The Global Santosh and the Vicarious Performance of Third Parties

The Supreme Court today (11 May 2016) handed down its decision in NYK Bulkship (Atlantic) NV v Cargill International SA (The Global Santosh) [2016] UKSC 20.

Simon Rainey QC, visiting fellow of the IISTL, was brought in to argue the SC appeal and represented the successful appellants, Cargill.

The decision of the Supreme Court is a landmark one in relation to a contracting party’s responsibility for the vicarious or delegated performance by a third party of its contractual obligations, both in the common charterparty and international sale of goods contexts.

Overview

The Global Santosh was time chartered on terms that the vessel should be off-hire during any period of detention or arrest by any authority or legal process, unless the detention or arrest was “occasioned by any personal act or omission or default of the Charterers or their agents.” She was arrested as a result of a dispute between the receiver of the cargo and a party who appears to have been a sub-sub-charterer, and which had nothing to do with the owners or the ship. The question which arises on this appeal is whether the arrest can be regarded as having been occasioned by the time charterer’s “agents” in the sense in which that word is used in the proviso.

The meaning of the common term “or their agents” in this charter context raised far-reaching issues as to the extent of a party’s responsibility under a contract for the acts of a third party who vicariously performs some aspect of the party’s contractual obligations or to whom performance of the obligation has been delegated by the creation and operation of a series of sub-contracts.

These issues, previously only canvassed at first instance and open to debate, have now been addressed in full by the Supreme Court.

Summary of the Supreme Court’s Decision

  1. In general terms, in deciding whether a contracting party is liable or responsible for some act or omission done by a third party in performing that party’s obligation under a contract, the correct approach is to define what obligation has been delegated to the third party and to what extent that party is vicariously acting as the contracting party in acting or omitting to act.
  1. In the specific context of a time charterparty off hire clause, the question as to who bears responsibility for delay occasioned by an arrest by or involving such a third party is one of construction of the clause.
  1. But the use of the concept of charterer’s “agents” in such a provision (and others) is to be approached in just the same general way.
  1. In particular, there is no over-arching concept of ‘spheres of responsibility’ which would treat any party who becomes involved in the chain of contracts around the charterparty which result from the charterer’s trading of the vessel and its commercial or trading arrangements (such as a sub- or sub-sub- charterer or a buyer or seller of cargoes) as its “agent” by being on the charterer’s ‘side of the line’.

Shot by both sides? Interpleader proceedings in the OWB saga.

 

The bankruptcy of OW Bunkers in November 2014 has led to many shipowners facing competing claims for the supply of bunkers from ING as assignee of OWB and from physical bunker suppliers. In Hapag-Lloyd Aktiengesellschaft v. U.S. Oil Trading LLC, http://law.justia.com/cases/federal/appellate-courts/ca2/15-97/15-97-2016-02-24.html, an interpleader was filed on behalf of shipowners and an injunction obtained preventing the imminent arrests of three of vessels by U.S. Oil Trading LLC, the physical supplier of bunkers. The Second Circuit has now rejected U.S. Oil Trading’s appeal. This contrasts with the position in Singapore last year where the Court of Appeal denied interpleader proceedings in similar circumstances. It reasoned that the suppliers’ in rem claims did not compete with ING’s contractual, in personam, claims. In the UK the shipping world awaits with bated breath the decision of the Supreme Court on whether the Sale of Goods Act applies to contracts for the supply of bunkers.

Some improving TV?

A note for 1030 tomorrow and 1100 Wednesday. For those who want a degree of pre-Easter wind-down the Supreme Court is hearing the OW bunkers case (PST Energy 7 Shipping LLC v OW Bunker Malta Ltd [2015] EWCA Civ 1058; [2016] 1 Lloyd’s Rep. 228). Watch the excitement live on https://www.supremecourt.uk/live/court-02.html. To remind you, the sexy issue is whether a contract to sell goods (here fuel oil) for immediate consumption on reservation of title terms is a contract for the sale of goods or something else; but there’s a good deal besides. Starring Mance, Clarke, Sumption, Hughes and Toulson: a very decent cast!

Thanks to the guys at the HFW blog for the tip.

Implied terms — again

These days cases at the highest level about implied terms in commercial contracts seem to appear like London buses. Another today, in the Supreme Court, was Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd & Anor [2015] UKSC 72 (available on BAILII). The issue was of little interest except to landlord and tenant enthusiasts: namely, if a tenant exercises a break clause having paid a whopping quarter’s rent shortly beforehand, is there an implied term allowing him to get back a proportionate part of it? (the answer, if you must know, is No).

What matters is that their Lordships showed a distinctly conservative trend, emphasising that business necessity, or something close it it, had to be shown: the cases requiring it, said Lord Neuberger at [21], represented “a clear, consistent and principled approach”. Distinct scepticism was shown towards any attempt to move to “just and reasonable” or some similar formulation, on the basis of suggestions in the Belize Telecom case that implication of terms and interpretation of contracts were really just different sides of the same Rubik’s cube.

For the benefit of shipping enthusiasts, Bingham LJ’s statements in The APJ Priti [1987] 2 Lloyd’s Rep 37, on implications of a prospective safe port warranty in a voyage charterparty, received the imprimatur of Lord Neuberger (with whom Lords Sumption and Hodge agreed).

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