Paul Ho Head of Greater China, Partner & Chief Representative, Shanghai
Shipping E-Brief Spring 2015
The Shipping E-brief is a quarterly publication providing you with key information on legal decisions and developments in shipping and related business areas.
Our Spring edition of the Shipping E-Brief is full of articles dealing with topical shipping issues. Download the E-Brief Spring (PDF).
Missed a previous edition? Read them here:
Featured news & insights
News / Non-payment of hire - what (and how) can owners recover?
02-04-2015 / Maritime
Spar Shipping AS v. Grand China Logistics Holding (Group) Co. Ltd  EWHC 718 (Comm) The Commercial Court has recently made some key findings of fundamental importance to the shipping industry.
News / Assessing measure of damages in early redelivery case
31-03-2015 / Maritime
Maestro Bulk Limited v Cosco Bulk Carrier Co Ltd (Great Creation) 2014 EWHC 3978 (Comm)The most significant shipping decision in 2008 was undoubtedly the Achilleas, in which the House of Lords overturned a decision by London arbitrators to award damages representing the loss of a follow on fixture due to late redelivery of the vessel The House of Lords confirmed the orthodox view that damages are limited to losses suffered during the overrun period only Similar issues were explored in a recent judgment from the Commercial Court in the Great Creation, which concerned an early redelivery
News / Liquidated damages - no need to mitigate, but unlikely to continue indefinitely
31-03-2015 / Maritime
MSC Mediterranean Shipping Company SA v. Cottonex Anstalt  EWHC 283 (Comm) A carrier, whose containers had been detained for a long time and seemed to be unlikely to be returned, was found not to have the right to daily liquidated damages for an open ended period. Whilst an innocent party has the option whether to accept a repudiatory breach of contract, terminate the contract and claim damages at large, or instead to keep the contract alive and claim contractual debts or damages, it is not without restriction when exercising its choice. If the damages accrued under a contractual liquidated damages regime become wholly unreflective of the innocent party's loss after time, then the innocent party's right to keep a contract alive in the face of a repudiatory breach is not absolute.
News / Court of Appeal confirms construction of in-transit loss clause in voyage charterparty
20-02-2015 / Maritime
Trafigura Beheer BV v. Navigazione Montanari SpA (Valle di Cordoba)  EWCA Civ 91 The Court of Appeal has recently confirmed the meaning of the expression "in-transit loss" ("ITL") in a voyage charterparty. In the High Court, it was held that (1) a loss by piracy does not fall within the meaning of "in-transit loss" so that the Owner would not be liable for loss so caused; and (2) if the Court was wrong and the type of loss did fall within the meaning of in-transit loss, then the Owner could nonetheless rely on the exceptions contained within the Hague-Visby Rules (the "Rules") that were incorporated in the charterparty. This decision was upheld by the Court of Appeal on both counts. Ince & Co. acted for the successful Owner in this important decision that clarifies how the in-transit loss regime operates and the type of losses that clauses such as this one are meant to cover. If the Owner had been held liable, P&I cover would have been lost because of the standard provisions in Club rules, providing that Club cover is lost if an owner agrees to a liability regime in his contract of carriage that is more onerous than the one contained in the Rules.
News / Direct rights of action - P&I Club succeeds in upholding anti-suit injunction
24-03-2015 / Maritime
Shipowners' Mutual Protection And Indemnity Association (Luxembourg) v. Containerships Denizcilik Nakliyat Ve Ticaret AS (Yusuf Cepnioglu)  EWHC 258 (Comm) The English Court has upheld an anti-suit injunction preventing a party from pursuing direct rights of action against a P&I Club (“the Club”) in Turkey. The Court protected the Club’s contractual right to English arbitration in priority to a direct right conferred by Turkish law. This important decision brings the relationship between English and foreign courts into focus again, and raises questions regarding the effect of European regulations on English conflict of laws principles.
News / Demurrage time bar crucial to comply with documentary requirements
20-03-2015 / Maritime
Kassiopi Maritime Co v. Fal Shipping Co Ltd (M/T Adventure)  EWHC 318 (Comm) In this case, the vessel Owners failed to provide the Charterers with all documents in support of their demurrage claim within the 90-day time period provided under the charterparty. Their claim was dismissed and they were time-barred from recovering demurrage from the Charterers.
News / Extending time for performance Consider the markets
23-03-2015 / Maritime
Swissmarine Services SA v. Gupta Coal India Private Limited  EWHC 265 (Comm) This was a dispute arising out of a contract of affreightment (“COA”). The Court awarded the Owners damages for breach of the COA. These, however, were calculated by reference to prevailing market rates on the last date on which, by virtue of the Owners’ indulgence, the non-performing Charterers could have performed, rather than by reference to the prevailing rates at the times that the voyages should originally have been performed.
News / Court considers whether carrier adopted sound system for carriage of cargo
23-03-2015 / Maritime
Volcafe Ltd and others v. Compania Sud Americana de Vapores SA  EWHC 516 (Comm) A recent decision offers guidance as to the courts’ approach to a carrier’s obligations under Article III(2) of the Hague Rules to properly and carefully load, carry and care for the cargo.
News / Rectification: when what is written on paper does not reflect the "true agreement"
23-03-2015 / Maritime
Tartsinis v. Navona Management Company  EWHC 57 (Comm) When a contract does not reflect the common intention of the parties, equitable relief can be sought from the Court for the contract to be rectified. Such relief is however rarely granted. This dispute provides us with an example where it was.
News / China: new judicial interpretation on the arrest and judicial sale of ships
20-04-2015 / Maritime
On 28 February 2015, the Chinese Supreme People’s Court (“SPC”) enacted a new judicial interpretation (“the Interpretation”) on ship arrest and judicial sale of ships. This took effect as of 1 March 2015. The Interpretation aims to clarify and streamline the rules and court practice on Chinese ship arrest and judicial sale of ships. This article highlights the main changes that may be of particular interest to owners, charterers (in particular bareboat charterers) and other interested parties whose ships may call at ports in China.
News / Rescue of distressed persons at sea: how commercial shipping can best face the Mediterranean crisis
18-05-2022 / Maritime
Search and rescue authorities based on the Mediterranean coast and the shipping companies sailing through it are facing an ongoing humanitarian crisis, brought about by political upheaval, economic migration and the unscrupulous actions of people traffickers. In response to the challenges presented by this phenomenon, the International Chamber of Shipping (“ICS”) has recently released guidance on ensuring the safety and security of seafarers and rescued persons in its booklet “Large Scale Rescue Operations at Sea”, supplementing guidance from the United Nations High Commission for Refugees (“UNHCR”), in co-operation with the IMO and ICS. Whilst this guidance is useful to all crews handling these situations, the prevalence of such incidents highlights the need for office-based staff and their advisers to have an appreciation of the underlying issues in order to best advise those faced with often difficult decisions.
News / English Court clarifies what law governs procedure applied in Hong Kong arbitration
18-02-2015 / Maritime
Shagang South-Asia (Hong Kong) Trading Co Ltd v. Daewoo Logistics (The Nikolaos A)  EWHC 194 (Comm) A recent Commercial Court decision considered the position when a contract provides for the law of one jurisdiction to be applicable, but for the arbitration to take place outside that jurisdiction. Unless the parties have clearly and expressly provided to the contrary, the law governing the arbitration procedure will be that of the seat of the arbitration.
News / Settlement offers: revised Part 36 comes into force
20-04-2015 / Maritime
CPR Part 36 contains a set of rules governing the making of settlement offers and provides certain costs advantages for claimants that act as an incentive to settle disputes early. A failure to comply with the strict requirements of Part 36 can, however, mean that an offer does not attract these costs advantages.