Antiparos ENE v SK Shipping Co Ltd [2008] EWHC 1139 (Comm), [2008] All ER (D) 332 (May)
Queen’s Bench Division, Commercial Court
Andrew Smith J
23 May 2008
Clause 4(c) of the Asbatankvoy charter form does not confer a right to revise a nomination for a safe port. Recoverable expenses for a breach of cl 4(c) are not confined to expenses arising by way of deviation resulting from a change of nominated port.
Andrew Baker QC and Julian Kenny (instructed by Ince & Co) for the claimant.
Luke Parsons QC and Guy Blackwood (instructed by DLA Piper UK LLP) for the defendants.
The defendant chartered the claimant’s vessel in March 2007 on the Asbatankvoy form. The agreement was for a single voyage from the Arabian Gulf to South Korea or Japan. It specified up to three safe ports in the Arabian Gulf. At the time when the charter was made, the vessel was discharging in South Korea. She left on 10 March bound for Fujairah with an estimated time of arrival of 26 March 2007. On 21 March the charterers gave voyage instructions to the owner and nominated the load ports of Ras Laffan for loading on 28–29 March and Mina Al-Ahmadi for loading on 29–31 March. On the same day, the owner arranged to bunker the vessel at Mina al-Ahmadi and informed the charterer.
On 23 March the brokers indicated to the owner that the charterer might change the voyage instructions and require that the vessel load at Ras Laffan and Ras Tanura. The owner required that it had already placed a bunker stem at Mina Al-Ahmadi and would require compensation for any additional costs resulting from a change of voyage instructions. In the event, according to the owner, the bunkers supplied at Ras Turna cost some $US217,721.52 more than they would have done had they been supplied at Mina Al-Ahmadi as originally arranged. The charterers disputed the quantum of the owners’ claimed loss. The issue also arose, however, as to what was recoverable under cl 4(c) of the charter.
MR JUSTICE ANDREW SMITH:
Clause 4(a) of the Asbatankvoy form provided that the charterer had to name the loading ports
“at least...24...hours prior to the Vessel’s readiness to sail from the last previous port of discharge, or from bunkering port for the voyage, or upon signing this Charter if the Vessel has already sailed …” Clause 4(c) provided “any extra expense incurred in connection with any change in loading or discharging ports (so named) shall be paid for by the Charterer and any time thereby lost to the Vessel shall count as used lay-time.”
His lordship considered the facts and ruled that the owners’ contentions regarding the prices of bunkers was correct. The owners argued that an increase in bunkering expense such as had incurred fell within cl 4(c) and the “extra expense” was determined by comparing what expenses were incurred under the revised orders and what expenses would have been incurred under the original orders.
The charterer contended that cl 4(c) was directed to when a vessel deviated from her course after she had set out for the nominated port and as a result incurred extra expense by way of fuel consumption and lost time, and that loss of the opportunity to stem bunkers more cheaply in Mina Al-Ahmadi was not within cl 4(c).
The owners had an alternative claim for damages on the basis that the revised voyage instructions were given in breach of the charter. That raised the issue as to whether on the true construction of the charter the charterer was entitled to change the load ports that it had nominated. Where a charter provided that a ship was to load or discharge at a port that was to be nominated, once the port had been effectively nominated its status would be as if it had been in the contract from the outset. The charterer contended that cl 4(c) changed the position because by implication it conferred a right to re-nominate load (and discharge) ports.
Nothing in the charter expressly conferred upon the charterer a right to revise a nomination, and that could readily have been expressed had it been the parties’ intention. The charterer accordingly did not have a right to change a named loading port as it had.
His lordship then considered what was covered by the expression “any extra expenses incurred in connection with any change of loading or discharge port…”
The charterer submitted that cl 4(c) was directed to extra expenses by way of “out of pocket deviation costs”. The loss for which the owner claimed was causally remote from the charterers’ orders.
His lordship held that there was nothing in the wording of cl 4(c) that indicated that it was to be confined to expenses arising by way of deviation resulting from a change of nominated port: if the first limb of cl 4(c) dealing with expenses were so restricted, consistency would require that the second limb regarding time be similarly restricted but nothing in either limb supported that interpretation.
The clause entitled the owner to any extra expenses incurred in connection with any change in nomination: there was no justification for requiring the “connection” to be one of reliance.
Loading port
His lordship accordingly concluded that the cost of the bunkers at Ras Tanura was an expense falling within cl 4(c). It was incurred as a direct result of the revised nomination of Ras Tanura as a loading port, and it was readily within the contemplation of parties to a charter that a change of loading port would lead to different and potentially more expensive bunkering arrangements.
The clause required the charterer to bear extra expenses incurrred in connection with a change of nomination, and extra expenses to be assessed by comparing the expenses incurred with what would have been incurred had the original nomination not been changed.
The owner’s claim for $US217,721.52 would therefore succeed.
