References: [2006] EWCA Civ 599, [2007] 2 CLC 1042, [2006] 2 All ER (Comm) 188, [2006] 2 Lloyd’s Rep 175
Links: Bailii
Coram: Brooke, Rix LJJ, Sir Paul Kennedy
Ratio: The court considered the relationship between express an implied warranties.
Held: Under a time charterparty, hire continues to run unless the charterer can bring himself within the plain words of an off-hire provision; the risk of delay is thus essentially on the time charterer (rather than the owners).
Rix LJ, with whom Brooke LJ and Sir Paul Kennedy agreed, said at: ‘ Mr Cooper went on to cite examples of the effectiveness of an express safe port warranty, even in cases of charters to nominated ports such as The Helen Miller [1980] 2 Lloyd’s Rep. 95 at 101 and The Mary Lou [1981] 2 Lloyd’s Rep. 272. Those citations are, in my judgment, again apposite. It is of course standard law that express warranties and provisions must be given their true effect, such as they are, and that there is only room for the implication of an indemnity clause to the extent that the express provisions do not allocate risks in other inconsistent ways.’ ‘under a time charter the risk of delay is fundamentally on a time charterer, who remains liable to pay hire in all circumstances unless the charterer can bring himself within the plain words of an off-hire provision’.
This case cites:
- At ComC – Hyundai Merchant Marine Co. Ltd. v Furness Withy (Australia) Pty (‘Doric Pride’) ComC (Bailii, [2005] EWHC 945 (Comm))
Dispute about the meaning and effect of an ‘off hire’ clause in a single trip time charter. . .
(This list may be incomplete)
This case is cited by:
- Cited – NYK Bulkship (Atlantic) Nv v Cargill International Sa ComC (Bailii, [2013] EWHC 30 (Comm), [2013] 1 Lloyd’s Rep 455)
The ship (Global Santosh), having been found with illicit drugs, was arrested in error, leading to considerable delays in unloading the cement cargo. The charterparty period off-hire clause (NYPE form) was applied and hire withheld by the head . . - Cited – NYK Bulkship (Atlantic) NV v Cargill International SA CA (Bailii, [2014] EWCA Civ 403, [2014] 2 Lloyd’s Rep 103)
The court was asked as to ‘the true construction and application of a proviso to an off hire clause in a time charterparty, dealing with the capture, seizure, detention or arrest of the vessel. The issue thus raises the familiar question as to the . . - Cited – NYK Bulkship (Atlantic) Nv v Cargill International Sa SC (Bailii, [2016] UKSC 20, Bailii Summary, [2016] 1 Lloyd’s Rep 629, [2016] 2 All ER (Comm) 587, [2016] WLR(D) 255, [2016] 4 All ER 298, [2016] 1 WLR 1853, WLRD, SC, SC Summary)
The ship ‘Global Santosh’ had been arrested as a side issue in a dispute as to its cargo between its anticipated receiver and a sub-sub charterer.
Held: The appeal succeeded. Any responsibility of Cargill under the time charter for IBG’s acts . .
(This list may be incomplete)
Jurisdiction: England and Wales
Last Update: 06-Jun-18
Ref: 242539
