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: (Lord Clarke dissenting) The appeal succeeded. Any responsibility of Cargill under the time charter for IBG’s acts or omissions in the conduct of cargo handling operations at the port of discharge, extended only to acts or omissions in the actual performance of those operations while they were in progress.
Lord Clarke (dissenting) said: ‘The real question, he says, concerns the scope of that ‘agency’. To what acts or omissions did it extend?
Approaching the matter in that way, I am of the opinion that the answer is that it extends to the operation of the vessel from the time that notice of readiness was given (or perhaps earlier) until the completion of discharge. Throughout that time the vessel was complying with the orders of the charterers (ie Cargill) as to proceeding to a berth, waiting to discharge and subsequently discharging. If she had been arrested by Transclear or IBG in the course of the discharging operations themselves there could surely be no doubt that they would be treated as the ‘agents’ of Cargill. To my mind the same is true of an arrest during the period during which she was waiting to discharge.’ and ‘I would hold that the failure to discharge the cargo was caused by the acts or omissions of the charterers’ ‘agents’ and that when the vessel was arrested by Transclear she was arrested by the charterers’ agents within the meaning of clause 49. ‘
Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Toulson
[2016] UKSC 20, [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
Bailii, Bailii Summary, WLRD, SC, SC Summary
Arbitration Act 1996 69
England and Wales
Citing:
At ComC – NYK Bulkship (Atlantic) Nv v Cargill International Sa ComC 1-Feb-2013
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 . .
At CA – NYK Bulkship (Atlantic) NV v Cargill International SA CA 8-Apr-2014
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 – Hyundai Merchant Marine Co Ltd v Furness Withy (Australia) Pty (‘Doric Pride’) CA 25-Jan-2006
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 . .
Cited – Mediolanum Shipping Co v Japan Lines Ltd (‘The Mediolanum’) CA 1984
The charterers had contracted to provide and pay for fuel. They ordered her to a safe port but she was directed to an unsafe place in that port by the refinery with whom the charterer had contracted for the supply of bunkers. The court was asked to . .
Cited – Richmond Shipping v D/S and A/S Vestland (‘The Vestland’) 1980
The court was asked whether the charterer was in breach of a positive obligation imposed on him by the charter. . .
Cited – The ‘Goodpal’ 2000
The court dealt with the apportionment of claims under the Interclub NYPE Agreement . .
Lists of cited by and citing cases may be incomplete.
Transport
Updated: 14 January 2022; Ref: scu.563294
