Cosco Bulk Carrier Co Ltd and Another v M/V ‘Saldanha’ C/P Dated 25/06/08: ComC 11 Jun 2010

The court considered the effect of a ship being taken by pirates at sea on the obligations in the charterparty contract. The insurers said that a claim for ‘average accident’ must include an element of physical damage – absent in this case.
Held: The appeal failed. ‘Average accident’ need not include physical damage, but nor could seizure by pirates amount to an accident. As a matter of indelible impression seizure by pirates is a ‘classic example’ of a totally extraneous cause.

Gross J
[2010] EWHC 1340 (Comm), [2010] 1 CLC 919, [2011] 1 Lloyd’s Rep 187
Bailii
England and Wales
Citing:
See AlsoMasefield Ag v Amlin Corporate Member Ltd; The Bunga Melati Dua ComC 18-Feb-2010
. .
Not FollowedThe Mareva AS 1977
The wording ‘average accident’ in the policy: ‘merely means an accident which causes damage.’ . .
CitedKidston v Empire Insurance Co 1866
The court was asked whether shipowners could recover under a sue and labour clause in a freight policy for the costs of transhipment expended in order to avoid the loss of the freight. There had been no abandonment and underwriters argued that this . .
DistinguishedThe Laconian Confidence 1997
Charterers appealed against the decision of the arbitrator on the meaning of the phrase ‘any other cause’. The performance of the contract had been interrupted by the intervention of the authorities in Chittagong.
Held: The appeal failed. The . .
CitedThe Alfred Trigon 1981
The court considered the wording, in the context of a second-hand ship sale and purchase market, ‘average damage’.
Held: ‘Average’ here could not mean ‘damage’ simpliciter and was understandably construed to mean a particular kind of damage – . .
CitedKelman v Livanos 1955
. .
CitedChandris v Isbrandtsen-Moller Co Inc CA 1950
Although section 3(1) of the 1934 Act expressly empowered only courts of record to include interest in sums for which judgment was given for damages or debt, arbitrators were nevertheless empowered by the agreement of reference to apply English law, . .
CitedThomas Wilson Sons and Co v Owners of Cargo per the ‘Xantho’ HL 14-Jul-1887
A cause of damage otherwise satisfying the established definition may be a peril of the sea even though caused by a shipowner’s negligence. Lord Herschell said: ‘If that which immediately caused the loss was a peril of the sea, it matters not how it . .
CitedRoyal Greek Government v Minister of Transport CA 2-Jan-1949
The charterers had ordered the vessel to sail but her crew refused to do so, except in convoy, because of the war. A dispute arose as to whether, the charterers’ order to sail having been disobeyed, the vessel was off-hire.
Held: The appeal . .

Lists of cited by and citing cases may be incomplete.

Transport, Contract, Insurance

Updated: 01 December 2021; Ref: scu.416635