В статье рассматривается решение английского суда по конкретному делу Occidental Chartering INC. v rogress Bulk Carrier Ltd (2012) EWHC3515. Судно было отфрахтовано по цепочке суб-тайм чартеров, заключенных на идентичных условиях. Оригинальный судовладелец возбудил арбитражный процесс по требованию о нарушении условия первичного тайм-чартера о безопасном порте. Это требование было удовлетворено, включая процессуальные расходы. Были возбуждены и другие арбитражные производства по цепочке суб-тайм-чартерных фрахтователей. В итоге арбитражные решения были обжалованы в суд. Суд подтвердил стандарт, согласно которому удовлетворенное требование оригинального судовладельца передается по цепочке, и убытки подлежат возмещению последним суб-тайм-чартерным фрахтователем. В заключение приводятся рекомендации, соблюдение которых призвано смягчить риск прерывания такой “цепочки” ответственности согласно английскому праву.
Provided that charterparties are on back to back terms, and the claim is successful, liability for costs incurred should be able to be passed down a charterparty chain. A technical issue will not be allowed to prevent such liability for costs being passed down a charterparty chain. This is illustrated by the recent case outlined below:
Occidental Chartering INC. V Progress Bulk Carrier Ltd (2012) EWHC3515.
Background facts
This case involved a chain of charterparties.
Precious Garnets Ltd (PG), Head Owners time chartered the MV Chada Naree to the Disponent Owners Occidental Services Corporation (OSC).
OSC did not enter into a charterparty but instead re-let the vessel to a company within its corporation known as Occidental Chartering Inc (OCI).
OCI time-chartered this vessel onto Progress Bulk Carriers (PBC).
PBC in turn, sub-chartered this vessel onto CNAN.
At all times, the charterparties including the re-let agreement between OCI and OSC, were on material and identical terms. CNAN during the proceedings became divested of all its assets.
PG, Head Owners, commenced arbitration proceedings against OSC for a claim in damages against them for a breach of a safe port warranty obligation under the head charter. This claim succeeded in favour of the Head Owners and therefore passed down the charterparty chain including all legal costs initiated for recovery. During the entire arbitration proceedings there was no issue or dispute about the relationship between OSC and OCI as the arbitrators did not appear to draw a distinction between the two.
However, when the awards were handed down there were typographical errors on the written awards. The main issue arose in connection to the award between OCI and PBC. The party named as the claimants on this award was OSC and not OCI. This error lead to a technical dispute having to be resolved. It is noted that a distinction needs to be drawn between the initial claim for damages and the claim for recovering costs in pursuing the matter. The claim for damages to the vessel was not disputed. However, OCI’s recoverability of costs from PBC was.
Position of the parties
The distinction between OCI/OSC was not foreseen at the time of the initial arbitration but PBC contended that OCI was not party to the charterparty chain and thus the recoverability for costs claim could not be passed down the chain via the Head Owners. PBC therefore argued that OCI had not incurred any liability for costs which could be claimed against themselves.
The Tribunal’s award
The Tribunal was persuaded in favour of PBC’s arguments and it published a second award which held that OCI were not entitled to recover the costs incurred in the head arbitration between OSC and PG.
Judgment by the Commercial Court of Appeal
OCI was granted leave to appeal the second award. The fundamental issue before Mr Justice Teare was to decide whether it is possible for a party to recover costs for a claim to which it had not been liable to pay to a third party. This case was fact specific and the judge felt that the Tribunal had not fully considered the background to the award i.e. that during the initial arbitration all parties had the intention of treating OCI and OSC as one.
Comments
The Appeal reaffirms the standard position that where there is a claim successfully being passed down through a chain of charterparties and where there was a break in the chain, this would not necessarily prevent the liability for costs from being passed down the chain. OCI was therefore entitled to recover all costs incurred from PBC including Head Owners legal costs, the legal costs of OSC for defending the matter as well as OCI’s legal costs in pursing it in terms of the appeal.
Advice
If engaged in chartering, and using a possible “in-house” re-letting it is important to check that contractual chains are fully maintained, and there is an unbroken link down to the further sub-charterers of the vessel. That way, if a liability needs to be passed on the contractual chain, the risk of a “liability gap” are mitigated.
Furthermore it must be remembered that costs liabilities can only be passed on in successful claims, or face the situation similar to the Vakis T [2004] 2 Lloyd’s Rep. 465 where it was not possible to recover costs up the line when the main claim itself was unsuccessful.
Source: Skuld
Источник: http://www.hellenicshippingnews.com/News.aspx?ElementId=239b994b-6696-49b1-9b87-39167adc348d