew negligence which resulted from owners’ want of due diligence to have appropriate systems for cold weather, etc.; (ii) the loss was caused by unseaworthiness to which owners were privy, so that
insurers were not liable because of s39(5) Marine Insurance Act 1906; (iii) the claim was barred because the presentation of the claim was supported by fraudulent statements.
The court held that the owners had a valid claim under the policy but they had forfeited it by reason of fraud. The untruth in their letters to the underwriters in relation to the bilge alarm was relevant to the claim because it helped to paint a picture of crew negligence.
In finding that owners had a valid claim, the court held that the loss was caused by perils of the seas, namely the fortuitous entry of sea water during the voyage caused by crew negligence at the loading port. A marine insurer is generally liable for any loss proximately caused by an insured peril, even though the loss would not have occurred but for the negligence of the crew (see s55 of the 1906 Act). The key issue is the proximate cause or “real effіcient cause” of the loss. An ingress of seawater due to crew negligence or unseaworthiness is fortuitous and a peril of the seas unless the unseaworthiness is a debility of the vessel i.e. an inherent weakness through wear and tear which means that water ingress was inevitable in any sea condition. Owners had not been negligent in failing to have a cold weather procedure in their SMS.
Further, the lack of watertight integrity between the bowthruster space and the engine room was a real and effi cient cause of the casualty, which resulted from the negligence of persons other than the current owners and managers, who could not have been expected to fi nd the fault prior to the accident. Finally, the
loss was not caused by unseaworthiness of the vessel to which owners were privy within the meaning of section 39(5) of the 1906 Act. Underwriters had to show that owners (meaning owners’ high-level management) were aware of the facts constituting unseaworthiness and realised that these facts rendered the vessel unseaworthy. They could not do so on the facts here.
The court then went on to discuss the fraudulent claim rule. Conscious dishonesty is not required: it is suffi cient that the assured was reckless as to the truth of the relevant statement i.e. he did not care whether it was true or false. The fraudulent part of the claim must also be substantial or material, but this is not a high threshold and it is suffi cient if the fraudulent devices are directly related to and intended to promote the claim and would, if believed, improve the assured’s prospects of a successful claim. Owners had made a false
statement when they had no grounds to believe that it was true, so it was made recklessly in support of their claim. The untruth about engine room alarms was material because under the policy owners’ negligence is relevant to coverage under the relevant policy clauses. The judge recognised that the owners’ culpability was at the lower end of the scale. The untruth was only told once and not persisted in. To be deprived of a valid claim of €3m as a result of one reckless untruth was disproportionately harsh, but the court was bound by
authority to rule against owners.
Counsel for the owners in this case reserved the right to challenge the application of the fraud rule to a valid claim which was presented in the right amount in the higher courts, and therefore it may be that there is further guidance on this issue from the Court of Appeal in the near future.
The other striking thing about this judgment was the lengthy debate about whether the seawater ingress was “fortuitous” because caused by crew negligence, or was caused by unseaworthiness in turn caused by crew negligence. This case highlights the diffi culties sometimes of applying a test of “proximate cause” and a test of
“fortuity” in the context of perils of the seas. Many events have several contributing causes, and in each case it will be a matter of examining the facts closely.
GENERAL AVERAGE LIENS AND STORAGE COSTS
The fi rst instance decision in the “LEHMANN TIMBER” [2013] EWCA Civ 650 featured in the
July 2012 edition of our Bulletin. The case has now gone to the Court of Appeal on two issues
of law and in a judgment which will be welcomed by shipowners, the court considered: (i) the
significance and purpose of a general average bond, and (ii) whether a shipowner is entitled to
recover the costs involved in exercising a lien over cargo to enforce cargo’s general average
contribution. The Commercial Court had held that in continuing to exercise a lien over the
cargo in the absence of a general average bond, the shipowner was not liable in conversion to
the consignees, but could not recover the costs of looking after the cargo.
The vessel had been on a voyage from China to St Petersburg, Russia carrying the consignee’s cargo of 1,089 steel coils. The cargo was carried under four bills of lading, but only the cargo under bill 4 was insured.
During the voyage the vessel suffered two general average incidents. Firstly, she was captured by pirates and held for 42 days until owners paid a ransom. Secondly, when released she suff ered a main engine breakdown and had to be towed to Salalah, Oman. Owners declared general average and appointed adjusters who requested the cargo interests to provide general average security in the form of a general average
bond and a general average guarantee from insurers or a cash deposit. Only a general average guarantee for the cargo under bill 4 was provided. Owners refused to berth at St Petersburg and sailed to Hamina in
Finland, where the cargo was discharged into a warehouse subject to owners’ lien.
Insurance and storage charges at Hamina were US$20,000 per month and the cargo was still there when the Court of Appeal decided the case.
Consignees appealed contending that owners were required to deliver the cargo under bill 4. Owners sought their storage and other costs.
The Court of Appeal held:
(1) Owners were not required to discharge the cargo under bill 4 merely on presentation of a guarantee without a general average bond. There is nothing in the authorities to suggest that a guarantee without a bond is sufficient, or that to require a bond in addition to a guarantee is unreasonable. A bond is a new contract with a new party, and potentially different provisions, with a new limitation period. Owners’ position that they wanted a bond as well as a guarantee was justified and reasonable. Owners had also made it clear that they would only discharge the cargo on receipt of a general average bond and therefore could not have been taken to waive their lien by accepting the guarantee.
(2) The storage charges were recoverable. Although a person exercising a lien cannot at common law claim for the costs incurred in exercising it, the terms of the contract or bailment can change the position. Under a contract of carriage the consignee is under an obligation to discharge the goods and facilitate their discharge by doing whatever is necessary to enable the ship to berth and discharge.
Contracts of carriage also either have demurrage provisions or, if not, there is an obligation to discharge the vessel within a reasonable time. In both cases, the essence of a contract of carriage is that the goods interests are paying for the carrier’s carriage and/or storage time.
The contract, therefore, envisages that the cargo owner must pay for time when he has not discharged a lien and owners continue to store the goods. The exercise of the lien must be reasonable and owners must do all they can to mitigate their losses, but unloading and storing the goods can be a mitigation of the losses
suff ered by detention of the vessel.
Shipowners will particularly welcome the decision regarding storage costs, since otherwise the value of a lien over goods could potentially be destroyed by the costs of preservation or storage in some cases. The Court of Appeal emphasized that the matter turned on the nature of a contract of carriage, so if parties wish to be sure of the position regarding storage costs either way it would appear that suitable wording in the contract will be enforced.
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