Operating expenses incurred during ransom negotiations. Now allowable under Rule F of YAR 1974.

In The Longchamp reported in our blog of 9 August 2016, the Court of Appeal held that four items of vessel operating expenses incurred during ransom negotiations with pirates were not allowable in general average as substituted expenses under Rule F of the York Antwerp Rules 1974.

Rule F provides:

“Any extra expense incurred in place of another expense which would have been allowable as general average shall be deemed to be general average and so allowed without regard to the saving, if any, to other interests, but only up to the amount of the general average expense avoided.

The items claimed in respect of this period were: crew wages; the high risk bonus due to the crew for being at sea in a high risk area; crew maintenance; bunkers consumed. The expenses were incurred over a 51 day period of negotiation with the pirates which resulted in the release of the vessel on payment of a ransom of US1.85m, as opposed to the US$ 6m initially demanded. The Court of Appeal held that Rule F presupposes some real choice being made. Acceptance of the initial ransom demand is not a true alternative; nor is acceptance of any other ransom sum less than that initially demanded but greater than that eventually agreed.

The Supreme Court has now overturned the decision of the Court of Appeal and held, Lord Mance dissenting on the facts, that the four operating expenses were allowable under Rule F. The Supreme Court disagreed with the Court of Appeal’s decision that the operating expenses did not fall within Rule F because payment of a reduced ransom was not an ‘alternative course of action’ to paying the ransom initially demanded, but was merely a variant. This reasoning required a different means to be adopted to complete the adventure from that which might normally be expected. This was the prevailing view of the texts on General Average and among practitioners, but was not supported by the language of Rule F. In any event, incurring the operating expenses did represent an ‘alternative course of action’ to paying the ransom intially demanded.

Both lower courts had found that the reference in Rule F to “another expense which would have been allowable as general average” is to an expense whose quantum is such that it would have qualified as a claim under Rule A. Both lower courts had accepted that on the facts payment of the ransom in full would have been reasonable. The Supreme Court disagreed with this construction of Rule F. The reference in Rule F to ‘allowable in General Average’ did not mean that the expense (in this case payment of the full ransom demanded) had to be reasonably incurred. It had to be of a type that would constitute a General Average expense. If so, the substituted expense (in this case the payment of the lower ransom together with the operating costs during the period of negotiation) would be allowable, but only to the extent that it did not exceed the sum avoided and that it was established that it was reasonable to pay the ransom that was paid together with incurring the operating expenses and the negotiation expenses during the 51 days.

The Supreme Court also rejected cargo interest’s argument that the exclusion of indirect loss including demurrage from General Average under Rule C served to exclude the operating expenses from Rule F. Rule C did not apply to expenses recoverable under Rule F which by definition were expenses not themselves allowable in General Average but were alternatives to sums that were allowable.

 

Good news for English judgment creditors — oh, and the beneficiary of a credit is who the credit says it is.

In Taurus Petroleum Ltd v State Oil Marketing Company of the Ministry of Oil, Republic of Iraq [2017] UKSC 64 Shell bought two parcels of Iraqi oil in 2013 from the state Iraqi oil company SOMO. Its bank, Credit Agricole in London, issued letters of credit governed by English law naming SOMO as beneficiary, but containing a clause as follows (essentially to comply with the Iraqi sanctions regime):

“[A] Provided all terms and conditions of this letter of credit are complied with, proceeds of this letter of credit will be irrevocably paid in to your account with Federal Reserve Bank New York, with reference to ‘Iraq Oil Proceeds Account’.These instructions will be followed irrespective of any conflicting instructions contained in the seller’s commercial invoice or any transmitted letter.
[B] We hereby engage with the beneficiary and Central Bank of Iraq that documents drawn under and in compliance with the terms of this credit will be duly honoured upon
presentation as specified to credit CBI A/c with Federal Reserve Bank New York.”
Taurus subsequently got an arbitration award against SOMO of something like $9 million, which it wanted to enforce against the benefit of the letter of credit under a TPDO (garnishee in old-fashioned English). Three questions: (1) who was the creditor under the LCs,  SOMO or the Central Bank? (2) where was the debt situated? (3) should a receiver be appointed?
On the situation of the debt, the whole court agreed, reversing the CA, that it was London, where the debtor, the London branch of Credit Agricole, was situated. It followed that the English court had jurisdiction to make a TPDO. There was no reason to treat a LC debt as any different from any other debt: Power Curber International Ltd v National Bank of Kuwait S.A.K. [1981] 1 W.L.R. 1233, regarding such debts as situated in the place of payment, was wrong.
All their Lordships felt that a receivership order was appropriate.
On the identity of the creditor, the decision was by a majority. The majority said, reversing the CA, that it was SOMO. They were named as beneficiaries. The agreement to pay the Oil Proceeds Account in New York made no difference in this respect: it was merely a collateral agreement. (Presumably Taurus had some arrangement with the Central Bank to collect from them: we are not told).
On balance, a good decision for creditors chasing funds through TPDOs. Its effect is essentially that any LC issued by a London bank, even a branch of a foreign institution, now seems fair game, even if payable in Mannhein, Manila or Madagascar. Forget Brexit: London is likely to remain the place to be.

Owners obligation to start the approach voyage under a voyage charter.

 The Pacific Voyager [2017] EWHC 2579 (Comm) concerns the shipowner’s obligations under a voyage charter in commencing the approach voyage to the port of loading. In the present case, the vessel struck a submerged object in the Suez Canal while engaged in the final leg of her previous charter. All her cargo was discharged there and the vessel had to be drydocked for repairs before performing any further laden voyages. The cancelling date was 2359 on 4 February 2015 and owners notified charterers that the vessel was shortly due to drydock where repairs would take “months”. Charterers cancelled on 6 February 2015 and claimed substantial damages.

In Monroe Brothers Limited v Ryan [1935] 2 KB 28 the Court of Appeal held  that where the charter contains an expected readiness to load date (‘ertl’) the owner is under an absolute obligation to start the approach voyage by a date when it is reasonably certain that the vessel will arrive at the loading port on or around the expected readiness to load date. The exceptions in the charter will apply once the approach voyage starts but do not apply to the period before hand. The same applies where the charter provides an an estimated time of arrival (‘eta’) at the load port (The Myrtos [1984] 2 Lloyd’s Rep. 449).

The present case raised the novel issue of how the Monroe obligation operated in a charter which did not contain an ‘ertl’ or an ‘eta’ provision. Instead the charter contained a series of ETAs in respect of the anticipated timetable for completion of the voyage then being undertaken under the previous charter. Charterers argued that the cancelling date provided the date by reference to which there was an absolute obligation on the Owners to commence the approach voyage. Owners argued that the only relevant obligation on the Owners was an implied term that they would exercise due diligence to get the Vessel to the loading port by the cancelling date.

Popplewell J found that there was an absolute duty on the Owners to commence the approach voyage, at a particular point of time. That time is to be a reasonable time, to be identified in the light of the other charterparty terms. In this charter the relevant terms were to be found in the provisions regarding ETAs for the completion of the previous charter, which were equivalent to an ETA of arrival at the load port. The ETAs concluded with the vessel arriving at Antifer on 25 January 2015 for final discharge of her previous cargo. Owners were under an absolute obligation to commence the approach voyage at the end of a reasonable discharging period, were the vessel to arrive at Antifer on 25 January 2015. Had there been no ETAs for the vessel’s previous employment, there would have been an absolute obligation to commence the approach voyage by a date when it was reasonably certain that the Vessel would arrive at the loading port by the cancelling date.

Parent company liability for subsidiary operations abroad.  

 

An interesting new Court of Appeal decision on transnational litigation in the  English courts concerning alleged torts committed overseas. Lungowe v Vedanta and Konkola Copper Mines [2017] EWCA Civ 1528 involved claims by Zambian citizens against the defendants alleging personal injury, damage to property and loss of income, amenity and enjoyment of land, due to alleged pollution and environmental damage caused by discharges from the Nchanga copper mine since 2005. Konkola Copper Mines (‘KCM’), a Zambian company, owned and operated the mine. Vedanta, a UK company, is a holding company for various metal and mining companies, of which KCM is one.

The claim was served on Vedanta by virtue of its domicile in the UK and permission was granted for the claim form and particulars of claim to be served out of the jurisdiction on KCM. Vedanta and KCM both applied for declarations that the High Court had no jurisdiction to hear the claims. In June 2016 Coulson J dismissed the challenges. The Court of Appeal has now upheld the dismissal.

  1. Vedanta’s position.

Under art. 4 of the Recast Brussels Judgments Regulation 2012 the claimants were entitled to sue Vedanta in the UK by virtue of its domicile. The Court of Appeal held that following the ECJ’s decision in Owusu v Jackson [2005] QB 801, it was clear that there was no scope for staying proceedings on the grounds of forum non conveniens where jurisdiction was established on the grounds of the defendant’s domicile under art. 4. Although in principle it might be possible to argue that invoking the rules in the Recast Regulation amounted to an abuse of EU law, there would have to be sufficient evidence to show that the claimant had conducted itself so as to distort the purpose of that rule of jurisdiction. The present case did not meet the high threshold for an abuse argument to succeed.

  1. KCM’s position

The application to serve KCM out of the jurisdiction in Zambia was based on para 3.1 of Practice Direction 6B on the ground that there was between the claimant and Vedanta a real issue which it was reasonable for the court to try and the claimant wished to serve KCM as a necessary or proper party to that claim. If the claimants could satisfy these conditions, the court still retained a discretion and CPR 6.37(3) provide that: “The court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim.”

An important issue in this analysis was whether there was a real issue between the claimants and Vedanta. This raised the question of whether a parent company could owe a duty of care to those affected by the operations of a subsidiary. Following the Court of Appeal’s decision in Chandler v Cape such a duty towards the employee of a subsidiary could arise where the parent company (a) has taken direct responsibility for devising a material health and safety policy the adequacy of which is the subject of the claim, or (b) controls the operations which give rise to the claim. The parent must be well placed, because of its knowledge and expertise to protect the employees of the subsidiary. If both parent and subsidiary have similar knowledge and expertise and they jointly take decisions about mine safety, which the subsidiary implements, both companies may (depending on the circumstances) owe a duty of care to those affected by those decisions. This type of duty may also be owed in analogous situations, not only to employees of the subsidiary but to those affected by the operations of the subsidiary. The Judge had decided on the basis of the pleaded case that it was arguable that such Vedanta did owe such a duty of care to those affected by KCM’s operations. The Court of Appeal concluded that the Judge had been entitled to reach that conclusion. There was a serious question to be tried which could not be disposed of summarily, notwithstanding that it went to the Court’s jurisdiction.

The Court of Appeal also upheld the finding that it was reasonable to try the issue between Vedanta and the claimants. Vedanta was sued within the jurisdiction pursuant to a mandatory jurisdictional rule and the claimants had an interest in suing Vedanta other than for enabling them to bring KCM within the jurisdiction. The claimants were suing Vedanta as a company with sufficient funds to meet any judgment of the English court, whereas they had grounds to believe, and evidence to show, that KCM might be unable or unwilling to meet such a judgment. KCM was a necessary and proper party to the Vedanta claim because the claims against the two defendants were based on the same facts and relied on similar legal principles and the Judge was entitled to conclude that Vedanta and KCM could be regarded as broadly equivalent defendants.

As to whether England and Wales was the proper place in which to bring the claim, the Court of Appeal again upheld the Judge’s finding that it was. Although, absent the claim against Vedanta, it would be clear that England would not be the appropriate forum for the claims – that would be Zambia, the position change once the claim against Vedanta was taken into account. It would be inappropriate for the litigation to be conducted in parallel proceedings involving identical or virtually identical facts, witnesses and documents, in circumstances where the claim against Vedanta would in any event continue in England.

The case can be contrasted with the earlier decision of Fraser J in Okpabi and others v. Royal Dutch Shell Plc and Shell Petroleum Development Company of Nigeria Ltd [2017] EWHC 89 (TCC), noted in this blog on 2 February 2017 in.  Fraser J found that there was no arguable duty of care owed by the parent company Royal Dutch Shell Plc to those affected by the operations of its subsidiary in Nigeria. He declined to follow Coulson J’s decision in the instant case, identifying facts that distinguished the two cases. The decision is under appeal.

Demurrage and damages for repudiation of charter.

 

In London Arbitration 26/17  the Tribunal considered how future demurrage should be taken into account when calculating owners’ damages claim following charterers’ repudiation of a voyage charter. Owners claimed: (1) demurrage accrued at the loading port at the date on which owners accepted charterers’ repudiation and; (2) damages from that date based on the difference between the gross profit they would have earned on the cancelled charter and the gross profit they earned for the period of the substitute voyage.

In calculating the second claim, owners argued that the profit on the notional voyage under the cancelled charter should take account of demurrage that would have accrued at the time loading would have commenced, as the vessel was already on demurrage at the time the charter was terminated. The Tribunal disallowed this element. Owners were confusing the notional voyage with the actual part-performance of the charter prior to the repudiation. The charterers were to be credited with the full loading laytime under the calculations for the gross profits under the nominal voyage.

It should be noted that a contrary approach was taken by Teare J in The Bow Cedar [2004] EWHC 2929 (Comm) where he held that a further sum in respect of future demurrage that would have been earned had the charter been performed could be included in owners’ damages claim.

Interest on the claim for loss of profits ran from the date on which owners accepted charterers’ repudiation. Interest on the accrued demurrage claim was subject to the terms of the repudiated charter which had provided for demurrage to be settled “[w]ithin a period of 45 days after completion of discharging in China and submission of claim supported by all relevant documents”. The Tribunal decided that interest should start to run 45 days after the termination of the charter.

 

Force Majeure laytime and demurrage exception. Delay within reasonable control of charterers?

 

In London Arbitration 23-17,  the vessel was prevented from berthing because of an incident involving a previous vessel, vessel X, at the berth whereby there had been a rupture of the loading hose which had caused an oil spill. Vessel X was detained by the authorities in the berth at the time of the subject vessel’s arrival and remained there for a further eight days, during which the subject vessel was unable to proceed to the loading berth.

Charterers contended that the delay fell within cl.21 of BPVOY3. This provided for half laytime/demurrage in the event of “Any delay(s) arising from adverse weather or sea state conditions, fire, explosion, breakdown or failure of equipment, plant or machinery in or about ports or places of loading and/or discharge, Act of God, act of war, labour disputes, strike, riot, civil commotion, or arrest or restraint of princes, rulers or peoples shall, provided always that the cause of the delay(s) was not within the reasonable control of Charterers or Owners or their respective servants or agents…”

The Tribunal found that the rupture of a loading hose did not constitute a “breakdown or failure of equipment, plant or machinery in or about ports or places of loading and/or discharge” as the hose could have been replaced before the arrival of the subject vessel. The Tribunal accepted owners’ contentions that: (1) an oil spill was not a listed exception in clause 21; (2) the suspension of loading as the result an oil spill was not a listed exception in clause 21; (3) the inability of the shippers to provide cargo for Vessel X or any other vessel was not a listed exception in clause 21.  As regards ‘arrest’ the arrest could be an arrest of a third-party ship, provided it was one whose arrest delayed the chartered ship but there was no requirement that any arrest must be action by a state, not ordinary court proceedings and involve forcible interference.

However, the half demurrage provision did not apply because the cause of the delay had been within the reasonable control of the charterers or their servants or agents, in that it arose out of the loading of Vessel X. Whether the rupture of the loading hose was caused by the terminal or Vessel X, it fell within the reasonable control of the charterers or their servants or agents.

 

 

Moral: don’t arbitrate in Russia if you can help it

Decided eight weeks ago but just up on Bailii, the arbitration decision in Maximov v Open Joint Stock Company “Novolipetsky Metallurgichesky Kombinat” [2017] EWHC 1911 (Comm) is worth a brief note. Having sold a company to a buyer and faced a dispute as to the price, Nikolai Maximov got an arbitral award from a Russian tribunal for some 8 billion roubles (then about $250 million). A Russian court then proceeded at the buyer’s request to annul the award on very doubtful grounds, including those not raised by the parties. Two appeals failed. The seller sued in England under the New York Convention and at common law to enforce the award: to the buyer’s plea that the award had been set aside, the seller asked the court not to enforce that judgment on the basis that it must have been biased. Despite very grave suspicions about the propriety, let alone the correctness, of the Russian judgment, and despite evidence that the Russian judicial system left a great deal to be desired, especially when (as here) the Russian government had a strong interest in reducing or eliminating the award, the judge, Sir Michael Burton, was clear that this was not enough. Perverse and very suspicious it might be, but even here his Lordship was unable to draw the inference that the only explanation was bias.

Two further points for future reference. At [16] the judge expressed the view that a judgment given on one point out of evident bias would probably not be upheld even if there was another ground for the judgment that was not successfully challenged on that ground. And at [64] he strongly doubted a subsidiary argument by the defendant that once a court with jurisdiction had annulled an award that was an end of the matter however biased the court, since there would simply be nothing to enforce. And rightly so, we suggest: apart from anything else, the moral hazard that such a rule would engender is fairly obvious.

As we said at the beginning, arbitrate in Russia very much at your own risk.

 

Liens on sub-freights. Where do they need to be registered as a charge?

The Singapore High Court decision in Duncan, Cameron Lindsay v. Diablo Fortune Inc  [2017] SGHC 172 provides a cautionary tale for shipowners about the need to register a lien on sub freights as a charge, and where this should be done.

The shipowners let their vessel on bareboat charter to a company incorporated in Singapore, under which they were given a lien on all cargoes, sub-hires and sub-freights belonging or due to the charterers or any sub-charterers and any bill of lading freight for all claims under the charter. Following default in payment by the charterer, the owners notice of lien to a sub charterer which employed the vessel in a pooling arrangement. The bareboat charter was subject to English law and provided for London arbitration.

The charterer’s liquidator contended that the lien was void against them for want of registration under s.131(1) of the Singapore Companies Act. The shipowners contended that as the charter was subject to English law, it was the UK Companies Act 2006 that applied to the registration of charges and whose provisions applied only to companies incorporated in England, Wales, or Scotland, but not to a company incorporated abroad. The Singapore High Court held that as the company was incorporated in Singapore, the requirements of s 131 of the Singapore Companies Act applied regardless of the law governing the creation of the charge or the location of the property.

A distinction needed to be made between the law governing the initial validity and/or creation of the security interest and the law governing the priority of such interests and the distribution of assets in the insolvency of the company. The latter issues are resolved by the law of the state in which the insolvency proceedings are commenced. The invalidity of a charge as against a liquidator due to non-registration is one such issue.

The court then considered whether the lien was a charge within the meaning of s131 and followed the English authorities cited by the Liquidator to the effect that a lien on sub freights give rise to an equitable assignment by way of charge and may be void for want of registration against a liquidator and creditors of the company. The lien on sub freights possessed the characteristics of a floating charge and amounted to a charge on a book debt under s131.

Shipowners, therefore, need to be aware of the insolvency law of their time charterer’s place of incorporation and its law regarding registration of charges.

Demurrage time bar. No need for simultaneous presentation of claim and supporting documents.

In London Arbitration 22/17 charterers claimed that owners’ demurrage claim was barred by reason of the following clause in the charter: “Charterers shall be discharged and release [sic] from all liability in respect of any claims under this Charter unless such claim has been presented to Charterers in writing with supporting documents within 30 days from completion of discharge.”

Charterers argued that the clause required that there had to be simultaneous presentation with the 30 days of the written demurrage claim, together with the supporting documentation. The two notices of readiness had not been submitted with the written claim, although copies had been supplied before the cut-off period, and they had been supplied contemporaneously with the events to which they related.

The tribunal rejected charterer’s contention. The owners had provided enough documentation for charterers to evaluate the demurrage claim. The documentation had to be provided within the deadline but did not need to be provided simultaneously with the claim. Accordingly, owners’ demurrage claim was not time barred.