2021 Mar Law Review

Maritime law in 2021:
a review of developments
in case law
By Dr Johanna Hjalmarsson
Bills of lading – Charterparties – Contracts – Collision – Insurance –

Jurisdiction – Liability – Passengers – Procedure – Sale of goods –
Sale of ships – Salvage – Shipbuilding – Ship breaking
Maritime law in 2021: a review of developments in case law is published by Informa Law,
Third Floor, Blue Fin Building, 110 Southwark Street, London, SE1 0TA, United Kingdom.
Informa Law is a premium legal research supplier to practitioners across the globe. Our
maritime and commercial content is available online via single-user subscriptions or
multi-user licences at https://i-law.com/ilaw/martimelist.htm
Please contact us on: +44 (0)20 3377 3996 (EMEA); +65 6508 2430 (APAC);
+1 212 600 3460 (USA) or email customersuccess@lloydslistintelligence.com
© Informa UK Ltd 2022. All rights reserved; no part of this publication may be
reproduced, stored in a retrieval system or transmitted in any form or by any means,
electrical,mechanical, photocopying, recording, or otherwise without the prior written
permission of the publisher, or specific licence. While we want you to make the best
use of this publication, we also need to protect our copyright. We would remind you
that copying is not permitted. However, please contact us directly should you have any
special requirements.
Informa Law is an Informa business, one of the world’s leading providers of specialist
information and services for the academic, scientific, professional and commercial
business communities.
Registered Office: 5 Howick Place, London SW1P 1WG.
Registered in England and Wales No 1072954.
While all reasonable care has been taken in the preparation of this publication, no
liability is accepted by the publishers nor by the author of the contents of the publication,
for any loss or damage caused to any person relying on any statement or omission in
the publication.
Maritime law in 2021: a review of developments in case law
CONTENTS
AUTHOR PROFILE ii
INTRODUCTION 1
CONTRACTS 2
Charterparties 3
Voyage charterparties 3
Time charterparties 4
Bills of lading 8
Letters of indemnity 12
Sale of goods 13
Ship building 17
Ship sale 20
Ship breaking 21
PASSENGERS 22
PORTS 26
MARINE INSURANCE 28
ADMIRALTY 30
Liabilities 30
Collision 30
Admiralty procedure 32
Service 32
Letters of undertaking 34
Limitation of liability 38
Ship sale 40
Multiple proceedings 41
Forum non conveniens 42
Costs 44
THE VIEW FORWARD 45
APPENDIX: JUDGMENTS ANALYSED AND CONSIDERED
IN THIS REVIEW 47
Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com i

AUTHOR PROFILE
Dr Johanna Hjalmarsson
Informa Associate Professor in Maritime and Commercial Law,
Southampton Law School, University of Southampton
Johanna has been at the University of Southampton since

completing her LLM in Maritime Law in 2004, initially as a researcher
with the Institute of Maritime Law and since 2006 on a research
position supported by Informa. She completed her PhD thesis on
fraudulent insurance claims in 2016 and is currently an Associate
Professor and a member of the Institute of Maritime Law.
Before joining Southampton, Johanna served as a junior judge in Sweden and spent
several years with the United Nations International Drug Control Programme and the
Office of the High Representative in Bosnia and Herzegovina.
Johanna’s research covers maritime and commercial law, insurance law and dispute
resolution with recent publications in Lloyd’s Maritime and Commercial Law Quarterly,
Journal of International Maritime Law and Civil Justice Quarterly. She is the editor of
Lloyd’s Law Reporter, a weekly case update series on i-law, and Lloyd’s Shipping & Trade
Law as well as The Ratification of Maritime Conventions. She takes a particular interest
in jurisdictions undergoing comprehensive transformation and co-edited the two books
Maritime Law in China and Insurance Law in China; and has co-authored two editions
of Singapore Arbitration Legislation with Professor Robert Merkin QC. Her publications
have been cited by courts in Singapore and Australia and by the Law Commissions of
England and Wales and Scotland.
At Southampton, she teaches shipping and insurance-related modules and received the
Vice-Chancellor’s Award for Excellence in Teaching in 2009 and the Vice-Chancellor’s
Award in 2011.
ii Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com

Maritime law in 2021: a review of

developments in case law
INTRODUCTION
To little surprise, another early Covid-related judgment
handed down on 26 January 2021 bore on cruise
The year got off to an immediate current affairs start
ships and the distribution of the financial fallout of the
with the UK Supreme Court judgment in Financial
pandemic in P&O Princess Cruises International Ltd v The
Conduct Authority v Arch Insurance (UK) Ltd,1 followed
Demise Charterers of the Vessel “Columbus”8 where the
by several more decisions involving Covid-19 pandemic-
right to claim port charges in an admiralty sale were
related cases. This was not the only theme of the year,
considered by the Admiralty Registrar. Further cruise-
with continued focus on loss spreading following not
related decisions emanating from the pandemic involved
only the pandemic but also a volcanic eruption, collisions
cruise passenger claims litigation, in Karpik v Carnival plc
and insolvencies; the OW Bunker collapse in 2014
(The Ruby Princess).9 For the business consequences on
notably continuing to cast a long shadow.2 A few cases
the cruise industry, see also Taxidiotiki-Touristiki-Nautiliaki
determined more perennial issues of principle, such as
Ltd (trading as Aspida Travel) v The Owners and/or Demise
issues related to shipping contract interpretation in The
Charterers of the Vessel “Columbus” and the Owners and/
CMA CGM Libra3 and The Polar4 and to COLREGs in The Ever
or Demise Charterers of the Vessel “Vasco da Gama”.10
Smart;5 and some finely tuned procedural issues.
Predictions are for fools, but it seems likely that litigation
The UK Supreme Court’s decision in FCA v Arch6 in January
of fallout from the pandemic will continue long past its
2021 was a decision in principle on the interpretation of
conclusion.
business interruption policies and is not considered in
depth in this Review. For present purposes, it suffices
to note that the judgment considered causation and
section 55 of the Marine Insurance Act 1906, but
that the implications for marine insurance are mostly
indirect in nature. The Supreme Court did say that policy
interpretation would rarely turn on causal language such
as “arising out of” and “caused by”;7 a contention with
which the marine insurance segment of the market may
well disagree.
1
[2021] UKSC 1; [2021] Lloyd’s Rep IR 63.
2
The Luna and Another Appeal [2021] SGCA 84; [2021] Lloyd’s Rep Plus 120. 8
P&O Princess Cruises International Ltd v The Demise Charterers of the Vessel
3
Alize 1954 and Another v Allianz Elementar Versicherungs AG and Others (The
“Columbus”; P&O Princess Cruises International Ltd v The Owners and/or
CMA CGM Libra) [2021] UKSC 51; [2021] 2 Lloyd’s Rep 613. Demise Charterers of the Vessel “Vasco da Gama”; and in the Matter of the
4
Herculito Maritime Ltd and Others v Gunvor International BV and Others (The
Claim for Port Dues by Port of Tilbury London Ltd [2021] EWHC 113 (Admlty);
Polar) (CA) [2021] EWCA Civ 1828; [2022] Lloyd’s Rep Plus 9. [2021] 1 Lloyd’s Rep 440. Noted below under “Ports” at page 26.
5
Nautical Challenge Ltd v Evergreen Marine (UK) Ltd (The Alexandra 1 and Ever
9
[2021] FCA 1082; [2022] Lloyd’s Rep Plus 11. Noted below under “Passengers”
Smart) (SC) [2021] UKSC 6; [2021] 1 Lloyd’s Rep 299. at page 25.
6
[2021] UKSC 1; [2021] Lloyd’s Rep IR 63. 10
[2021] EWHC 310 (Admlty); [2021] Lloyd’s Rep Plus 67. Noted below under
7
At para 162. “Admiralty procedure” at page 36.
Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com 1

CONTRACTS pertained to the attributes and equipment on the one

hand, and issues pertaining to the navigation and
management of the vessel on the other. The approach of
The undoubted highlight of the year for shipping law adopting a distinction places a limit on the shipowner’s
enthusiasts came in the shape of the Supreme Court’s duties in relation to seaworthiness, as it will then not
judgment in Alize 1954 and Another v Allianz Elementar be responsible for the (competent) crew’s failures in
Versicherungs AG and Others (The CMA CGM Libra).11 navigation.
The case settles issues surrounding the application of
the concept of seaworthiness under the Hague and However, the Supreme Court declined to adopt this
Hague-Visby Rules. The factual background was that distinction. Article IV rule 2 exceptions did not apply to
the appellant shipowners’ vessel CMA CGM Libra had a causative breach of the carrier’s obligation to exercise
grounded while departing from Xiamen, China, on due diligence to make the vessel seaworthy under
18 May 2011. The owners sought contribution in general article III rule 1. The nautical fault exception was not
average. The defendant cargo interests declined to pay intended to impact upon the shipowners’ obligation of
on the basis that the grounding was the owners’ fault seaworthiness. It could not be relied upon where there
and therefore for the account of owners under general had been a material failure to exercise due diligence to
average rules. make the vessel seaworthy.
The issue was whether defects in the vessel’s passage

plan and the relevant working chart rendered the
vessel unseaworthy on the basis that neither document
It is neither correct nor helpful to treat
recorded the warning derived from the Notice to Mariners the concept of unseaworthiness as
6274(P)/10, to the effect that depths shown on the chart being subject to an “attribute threshold”,
outside the fairway on the approach to the port of Xiamen whereby unseaworthiness required there
were unreliable and waters were in fact shallower than
recorded on the chart.
to be an attribute of the vessel which
threatened the safety of the vessel or
At first instance,12 the judge had found that these defects her cargo. The applicable test was the
rendered the vessel unseaworthy, that the owners had
failed to exercise due diligence in breach of the Hague
“prudent shipowner” test
Rules, article III rule 1, and that the breach was causative
of the grounding of the vessel. The owners appealed,
arguing that a one-off defective passage plan did not The Supreme Court considered that it was neither correct
render the vessel unseaworthy; and that actions of the nor helpful to treat the concept of unseaworthiness
master and crew carried out qua navigator could not as being subject to an “attribute threshold”, whereby
be treated as attempted performance by the carrier to unseaworthiness required there to be an attribute of the
exercise due diligence to make the vessel seaworthy vessel which threatened the safety of the vessel or her
under the Hague Rules, article III rule 1. The Court of cargo. The applicable test was the “prudent shipowner”
Appeal having dismissed the appeal,13 the shipowner test, namely whether a prudent owner would have
appealed to the Supreme Court on the grounds that the required the relevant defect, had it been known, to be
vessel was not unseaworthy, that due diligence had been made good before sending the ship to sea.
exercised, and that any negligence in passage planning
was exempted under the Hague Rules, article IV rule 2(a), Where the judge had found as a fact that it was
as a navigational fault. “inconceivable” that a prudent owner would allow the
vessel to depart on the voyage with a passage plan
The Supreme Court agreed with the lower courts and which was defective in the manner found, the case was
dismissed the appeal, making a number of salient points. not “at the boundaries” of seaworthiness. In “boundary”
The issue in brief was whether there was a distinction cases, it might be necessary to address a prior question
to be made between issues with seaworthiness that of whether the defect or state of affairs relied upon
sufficiently affected the fitness of the vessel to carry the
[2021] UKSC 51; [2021] 2 Lloyd’s Rep 613.
goods safely on the contractual voyage so as to engage
11
12
[2019] EWHC 481 (Admlty); [2019] 1 Lloyd’s Rep 595.
13
[2020] EWCA Civ 293; [2020] 2 Lloyd’s Rep 565. the doctrine of seaworthiness.
2 Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com

Drawing a line between articles III and IV of the Hague Charterparties

Rules, the Supreme Court acknowledged that the
preparation of a passage plan was a matter of navigation
and the failure to note or mark the uncharted depths
There were no bareboat charterparty cases in the course
warning in the passage plan and on the working chart
of the year, but a couple of important voyage charterparty
could be regarded as an “act, neglect, or default” in
cases and a number of time charterparty cases.
“the navigation … of the ship” within the article IV rule
2(a) exception. However, it went on to hold that on the
proper interpretation of the Hague Rules, the article IV
rule 2 exceptions could not be relied upon in relation to Voyage charterparties
a causative breach of the carrier’s obligation to exercise
due diligence to make the vessel seaworthy. Where as A judgment on the nature of demurrage was handed
here the negligence was the decision not to note or mark down by the Court of Appeal towards the end of the year:
the uncharted depth warning in the passage plan and K Line Pte Ltd v Priminds Shipping (HK) Co Ltd (The Eternal
on the chart, the unseaworthiness was the consequent Bliss),15 in which the court considered the question of
defective passage plan and working chart. The negligent what damages precisely demurrage liquidated. Here, the
navigational act had caused the unseaworthiness. charterer had failed to discharge a cargo of perishable
goods from the shipowner’s dry bulk carrier Eternal Bliss
As for the second issue, due diligence, the circumstances within the agreed laytime due to port congestion. The
here were to be distinguished from those where a lack delay was not such as to be repudiatory, and there was
of due diligence concerned something falling outside of no separate breach by the charterer. The loss suffered
the carrier’s orbit. The vessel had been within the carrier’s was the consequence of the shipowner having complied
orbit at all material times. The carrier could not escape with charterers’ orders to load, carry and discharge the
from its responsibilities under article III rule 1 of the cargo. The cargo deteriorated and claims were brought
Hague Rules by delegating them to its servants or agents. against the shipowner by the cargo interests.
The provision of a competent crew was only one aspect of
the carrier’s seaworthiness obligation and to the extent The shipowner, having reasonably settled those claims,
case law suggested that the carrier’s seaworthiness sought compensation from the charterers. Out of the
obligation in relation to passage planning was limited arbitration arose the question of law of precisely what
to the provision of a proper system, it was not a correct damages demurrage liquidated: all of the consequences
statement of the law.14 of the charterer’s failure to comply with laytime, or only
some of those consequences? At first instance,16 the
judge preferred the latter position, disapproving The
Bonde.17 The charterer appealed.
The Court of Appeal allowed the appeal. In the absence

of any contrary indication in a particular charterparty,
demurrage liquidated the whole of the damages arising
from a charterer’s breach of charter in failing to complete
cargo operations within the laytime and not merely
some of them. A shipowner seeking to recover damages
in addition to demurrage arising from delay must prove
an additional breach of a separate obligation. The Bonde
remained good law. The Court of Appeal also observed
on the topic of Aktieselskabet Reidar v Arcos Ltd,18 on an
interpretation of which the judge at first instance had
relied, that “the ratio of the case on this issue is obscure.
It is better to recognise that fact than to continue to
search for a clarity which does not exist”.19
15
[2021] EWCA Civ 1712; [2022] 1 Lloyd’s Rep 12.
16
[2020] EWHC 2373 (Comm); [2020] 2 Lloyd’s Rep 419.
17
[1991] 1 Lloyd’s Rep 136.
Distinguishing The Torepo [2002] EWHC 1481 (Admlty); [2002] 2 Lloyd’s
14 18
(1926) 25 Ll L Rep 513.
Rep 535. 19
At para 30.

The decision has drawn early criticism.20 It will be seen Time charterparties
in due course what the effect may be of any appeals and
if industry standard terms are revised to accommodate Cases on time charterparties included not just the usual
the decision. off-hire clause interpretation but a variety of other issues.
The highly specific but often crucial question of what In Regal Seas Maritime SA v Oldendorff Carriers GmbH &
time zone should be used for calculating demurrage Co KG (The New Hydra),22 the issue was the calculation
was given consideration in Euronav NV v Repsol Trading of hire where there had been a change to the published
SA (The Maria).21 The claimant shipowners here sought method of hire calculation on which the charterparty
summary judgment or striking out of the defendant’s relied. The dispute had arisen out of a time charter dated
defence to owners’ claim for demurrage. The parties 22 November 2013 on an amended NYPE form whereby
had on 23 October 2019 entered into a voyage the charterers agreed to charter the owners’ vessel New
charterparty on the Shellvoy 6 form for the carriage of Hydra for a period of three years with options for the
crude oil from Brazil to a range of ports on the US west charterers to extend the charter by two further periods of
coast. Clause 15(3) of the Shellvoy 6 form provided that one year. The hire clause read in relevant part:
demurrage claims were time-barred failing notification “Hire payable every 15 days in advance including
made “within 30 days after completion of discharge”. overtime. The gross daily hire to be calculated
Questions arose as to the interpretation of this clause. basis the average of the 4 Baltic Cape Size Time
Charter routes published by the Baltic Exchange
In the event, discharge had been completed in Long over the previous 15 days plus 4% for size
Beach, California on 24 December 2019 local time, by adjustment.”
which time it was already 25 December according to
central European time (CET). The claims notification was Subsequently in May 2015 the Baltic Exchange had
sent and received on 24 January 2020, which charterers published changes to its rates, changing the benchmark
asserted was out of time counting from 24 December vessel from 172,000 mt to 180,000 mt and in July 2015
but owners asserted was within time, counting from 25 it had stopped publishing rates for the 172,000 mt
December. Available options besides local time, which benchmark. New Hydra was 179,258 mt.
would not result in time-barring, were the time zone of
the sender and receiver of the notification in question, The owners continued with the same calculation in hire
which was CET, and also GMT, on the basis that English statements. The charterparty was renewed in 2017. In
law applied to the contract. July 2018 the owners alleged that the hire had been
calculated wrongly for the past three years. Arbitration
The judge dismissed the owners’ claim, holding that the ensued. The tribunal having dismissed the owners’
date of completion of discharge was to be determined claims, the owners appealed, maintaining that the base
according to the time zone applicable at the place where rate remained the same, namely the current rate for
discharge had occurred. Using California time, the time the benchmarked ship, and that the size adjustment
for claiming was to start on 24 December and the claim was subject to an implied term for the eventuality of a
was therefore time-barred. The judge went on to note change to the benchmarked ship. The charterers’ case
that while the commercial objective of timely notification was that the parties intended the base rate to be that for
of the charterer would suggest that the notice should the 172,000 mt ship.
be received by the charterer by the end of its day, the
Sir Nigel Teare ordered the award set aside as obviously
event starting the notification, namely completion of
wrong and remitted the charterers’ remaining defences
discharge, was a historical event that had occurred in a
back to the tribunal. The owners’ suggested implied
particular place in its own time zone. That date should be
term reducing the percentage size adjustment to
determined, for the purposes of the clause 15(3) period
nil was necessary to make the hire provision work in
for notification of demurrage claims, using local time at circumstances where the tonnage of the benchmark
the place of discharge. vessel was changed by the Baltic Exchange during
the course of the charterparty, in which event the
20
Leighton, “The Eternal Bliss: when certainty is not enough”, Lloyd’s Shipping
& Trade Law, (2021) 21 LSTL 9 1; Liu, “Demurrage under the loupe”, Lloyd’s
hire would be based upon the average of the four
Shipping & Trade Law, (2021) 21 LSTL 9 5. See also Song, “Shipowners’ routes published and, if necessary, a reasonable size
recovery of cargo liability under voyage charter”, Lloyd’s Shipping & Trade
Law, (2021) 21 LSTL 6 9.
21
[2021] EWHC 2565 (Comm); [2021] Lloyd’s Rep Plus 104. 22

adjustment. Far from subverting the hire provision and date, which the judge found to be the discharge date
the parties’ bargain, the implied term ensured that the rather than the termination date.
charterparty continued to operate as intended for the
period intended by the parties. The long-running litigation in Space Shipping Ltd v
ST Shipping and Transport Pte Ltd (The CV Stealth)
In AI Giorgis Oil Trading Ltd v AG Shipping & Energy Pte (No 4)24 provided another instalment in 2021, this time
Ltd (The Marquessa),23 the question was one of the concerning the charterers’ right to deduction from hire.
consequences of termination. The claimant owners of the The parties had entered into a time charterparty for the
motor tanker Marquessa here sought summary judgment vessel CV Stealth. Ordered to Venezuela by the defendant
on the merits against the defendant time charterers in charterer, the vessel was detained for three years and
respect of unpaid hire and damages consequent upon redelivered to the head owners upon release and sent
termination. The time charterparty at issue had been for scrap. In arbitration, the disponent owners had been
concluded on 1 June 2020. The charterers had from the awarded damages for hire, charterer’s indemnity and
outset paid a deposit, bunkers on delivery and hire late breach of a clause providing for liability in case of capture
and when the sixth hire instalment fell due, the owners or seizure. This was the disponent owner’s challenge
exercised a lien on cargo on board, agreeing with the of the arbitrator’s deduction of drydocking costs
sub-charterers to complete the voyage against payment saved, some US$1.4 million. The issue had also been
into escrow. Soon thereafter, the owners accepted the provisionally considered by Popplewell J in an appeal of
charterers’ breaches as repudiatory or a renunciation an earlier partial final award in The CV Stealth (No 2).25 The
and elected to treat the charterparty as having come arbitrator had in an earlier partial final award decided on
to an end. The charterers purported to accept this as a hire due for the period that ought to have included the
repudiatory breach by way of wrongful termination. The drydocking, without deciding on drydocking costs. The
defendants had been served with proceedings, but had disponent owners argued that the issue was res judicata;
not filed a defence and were unrepresented. that charterers had failed to prove the saving; that any
saving lacked a sufficient causal nexus with the breach;
The judge granted summary judgment for the owners, and that any saving could not be deducted from the
addressing the time periods involved separately. First, disponent owners’ claim for indemnity.
concerning hire up to termination, the owners were
entitled to the balance of outstanding hire payments,
with appropriate deductions for payments to date and
mitigation. Hire continuing to accrue during periods
of suspended performance was not a penalty but an In The CV Stealth, it was found that
inherent part of the bargain which entailed hire being the arbitrator had not erred in law in
paid in advance. concluding that there had been a
Secondly, as concerned liability for the period after saving to the disponent owners by
termination, the charterers had no real prospect of reason of the dry docking not having
defending the claim that the owners were entitled to taken place
treat the charterparty as being at an end. It was not
arguable that the owners were in repudiatory breach for
suspending performance and reaching an agreement
with the voyage charterers. They were entitled to suspend The judge dismissed the appeal. The arbitrator had not
performance as part of the bargain and the arrangement erred in law in concluding that there had been a saving
with the voyage charterers was a lawful step in mitigation. to the disponent owners by reason of the dry docking not
having taken place. While the liability to the head owners
As for the measure of damages, the owners were entitled was a loss which could be passed on to charterers, there
to damages equivalent to hire at the charterparty was no finding that the disponent owners were liable to
rate from their acceptance of repudiation to the date the head owners for dry docking and no claim from the
of discharge of the cargo, as there was no scope for a head owners which could be passed on as damages to
replacement charter for the laden vessel. Credit was to be the charterers.
given for bunkers remaining on board as of the redelivery
24
[2021] EWHC 2288 (Comm); [2022] Lloyd’s Rep Plus 6.
23

The arbitrator had been entitled to find as a fact that upon those on board and pursued counterclaims in respect
the head owners’ declaration of a constructive total loss, of lost freight. A partial arbitral award issued on 12 June
even if rejected by underwriters, drydocking was pointless. 2020 held that there was a safe-port warranty, that the
As a consequence, redelivery without drydocking was not port had some shortcomings, but that the loss was due
an independent decision by the disponent owners but to the master’s negligence which had broken the chain
flowed causally from the time charterers’ breach. of causation, causing the grounding. The issue now for
determination was the remedies to which the owners
In the partial final award pertaining to the period where and charterers were entitled, respectively.
drydocking ought to have taken place, drydocking
expenses were not dealt with, whether by accident or The tribunal had held that charterers were entitled to
design. That did not make such a deduction res judicata. recover as damages the value of freight not paid by
At the time, it was not certain that there would ultimately the voyage charterer. The question of law upon which
be a saving and any allowance that could have been permission to appeal had been given was: “Did the
made would have been conceptually different from the charterparty contain an implied obligation that the
calculation of lost trading profits. claimant would not revoke the defendant’s authority to
collect from the voyage charterer the freight payable
The arbitrator had not erred in law in holding that the under the bills of lading unless hire and/or sums were due
saving could be deducted from the contractual claim to the claimant under the charterparty?”
for an indemnity. The indemnity clause in question
concerned the “consequences” arising from irregularities The judge allowed the appeal and set aside the award in
in papers which included saving the cost of drydocking. relevant parts, remitting it for consideration by the tribunal
Not considering the saved costs would give disponent of the remaining ground for the charterers’ counterclaim.
owners more than an indemnity. While the precise basis for the obligation of the owners to
account to the charterers for any excess in the amount of
Another attempt to argue an implied term was considered freight collected had not been the subject of any detailed
in Alpha Marine Corporation v Minmetals Logistics Zhejiang consideration in the authorities and the bounds of the
Co Ltd (The Smart),26 the issue being rights to freight obligation had not been fully worked out, the existence
following the loss of the vessel. The claimant owners of of the obligation was not in doubt. Considering the factor
Smart had on 1 August 2013 chartered the vessel to the of business necessity in light of this obligation to account,
defendant charterers on an amended New York Produce the present charterparty and other time charters in similar
Exchange form for a time-charter trip. On 19 August form did not lack commercial or practical coherence in
2013 the vessel ran aground while departing the port of the absence of an implied term restricting the owners’
Richards Bay in South Africa and was lost. right to intervene. The charterparty did not contain an
implied obligation that the owners would refrain from
Correspondence and dissent arose between the owners revoking the charterers’ authority to collect the freight
and charterers as to which party was entitled to recover payable under the bills of lading unless hire or sums were
freight under a voyage charterparty entered into by the due to the owners under the charterparty.
defendant and two bills of lading issued by the owners
with freight payable “as per charterparty”, the owners In Navision Shipping A/S v Precious Pearls Ltd; Conti Lines
having purported to exercise a lien and the charterers Shipping NV v Navision Shipping A/S (The Mookda Naree),27
having invoiced the voyage charterer. The voyage the issue was whether the vessel was to be off hire in
charterer put a sum into escrow, but was subsequently the context of arrest. The vessel Mookda Naree, laden
wound up by order of the court without having paid the with wheat, had been arrested at Conakry, Guinea at the
full amount. instance of SMG, a Guinean company, in support of its
claim against a French wheat trading company, Cerealis,
In arbitration, the owners claimed in excess of US$100 under a sale contract involving shipment of wheat by
million in respect of the loss of the vessel and asserted Supertramp, an unrelated vessel. Cerealis was also the
that the loss was due to the charterers’ breach of a safe ultimate sub-charterer of Mookda Naree. The parties to
port warranty. The charterers denied that the grounding the present litigation were her head owners Precious
was caused by any unsafety of the port, contending Pearls, their time charterer Navision and Navision’s sub-
instead that it was caused by negligent navigation by time charterer Conti.
26
[2021] EWHC 1157 (Comm); [2022] 1 Lloyd’s Rep 1. 27

Both charters were on the Asbatime form with misconstrued clause 86. SMG’s claim against Cerealis
additional clauses. Additional clause 47, present in was for a cargo carried to a west African port, but
both charterparties, put the ship off hire inter alia upon was carried on a different ship altogether and under
being detained or arrested by any legal process, until a different charter. That claim was not the present
the time of release, “unless such ... detention or arrest charterer’s responsibility under clause 86. Instead of
[was] occasioned by any act, omission or default of the holding that the ship never went off hire, the tribunal
Charterers and/or sub-Charterers and/or their servants should have held that when arrested she went off hire
or their Agents”. It was common ground that Cerealis under clause 47 until such time as clause 86 took effect.
fell within the clause 47 proviso. Additional clause 86, They had erred in holding that Navision had a liability for
appearing in the head charter only, provided inter alia: damages to be assessed for breach of clause 86.
“When trading to West African ports Charterers to The final charterparty case to be reported here,
accept responsibility for cargo claims from third Eastern Pacific Chartering Inc v Pola Maritime Ltd (The
parties in these countries (except those arising from Pola Devora),28 concerned the scope of a charterparty
unseaworthiness of vessel) including putting up jurisdiction clause in the narrow and specific context of
security, if necessary, to prevent arrest/detention arrest in Gibraltar. Out of a charterparty between the
of the vessel or to release the vessel from arrest or parties for the claimant’s vessel Divinegate, a dispute
detention and vessel to remain on hire.” had arisen as to hire allegedly owed by the defendant.
The claimant had on 2 July 2020 arrested the vessel in
An arbitration tribunal had held that the arrest did Gibraltar as security for its claim to be litigated in England
not place the vessel off hire. Sub-charterers Conti and Wales under the charterparty’s exclusive jurisdiction
and charterers Navision appealed, each against their clause. The vessel was released on 6 July 2020 when
respective disponent owners Navision and Precious Pearls. the defendant provided documentary support for its
The judge characterised the questions as: (a) whether the position that it was only the time charterer of that vessel.
arbitrators had misconstrued clause 47; and (b) whether On 4 August 2020 the claimant brought proceedings in
SMG’s claim against Cerealis for short delivery of the London for the hire claim. The defendant submitted a
Supertramp cargo was a “cargo claim” within clause 86. defence and counterclaim, notably for present purposes
a counterclaim in tort in respect of wrongful arrest of
Pola Devora. The claimant sought a declaration that the
The events of The Pola Devora took court did not have jurisdiction over the counterclaim.
The jurisdiction clause provided for English law and
place during the UK’s transition period jurisdiction for “any dispute arising out of or in connection
following exit from the EU, but the with” the charter.
applicable law in relation to Gibraltar
The events of the case took place during the UK’s transition
was, idiosyncratically, neither internal
period following exit from the EU, but the applicable law
English or UK law nor the Brussels in relation to Gibraltar was, idiosyncratically, neither
Regulation Recast, but the Brussels internal English or UK law nor the Brussels Regulation
Convention 1968 Recast,29 but the Brussels Convention 1968,30 which
applied as between the Gibraltar and English jurisdictions
by virtue of SI 1997 No 260231 and schedule 1 of the Civil
Jurisdiction and Judgments Act 1982.
The judge held first, in relation to clause 47, that the
arbitrators had not erred in concluding that an “act or The judge dismissed the claimant’s application. It was
omission or default of ... sub-Charterers” was not confined appropriate to exercise the court’s discretion under
to conduct in breach of a contractual obligation under article 22 of the 1968 Convention to refuse to decline
the sub-charter in question. Cerealis’s failure to act as it jurisdiction or stay the tort claims, even though the court
reasonably ought to have acted to deal with the claim
made by SMG was an omission by a sub-charterer within
28
the meaning of the clause and had occasioned the arrest. 29
Regulation (EU) No 1215/2012 of 12 December 2012 on jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters.
1968 Brussels Convention on jurisdiction and the enforcement of judgments
Secondly, the award in the head charter reference
30
in civil and commercial matters.

would be remitted to the tribunal. The arbitrators had 31
Civil Jurisdiction and Judgments Act 1982 (Gibraltar) Order 1997.

was seised second. This was particularly so where there Bills of lading
was a jurisdiction clause engaging article 17.
Taking a common-sense approach, the tort claim might

Bills of lading next, and while the case Herculito Maritime
be said to arise “in connection with” the charterparty
Ltd and Others v Gunvor International BV and Others
claim not only where there were parallel claims in tort and
(The Polar)33 involved very nearly every kind of shipping
contract; but also where the claim arose solely in tort but
contract under the sun, the narrow issue concerned
was in a meaningful sense causatively connected with
the rights and duties of bill of lading holders. Polar had
the relationship created by the charter and the rights and
been seized and held by pirates in the Gulf of Aden from
obligations arising therefrom.32 “In connection with” was
October 2010 to August 2011. Upon arrival in Singapore,
naturally broader in scope than “arising out of”.
general average was declared. Based on the adjustment,
the shipowners claimed under the general average
While steps taken in another jurisdiction to obtain security
bond from cargo owners and under the guarantee
for a claim did not amount to a breach of exclusive
from cargo underwriters. The cargo interests argued
jurisdiction clause per article 24, it did not follow that a
that the shipowners could not recover the ransom from
substantive claim for damages for tortious conduct could
them, because under the charterparty the shipowner
not fall within article 17 and the court had jurisdiction on
must take out kidnap and ransom (K&R) insurance and
that basis.
war risks insurance, the premium for which was to be
Alternatively, the claimant’s act of seeking time for the paid by charterers up to a capped amount, and those
legitimate purpose of responding to claims, and then charterparty provisions had been incorporated into the
replying in substance on other points while contesting cargo interests’ bills of lading.
jurisdiction on the particular tort claims did not amount
The arbitral tribunal’s conclusion that the cargo owners
to a submission to the jurisdiction of the court on those
were not liable to pay general average contributions
claims. The issue of whether it made a difference that
in respect of the ransom payment was reversed by the
the claimant was not domiciled in a state party to the
judge at first instance,34 Sir Nigel Teare holding that the
Convention would be left for another day.
shipowner’s bargain with charterers on K&R and war risks
32
Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40; [2008] 1 Lloyd’s
33
[2021] EWCA Civ 1828; [2022] Lloyd’s Rep Plus 9.
Rep 254. 34
[2020] EWHC 3318; [2021] 1 Lloyd’s Rep 150.
Lloyd’s Law Reports Bound Volumes

Volume 2 2021
Available now – order your copy today
This new volume features analysis and verbatim text of the most noteworthy court judgments
to be handed down in the second six months of 2021. It is an essential reference tool
for industry and legal professionals worldwide.
EMEA office: +44 (0)20 3377 3996; APAC office: +65 6508 2430;
USA office: +1 212 600 3460
customersuccess@lloydslistintelligence.com
about.i-law.com
2021 BV vol 2 83x210.indd 1 26/01/2022 15:42:22

insurance did not entail a commitment by the shipowner Further, there was no commercial imperative in favour of
not to seek contribution in general average from the bill the cargo owners’ case that an insurance premium had
of lading holders. The cargo interests appealed. been paid to cover precisely the risk that materialised,
where both sides had insurance and both insurers had
The Court of Appeal dismissed the appeal. Noting that agreed to cover this risk.
there was no provision for the charterer or bill of lading
holders to be named joint insured with the shipowner,
the Court of Appeal considered that the charterer’s
obligation under the charterparty was to make
contribution to the cost of additional war risks and K&R The fallout and loss distribution from
insurance, up to a maximum that might not cover the full
cost. Distinguishing the situation from those where the
the OW Bunker collapse continued
contract party is a named joint assured and charged with with final judgment in The Luna and
paying the premium, the Court of Appeal considered this Another Appeal from the Singapore
a weaker case than The Evia (No 2)35 or The Ocean Victory36 Court of Appeal
for concluding that the shipowner had agreed not to seek
a general average contribution from the charterer. Here,
if a co-insurance agreement existed, it was the natural
interpretation of or implication from the contractual
arrangements, even without the parties being named The fallout and loss distribution from the OW Bunker
as co-insured. Having come thus far, the Court of Appeal collapse continued with final judgment in The Luna and
proceeded on the basis of a mere assumption that the Another Appeal37 from the Singapore Court of Appeal.
charterer was a co-insured. Here, the appellants were the owners and demise
charterers of bunker barges used to supply bunker fuel
Agreeing with the arbitrators, the Court of Appeal went to ocean-going vessels. They had taken delivery on board
on to hold that the bill of lading terms were sufficiently from the respondent supplier of bunkers. The respondent
wide to encompass the war risks and Gulf of Aden had sold the bunkers on credit to OW Bunker parties and
clauses in the charterparty. It was doubtful, however, they had been loaded on board the appellants’ vessels
whether they were sufficiently wide to encompass and delivered by the barges to designated ocean-going
what was merely implicit in the charterparty’s express vessels. Bills of lading were generated by the Vopak
terms considered as a whole. Nevertheless, proceeding Terminal (the “Vopak bills”) and signed and stamped by
through the Gulf of Aden was contingent upon the the master of the vessel. These went to the respondent
availability of insurance and the bargain was to that until payment by OW. Following the collapse of OW, the
extent incorporated. However, there was no case for respondent as holder of the bills demanded delivery of
manipulating the requirement for the charterer to pay the bunkers from the appellants. If the respondent was a
the premium so as to impose that same obligation lawful holder of bills of lading in the traditional sense, the
on the bill of lading holders. The Court of Appeal appellants had no defence against such claims.
contemplated the practical issues surrounding such a
duty: there was nothing at all in the bills to say how The appellants were granted leave to defend the claims,38
liability would be apportioned or how a jointly liable bill but were unsuccessful before the judge at first instance.
of lading holder might obtain reimbursement from the Before the Court of Appeal, the appellants argued that the
others. This suggested that the bill of lading holders Vopak bills were not documents of title and contractual
were not intended to be liable for the premium. documents, but merely acknowledgements of receipt
which did not entitle the respondent to seek redelivery.
Closing on familiar principles of interpretation, the Court of
Appeal considered that the risk of piracy was foreseeable The Singapore Court of Appeal allowed the appeal,
and foreseen and that therefore clear words would have deciding that the Vopak bills of lading were not contracts
been required for the shipowner to abandon its right to a of carriage or documents of title and that the respondent’s
contribution from the cargo owners in general average. claims must therefore fail. This conclusion required a
wider view: in the context of a contract formation inquiry
35
Kodros Shipping Corporation v Empresa Cubana de Fletes (The Evia) (No 2)

[1982] 2 Lloyd’s Rep 307.
36
Gard Marine & Energy Ltd v China National Chartering Co Ltd (The Ocean
37
[2021] SGCA 84; [2021] Lloyd’s Rep Plus 120.
Victory) [2017] UKSC 35; [2017] 1 Lloyd’s Rep 521. 38
The Star Quest and Others [2016] SGHC 100; [2017] Lloyd’s Rep Plus 50.

concerning a bill of lading, the court may have regard excluded reliance on the defendant’s trading conditions.
not only to the perspectives of the shipper and the So did the trading conditions, on their own terms, once a
carrier but also to those of other parties generally known bill of lading had been issued.
to use the Vopak bills of lading. On a correct reading of
the transaction between the respondent and the buyers, Assessing the roles of those involved in the contracts, the
the bills were a non-essential document, not serving as judge found that the defendant’s relationship with the
a contract of carriage or document of title. As between actual carrier was not one of agency. The defendant had
the respondent and the appellants, neither party could signed the CBLs; it was named as shipper in the OBLs; the
have intended for delivery of the bunkers to be made actual carrier had another HK agent; the CBLs contained
only upon presentation of an original Vopak bill of lading. no mention of the actual carrier and there was no written
The parties’ commercial arrangements indicated that authority from the actual carrier. It was unclear to what
they had not intended for the Vopak bills to function as agency relationship the words “AS AGENT” printed on
typical bills of lading. the CBLs referred.
More than one set of bills of lading properly issued

for the same cargo was the issue in Perfect Best Asset
Management Inc v ADL Express Ltd and Another,39 where
misdelivery was alleged. The claimant had manufactured The court was bound by precedent to
and sold seven containers of computer accessories and the effect that Hague-Visby Rules
shipped them through the defendant logistics services obligations only applied during ocean
provider. Combined bills of lading (CBLs) had been issued
by the defendant as carrier to the plaintiff as shipper. The
carriage and discharge operations, and
defendant had then arranged shipment with an actual not during carriage or handling after
carrier and received ocean bills of lading (OBLs) issued by discharge from the vessel or to
that carrier. In all bills of lading, a second defendant (who misdelivery thereafter
had not been served with proceedings and the claim
against whom was dismissed) was named as consignee.
The cargoes had been delivered to the ultimate end buyer
in Kotka, Finland, and the plaintiff had been paid in part. It could not be concluded that the defendant had
authority through telex release instructions from the
The plaintiff claimed the invoice value of the cargoes plaintiff. Evidence of an email agreeing to telex release
from the defendant, with a deduction for the part and payment by the plaintiff of a telex release fee was
payment, asserting that it remained in possession of insufficient to support such a conclusion.
the CBLs and that the cargo had been delivered without
their presentation, placing the defendant in breach of The time-bar clause in the CBLs was capable of being
the terms of the contract of carriage. The defendant’s read widely or narrowly and would be construed contra
arguments were, among others, that as per its trading proferentem against the defendant. Its general words
conditions it was an agent of the ocean carrier; and that were not precise enough to cover a breach of the
the plaintiff had undertaken not to sue any agents of presentation rule and were ambiguous as to whether or
the actual carrier, which was the combined transport not the shipper must be aware of such loss.
operator. The defendant further asserted that the
release had been authorised by the plaintiff via telex. The As for the HVR time bar, the court was bound by precedent
defendant also relied on a nine-month time bar in the to the effect that HVR obligations only applied during
CBLs and on the Hague-Visby Rules (HVR) time bar and ocean carriage and discharge operations, and not during
submitted that the plaintiff had failed to prove its loss. carriage or handling after discharge from the vessel or to
For some of these defences, the defendant relied on its misdelivery thereafter.40
trading conditions which the plaintiff said were irrelevant
on their own terms once a bill of lading had been issued. Nevertheless, the defendant having put the plaintiff to
proof of the quantum of damages, and the plaintiff having
The judge awarded the plaintiff nominal damages. failed to fulfil that burden in circumstances where the
First, as the plaintiff had argued, the bill of lading terms
Referring to Cheong Yuk Fai v China International Freight Forwarders (HK) Co

40
39
[2021] HKCFI 2310; [2022] Lloyd’s Rep Plus 15. Ltd [2005] 4 HKLRD 544.

cargoes had in fact been delivered to the right consignee, defendant against the consequences of inaccuracy of
there would be nominal damages only. the statement; and that the statement “clean on board”
in the bill of lading was a statement by the shipper as
An odd, perhaps ontological argument on the attribution agent of the voyage charterer. The voyage charterer
of the words “clean on board” in a bill of lading arose appealed on three questions of law, arguing notably that
before the Court of Appeal of England and Wales in Noble the arbitrator had erroneously conflated information
Chartering Inc v Priminds Shipping Hong Kong Co Ltd (The provided by the shipper with the standard form wording
Tai Prize).41 The disponent owner Noble had, by a voyage contained in the bill of lading, which invited the master to
charterparty dated 29 June 2012, agreed to let Tai Prize carry out his own assessment of the apparent condition
to Priminds for the carriage of a cargo of heavy grains, of the cargo; and that the standard wording could not
soya and sorghum in bulk from Brazil to the People’s give rise to any representation by the claimant or for that
Republic of China. The vessel arrived at Santos in July matter the shipper and should not give rise to any implied
2012 and loaded a cargo of Brazilian soya beans. A bill warranty or indemnity against inaccuracy.
of lading on the Congenbill 1994 form was offered for
signature by or on behalf of the master on 29 July 2012. At first instance,42 the judge answered the three questions
Under the heading “Shipper’s description of Goods” the of law in favour of the voyage charterers. The disponent
cargo was described as being “63,366.150 metric tons owners appealed.
Brazilian Soyabeans Clean on Board Freight pre-paid”.
The bill of lading was executed by agents on behalf of the The Court of Appeal dismissed the appeal, essentially for
master without any reservations, stating that the cargo the same reasons as the judge, answering the questions
had been: “SHIPPED at the Port of Loading in apparent of law as follows.
good order and condition on board the Vessel for carriage
to the Port of Discharge … Weight, measure, quality, First, the words “CLEAN ON BOARD” and “SHIPPED in
quantity, condition, contents and value unknown ...”. apparent good order and condition” in the draft bill
It incorporated the Hague Rules. of lading presented to the master did not amount to a
representation or warranty by the shippers or charterers
The vessel arrived at the port of discharge (Guangzhou) as to the apparent condition of the cargo observable prior
and commenced discharge on 15 September 2012. On to loading. They were merely an invitation to the master
17 September discharge from two of the vessel’s holds to make a representation of fact in accordance with the
was suspended “Due to charred Cargo Found”. The master’s own assessment of the apparent condition of
remaining cargo was discharged without complaint and the cargo on shipment.
the cargo in the affected holds was discharged but the
receiver maintained that the cargo in those holds had Secondly, on the findings of fact made by the arbitrator,
suffered heat and mould damage. The head owners the statement in the bill of lading that the cargo was
were held liable to receivers and obtained an award shipped in apparent good order and condition was
against the disponent owners, who in turn pursued accurate.
the charterers in arbitration. In the arbitration, the
disponent owner had successfully claimed against the Thirdly, obiter, had statements in the bill of lading been
voyage charterer for a contribution towards the sum inaccurate, the charterers would not have been obliged to
it had had to pay the shipowner, which in turn had indemnify the owners against liability for the cargo claim.
been ordered to pay the receiver of the goods, leading To impose liability on the charterers based on the tender
to the present appeal on three questions of law. The of a draft bill of lading containing a statement that the
disponent owner’s remaining ground upon appeal was cargo was shipped in apparent good order and condition
that they were entitled to be indemnified against the would be contrary to the scheme of the Hague Rules.
consequences of the bill of lading being inaccurate as to
the apparent condition of the cargo.
The arbitrator had held that the shipper as the voyage

charterer’s agent had impliedly warranted the accuracy
of any statement as to condition contained in the bill
of lading and had impliedly agreed to indemnify the
41
[2021] EWCA Civ 87; [2021] 2 Lloyd’s Rep 36. 42

Letters of indemnity self-explanatory and the defendant had acted in breach

of those obligations.
At previous stages of litigation, interim orders had

Letters of indemnity (LOI) permitting delivery without
been issued. As those judges had found, this was an
production of the bills of lading at the discharge
appropriate case for an order for specific performance.
port continue to lead to litigation to resolve issues of
The defendant could not at this stage advance the
principle, as one potential outcome is that an involved
impossibility defence, because it had missed procedural
party absconds with the cargo without paying and the
deadlines. Not exercising the discretion would be
remaining parties, including several flavours of charterer,
rewarding the defendant for its lack of compliance and
consignee and lawful bill of lading holders are left to
participation to date.
resolve who is to carry the loss. Two cases from 2021
both involve disponent owners and their charterers,
The claimant was also entitled to damages for the loss
with the charterparty providing for the possibility of LOIs
of the use of the vessel for the period of arrest, based
being issued. Letters of indemnity highlight the need
on the earnings under her then current employment.
for both trust and solid contract drafting in commercial
Finally, there would be a declaration that the claimant
transactions.
was entitled to indemnity in respect of liability, loss,
damage or expense sustained by reason of the delivery
In Navig8 Chemicals Pool Inc v Aeturnum Energy
of the cargo without production of the bills of lading; and
International Pte Ltd (The Navig8 Ametrine),43 the claimant
a declaration that the defendant was obliged to supply
disponent owner of the vessel Navig8 Ametrine sought
funds to defend the arrest proceedings.
an indemnity from the defendant voyage charterer
under a LOI issued in respect of the discharge of a cargo
The defendant had in this case withdrawn from
of light naphtha without production of the bill of lading.
proceedings – presumably for strategic reasons. An
The charterparty provided for the possibility of such
adverse judgment was an almost inevitable outcome so
discharge upon voyage charterers’ request and against a
this may or may not have been the best strategy.
LOI. Following discharge, a bank asserting that it was the
lawful holder of the bill of lading had sought possession of
the cargo and arrested the vessel. It was alleged that the
defendant’s buyer had been selling goods held in its tanks
without the knowledge of its banks. As the defendant
did not assist in providing security for the release of the
vessel from arrest, the claimant paid US$9.5 million to
Letters of indemnity highlight
the bank for the owners’ P&I Club to procure the release the need for both trust and solid
of the vessel. The issues now before the court essentially contract drafting in commercial
concerned the defendant’s liability under the LOI. The transactions
defendant was by this stage unrepresented.
The judge held that delivery having been affected in

accordance with the defendant’s request, the LOI was
engaged. The obligation on the master was to deliver to
A further case was decided in 2020 but came to light in
the party reasonably believed to be the party identified
2021, namely Tenacity Marine Inc v NOC Swiss LLC and
by the defendant, which was what had been done. By
Another.44 Here, the claimant owners of the motor tanker
reason of stipulations in the LOI delivery to the bulk tanks
Tenacity sought orders giving effect to a LOI issued by
was good delivery. Production of identification was not a
the respondent time charterer, NOC. In the LOI, NOC
condition precedent to the triggering of the defendant’s
had agreed to indemnify the claimant in respect of any
obligations, which were instead triggered by the delivery
losses caused by the discharge of a cargo of diesel oil in
of the cargo to the party identified by the defendant
accordance with NOC’s instructions, in circumstances
when made without the production of the bill of lading.
where NOC could not produce the original bills of lading.
The defendant had put the claimant to proof as to its
NOC in turn applied for a similar order against Gulf
obligations under the LOI; but those obligations were
Petrochem FZC (GP), which was a Part 20 defendant. GP
43
[2020] EWHC 2820 (Comm).

had chartered Tenacity from NOC under a voyage charter Sale of goods
and had issued a LOI to NOC in functionally similar terms
and for similar reasons.
The buyer’s duty to nominate a vessel under a fob sale
The charterparties contained provisions providing for
contract came under scrutiny in the rather prosaically
discharge against LOIs in the absence of bills of lading.
named A v B.45 To what extent was it a condition and in
A bank had at all times held the bills. Ahead of discharge
what circumstances had a breach accrued? Five questions
LOIs were provided whereby charterers agreed to provide
of law had been addressed by the GAFTA Board of Appeal.
security should the vessel be arrested, detained or arrest
The dispute concerned the sale of a cargo of Ukrainian
threatened in connection with delivering in accordance
feed corn fob from one safe berth or safe Ukrainian port
with the charterers’ instructions. The bank’s solicitors had
and buyers were to nominate a vessel. The seller was the
contacted the owners demanding delivery of the cargo
claimant and the buyer the defendant.
or damages for conversion. Their correspondence did
not go so far as to say that arrest would be effected, but
On 20 March 2018 the buyers had nominated the vessel
reserved the claimant’s rights and raised the possibility
Tai Hunter without naming the owner as required by the
of a discussion of security to prevent arrest. Both NOC
charterparty. The sellers, having received information
and GP asserted that the mandatory orders sought by
that the vessel was to proceed to Ireland without further
the claimant should not be granted: (a) because the
stops in Ukraine, which caused them to doubt that
liability to indemnify had not arisen; and (b) because it
the nomination was genuine, requested a copy of the
was impossible for GP and NOC to comply with any orders
charterparty. On 26 March 2018 the sellers purported to
in favour of NOC and the claimant respectively.
terminate the contract for repudiatory breach, based on
the failure to provide the charterparty and the vessel’s
The judge held that the indemnity was engaged. The
itinerary. Two days later the buyers purported to nominate
language used in the LOI was to be construed in its
a substitute vessel. The nomination was not accepted.
relevant commercial context. Experienced maritime
The parties agreed that the contract was at an end and
solicitors would not give express notice of intention to
settled subject to arbitration. In arbitration, the Board
arrest. Words to the effect that the client’s rights were
determined that while the nomination had been invalid,
reserved and may be enforced without further notice
this was not a breach of condition entitling the sellers to
must be construed as a threat to arrest the vessel.
terminate. The buyer had been entitled to substitute the
vessel. The seller appealed.
As for the interpretation of the LOI, each LOI in the chain
was to be interpreted on its own terms and an order
against NOC did not necessarily imply an order against GP. The judge held that the award should stand. Under a
charterparty, it was a condition that a party providing
Further, a court would not order a party to do the impossible, an ETA must do so on honest and reasonable grounds.
but it was for that party to clearly establish impossibility. A stipulation in a contract of sale requiring the buyer
On the evidence, NOC had failed to establish impossibility to nominate a vessel was a condition. However, under
and would be ordered to provide such security as would a sale contract where a substitution remained possible,
prevent the arrest or detention of the vessel. an invalid nomination was not to be treated as breach
of a condition. If made otherwise than honestly and in
Finally, in circumstances where the chief restructuring good faith, it was capable of evincing an intention not
officer of GP had not fully explained GP’s current finances, to perform the contract, entitling the seller to treat the
it had not been established that it was impossible for GP contract as renounced. Here, the Board had been entitled
to provide security in full or at least in part, and an order to conclude that as there was further time to make a
would be made against GP. valid nomination, the buyer’s initial nomination was not
a breach of condition.
It is notable that in both cases, the impossibility defence
failed, albeit for different reasons and presumably under Also, it could not be inferred that the parties intended
differently worded LOIs. This highlights that the provision a requirement that the charterparty should actually be
of a LOI should not be taken lightly where it places the fixed at the time of nomination as a condition.
vessel at risk of arrest, even though speedy delivery may
be commercially expedient, freeing up the vessel for
other ventures.
45

Finally, a failure to provide a copy of the charterparty The return of the SRFO to the defendant meant that there
immediately upon the seller’s request as per the sale were consecutive breaches: first the defendant’s breach
contract term was not a breach of condition. of the contractual specifications; and then the claimant’s
breach in returning the cargo in spite of not being
Off-spec cargo next, and Galtrade Ltd v BP Oil International entitled to reject it. On such an analysis, the claimant’s
Ltd (The Pioneer),46 where a cargo had been loaded expenditure was only wasted because of its unreasonable
in spite of the results of preliminary sampling. Both conduct in wrongly rejecting the cargo, and its damages
parties to the litigation were fuel oil traders. The dispute would be nominal.
concerned a transaction whereby the defendant had
agreed to sell to the claimant four parcels of 30,000 to As for the defendant’s counterclaim, the steps it had taken
35,000 mt of low sulphur straight run fuel oil (SRFO), fob to sell the off-spec parcel were in mitigation of its own
Taman, on amended BP general terms and conditions loss, and not as the claimant had argued, the claimant’s
2015. It was common ground that one of the parcels loss. However, in claiming damages, the defendant must
had not complied with the contractual specification give credit for the loss of value in the off-spec cargo
and that the defendant was in breach of contract. The and that credit ought to reflect the notional damages
contract provided for ship’s tank quality sampling. Extra- otherwise due to the claimant for the defendant’s breach.
contractual shore-based sampling which did not permit In the absence of better data, the fairest assessment was
rejection of the SRFO had shown the cargo to be off spec, the discount agreed between the parties in relation to the
but the claimant had proceeded to load it. It was then previous parcel under the contract. That discount entirely
agreed that the vessel would proceed to Malta, where extinguished the value of the counterclaim.
following negotiations the cargo was transferred to the
defendant’s ship, blended and sold on. Another off-spec cargo was at the heart of Septo Trading
Inc v Tintrade Ltd (The Nounou),47 the appeal in a dispute
In these proceedings, the claimant buyer purported to between the claimant buyer, Septo, and the defendant
reject the off-spec parcel and sought damages calculated seller, Tintrade, of 36,000 to 42,000 mt of “high-sulphur
by reference to wasted expenditure. The defendant fuel oil RMG 380 as per ISO 8217:2010”. The contract was
counterclaimed, contending that the claimant was in a Recap based on amended BP 2007 General Terms and
breach by wrongfully repudiating the contract and by Conditions for FOB Sales. Delivery was to be “in one cargo
refusing to pay for the parcel. lot, fob one safe berth, one safe port Tallin or Ventspils,
for loading on board M/T NOUNOU during the period
The judge awarded both the claimant and the defendant 1–3 July 2018”. On 26 June 2018 the parties had jointly
nominal damages. The sale contract obligations of the instructed SGS Latvija Ltd to perform quantity and quality
defendant to comply with the guaranteed specifications determinations of the fuel oil. The certificate showed that
in the contract were not conditions, but intermediate the cargo was within the contractual specification and it
terms. There were as many as 14 guaranteed parameters, was loaded on board the vessel Nounou at Ventspils in
which were properly to be regarded as regular or Latvia in July 2018. Later samples, however, showed that
standard quality specifications rather than as part of the the cargo was off spec, and Septo attempted to sell it and
description of the product. then proceeded to blend it to produce an on-spec cargo
which it sold in the Singapore market.
The defendant’s admitted breaches were not such as
to entitle the claimant to reject the parcel. The SRFO In support of the claim Septo asserted that the cargo
remained marketable. On the evidence, the deviations was off spec at Ventspils and sought an award of
from the specifications would have little practical impact damages in the sum of US$7,785,478. According to
for a refinery. Tintrade, the cargo was not off spec and the damages
claimed were exaggerated. Three questions arose for
The pragmatic solution reached by the parties received decision. First, was the buyer prevented from arguing
the nod of the judge, who held obiter that if the claimant that the cargo was off spec by reason of an independent
had been entitled to reject the parcel, it would not have certificate of quality issued at the loadport? If not, was
lost that right by taking the cargo on board or by directing the cargo off spec? If it was off spec, what damage was
the vessel to Malta. suffered by the buyer? The judge at first instance had
46

held that a breach of contract was established.48 The The judge held that the “modern commercial contract”
sellers appealed. theory of the contract proposed by the defendants was
unpersuasive. The contract was what it appeared on its
On appeal, the issue was whether a quality certificate face to be, namely an fob sale contract. The defendants
issued by an independent inspector at the load port was had failed to show first that their factual matrix created
intended to be conclusive evidence of the quality of a the necessary ambiguity and then that there was a way
consignment of fuel oil supplied under an international of arriving at the reading of the contract for which they
sale contract. This depended on the construction of the contended based on the composite of the wording and
certification term in the Recap, where the certificate was the factual matrix.
said to be binding, and its relationship to the certification
term in the BP Terms, which provided that the quality The judge went on to find that the Egyptian General
certificate would be conclusive and binding for invoicing Petroleum Co (EGPC), whose approval was needed before
purposes, but without prejudice to the buyer’s right to any cargoes could be lifted at Ras Shukheir, was for the
bring a quality claim. The latter were said to apply “where purposes of the contract the agent of the defendants,
not in conflict” with the Recap terms. with the result that the failure to ship cargoes was a
breach of contract by the defendants.
The Court of Appeal allowed the appeal. On a true
construction of the contract, it provided that the quality Further, BPOI’s communications had not terminated
certificate issued at the load port would be binding, with the contract. Instead, the termination was effected by
the consequence that the buyer was precluded from the commencement of the proceedings asserting the
bringing its claim. The BP Term did not apply as it was in termination, which termination was then accepted by
conflict with the Recap term and they could not fairly or the defendants.
sensibly be read together – a relatively unusual decision
by the Court of Appeal as the outcome of contract If the contract was an fob contract, and not some sui
interpretation exercises is more often than not that generis “modern commercial contract”, the test of
provisions can be read together in some way or other. failure of basis was satisfied. There was no analogy with
shipbuilding contract cases which concerned both sale of
A somewhat abstract argument for a sale of goods goods and supply of services.
case was presented in BP Oil International Ltd v Vega
Petroleum Ltd and Another.49 Was the contract a “modern
commercial contract” and if so how did this influence
its interpretation? The claimant, BP Oil International Ltd In The Nounou the BP Term in the
(BPOI), asserted that it had under subsequent iterations
of contracts of sale bought and paid for 211,387 barrels contract did not apply as it was in
of crude oil fob Ras Shukheir Terminal, which it had not conflict with the Recap term and
received. It now claimed in unjust enrichment, seeking they could not fairly or sensibly be
the return of the purchase price, some US$17,235,448.
The parties disagreed on the effect of the contracts:
read together – a relatively unusual
were they contracts for the sale of the oil to BPOI, or decision by the Court of Appeal
did they give BPOI an option to lift quantities of oil, so
that the payments were unconditional? It was asserted
by BPOI that the defendant was in breach of its delivery
obligation under the contracts. It was common ground The defendants’ argument that it would be wrong to
that the contracts had been terminated, but there was allow BPOI to rely on its own breach in not lifting any oil
disagreement on when this had happened and on the under the contract to found a claim in unjust enrichment
effects of termination. On BPOI’s case, there was a total would be rejected. There was a good deal of authority
failure of the basis for its payments to the defendants. that a contract breaker could claim in unjust enrichment,
It also asserted an implied term to the effect that upon if at the time of the termination it had made payments
termination the defendants must repay the contract for which the benefit had not been received.
price for unlifted quantities of oil.
An important decision on the interpretation of contracts
on standard terms emerged in Nord Naphtha Ltd v New
48
49

Stream Trading AG,50 where the Court of Appeal considered In Readie Construction Ltd v Geo Quarries Ltd,53 issues
the use of “wider commercial context” in interpretation. arose under the Sale of Goods Act 1979. By an exchange
The factual background was that New Stream had sold of emails on 11 July 2018 Readie ordered, and Geo
to Nord Naphtha 30,000 mt of 10 ppm ultra-low sulphur agreed to supply, a quantity of “GSB Type 1” aggregate
diesel under a contract dated 21 February 2019, for at £19.50 per tonne, to be delivered to a construction site
delivery within 20 specified days in April 2019, time being in Bedfordshire. On the same day, Readie also signed an
of the essence. Nord Naphtha had per the contract paid application for credit with Geo, the effect of which was to
an advance on the next day, representing 90 per cent incorporate Geo’s standard terms and conditions of sale.
of the provisional value of the product, and had been Clause 4.1 of the sale contract provided in material part:
issued with a comfort letter from the refinery in respect “The Customer shall make payment in full without any
of the transaction. There was no delivery of product due deduction or withholding whatsoever on any account
to “operational and production issues” at the refinery. by the end of the calendar month following the month
Nord Naphtha subsequently terminated the contract for in which the relevant invoice is dated”. Geo claimed the
non-delivery and sought repayment of the advance. New price of goods delivered in the period 10 September to 15
Stream declined to return the advance, contending that October 2018, for which Readie declined to pay on the
liability rested with the refinery. basis that they were not of the type promised and that,
having discovered this, they were under no obligation to
At first instance, Nord Naphtha obtained summary pay the price. The county court judge issued summary
judgment. This was New Stream’s appeal on the issue of judgment in favour of Geo.
construction of the contract. It denied that it was under
any contractual obligation to repay the advance and This was Readie’s appeal on two issues: (i) whether, in
denied unjust enrichment because it had paid the advance the light of the contractual terms agreed between the
to the refinery as advance payment for the product. parties, Readie had a real prospect of success in relation
to two grounds of defence pleaded, namely (a) The price
The Court of Appeal dismissed the appeal, taking as had not fallen due; and (b) abatement; and (ii) Whether
its starting point a distinction as against Totsa Total Oil Geo could bring this claim within the terms of section
Trading SA v New Stream Trading AG.51 The court stated that 49(2) of the Sale of Goods Act 1979 so as to be able to
a judgment concerning a clause in materially identical claim the price.
terms but in a contract containing further clauses was
not relevant to the interpretation of the present contract. The judge held that the county court judge had been
It went on to hold that there was no merit in criticism right to award summary judgment to Geo. The price
of the judge’s consideration of the wider commercial had fallen due. The obligation to pay arose upon a bona
context before the language of the clause. The unitary fide, purported delivery. The force of clause 4.1 would be
exercise described in Wood v Capita Insurance Services nullified if the buyer could pre-empt matters by refusing
Ltd52 permitted flexibility. payment because of perceived non-delivery or defective
delivery; and it must be read with clauses covering the
Applying these principles, the court held that the wider situation of non-compliant goods.
commercial context included the comfort letter. The judge
had been obviously right in finding that the comfort letter The judge observed that much of case law on abatement
offered no real comfort in the event that delivery failed in was distinguishable on the facts. The reference to
force majeure circumstances. Focus must therefore be on deduction in clause 4.1 was to be taken to have been
the contract itself. intended to exclude abatement.54
Finally, on the contract terms, a reasonable person Geo were unable to rely upon section 49(1) of the 1979
reading clause 14.5 and armed with the information Act because of a retention of title clause. Geo were
available to the parties as they entered into the contract however able to bring themselves within section 49(2).55
would have no real doubt that the clause provided Nord Clause 4.1 provided for payment in full without deduction
Naphtha with a right of repayment of the advance in by an identifiable date; “the end of the calendar month
the event of non-delivery for force majeure reasons. The
words of the clause were clear when read objectively.
53
[2021] EWHC 3030 (QB); [2022] Lloyd’s Rep Plus 3.
54
Referring to Totsa Total Oil Trading SA v Bharat Petroleum Corporation [2005]
50
[2021] EWCA Civ 1829; [2022] Lloyd’s Rep Plus 18. EWHC 1641 (Comm).
51
[2020] EWHC 855 (Comm). 55
Caterpillar (NI) Ltd (formerly known as F G Wilson (Engineering) Ltd) v John Holt
52
[2017] UKSC 24; [2018] Lloyd’s Rep Plus 13. & Co (Liverpool) Ltd [2013] EWCA Civ 1232; [2014] 1 Lloyd’s Rep 180, applied.

following the month in which the relevant invoice is Ship building

dated”. The words “irrespective of delivery” in section
49(2) did not mean that the time for payment must
necessarily be contingent upon the time of delivery.56
Guarantees are an essential part of ship-building
transactions but often lead to questions as to their
In Black Sea Commodities Ltd v Lemarc Agromond Pte
interpretation. In Shanghai Shipyard Co Ltd v Reignwood
Ltd,57 the question was whether an arbitration agreement
International Investment (Group) Co Ltd,58 the Court of
had been made. In the appeal under section 67 of the
Appeal of England and Wales once more returned to
Arbitration Act 1996, the claimant contended that no sale
the issue of whether a guarantee was in the nature of
contract had been entered into, but the defendant stated
a demand or “see-to-it” guarantee. The appellant was
that there had been a binding agreement between 9 and
a shipbuilder incorporated in China and the respondent
14 March 2018, subsequently varied or supplemented to
buyer was a company incorporated in Hong Kong SAR.
include a GAFTA arbitration clause. The transaction at
On 21 September 2011 the parties had entered into a
issue was the sale of a consignment of Ukrainian corn
shipbuilding contract on CMAC Standard Newbuilding
fob Odessa. The claimant was the purported seller and
Contract (Shanghai Form) terms. The third and final
the defendant the purported buyer. The parties sought
instalment was to be paid “upon delivery”. There were
resolution of the question as to whether there was a
provisions for guarantees to be provided by each side
binding agreement for arbitration, but not whether there
and the contract was subject to English law and LMAA
was a binding sale agreement. The tribunal had found that
arbitration in London. On 17 November 2011 the buyer
it had jurisdiction based on a binding contract containing
entered into an Irrevocable Payment Guarantee in favour
an arbitration agreement. Before the judge, the claimant
of the shipbuilder in the terms required. A year later, the
contended that the subsequent exchanges of draft
shipbuilding contract was novated to a subsidiary special
arbitration conditions had not resulted in agreement.
purpose vehicle, substituting the buyer. In late 2016 the
builder completed the vessel, gave notice to the buyer
The judge held that the claimant’s application succeeded.
and demanded payment of the final instalment. When
If there was no binding agreement on 9 March, there
no payment was made, a cancellation notice was sent
was no subsequent consensus ad idem to an arbitration
and the builder made a demand under the guarantee for
clause. If there was a binding agreement on 9 March,
the final instalment.
the GAFTA arbitration clause was not agreed, then or
subsequently. While one should not place conceptual
Arbitration of disputes under the shipbuilding contract
obstacles of strict interpretation of offer and acceptance
commenced in London on 3 June 2019, by which time
in the way of referring business disputes to arbitration,
the builder had already commenced proceedings in the
there had to be an arbitration agreement before one
Commercial Court under the guarantee, serving the claim
could consider separability.
form on 5 September 2018. At first instance,59 the judge
had held in favour of the guarantor, deciding that the
For a trade custom to be established, it must be
guarantee was a “see-to-it” guarantee and that clause 4
invariable and binding in the market. The evidence was
of the guarantee did not mean that there was liability
insufficient to establish a trade custom with regard to
only if the arbitration under the shipbuilding contract
the GAFTA arbitration clause in the market for Ukrainian
had already been commenced at the time of the demand
corn fob Odessa.
under the guarantee. The shipbuilder appealed.
The Court of Appeal declined to apply a negative

presumption that where the issuer of the guarantee
was not a financial institution, it must be a see-to-
it guarantee. The approach of taking the nature of the
issuing institution as the starting point in identifying
the type of guarantee – see to it (surety) or demand
guarantee – was misconceived. What mattered for
the purposes of counterparty risk was the commercial
and financial strength and probity of the guarantor. In
The judge here gave approving consideration to Mitsubishi Corporation RTM
56
International Pte Ltd v Kyen Resources Pte Ltd [2019] SGHCR 6. 58

57

the shipbuilding context, it did not matter whether the The protection of design rights is a thorny issue in any
guarantor was a bank or parent and it had long been industry. Salt Ship Design AS v Prysmian Powerlink Srl60
established that payment and refund guarantees in provides some guidance for the ship design context. How
the shipbuilding context may be demand guarantees, long can exclusivity be expected to last, and how can
irrespective of the issuer. designs offered be protected? The defendant submarine
cable-laying company had held a competitive tender
What mattered was not the identity of the guarantor process to appoint a designer of a new cable-laying vessel
and presumptions based thereupon, but the wording of (CLV), in which the claimant ship design company won
the instrument. Reliance on decided cases on similarly the exclusive appointment to supply the concept and
worded instruments was only of assistance in limited basic designs. A short form agreement (SFA) was signed
circumstances, namely where the words used in the on 13 July 2017. The SFA listed four phases of work and
document taken as a whole were materially identical and contained an agreement that a design contract would
if the contractual context was materially identical. The be signed between the designer and the yard contracted
nature of any given instrument turned upon its language for the build.
as a whole in its particular commercial context.
Most of the payment pertained to Phase 3 of the work.
The Court of Appeal identified critical language in the Phases 1 and 2 were completed and the construction
guarantee pointing to its demand guarantee nature. tender process initiated. By agreement between the
This included the capitalised words “absolutely” and parties, the claimant undertook early design work
“unconditionally”; “… and not merely as surety”; “upon normally pertaining to Phase 3 during the construction
receipt by us of your first written demand”; and “we shall tender, completing that work on 31 January 2018.
immediately pay to you” as well as language in several The claimant’s involvement with the design process
clauses detaching the guarantee from disputes under the effectively ended in April 2018 when the defendant
shipbuilding contract. entered into a shipbuilding contract with a yard for the
construction of the new CLV.
As for the timing of arbitration, the guarantor was entitled
to refuse payment pending and subject to the outcome of In the construction tender process, the tendering yards
an arbitration under the shipbuilding contract only if the were shown the claimant’s designs, and between 21
arbitration had been commenced between those parties December 2017 and 2 January 2018 a sister company
as at the date the demand was made. Otherwise, the of the eventually contracted yard developed an
builder had an accrued right to immediate payment on alternative design supporting a substantial reduction in
demand under the guarantee. For the dispute proviso to the contract price if it were to replace the claimant as
the payment clause to be triggered, there must be both a designer. In litigation, the claimant contended that the
dispute and the commencement of arbitration prior to a defendant had acted in breach of the SFA in ceasing the
valid demand being made: it defined the circumstances use of its design services. It sought damages assessed
in which the demand guarantee ceased to be payable on by reference to the sums it would have earned for its
demand, to become payable against an award.
60
POWERING
SHIPPING
Maritime & Commercial on i-law.com
is the leader in maritime law research
about.i-law.com
i-law-MRI-ad-210x71-strip 2021 update.indd 1 26/01/2022 16:44:47

further design services, and also contended that the claimant’s design as its own. In agreeing the alternative
defendant had misused its confidential information design, the parties to that contract had relied on the
in the construction of the new CLV by the shipbuilder, confidential documents of the claimant.
by requesting or instructing the use of the claimant’s
designs to develop the alternative design. The defendant The judge considered it inherently unlikely that the
disputed the claims. alternative design would have been produced in the
Christmas period without active encouragement from the
The judge held that, first, the clause in the SFA appointing defendant reassuring the bidder that it was worth doing.
the claimant as exclusive designer was subject to The relevant yard was the most expensive of the bidders
subsequent clauses, the commercial interpretation but ahead on all other metrics, and it was apparent that
of which was that the defendant was entitled to use a the defendant had an obvious commercial motive to
different designer if no shipbuilding contract had been reduce the price by encouraging an alternative design.
concluded by 31 January 2018. The information in the claimant’s design documents was
in principle protected under an obligation of confidence,
whether contractual under clause 6.4 of the SFA or
equitable. As a result, the defendant was in breach of its
confidentiality obligations under clause 6.4.
In Salt Ship v Prysmian Powerlink Each of the ingredients of a claim in unlawful means
conspiracy was therefore made out. However, the
each of the ingredients of a claim in quantification of damages for the defendant’s breach
unlawful means conspiracy was made of clause 6.4 and its equitable obligations of confidence,
out ... The contract terms used failed and for the tort of unlawful means conspiracy, were for a
later stage in the proceedings. While the case fell within
to protect the designs of the designer the second category of Rookes v Barnard and Others,61 it
was too soon to determine the availability of exemplary
damages.
In all, it may be observed that the contract terms used

failed to protect the designs of the designer, not least
Secondly the judge held that, prior to 31 January 2018, because the cut-off date meant that the contract
the defendant breached the exclusivity agreement in could simply be waited out before any vessel was
clause 1.1 by agreeing with the shipbuilder in December commissioned. However, there were limits on what steps
2017 that it could and should produce an alternative the defendant could take towards using the claimant’s
design. However, such breach was not an effective cause designs in dealing with a different designer.
of the project failing to materialise by 31 January 2018,
or in terms of damages. At the material date, none of the
potential shipbuilders were commercially acceptable.
The claimant was entitled to nominal damages only.
However, the only reasonable and proper conclusion

was that the yard’s sister company, in developing the
alternative design over the Christmas period to standards
acceptable by the defendant, had drawn extensively on
the claimant’s design, in a way not limited to extracting
functional requirements. The claimant’s design reflected
months of back and forth between the parties, suppliers
and class. The evidence showed that from February to
April 2018, the defendant was drawing the attention
of the yard’s sister company to specific aspects of the
claimant’s design and that it had paid no regard to
the confidentiality provisions of the SFA, regarding the 61
[1964] 1 Lloyd’s Rep 28.

Ship sale The judge held that there was a binding contract between
the parties and that the buyer was entitled to an order
for specific performance of the contract as varied. In
the 13 November 2020 meeting, it had been agreed
Two decisions in the same case in the Federal Court of
that version 3 of the Addendum accurately recorded the
Australia by Rares J were the only reported ship sale
variation to the contract and the buyer’s consideration
decisions in the year, confirming, if confirmation were
for those variations which was to arrange shipment of
needed, that most ship sale disputes are dealt with
the yacht and to make a payment towards its share of
through commercially confidential avenues. First, in TWW
the holding costs. While the parties did intend to later
Yachts Sarl v The Yacht “Loretta” (No 1),62 the question was
obtain signatures, the buyer’s performance was what
of variations to a contract for the sale and purchase of a
bound the parties to the agreement.
yacht, purportedly made orally at a later meeting.
The buyer having obtained an order for specific
On 17 September 2020 the parties had entered into a
performance, the parties next sought clarification on the
contract for the sale and purchase of Loretta, a 40-m
issue of to what amount, if any, the buyer was entitled by
pleasure yacht registered in the Cayman Islands and
way of credit in respect of the payment it or the intended
moored at Queensland. Three addenda executed at
beneficial owner of the yacht had made to a transport
the same time formed part of the contract, which was
company for the carriage of the yacht from Brisbane
expressed in a memorandum of agreement on a MYBA63
to the Mediterranean. This issue was resolved in TWW
standard form. The claimant TWWYS was the buyer,
Yachts Sarl v The Yacht “Loretta” (No 2).64 In the event, the
the ultimate beneficial buyer not wishing to appear in
carriage contract had been cancelled. The seller argued
the contract for the time being. A company related to
that the plaintiff contractual buyer had not suffered any
TWWYS was the broker. The issue arose whether the
loss, because the carriage contract had been made by
contract had been varied at a meeting on 13 November
the ultimate beneficial buyer.
2020 between Mr W, a representative of TWWYS, Mr B,
a director of the seller, and Dr V, the Maltese advocate
The judge made an order for specific performance of the
who had drafted the agreement. The meeting took place
contract that allowed the buyer credit for the US$435,000
following agreed sea trials which had revealed to the
that the beneficial buyer and the contractual buyer,
buyer serious problems with the yacht’s sailing rig. Before
as yacht owner under the cargo contract, had agreed
the meeting, three versions of Addendum 4 to the sale
to pay. The settlement had been reasonable. Once the
contract had been circulating between W, B and V. After
yacht owner, as defined, had entered into the cargo
the meeting, a further version with an additional clause
contract, it was bound to perform it by paying the freight
was mooted by W but not accepted by B.
in full. The cancellation had occurred because the seller
had breached the sale contract. Under MYBA clause 41
TWWYS, understanding from rumours that the seller
the buyer could assign its right to the yacht under the
was considering backing out of the sale and moving the
contract before completion. It was known to the seller
yacht to Hong Kong SAR, commenced proceedings on 17
that there was a controlling mind behind the contractual
December 2020 and had the yacht arrested until security
buyer and that the yacht would be assigned. The liability
was provided on 30 December. In these proceedings,
of the ultimate buyer under the cargo contract was not
the buyer sought specific performance consonant with
a direct liability of the contractual buyer. However, the
the purported variation, or damages. The damages
buyer had tendered the cargo contract as part of its
sought were based on the deposit under and settlement
performance of the variation agreement, and the seller
of a cargo contract for the carriage of the yacht to
had accepted that tender as performance.
the Mediterranean which in the circumstances never
materialised. The buyer asserted that an agreement
For a further decision on enforcement, see below at
had been entered into and that performance had been
page 37.
tendered; the seller, on the other hand, said that the
further discussions of the Addendum constituted a
counter-offer which had been rejected.
62
[2021] FCA 240; [2022] Lloyd’s Rep Plus 21.
The Worldwide Yachting Association (formerly known as the Mediterranean
63
Yacht Brokers Association). 64


Ship breaking resulting in the shipyard causing injury to the claimant;

a well-established exception from the general principle
under which the defendant would not be liable for harm
caused by the acts of a third party. It was an unusual
Departing briefly from the header “Contracts”, a case in
argument in a rapidly developing area of law and should
tort raised interesting issues on the responsibilities for
not be struck out.
hazardous ship breaking. In Begum (on Behalf of Mollah)
v Maran (UK) Ltd,65 the claimant claimed on behalf of
her late husband Mr Mollah, who on 30 March 2018 had
fallen to his death while working on the demolition of the
defunct oil tanker Maran Centaurus in the Zuma Enterprise It was arguable that by
Shipyard in Chattogram, Bangladesh. The defendant was sending the ship to be scrapped,
a UK company, which the claimant alleged was factually
and legally responsible for the oil tanker ending up in
the defendant had been responsible
Bangladesh where working conditions were known to for creating a state of danger resulting
be highly dangerous. The defendant had been under an in the shipyard causing injury to the
agency agreement with the vessel’s operator and had claimant; a well-established exception
in that capacity procured the sale of the vessel for the
purpose of demolition. from the general principle under which
the defendant would not be liable for
The proceedings concerned damages for negligence harm caused by the acts of a
under the Law Reform (Miscellaneous Provisions)
Act 1934 and the Fatal Accidents Act 1976 or unjust
third party
enrichment; alternatively, under Bangladeshi law. The
defendant applied to strike out the claim or for summary
judgment. Three issues arose.
The time-bar issues were complex: the one-year time
(1) Did the defendant owe a duty of care to the bar in Bangladeshi law applied per article 4 of the
deceased, or did the claimant have a real prospect Rome II Regulation,68 unless articles 7 or 26 applied.
of establishing the existence of such a duty on the Article 7 concerned environmental damage but this was
facts? rather a matter of workplace safety and the claimant’s
(2) Was the defendant unjustly enriched by the reliance on the article was misplaced. As a result, the
deceased? claim was time-barred, unless the claimant was able
to establish undue hardship, in which case article 26 of
(3) Did the claimant have a real prospect of the Rome II Regulation meant that the one-year time
establishing that the claim was not statute-barred? bar in Bangladeshi law could be disapplied as manifestly
The judge at first instance struck out the claim for unjust incompatible with English public policy.
enrichment but allowed the claim on a duty of care to
proceed.66 Maran appealed. The Court of Appeal held as
follows.
First, the duty of care alleged did not sit comfortably

within the principles of Donoghue v Stevenson,67 but
was not so fanciful that it should be struck out. This was
particularly so as the alternative argument had better
prospects of success.
Secondly, on the alternative argument, it was arguable

that by sending the ship to be scrapped, the defendant
had been responsible for creating a state of danger
65
66
[2020] EWHC 1846 (QB); [2021] Lloyds Rep Plus 32. Regulation (EC) No 864/2007 of 11 July 2007 on the law applicable to non-
68
67
[1932] AC 562. contractual obligations.

PASSENGERS the vicinity of a handrail which he was not using, there

was no basis for any finding that the lack of additional
handrails constituted a defect in the ship.
A number of passenger decisions were handed down,
There being no conclusion of any defect in the ship, the
some clarifying matters related to the various iterations
pursuer must establish fault or neglect. The defenders
of the Athens Convention69 and others simply deciding
had been under a duty to carry out a risk assessment for
the issue of jurisdiction.
the benefit not only of workers but also of passengers;
Regulation 7 of the Merchant Shipping and Fishing Vessels
In Warner v Scapa Flow Charters (No 2),70 the Outer House
(Health and Safety at Work) Regulations.73 Lord Sandison
of the Scottish Court of Session wrapped up the litigation
held that the defenders were guilty of fault and neglect
following the Supreme Court’s decision on the time bar,
in terms of article 3 of the Athens Convention, through
where the latter court had held that the underage child of
the skipper’s failure to recognise that the system of dive
the passenger, LW, retained the right to pursue the claim
preparation permitted or even encouraged divers to walk
because the Athens Convention time bar was “suspended
on deck in fins, and that that was well recognised as an
or interrupted”71 under domestic law.72 The remaining
inherently risky activity to the extent that consideration
questions concerned the defenders’ liability for the death
should have been given to putting in place mechanisms
of LW on 14 August 2012 while diving from the defenders’
apt to eliminate it or at least bring it under close control.
vessel. While wearing full gear on board the diving boat,
LW fell and suffered internal injuries which became
Questions as to the meaning of “contract of carriage” in
apparent only afterwards. He nevertheless elected to
the Athens Convention arose before the Supreme Court of
continue with the dive, but ascended unexpectedly, was
British Columbia in Knight v Black and Others.74 Ms Knight
found to have stopped breathing at the surface and was
had sustained personal injuries when the boat on which
pronounced dead in hospital later that day. Quantum had
she was travelling on a British Columbia river collided
been agreed. The pursuer’s case on liability was that LW
with a sandbar or other object. Mr Black had agreed to
had fallen on the deck as a result of the fault or neglect
transport individuals on the river for payment, for the
of the defenders, notably in not providing handrails or
purposes of a reconnaissance trip to identify riverbank
making a risk assessment, and that the injuries from the
erosion sites requiring emergency works. Ms Knight was
fall had led to his death; and that the lack of handrails
a habitat ecologist for the Department of Fisheries and
was a defect in the ship triggering the presumption for
Oceans. Mr Black had invoiced the highway maintenance
liability under article 3(3) of the Athens Convention. This
service company for the trip which in turn had invoiced
necessitated consideration of the concept of defect in
the Ministry of Transport. Canada was not a party to the
the ship, of the presumption of fault or neglect and of
Athens Convention, but had adopted articles 1 to 22 with
the carrier’s duties in the absence of a defect in the ship.
modifications, through legislation stating that the articles
were to have the force of law and apply in Canadian
The judge held that the defenders were liable to make
waters. In litigation, issues of limitation of liability arose.
reparation to the pursuer in terms of article 3(1) of the
Athens Convention. On the evidence, LW had fallen
The question arose whether Ms Knight was on the boat
because he had tripped on his fins while attempting to
pursuant to a “contract of carriage” under the Athens
walk from his seat to the dive gate. The pain from the
Convention. Ms Knight asserted that the contract was not
injury sustained in the fall had caused LW’s decision to
a contract of carriage because it had the characteristics
make the emergency ascent, in the course of which he
of a trip-time charterparty.
became unable to retain his mouthpiece and drowned.
The judge considered the meaning of “contract of
The judge held that the presumption in article 3(3) of the
carriage” under the Athens Convention and held that
carrier’s fault in the presence of a defect in the ship did
it was a contract made by or on behalf of a carrier for
not apply. The evidence was insufficient to conclude that
the carriage by water of a passenger. There had been
the slope in the deck contributed to the fall or constituted
an agreement between the maintenance service
a defect in the ship, and where LW’s fall had occurred in
company and Mr Black to transport individuals for
the reconnaissance trip and Mr Black had done so,
69
1974 Athens Convention relating to the carriage of passengers and their had invoiced and been paid. Mr Black was therefore a
luggage by sea.
70
[2021] CSOH 92; [2022] Lloyd’s Rep Plus 24.
71
Athens Convention, article 16. 73
(SI 1997 No 2962).
72
Warner v Scapa Flow Charters [2018] UKSC 52; [2019] 1 Lloyd’s Rep 529. 74
2021 BCSC 19; [2021] 2 Lloyd’s Rep 410.

performing carrier under the Athens Convention, which incorporated in Liberia with its principal place of business
applied to the case. Ms Knight did not need to be privy to in Florida. Those claims were based on the tort of
the contract of carriage to be a passenger. Liability was negligence. The RCL companies then commenced the
therefore limited to 175,000 units of account. present proceedings with the aim of restraining the
Reeds from proceeding in Florida. RCL and RCCL sought
A significant amount of litigation has ensued as a an anti-suit injunction based on an alleged breach of
result of the ill-fated excursion from the cruise ship an exclusive jurisdiction clause favouring NSW in the
Ovation of the Seas to Whakaari (White Island) in New contract of carriage between the parties, or alternatively
Zealand when a volcano erupted on 9 December 2019, on the basis that the Florida proceedings were vexatious
which resulted in loss of life and personal injury, not and oppressive. This was their application for leave
to mention loss of a planned holiday. The affected to serve the proceedings on the Reeds in the State of
cruise passengers were from a variety of domiciles with Maryland, their place of residence. The applicants, in
individual preferences as to the location of litigation. order to succeed, would have to satisfy the court that:
There were no less than three reported decisions from (a) the court had jurisdiction in the proceedings; (b) the
the Australian courts: Royal Caribbean Cruises Ltd and proceedings were of a kind referred to in the Federal
Another v Reed and Another,75 Royal Caribbean Cruises Court Rules, rule 10.42; and (c) they had a prima facie
Ltd and Another v Reed and Another (No 3)76 and Royal case for all or any of the relief claimed in the proceedings.
Caribbean Cruises Ltd v Browitt.77 Only RCCL was a defendant in the Florida proceedings,
and there was uncertainty as to whether RCL or RCCL was
the Reeds’ contractual counterpart.
A significant amount of litigation has The judge gave leave to serve the originating papers on
ensued as a result of the ill-fated the Reeds in the State of Maryland in accordance with a
excursion from the cruise ship Ovation method of service permitted by the law applicable there,
of the Seas to Whakaari in New as contemplated by rule 10.43(3)(c)(iii) of the Federal
Court Rules. This was a claim in personam arising out of
Zealand when a volcano erupted, a contract of carriage between RCL and the respondents.
which resulted in loss of life and Such a claim was “a claim arising out of an agreement
personal injury, not to mention loss of relating to the carriage of ... persons by a ship” within
the meaning of section 4(3)(f) of the Admiralty Act 1988
a planned holiday (Cth); a “general maritime claim”.
The contract of carriage was said by the applicants to have

First, the two decisions from the Reed litigation. In Royal been made on behalf of the Reeds by or through an agent
Caribbean Cruises Ltd and Another v Reed and Another,78 carrying on business or resident in Australia and thus in
the question arose as to service abroad. The respondents, relation to a contract “made on behalf of the person to be
the Reeds, had suffered serious injuries on their shore served by or through an agent who carries on business, or
excursion to Whakaari. At the time, they were passengers is resident, in Australia” within the meaning of item 3(b)
on a cruise that had departed from Sydney, called and of the schedule in rule 10.42. The contract was said to
was due to call at a number of ports in New Zealand, be governed by the law of NSW, so that the proceedings
and was scheduled to end in Sydney. The cruise vessel were in relation to a contract “governed by the law of
Ovation of the Seas was bareboat-chartered and operated the Commonwealth or of a State or Territory” within the
by RCL Cruises Ltd (RCL). RCL was incorporated in the meaning of item 3(c) of the schedule in rule 10.42.
United Kingdom and registered as a foreign company in
Australia, with a registered office in New South Wales. There was a dispute as to whether the carriage contract
was with RCL or RCCL. If the latter, the Florida proceedings
The Reeds had commenced proceedings in Miami in the appeared to have been brought in breach of the exclusive
United States on 7 December 2020 against a different jurisdiction clause. Once it was justified that there be
entity, Royal Caribbean Cruises Ltd (RCCL), a corporation service for RCCL, it was equally justified that those papers
be served for RCL because they were the same papers and
set out a common basis for the same relief – it was only
75
76
necessary that there should be a prima facie case for “any”
77
[2021] FCA 653; [2022] Lloyd’s Rep Plus 31. rather than all of the relief claimed in the proceedings.
78

Service on the Reeds under Maryland law having failed, The judge dismissed the proceedings. Although the
the court next ordered substituted service through the respondents were bound by the second applicant’s terms,
Reeds’ US lawyers on 18 February 2021, which had been the Florida proceedings had not been brought in breach
effected. In Royal Caribbean Cruises Ltd and Another of the exclusive jurisdiction agreement because the first
v Reed and Another (No 3),79 the court considered the applicant was not a party to the agreement and did not
Reeds’ interlocutory application to set aside the order enjoy the benefit of it. The Florida proceedings were not
of 18 February 2021. In response, the RCL companies vexatious or oppressive.
sought orders that the Reeds had been served with the
relevant documents. The Reeds had filed an unconditional On the evidence, the travel agent was authorised by
appearance contesting the claim and service thereof, this Mrs Browitt to make the booking on her behalf subject
apparently being necessary for the conduct of the US to RCL’s terms and conditions, “including conditions
proceedings. The basis for their application to set aside of carriage and limitations of liability”. The contract
service was essentially that service through their US terms included RCL’s terms which became binding on
lawyers was not effective under the Maryland Civil Code. the respondents. Although the booking contract was
expressed to be between the passenger and “either RCCL
The judge held that the orders sought would be pointless, or RCL”, depending on which was to be the ship operator,
given that there was no doubt that the Reeds were well there was no place to interpret this as both entities: the
aware of the case against them as set out in the statement contractual counterparty was RCL.
of claim. The Reeds had entered an unconditional
appearance without contesting the jurisdiction of the The dispute resolution clause was not phrased in such
court. The issue of whether service had been properly a way as to be enforceable against non-parties such as
effected was to be assessed under the law of the forum. RCCL; nor were the parties so closely intertwined as to
Serious efforts had been made to effect service and indicate that the parties’ objective intention was for the
it was not necessary to exhaust every available option exclusive jurisdiction clause to apply to claims against
under Maryland law before substituted service became the non-parties. The Florida proceedings had therefore
available. In these circumstances, it was not necessary to not been brought in breach of the jurisdiction clause; nor
issue the order sought by the RCL companies. were they vexatious and oppressive. RCCL’s head office
was located in Florida and the proceedings concerned
A third decision in the same litigation was Royal Caribbean acts and omissions by RCCL. There were no parallel
Cruises Ltd v Browitt.80 RCCL and the second applicant proceedings against RCCL in Australia. RCL was not
(RCL) had commenced proceedings in Australia, asserting entitled to an anti-suit injunction.
that there was a contract of carriage under the exclusive
jurisdiction of the New South Wales courts and seeking an It must be assumed that the several outbreaks of
anti-suit injunction in respect of the Florida proceedings. Covid-19 on board cruise ships will cause some litigation
or swingeing settlements going forward. An early decision
79
80
Lloyd’s Shipping & Trade Law

Lloyd’s Shipping
& Trade Law
www.shippingandtradelaw.com
Decarbonisation and December 2021
shipping post-COP26
Volume 21 • Issue 10
1. Decarbonisation and shipping

post-COP26
This article examines the latest developments affecting the shipping
5. Case update
industry’s decarbonisation efforts on the back of the 26th UN Climate Herculito Maritime Ltd and Others v
Change Conference of the Parties (COP26) and the IMO’s Marine Environment Gunvor International BV and Others
Lloyd’s Shipping & Trade Law ensures you are fully aware of developments which will have an impact on
(“The Polar”) [2021] EWCA Civ 1828
Protection Committee’s 77th session (MEPC77). It is argued that a public role
for the shipping industry is crystallising, and an enabling environment for co-
regulation, via the development of policies, measures and programmes in
cooperation with the IMO, is neatly falling into place.
Opinions diverge on whether COP26, held in late 2021, succeeded in
setting global efforts to fight climate change on the right course to limit
global warming to 1.5°C by 2100. Pledges to phase out the use of coal power1
your business and the businesses of your clients. Our expert editors tell you what the latest developments
(despite the toned-down language adopted in the Glasgow Climate Pact2),
end deforestation,3 cut methane emissions,4 and the US–China Joint Glasgow
Declaration on Enhancing Climate Action5 were all promising announcements,
although dependent on the voluntary action of their signatories. With the
Editor
protection of our oceans moving higher up the policy agenda, not least thanks
Dr Johanna Hjalmarsson
to a growing emphasis on nature-based solutions and the adaptation to the Informa Associate Professor of Maritime and
Commercial Law, Institute of Maritime Law,
risks of acidification and rising sea levels, the role of the shipping industry, one
mean for you in a concise and easily digestible format. Lloyd’s Shipping & Trade Law, available online and
University of Southampton
of the main human activities impairing our oceans’ health,6 came under the
spotlight once more. This was reinforced by the chronological proximity of Editorial Board
the Glasgow event and MEPC77, where the deliberation of proposals for an Professor Jason Chuah
City University
improved zero-emission by 2050 target was a key item on the agenda. Jeremy Davies
Partner, Holman Fenwick Willan
Why does COP26 matter for shipping? Edward Yang Liu
Since 1995 the countries bound by the UN Framework Convention on Climate Partner, Hill Dickinson Hong Kong
in print, ensures you are always up to date with the latest factors affecting the rights and liabilities of the
Professor Filippo Lorenzon
Change (UNFCCC) have gathered for annual Conferences of the Parties (COP) Chair in Maritime and Commercial Law,
at which, with fluctuating levels of hope and ambition, they look to “review Dalian Maritime University
David Martin-Clark
the implementation of the Convention and any other legal instruments Shipping and Insurance Consultant, Maritime Arbitrator
that the COP adopts and take decisions necessary to promote the effective and Commercial Disputes Mediator
implementation of the Convention”.7 Dr Meixian Song

Lecturer, Institute of Maritime Law,
Most notably, the 196 parties to the UNFCCC adopted the Paris Agreement University of Southampton
when they convened for COP21 in Paris in 2015. The legally binding international Professor Baris Soyer
shipping and trade communities.

Director of the Institute of International Shipping
treaty on climate change entered into force on 4 November 2016, setting a new and Trade Law, University of Swansea
direction for the global effort to combat climate change. The Paris Agreement Professor D Rhidian Thomas
Emeritus Professor of Maritime Law,
set a target for the parties to limit global warming to “well below” 2°C “while University of Swansea
Professor Richard Williams
1
https://ukcop26.org/end-of-coal-in-sight-at-cop26/
2
https://unfccc.int/sites/default/files/resource/cop26_auv_2f_cover_decision.pdf Consultant, Ince & Co, Institute of
3
https://ukcop26.org/glasgow-leaders-declaration-on-forests-and-land-use/ International Shipping and Trade Law
4
www.bbc.co.uk/news/world-59137828
5
www.state.gov/u-s-china-joint-glasgow-declaration-on-enhancing-climate-action-in-the-2020s/ Haris Zografakis
6
Zoe Sclanger, “If shipping were a country, it would be the world’s sixth-biggest greenhouse gas emitter” (2018) World Economic Partner, Stephenson Harwood
Forum/Quartz, www.weforum.org/agenda/2018/04/if-shipping-were-a-country-it-would-be-the-world-s-sixth-biggest-greenhouse-
gas-emitter, accessed 20 December 2021.
7
https://unfccc.int/process/bodies/supreme-bodies/conference-of-the-parties-cop, accessed 20 December 2021.
Access us at www.shippingandtradelaw.com and www.i-law.com

Follow us on shippingandtradelaw.com and i-law.com
LSTL_Dec2021.indd 1 04/01/2022 14:36:37
EMEA office: +44 (0)20 3377 3996; APAC office: +65 6508 2430;
USA office: +1 212 600 3460
customersuccess@lloydslistintelligence.com
about.i-law.com
2021 LSTL strip 70x210.indd 1 26/01/2022 17:46:16

arose in Karpik v Carnival plc (The Ruby Princess),81 where generality of the booking confirmation was insufficient as
an outbreak of Covid-19 on board Ruby Princess in March a reasonable step to bring them to Mr H’s attention.
2020 had caused illness and death among passengers
on board. The applicant, Mrs K, and her husband had The respondent vessel owner was the contractual
become ill and now claimed against the first respondent counterparty of the passengers who had contracted on
time charterer and the second respondent owner and Australian terms and regularly sold or marketed cruises
operator of the vessel. in Australia, operating a set of standard Australian
terms and conditions. It therefore carried on business in
These were representative proceedings on behalf of Australia and the terms of Mr H’s contract were subject to
group members including a passenger group, an executor the Australian Consumer Law and its fairness assessment.
group (representing the estates of deceased persons) However, had it been incorporated, the exclusive
and a group of close family members of those affected. California jurisdiction clause would not have been found
Claims were brought in tort and under the Australian to be unfair. The class action waiver created a significant
Consumer Law. imbalance and would have been found unfair; however
there was insufficient evidence to conclude that reliance
Early jurisdictional issues arose. The respondents applied upon the clause would have been unconscionable.
for a stay of claims, on the ground that some of the
passengers’ bookings were subject to US terms and If the exclusive jurisdiction clause and the class action
conditions or UK terms and conditions, which contained waiver clause had been incorporated, the claimants’
various dispute resolution clauses. The US terms challenges to their enforceability would have failed,
contained an exclusive jurisdiction clause and a class except that the class action waiver clause was void as an
action waiver clause. The UK terms were made subject unfair contract term under section 23 of the Australian
to non-exclusive English jurisdiction, English law and the Consumer Law.
EU and UK Athens Convention framework, that is, the
2002 Protocol and Regulation (EC) No 392/2009.82 Mr H The claims of US sub-group members could not be
and Ms W respectively were designated as representative stayed as a group, because their contracts depended on
cases for these sub-groups of claimants. The respondents individual circumstances surrounding contract formation
alleged notably that the claims were an abuse of process and whether the US terms had been incorporated. Finally,
and that the court was a clearly inappropriate forum in the court was not a clearly inappropriate forum in which
which to hear them. to determine the claims of the US and UK sub-groups.
However, the judge declined to stay the claims. The

stipulations in the agreement between the respondents
and the travel agent who had effected Mr H’s booking, to
the effect that the travel agent was not the agent of the
respondents, could not give rise to an inference that she
was instead the agent of Mr H. In the absence of proof by
the respondents that the travel agent was H’s agent, the
travel agent appeared to have acted as an intermediary.
As for the communications and correspondence leading

to the booking, Mr H’s booking was an acceptance.
The later booking confirmation was not an offer, to be
accepted by Mr H. At the time of the booking, Mr H was
told nothing of the terms and conditions other than the
principal details. On that basis, the clauses set out in
the respondent’s US terms and conditions – notably the
exclusive jurisdiction and waiver of class action clauses –
were not incorporated. In any event, the jurisdiction
and waiver clauses were onerous and unusual and the
81
Regulation (EC) No 392/2009 of 23 April 2009 on the liability of carriers of
82
passengers by sea in the event of accidents.

PORTS Liability and limitation of liability for ports materialised as

an issue in a small number of interesting cases. In Arklow
Shipping Unlimited Co and Others v Drogheda Port Co DAC
(The Arklow Valour),84 the High Court of Ireland had its
The cruise company Cruise & Maritime Voyages
say on a port’s occupier’s liability under the Occupiers’
(CMV) ceased operations amid the early throes of the
Liability Act 1995. The plaintiff shipowner interests
pandemic in 2020. In P&O Princess Cruises International
sought damages from the defendant port operator
Ltd v The Demise Charterers of the Vessel “Columbus”;
following the grounding of the plaintiffs’ vessel Arklow
P&O Princess Cruises International Ltd v The Owners and/
Valour on a sandbar within the limits of the harbour
or Demise Charterers of the Vessel “Vasco da Gama”;
managed and controlled by the defendant. The issue for
and in the Matter of the Claim for Port Dues by Port of
decision was whether there was a legal and factual basis
Tilbury London Ltd,83 Admiralty Registrar Davison had
for any claim in respect of the grounding of the vessel
to decide issues related to port charges for some of
against the port company. The plaintiffs alleged that
its cruise ships. Four of CMVs managed cruise ships,
the port company owed a contractual duty to provide
including Columbus and Vasco da Gama, had been
safe navigational and pilotage services; a duty of care at
berthed at the Port of Tilbury after being laid up due
common law to provide such services; a statutory duty
to the Covid-19 pandemic. Favourable rates had been
of care pursuant to the Occupiers’ Liability Act 1995; and
agreed by the port in view of the situation and the long-
a statutory duty pursuant to the Harbours Act 1996. The
standing commercial relationship between the port and
plaintiffs’ case was that the harbour master’s advice as
CMV. Invoices were paid up until June 2020. On 19 June
to maximum sailing draught had been incorrect and also
2020 the vessels were detained by the Maritime and
that there had been a failure by the port company to take
Coastguard Agency for non-payment of crew wages.
reasonable care to ensure that the vessel did not suffer
On 20 July the CMV empire collapsed and some of the
damage by reason of the danger created by the sandbar.
CMV companies went into administration. This did not
include the bareboat charterers of the two vessels. On
the same day, the port emailed various contacts at CMV
stating that the port rate from the following day would
be the published tariff; a thirty-fold increase. The vessels For the purposes of occupiers’
were subsequently arrested and sold by the Admiralty liability, a harbour authority was an
Marshal, and an order was made that the port’s fees occupier of premises and an invitor,
were to be payable by the marshal as an expense of
sale. This was the registrar’s decision on the objection and a shipowner using a harbour
of interested parties against the port’s charges. Those operated by such authority was an
parties argued that since the bareboat charterers were invitee. The harbour authority as a
not insolvent, the contract between those parties, which
incorporated the Port of Tilbury’s Trading Regulations
result had a duty to take reasonable
2005, applied. There had been no variation; and notice care that users of the harbour may
of the change in tariffs was inadequate. Accordingly the navigate without danger
agreed rate continued to apply. The port maintained
that it was entitled to charge the higher tariffs.
The Admiralty Registrar held that the port was entitled

The judge dismissed the claim. The plaintiffs had failed
to recover its charges at the tariff rate from 20 August
to establish that the port company owed any statutory
2020, being 28 days after the date of the letter of 23
duty under the 1996 Act to users of the port which was
July 2020, to 16 October 2020 (Vasco da Gama) and 22
relevant to the grounding of the vessel, such as to give
October 2020 (Columbus), which were the dates of final
rise to a cause of action under the Act.
delivery to purchasers. The contract remained on foot
and the port was entitled to give notice of a variation and
As for occupier’s liability, the port company was an occupier
had done so through the letter, albeit that a reasonable
of premises in relation to those areas of the port owned
notice period was required. A reasonable notice period
by it and also any area of the harbour or the approaches
would have been 28 days.
to the harbour over which it exerted control. This included
the area at the bar across the navigable channel regularly
83
[2021] EWHC 113 (Admlty); [2021] 1 Lloyd’s Rep 440. 84
[2021] IEHC 601; [2022] Lloyd’s Rep Plus 28.

dredged by the port company. The 1995 Act applied to piles. Repairing the holes before October 2017 would
the claim and the duties and liabilities arising under the have been a reasonable step, such that it was a breach
1995 Act had effect in place of the duties and liabilities of contract to omit to take it. The risk would have been
previously existing at common law. For the purposes of patent to any reasonable harbour owner in the position
occupiers’ liability, a harbour authority was an occupier of of the defendant. On the evidence, the claimants’ theory
premises and an invitor, and a shipowner using a harbour as to how the sinking happened was significantly more
operated by such authority was an invitee. The harbour likely than the defendant’s theory. There was no evidence
authority as a result had a duty to take reasonable care rendering either party’s theory impossible or certain to
that users of the harbour may navigate without danger. be right. Where neither party had suggested any third
mechanism could have operated the claimants’ causal
On the evidence, the harbour master had indicated a mechanism had been established on the balance of
maximum permissible sailing draught. Section 3(2) of probabilities. The vessel had been sunk as a result of
the 1995 Act required the court to take into account the defendant’s breach of contract in failing to take all
the care which a visitor to the port may reasonably be reasonable steps to maintain the marina in reasonably
expected to take for his or her own safety. In this regard, good working order.
it had not been established by the plaintiff that the vessel
was exposed to danger because the advice given by the As for the measure of damages, the insurers had been
harbour master was wrong. They had failed to prove willing to pay £140,000 in lieu of repairs. This would be
that the loss of depth at the sandbar at the time of the found to be the market value of the vessel before the
grounding was greater than that predicted by the harbour incident. The value afterwards had been conceded to
master. On the evidence brought, the estimate provided be £45,000. The loss of use of mooring was a sunk cost
could not be assumed to be wrong, and there was not caused by the defendant’s breach of contract. The
therefore an insufficient basis to conclude that the port salvage costs had been incurred reasonably.
company should have prevented the vessel from sailing.
Upon liability follows limitation. A novel issue arose
A further case, Robertson and Another v Bembridge Harbour in Holyhead Marina Ltd v Farrer and All Other Persons
Improvements Co Ltd (The Tangent),85 concerned the issue Claiming or Being Entitled To Claim Damages In Connection
of liability for a marina owner. While moored at Bembridge With Storm “Emma” Striking Holyhead Marina on 1 and 2
Marina, the motor yacht Tangent had become submerged March 2018,86 namely whether a marina had a right to
at the berth. The vessel owners claimed, alleging that the limit liability. This depended on the judicial interpretation
cause of the casualty was the inadequate maintenance of the words “dock” and “landing place, stage or jetty”
of the marina and seeking damages for losses of in section 191 of the Merchant Shipping Act 1995. The
£165,964.40 caused by the sinking. This sum consisted background was that on March 2018, Storm Emma had
notably of insured value minus salved value, salvage hit Holyhead from the north-east and damaged the
agent fees and expenses and loss of use of mooring. The marina in Holyhead Harbour and 89 craft therein. The
vessel owners’ case was that in breach of the contract claimant was the lessee of that marina. Anticipating
between the parties, the defendant marina had failed many claims totalling some £5 million, it had issued
to take all reasonable steps to maintain the facilities in proceedings seeking limitation of its liability to £550,000
reasonably good working order, by failing to repair certain pursuant to section 191 of the Merchant Shipping Act
corrosion holes in the piles as a result of which the vessel 1995. The defendants to the limitation action were the
was held down as the tide rose, eventually sinking her. owners of damaged craft. They denied that the claimant
The defendant marina owner denied that there had been had a right to limit liability on the basis that it was not
any breach of contract and asserted a different causal the owner of a “dock” within the meaning of section 191.
mechanism for the sinking, starting from inadequate Further, they argued that the right to limit had been lost
mooring. It counterclaimed £3,765 for costs incurred in under article 4 of the Limitation Convention.87 Finally they
dealing with the casualty, based on the claimants’ alleged argued that the applicable limit exceeded the amount of
breach of their contractual responsibility for maintaining the anticipated claims. The claimant applied to strike out
mooring lines and fenders. the allegations forming the defence and for summary
judgment on the claim for a limitation decree.
The judge held that the defendant had not taken all
reasonable steps to monitor the corrosion holes in the
86
85
1976 Convention on limitation of liability for maritime claims.

At first instance,88 the judge struck out the defences that MARINE INSURANCE
the marina was not a dock and that the right to limit was
greater than the anticipated claims, but not the defence
that the right to limit had been lost.
Insurance cases in the UK are reportedly going almost
exclusively to arbitration at this time, with very limited
The defendants appealed, the sole question upon appeal
litigation in courts. It may be overly hasty to attribute
being whether the marina was a dock within the meaning
this to uncertainty in the wake of the Insurance Act 2015,
of section 191. The Court of Appeal dismissed the appeal.
given that although only one case materialised in the UK
(albeit adjudicated at both first instance and in the Court
The terms used in section 191(9) included terms capable
of Appeal), there were equally only one case each from
of referring to structures used for and by leisure craft and
Australia (again with decisions in two instances), New
should not be read to concern only commercial shipping.
Zealand and Singapore. The cases are a mixed bag of
While the marina was not a dock within the ordinary
fairly esoteric insurance issues.
meaning of the term, it was a “landing place, stage or
jetty”. The terms were general and should not be given
A significant piece of litigation cleared two instances of
a narrow construction. While the purpose of limitation
the courts of England and Wales within the year. At first
was to facilitate trade, that was not its only purpose and
instance of ABN AMRO Bank NV v Royal & Sun Alliance
there was no reason to read section 191 as informed by
Insurance plc and Others,89 a mammoth judgment of
the Limitation Convention 1976, so as to exclude the
some 1,036 paragraphs, the judge considered notably
leisure craft context.
the interesting question of a policy renewal which was
said to be “as expiry” but where the parties were at
cross-purposes as to the expiring terms. Some of the
defending insurers had been unaware of an amendment
agreed between the insured and the leading underwriter,
and the broker had represented that the policy was “as
expiry”. The judge held that the “as expiry” representation
constituted an estoppel by convention preventing
the insured from relying on the amended terms. This
decision was appealed on behalf of the insured by the
15th defendant broker which had been sued for breach of
contract or negligence in placing the policy, in the event
claims against any of the underwriters failed. The broker’s
appeal was successful, on the more detailed analysis of
estoppel by convention and its interaction with a non-
avoidance clause before the Court of Appeal.
The other appeal was by those underwriters who had

been held liable under the policy, which was a marine
cargo policy that unusually contained a clause of quite
a different nature, covering credit risk, referred to as the
TPC. The Court of Appeal heard the appeal on this clause
and delivered its judgment90 although the issue had
settled at a late stage. Arguments included whether this
was a marine policy at all, based on sections 1, 3, 5 and
26 of the Marine Insurance Act 1906. According to the
underwriters, the policy defined the subject matter of
the insurance with reference to property, being goods or
merchandise, so that the TPC also required physical loss
and was merely to be regarded as an alternative measure
[2021] EWHC 442 (Comm); [2021] Lloyd’s Rep IR Plus 22; [2021] Lloyd’s Rep
89
IR 467.
88
[2021] EWCA Civ 1789; [2022] Lloyd’s Rep IR Plus 2.

of indemnity. However, the Court of Appeal agreed with different times for different cars by a claimant that also
the insured that what the parties had done was combine used other insurance schemes, there was no established
two forms of insurance coverage within a single policy course of dealing. Equally, individual declarations did not
and that the provisions of the Marine Insurance Act 1906 amount to an established course of dealing. Finally, the
could not override the clear terms agreed. terms requiring declaration of vehicles in the compound
within seven days of the end of a calendar month did
From New Zealand, in JDA Co Ltd and Others v AIG as insurers had argued constitute a warranty and were
Insurance New Zealand Ltd and Others,91 a marine cargo therefore effective to discharge insurers from liability.
policy was designed to cover second-hand cars being
exported from Japan and passing through a particular The litigation in Technology Swiss Pty Ltd v AAI Ltd,
depot. The policy had been arranged by the owner of trading as Vero Insurance,92 known upon appeal as AAI
the depot, ATL, through its insurance broker. The policy Ltd, trading as Vero Insurance v Technology Swiss Pty
required periodic declarations and attached to individual Ltd93 arose from a marine cargo policy for the carriage
cars before the declarations were made. In August and of a shipment of fog cannon from Australia to Thailand.
September 2018 several typhoons struck Japan, after The cannon were found to be damaged upon arrival.
the third of which the insurer, AIG, placed a moratorium The insurers indemnified the insured by AUS$200,000
on new business by contacting ATL’s brokers. Next day, and, following the conclusion of a deed of settlement,
the brokers sent AIG a list of 21,855 declared vehicles. A a further AUS$425,000. The insured then recouped
final monthly declaration on 10 October included 27,717 AUS$738,615.40 from the shipping company. The insured
vehicles. On 26 October AIG gave 30 days’ notice of eventually agreed that it must repay AUS$200,000 to
cancellation of the policy. the insurer, but there was a dispute concerning the
AUS$425,000 paid under the deed of settlement which –
Following the typhoons, the plaintiffs made claims in unlike the sum recovered from the carrier – covered also
respect of damaged cars, some of which were rejected by storage charges for the damaged cannon and costs of the
AIG. Questions arose as to the definition of assured in the dispute, so that it was possible to take the view that the
policy, as to the terms of coverage and on the mechanics insured had not been indemnified for those costs. It was
of the declarations. asserted against the insurers that since they had paid
under a deed of settlement in consideration of bringing
First, some of the declarations concerned business proceedings to an end rather than under an insurance
where only insurance was provided by ATL, and no other policy, there was no right of subrogation as that right
services. The judge held that those claimants did not, as only pertained to insurance. Allsop CJ and the Court of
AIG had argued, fall outside the language of the policy. Appeal gave short shrift, though after a thorough review
The words “… and other customers” in the description of of case law, to this argument. The proper approach to
the insured was apt to include customers of the depot the settlement was to ascertain whether it could be
company, to whom ATL supplied only insurance and no concluded that any part of it represented an indemnity
other services. Secondly, the policy provided for optional under the policy as a bona fide compromise of the
terms of Institute Cargo Clauses (A) or (B). AIG had argued claim. Here, it could be concluded that there was such
that this meant that each insured must make an election. an element. However, deductions were to be made from
Here, the judge agreed that the implication was that the the sum of AUS$425,000 in respect of cost items not
insured must make an election, but concluded that in the referable to the damage, such as, notably, storage costs.
absence of an election, the implied intention was that ICC
(B) would apply. Thirdly, any insurance must be preceded Another subrogation case, this time from Singapore,
by an intention to take out insurance, and the claimants Sompo Insurance Singapore Pte Ltd v Royal & Sun Alliance
who had standing orders with ATL for insurance had not Insurance plc,94 concerned the issue of whether an
necessarily expressed such an intention because ATL, insurer had a subrogated claim against the issuer of a
which had arranged the cover with its broker, could not performance bond. The insurance policy was subject
bind AIG to the insurance. There needed to be either an to English law, so that the relevant statutory provision
established course of dealing in supplying the monthly was section 79(2) of the Marine Insurance Act 1906,
declarations, or communication of the intent to take in the same terms as Singapore law on the issue. The
insurance prior to the attachment of the insurance. performance bond and the carriage contract under
Where nominations had been made unsystematically at
92
[2021] FCA 95; [2021] Lloyd’s Rep IR 377.
93
[2021] FCAFC 168; [2022] Lloyd’s Rep IR Plus 5.
91
[2021] NZHC 2912; [2022] Lloyd’s Rep Plus 30. 94
[2021] SGHC 152; [2021] Lloyd’s Rep IR Plus 31.

which it had been issued were subject to Singapore law. ADMIRALTY

RSA’s insured was the Singapore government, which
had entered into a carriage contract with a carrier
which required the carrier to provide a performance Liabilities
bond from a bank or insurance company in respect of
its obligations. This had been provided by Sompo. In
the performance of the carriage, a container had fallen
Collision
into the sea. RSA indemnified the government’s loss and
took assignment of the government’s rights to claim An early highlight in 2021 was a rare UK Supreme Court
under the performance bond under section 79(2). Sompo decision in a collision liability case in Nautical Challenge
defended the claims on the grounds that RSA was not Ltd v Evergreen Marine (UK) Ltd (The Alexandra 1 and Ever
entitled to claim for various reasons. The Registrar agreed Smart),95 providing guidance on the application of the
with RSA and Sompo appealed that decision. On appeal, Collision Regulations (COLREGs).96 The case arose from a
the Judicial Commissioner held first, that the demand collision on 11 February 2015 just outside the dredged
had been made correctly on behalf of the government channel by which vessels entered and exited the port
and secondly, on the subrogation issue as follows. of Jebel Ali. The vessels were a laden VLCC, Alexandra 1,
Hypothetically, if the government had called upon the owned by Nautical Challenge Ltd, a company registered
insurance and thereafter on the performance bond, it in the Marshall Islands; and a laden container vessel, Ever
followed from the principle of indemnity that it would Smart, owned by Evergreen Marine (UK) Ltd, a company
have been accountable to RSA for the proceeds. RSA registered in the UK.
was not limited to the carrier for its remedies any more
At the time of the collision, Alexandra 1 was about to
than its insured was. Sompo had had the opportunity of
enter the narrow channel; Ever Smart was in the channel,
assessing the carrier as a credit risk and obtain security
outward bound. The collision took place at night but
before issuing the performance bond, and it was right
there were clear skies and good visibility. The damage
that it should carry the risk of its failure to pay.
to both vessels was considerable. At first instance97 and
upon appeal,98 it had been held inter alia that the narrow
channel rule applied rather than the crossing rules,
making Ever Smart the give-way vessel. The owners of
Ever Smart appealed, in essence asking two questions.
First, were the crossing rules applicable where an
outbound vessel was navigating within a narrow channel
and a vessel was approaching the narrow channel in
preparation for entering it? Secondly, if the crossing rules
applied, was it necessary for the give-way vessel to be on
a steady course for the rules to be engaged?
The Supreme Court allowed the appeal, referring matters

of apportionment of liability back to the Admiralty Court.
Distinguishing between a vessel waiting to enter a narrow
channel and one actually shaping to enter the channel,
the crossing rules would only be overridden by the narrow
channel rules once the approaching vessel was actually
shaping to enter, adjusting course and speed to arrive
at the entrance on her starboard side of it, on her final
approach, in accordance with rule 9(a).
The crossing rules were capable of applying before both

vessels were on a steady course. If two vessels, both
95
[2021] UKSC 6; [2021] 1 Lloyd’s Rep 299.
96
International Regulations for Preventing Collisions at Sea 1972, as amended.
97
98

moving over the ground, were crossing so as to involve The question arose of the recoverability in principle under
risk of collision, the engagement of the crossing rules Italian law of certain contentious items of the third
was not dependent upon the give-way vessel being on claimant’s claims. Could a loss of earnings suffered by the
a steady course. If it was reasonably apparent to those third claimant by reason of the temporary unfitness of
navigating the two vessels that they were approaching River Countess for service due to the collision be claimed
each other on a steady bearing other than head-on, then by the third claimant from the defendant upon the basis
they were indeed both crossing so as to involve a risk of of the defendant’s fault (in the form of negligence) in
collision, even if the give-way vessel was on an erratic causing the collision?
course. Unless the overtaking rule applied, the crossing
rules would apply. The judge held upon review of evidence of the applicable
Italian law that the third claimant could in principle
Where mutual liabilities resulting from a collision were to recover net loss of revenue in respect of cancelled
be set off following apportionment, making one party a cruises because River Countess was out of service due
net payor, could that party deduct the amount of its own to the collision and also costs incurred in discharging
claim against the other party where that claim was time- liabilities to customers in respect of airline cancellation
barred? This question arose before the Singapore High or rescheduling charges; but that claims for wider
Court in The Caraka Jaya Niaga III-11.99 loss of revenue and claims for professional fees were
irrecoverable. Ex gratia refunds were in principle
The plaintiffs were the registered owner and demise recoverable if they met the criteria of Italian law and
charterer of Grand Ace12, which had been in a collision upon proof of facts, unless the refunds were paid in
with the defendant’s vessel Caraka Jaya Niaga III-11. mitigation of wider, irrecoverable loss of income.
Their claim was issued just before the time bar expired.
Although the defendant later sought to pursue its Two further cases addressed procedural issues specific to
claim by a writ and by a counterclaim, those efforts collision cases.
were unsuccessful and it had become time-barred.
Apportionment of liability was agreed between the In Happy Shipping Ltd (Owners of the M/V “Happy Lucky”)
parties, as a result of which the defendant became the v Marine Shipping Co Ltd (Owners of the M/V “Fesco
net payor. The defendant now relied on the single liability Voyager”),103 the vessels of the parties had been in a
principle in The Khedive100 to assert that the fact that its collision in April 2019. P&I Club discussions followed on
counterclaim was time-barred was irrelevant. security and jurisdiction. On 27 April 2021 the respondent
issued proceedings in Singapore and a warrant of arrest
The judge considered that a defendant shipowner who for the applicant’s vessel Happy Lucky was issued by that
was a net payor would only be able to rely on the single court. Security by way of a LOU was provided for the release
liability principle to reduce its liability if its counterclaim of the vessel. The applicant brought an application before
was not otherwise time-barred. MIOM 1 Ltd v Sea Echo the English court asserting that the Singapore proceedings
ENE (No 2)101 would not be followed. had been brought in breach of an agreement between the
P&I Clubs providing for English jurisdiction and seeking
In River Countess BV and Others v MSC Cruise Management an anti-suit injunction. The respondent retorted that
(UK) Ltd,102 Andrew Baker J had to consider the agreement on jurisdiction had not been reached, it had
recoverability of non-physical losses under Italian law. The strong reasons to resort to the Singapore court, and in any
litigation followed the collision between the defendant case justice required that conditions be imposed if an anti-
demise charterer’s vessel MSC Opera and the claimants’ suit injunction was to be granted.
vessel River Countess in the Giudecca Canal in Venice on
2 June 2019. River Countess was berthed at the time and The judge held that the claimant had not established that
the defendant had accepted 100 per cent responsibility agreement as to English jurisdiction had been reached.
for the collision. The three claimants, being the registered Correspondence evidenced no meeting of minds on
owner, a demise charterer and a tour operator under a jurisdiction, even one subject to later agreement on
cruise charter (akin to a time charter), had suffered losses security. The ASG 2 form could not be incorporated by
in the form of lost revenue and earnings. a reference to that form and the email said to evidence
acceptance expressly stated that a draft agreement
99
[2021] SGHC 43; [2021] 2 Lloyd’s Rep 549. would be sent “for approval”.
100
(1882) 7 App Cas 795.
101
102
[2021] EWHC 2652 (Admlty); [2022] Lloyd’s Rep Plus 33. 103

The question in Falcon Trident Shipping Ltd v Levant Admiralty procedure

Shipping Ltd104 was the effect of a pre-action settlement
offer and what might be included in its scope. The
factual background was that the parties’ vessels had Service
been involved in a collision in India on 21 April 2019.
The defendant’s vessel was arrested in India and it later Beginning with the usual starting point of proceedings,
admitted 100 per cent liability. The parties had agreed there were several interesting decisions in 2021. In Tecoil
London jurisdiction. In May 2020 the claimant had Shipping Ltd v The Owners of the Ship “Poseidon”,105 the
made and the defendant accepted a settlement offer decision on service materialised in 2021, having been
encompassing quantum, pursuant to Part 36 of the CPR. handed down in 2020. A subsequent decision in the
litigation is noted below under “Letters of undertaking”
The claimant now sought a declaration that it was entitled at page 35. The factual background was that the
to pre-action legal costs up to 22 May 2020, and that the claimant’s vessel Tecoil Polaris, while at berth in Hull,
costs of the proceedings included six listed items totalling had been struck by the vessel Poseidon. The claimant’s
US$86,825.31. The defendant accepted some, but not all claim for damages, interest and costs in rem against the
of the costs sought by the claimant, disputing four items owners of Poseidon was served, but the defendant did
under the terms of the settlement agreement. The items not file any acknowledgement of service. The vessel was
were fees to two Indian advocates, P&I correspondent’s deemed served on 3 July 2019 and the claimants applied
fees and the fees to Italian lawyers instructed by H&M for judgment in default of acknowledgment of service.
insurers. Against the claimant’s position that these related The question arose whether the court had jurisdiction
to gathering evidence and surveys and were recoverable to grant judgment in default of an acknowledgement of
as costs pursuant to Part 36, the defendant retorted that service in an in rem collision claim. CPR 61.9(2) provided
they had been settled in May 2020. that in a collision claim, a party who had filed a collision
statement of case may obtain judgment in default of a
The judge dismissed the claim. The settlement agreement defendant’s collision statement of case “only if […]”, and
was a binding contract that superseded the acceptance unlike for non-collision claims, the subsequent options
of the Part 36 offer. The parties’ objective intention was did not include “in default of acknowledgement of
to provide a fuller settlement agreement, not merely an service”. CPR 61.4 provided that “an acknowledgement
agreement memorialising the Part 36 offer. The Part 36 of service must be filed”.
offer was thus part of the factual matrix of the settlement
agreement, as was the Scott Schedule sent by the The judge gave judgment in default of acknowledgement
claimant before its conclusion. The definition of “claim” of service, holding that it was open to the court to do so
in recital D of the settlement agreement included those by reason either of the court’s inherent jurisdiction, or
items listed in the Scott Schedule within the sum referred the operation of CPR Part 12, which provided generally
to in the recital, including the four disputed items. for judgment in default of acknowledgement of service.
The quantum of the claim had been proven to the
Obiter, fees to lawyers instructed to obtain security, admit satisfaction of the court.
liability, or agree English jurisdiction would be recoverable
as legal costs. Agency fees, P&I correspondent fees and In CSBP Ltd v BBC Chartering Carriers GmbH & Co KG,106
the costs of gathering contemporaneous surveys were a question arose before the Federal Court of Australia
much less obviously identifiable as costs. Such items of the interpretation of the Convention on the Service
were more frequently claimed as damages or expenses. Abroad of Judicial and Extrajudicial Documents in Civil
or Commercial Matters 1965, to which Australia is a
party. The plaintiff CSBP Ltd was the consignee named
in a bill of lading issued on behalf of the master of
Caspian Harmony on 24 May 2020. It sought damages
for breach of the contract of carriage. The bill of lading
named the defendant BBC Chartering Carriers GmbH &
Co KG (BBCC) as carrier and noted that 10,000 tonnes
of ammonium nitrate in 8,000 bags of 1,250 kg each
105
104
[2021] FCA 554.

had been loaded onboard the ship, freight prepaid. The A further case on the same convention arose in ANL
cargo was loaded in Puerto Angamos, Chile, for delivery Singapore Pte Ltd v Visy Paper Pty Ltd,107 again before
to Kwinana in Western Australia. The bill of lading was Rares J in the Federal Court of Australia. Here, the plaintiff
on the 1994 Congenbill form commonly used with the carrier sought permission to serve a claim out of the
Gencon 1994 uniform general charterparty. There was jurisdiction. The claim was for demurrage in respect of
no suggestion that CSBP was a party to the charterparty. containers supplied by the plaintiff loaded on board MS
At the discharge port, CSBP presented a copy of the bill Eagle at Port Botany in Sydney and discharged in Jakarta,
of lading. On the available evidence, discharge was Indonesia, under contracts of carriage under which the
marred by trouble with the ship’s cranes but eventually plaintiff was the carrier. The plaintiff sought to serve
completed using the cranes of another vessel. CSBP additional defendants in their home jurisdictions of the
sought permission to serve BBCC with the documents in Marshall Islands and Hong Kong SAR, in accordance
the proceedings in Germany. with the laws of the Marshall Islands and the Hague
Convention, respectively.
The judge gave CSBP leave to serve the documents
on BBCC in Germany in accordance with the Hague The judge granted leave to serve the claim out of the
Convention 1965. CSBP had a prima facie claim against jurisdiction. Although there were indications that there
BBCC under the contract constituted by the master’s was a plausible defence, there was a prima facie case that
acceptance of CSBP’s presentation of the bill of lading, the containers either had not been collected at Jakarta,
as the basis on which the ship discharged the cargo at the port of destination, or returned to ANL since their
CSBP’s direction. arrival there, so that the demurrage claimed was owed.
Both of the proposed defendants were persons within the

definition of “merchant” in the relevant waybill. If that
waybill were presented at the port of destination, the
In The Poseidon judgment was given in person on whose behalf that was done would assume
default of acknowledgement of service, contractual liabilities to ANL by that act.
holding that it was open to the court to Disclosure has been a theme before the Singapore courts
do so by reason either of the court’s over the years and arose again in Tecnomar & Associates
inherent jurisdiction, or the operation Pte Ltd v SBM Offshore NV,108 this time before the Court of
Appeal. The appellant at first instance109 and on appeal
of CPR Part 12 alleged breach of a contract that it had entered into with
the respondent to provide decontamination, cleaning and
preparation services for the vessel Yetagun FSO for “Green
Ship” recycling. The respondent’s case was that it had
There was also a prima facie case that the cranes on not concluded any such contract with the appellant and
Caspian Harmony were not in a condition in which they that the contract had instead been concluded between
could properly discharge the goods carried, amounting to the appellant and its subsidiary South East Shipping Co
an apparent breach of article 3(2) of the amended Hague Ltd (SES), the owner of Yetagun FSO. The appellant was
Rules. The evidence supported a prima facie inference a Singapore company in the business of marine and
that there was a substantial delay in completing offshore engineering consultancy. The respondent was
discharge caused by the state of the cranes; and that a Netherlands company providing systems and services
CSBP had incurred extra costs for the extended discharge to the offshore oil and gas industry and the holding
operations. company of the SBM Offshore group of companies. The
writ was served out of the jurisdiction but upon entering
The court had jurisdiction over a breach of contract in an appearance, the respondent applied to have the
Australia in relation to a contract governed by the law of service order discharged on the basis that there had
Australia. CSBP asserted that the bill of lading contained not been full and frank disclosure by the appellant in its
a clause paramount incorporating the legislation of application for the service order. The materials presented
the country of destination where no enactment of any by the appellant in support of its application for leave
version of the Hague Rules was in force in the country of
shipment, Chile. 107
[2021] FCA 439.
108
[2021] SGCA 36.
109
[2020] SGHC 249.

appeared to deliberately omit any mention of SES. The Two issues of principle arose. First, was the LOU offered
Assistant Registrar discharged the order, as did the High by the owners of Panamax Alexander “in a form
Court Judge upon appeal. The appellant appealed to the reasonably satisfactory” to the owners of Osios David,
Court of Appeal. notwithstanding that it contained a sanctions clause?
Secondly, if the LOU was in a reasonably satisfactory form,
The court dismissed the appeal. There had been material were the owners of Osios David contractually obliged by
non-disclosure by the appellant in its application for leave the collision jurisdiction agreement to accept it?
to serve out. The duty of full and frank disclosure required
a party to furnish information relevant to the opponent’s The judge held that the security offered was reasonably
case to permit the court to properly deliberate. This was satisfactory, but that the offeree was not obliged to
a clear case of deliberate and systematic non-disclosure, accept it. The words “reasonably satisfactory” in clause C
aimed at omitting any trace of SES. of the standard CJA terms implied an objective test.
The court declined to exercise any discretion as the

appellant fell some considerable way short of having
established a good arguable case that it had entered into
a contract with the respondent. Costs would be awarded On the evidence, when there was an
against the appellant on an indemnity basis. Iranian nexus, a P&I Club would typically
seek to introduce a sanctions clause in
deference to banks’ low risk tolerance
Letters of undertaking
and additional compliance requirements
A particular feature of the year was several cases clarifying
the law and procedure surrounding P&I Club letters of
undertaking issued to avert or reverse ship arrest.
On the evidence, when there was an Iranian nexus, a P&I
Club would typically seek to introduce a sanctions clause
The first arose from the Suez Canal – while Ever Given
in deference to banks’ low risk tolerance and additional
provided the most high-profile shipping drama of 2021,
compliance requirements.
there was also some Suez Canal-related drama in the
courts. In M/V Pacific Pearl Co Ltd v Osios David Shipping
The provision that the Club was not obliged to pay
Inc,110 an issue of some practical importance was settled,
not only when payment would be unlawful but also
namely what constituted a letter of undertaking in
when a bank in the chain was unwilling to pay was
“reasonably satisfactory form”.
consistent with the wider complexities when sanctions
were present. The absence or presence of the clause
On 15 July 2018 a collision had taken place in the Suez
did not guarantee against any trouble arising from the
Canal between the three vessels Panamax Alexander,
Iranian nexus. A LOU containing a sanctions clause
Sakizaya Kalon and Osios David. Collision jurisdiction
recognised an inevitable commercial reality and was
agreements (CJA) were signed on the terms of ASG 2,
not unreasonable for doing so.
requiring the parties to provide security in a “reasonably
satisfactory” form. In pursuit of security, the sister ship
A sanctions clause which on its terms did not terminate
Panamax Christina was arrested in South Africa. The
but merely suspended the Club’s liability did not for that
P&I Club of Panamax Alexander and Panamax Christina
reason lack the quality of being reasonably satisfactory.
offered security for her release, but as the destination of
Panamax Alexander was Iran, proffered the “sanctions Having thus provided important guidance on what
clause” as part of the letter of undertaking. It was not constitutes reasonably satisfactory security, the judge
suggested that discharging collision payments would went on to hold that clause C of the CJA nevertheless did
be in breach of sanctions simply because the cargo not oblige the offeree to accept reasonable security on
consignee happened to be an Iranian entity on the offer. It did not follow from the wording and it was not
sanctions list; instead the circumstance was described as necessary nor obvious that a term to that effect should
an “Iranian nexus”. be implied. Surrendering the right to arrest required
commensurate language.
110

In a second LOU-related case, Tecoil Shipping Ltd v On the evaluation of evidence, as against the shipowner,
Neptune EHF and Others (The Poseidon) (No 2),111 the the judgment in rem was conclusive evidence of the
question was of enforcement of the LOU, where the matters therein decided. It did not follow from The Conoco
issuing insurers had carefully avoided taking any part in Britannia113 and The Nordglimt114 that the shipowner was
the proceedings. The decision arose from the collision entitled to relitigate the issues.
in Hull between the vessels Tecoil Polaris and Poseidon,
while the former was at berth and the latter manoeuvring The judgment should not be set aside as a matter
towards berth. The claimant was the owner of Tecoil of discretion. The defendants had had the right and
Polaris and the defendants the owner and insurers of opportunity to participate but had taken care not to.
Poseidon. The owner of Poseidon had never disputed
liability and was now in liquidation. Judgment in default The judgment will cause parties to recalibrate the delicate
had been issued for the claimant on its in rem claim in calculation as to whether to participate in litigation or
Tecoil Shipping Ltd v The Owners of the Ship “Poseidon”.112 avoid doing so.
The insurers had issued a LOU, but had carefully avoided
taking any part in the in rem proceedings and had taken A third judgment involving LOUs concerned the
the position in negotiations that the LOU did not respond effectiveness of arbitration clauses in a LOU, and can
to an in rem judgment, causing the claimant to issue conveniently be summarised here. The judgment
a claim in personam against the owner of Poseidon to in Lavender Shipmanagement Inc v Ibrahima Sory
which it added the insurers. When default judgment was Affretement Trading SA and Others (The Majesty)115 was
issued, the defendants objected to a claim under the LOU issued at the end of 2020 but came to light only in 2021.
on the ground that insurers’ liability was not engaged for In a cargo claim, an arbitrator had been appointed
various reasons. referencing the arbitration clause in a LOU as well as
the bills of lading. The defendants appointed their
The defendants applied to set aside the default judgment. arbitrator under protest of jurisdiction, asserting that the
The claimant for its part applied for permission to plead relevant Club LOU contained no arbitration agreement.
the claim based on a demand on the LOU made following The tribunal had held that the terms of the LOU had
the default judgment; and for summary judgment against the effect of consolidating the separate bill of lading
the insurer that had issued the LOU. Some of the issues arbitrations into a single ad hoc arbitration and that time
had settled, but judgment was issued on the status and extensions agreed between the parties had operated to
effect of an in rem judgment. grant the cargo claimants an extension in respect of the
commencement of arbitration proceedings under the
The judge held first, that the defendants’ arguments did arbitration agreement in the LOU. The shipowners, who
not provide cause to revisit the Registrars’ decision that were the defendants in the arbitration, disagreed with
judgment in default was available in collision claims, these findings and sought the review of the court under
where no collision statement of case had been filed. sections 67 and 69 of the Arbitration Act 1996.
As no acknowledgement of service had been filed, the
application was governed by CPR 61.9, sub-rule (3)(b) The judge noted that the surveyors who had inspected the
which referred to the general rule on default judgments damaged cargo of rice and provided a report had made
in Part 12. their assessment in respect of the entire cargo of bagged
rice, without attributing rice or damage to the five bills of
Secondly, the proceedings that had led to the default lading involved in the claim. That factual background led
judgment were in rem proceedings, because they had to the conclusion that a business-like interpretation of
been brought against a res. The defendants’ observation the LOU must be that it was intended as an agreement to
that the default judgment did not decide the status of consolidate all of the claims. As for what terms to apply,
the res was neither here nor there, except insofar as they the relevant charterparty arbitration clause contained a
were right that the judgment was not binding on the reference to the Small Claims Procedure – that sentence
shipowner. However, the claimants were not seeking to was simply inapplicable in the circumstances of a claim
enforce the judgment in the in rem proceedings against exceeding that procedure, so that the tribunal had been
the shipowner, but had brought new proceedings in properly constituted.
personam.
113
[1972] 1 Lloyd’s Rep 342.
111
[1987] 2 Lloyd’s Rep 470.
112

For a further judgment involving letters of undertaking, Carnival’s termination with immediate effect had been
see also Enemalta plc v The Standard Club Asia Ltd (The Di valid under common law. Because of the terminations, AT
Matteo)116 below at page 39. See also for the agreement immediately before the sale of the vessels did not have
between P&I Clubs Happy Shipping Ltd (Owners of the M/V a valid in rem claim such as would transfer and attach to
“Happy Lucky”) v Marine Shipping Co Ltd (Owners of the the proceeds. The further point that AT had valid claims
M/V “Fesco Voyager”),117 noted above at page 31. against Carnival required evidence and was adjourned.
A question as to who was an eligible claimant arose in An issue also as to who was the right claimant, albeit
Taxidiotiki-Touristiki-Nautiliaki Ltd (trading as Aspida entirely different in nature, arose in Tregidga v Pasma
Travel) v The Owners and/or Demise Charterers of the Vessel Holdings Pty Ltd119 before the Federal Court of Australia.
“Columbus” and the Owners and/or Demise Charterers of The claimants were natural persons whose motor yacht
the Vessel “Vasco da Gama”,118 a cruise industry case in Miss Angel had on 8 June 2016 sustained extensive fire
the wake of Covid-19. The claimant Aspida Travel (AT) damage from a fire starting in the engine room. On
had claimed against the proceeds of sale of the vessels the day of the fire, T, an electrician employed by the
Columbus and Vasco da Gama in respect of travel agency defendant, had been undertaking work on board.
services for the transport of crew to and from the vessels,
seeking judgment in default. Other persons claiming The claimants sought damages alleging that the fire was
against the vessels, as well as the former vessel owners caused by the defendant’s breach of contract, breach of
statutory guarantee or T’s negligence. Questions arose
Carnival, objected to AT’s claims on the basis that they
first, as to the ownership of the vessel. The claimants
did not meet the requirements of section 21(4) of the
had intended to import Miss Angel to Australia through a
Senior Courts Act 1981 in that the persons liable to AT
company, A, set up by them for the purpose of operating
were the demise charterers of the two vessels at the time
a business with the vessel. For the sake of speed, the
the services were provided, and that those entities were
vessel was instead imported and registered as a private
no longer the demise charterers by the time the claims
leisure vessel in the names of the claimants.
were brought in November 2020; the charterparties
having been terminated in October 2020. Secondly, questions also arose as to the contractual
relationship between the parties. Before she could
The judge declined to give judgment in default on the
be employed in the business, works were needed to
claims. Carnival had held off from terminating the
achieve the Australian commercial survey standard,
charterparties for five weeks. Its assurances that the
including electrical works. The parties had made an oral
charterparties would remain on foot during the period agreement for the work and it was performed on 8 June
of arrest could not be taken to be open-ended and it 2016 and invoiced by the defendant a few days later to A.
could not be said that it had held inconsistent positions. The invoice was paid by the second claimant from her
personal bank account.
116
117
118
Lloyd’s Law Reports Bound Volume Series

Volume 2 2021
Available now – order your copy today
This new volume features analysis and verbatim text of the most noteworthy
court judgments to be handed down in the second six months of 2021.
customersuccess@lloydslistintelligence.com about.i-law.com
2021 BV vol 2 36x178.indd 1 26/01/2022 15:53:41

The judge dismissed the application. It had not been Rares J ordered that F be joined as second defendant
established on the balance of probabilities that Pasma to the proceedings and gave further orders pertaining
was liable for the damage caused by the fire. to the modalities of service of F. F’s cooperation was
required to enforce the judgment and service was
On the ownership issue, the claimants’ statement to therefore permissible under rule 9.05(1)(b)(i) of the
their insurer that ownership was to revert to A upon Federal Court Rules 2011 which permitted such joinder
arrival of Miss Angel in Australia was a statement as to even in the absence of a course of action against a
future intentions, not a contractually binding promise or person. F controlled the seller and was a person whose
a declaration of trust. The claimants, who remained the cooperation was required. Although the proceedings
registered and insured owners were also the legal and were commenced in rem, the seller had appeared in
equitable owners. personam. Service was to take place under the Hague
Convention and also by email, subject to what Hong
On the contractual issues, an objective assessment of all Kong law permitted in that regard.
the relevant surrounding circumstances provided that
the contract for the works had been made between the The relationship between insolvency and admiralty law is
defendant and A, not the claimants. The first claimant an old chestnut, a novel guise of which was addressed by
had been acting on behalf of A in making the contract. the High Court of Singapore in The “Ocean Winner” and
The claimants as owners of Miss Angel were beneficiaries Other Matters.123 Ocean Winner and three other vessels
of services to the vessel and therefore as consumers were under demise charters to Ocean Tankers (Pte) Ltd
entitled to benefit from the statutory guarantee in (OTPL) on 22 April 2020 when the plaintiff, PetroChina
section 60 of the Australian Consumer Law. International (Singapore) Pte Ltd (PCI), filed admiralty in
rem writs against them in respect of bill of lading claims.
However, addressing the duty of care of Pasma, the judge OTPL applied to set aside or strike out the writs on the
held that the scope of its duty of care in tort did not extend basis that there was a subsisting automatic moratorium
to a requirement that it take action to prevent Miss Angel under section 211B of the Companies Act (subsequently
sustaining injury or harm from the manifestation of a fire re-enacted as section 64 of the Insolvency, Restructuring
hazard risk arising from a defect in her electrical system. and Dissolution Act) in OTPL’s favour at the time. OTPL
On the evidence, the claimants had failed to establish had applied for moratorium relief on 17 April 2020,
that T had breached his duty of care when carrying out thereby triggering an automatic moratorium for 30 days.
the works on Miss Angel, and on the assumption that he
Section 211B required the permission of the court to file
had been negligent, that such negligence had been a
writs against a company under a moratorium, which
cause of the fire. No breach of the guarantee of due skill
PCI had not obtained, taking the position that leave of
and care under section 60 of the Australian Consumer
court was not required because the mere filing of the
Law had been established.
admiralty in rem writs was not prohibited by section
211B(8) of the Companies Act. The questions for
Costs in the case were dealt with by the decision Tregidga
determination were whether the filing of the writs were:
v Pasma Holdings Pty Ltd (No 2).120
(i) the commencement of proceedings against OTPL; or
From the right claimant to the right defendant with a (ii) an execution, distress or other legal process against
question of joinder of a third party involved with the ship in property of OTPL, in which case they fell under section
question. In TWW Yachts Sarl v The Yacht “Loretta” (No 3),121 211B(8)(c) and (d) respectively and leave was required.
the Federal Court of Australia considered the enforcement
The judge held that the filing of the writs did not come
of a judgment against the beneficial owner of a yacht.122
within the meaning of the statutory provisions and
Specific performance had been ordered for the buyer of
that no leave of the court was required to file them. On
the yacht Loretta. The seller appeared unwilling to comply
issue (i), while a liquidation moratorium was designed
with the orders. This was the buyer’s application to join F,
to prevent proceedings resulting in creditors stealing a
a person based in Hong Kong SAR who was the beneficial
march from other unsecured creditors, the purpose of
owner of the yacht and in control of the seller, as a party the moratorium under section 211B(8)(c) was to give
to the proceedings and to serve F in Hong Kong under the the company time to devise a restructuring plan without
Hague Convention 1965 and by email to various addresses. the distraction of proceedings. The mere filing of writs,
without serving them, created the statutory lien but did
120
[2021] FCA 1439.
121
122
See further under “Ship sale” above at page 20. 123
[2021] SGHC 8.

not invoke the jurisdiction of the admiralty court and within the class of persons entitled to limit their alleged
were not contrary to this purpose. OTPL’s submission that liability pursuant to the Limitation Convention 1976 and
the proceedings in rem were not in reality against the the Merchant Shipping Act 1995, section 185.
company also failed. On issue (ii), the steps in question
were not an “execution, distress or other legal process” The Court of Appeal allowed the appeal, stating by
against property under section 211B(8)(d). Although the way of guidance that the meaning of “operator” must
bareboat charters were capable of being property for the be considered at a higher level of abstraction than
purpose of the provision, “other legal process” must be mere physical operation. It must involve an element
interpreted narrowly to mean enforcement proceedings, of management or control, and must entail more than
excluding these writs which only created the statutory the mere operation of the machinery of the vessel or
lien over the vessels. providing personnel to operate that machinery. This
applied equally to unmanned vessels such as the barge.
The Limitation Convention was not intended to extend to
Limitation of liability third parties providing services to the vessel.
Limitation of liability saw a surprisingly vivacious year of

cases with new, sometimes peculiar issues decided.124
The Court of Appeal had its say on limitation in Splitt There is a possibility that the Court of
Chartering APS and Others v Saga Shipholding Norway
AS and Others (The Stema Barge II).125 The Limitation Appeal in deciding The Stema Barge II
Convention in its 1976 and 1996 versions provides bore in mind also the implications for
that a shipowner is entitled to limit liability for claims, autonomous vessels. A future issue will
article 1(2) defining shipowner as “the owner, charterer,
manager and operator of a seagoing ship”. While the
be what entities qualify as operators of
meaning of “shipowner” has some innate clarity and that such vessels
of “charterer” has been considered in cases such as CMA
CGM SA v Classica Shipping Co Ltd (The CMA Djakarta),126
the meaning of “manager” or “operator” has not received
much of an outing in courts. At first instance, Teare J had Stema A/S, which had undoubtedly been the operator up
held that Stema UK was entitled to limit its liability as until a certain point, remained the operator throughout.
“operator” of the barge.127 RTE appealed. Stema UK’s actions were for, on behalf of and supervised
by Splitt and Stema A/S. To the extent that any of its
The action concerned damage caused to an underwater actions amounted to operating the barge, they were
cable carrying electricity from France to England by the plainly by way of assistance to Stema A/S in its role as
barge Stema Barge II when it dragged its anchor during operator, not by way of becoming a second or alternative
a storm. The cable was owned by the appellant, RTE. operator or manager.
While it was accepted that the shipowner and charterer
were entitled to limit liability, RTE disputed the fourth The Court of Appeal did recognise that the expression
claimant’s Stema UK’s application for a declaration of “the operator” in the Convention did not imply that
non-liability. Stema UK was the receiver of cargo on board there could be no more than one operator; however it
the barge and had no formal role in its management or cautioned against readily finding that there had been
operation, but its personnel did operate the machinery of more than one operator.
the barge while off Dover and were involved in monitoring
the weather and in the decision to leave the barge at There is a possibility that the Court of Appeal in deciding
anchor during the storm. The present issue was whether this case, involving a barge, bore in mind also the
Stema UK qualified as an “operator” and was therefore implications for autonomous vessels. A future issue will
be what entities qualify as operators of such vessels:
shore-based controllers? Non-sailing crew on board
124
A further case on the rights of a harbour to limit liability is noted above under
“Ports” at page 26. See also under “Passengers” at page 22. operating machinery? This judgment should be capable
125
[2021] EWCA Civ 1880, [2022] Lloyd’s Rep Plus 10. of providing some guidance. While there may be more
126
[2004] EWCA Civ 114; [2004] 1 Lloyd’s Rep 460; approved by the Supreme
Court in Gard Marine & Energy Ltd v China National Chartering Co Ltd (The than one operator, relevant operation must involve some
Ocean Victory) [2017] UKSC 35; [2017] 1 Lloyd’s Rep 521 at paras 58 to 87. element of management or control.
127

Meanwhile, the issue of limitation of liability for wreck, to the claimant under a letter of undertaking subject to
pending in UK as the special fund for clearing wreck has English law and exclusive jurisdiction. Proceedings were
not been set up by the Secretary of State so that there is under way against the shipowners in Malta and would be
no right to limit, was decided for the purposes of the Hong subject to the 1996 Protocol of the Limitation Convention.
Kong SAR. In Perusahaan Perseroan (Persero) PT Pertamina Owners for their part had commenced proceedings in
v Trevaskis Ltd and Others (The Star Centurion),128 it was Singapore seeking to establish a limitation fund under
judicially determined that there is similarly no right to the 1976 Limitation Convention, seeking also an order for
limit liability for wreck removal claims. The litigation the release of any existing security. The LOU, which by its
arose from a collision between Star Centurion and Antea, terms was subject to the jurisdiction of the English court,
on or about 13 January 2019 in the South China Sea, was the only known such security.
which had sunk Star Centurion which was at anchor at
the time of the collision. The defendants were ordered The claimant sought declarations from the English court
by the Indonesian Ministry of Transportation to raise, concerning the status of the LOU. The matter now for
remove and render harmless the wreck. The plaintiff decision was the defendant’s challenge to the court’s
owners of Antea commenced an action before the Hong jurisdiction whereby it sought setting aside or stay in
Kong court to limit their liability, having accepted by way favour of the courts of Singapore, on the basis that the
of settlement 100 per cent of the liability for the collision. Singapore court had sole and exclusive jurisdiction to
Limitation decree was granted and a limitation fund make an order under article 13(2) of the Limitation
constituted. The wreck removal claims were expected Convention, which read in relevant part (with emphasis
to be greater than the limitation fund. The defendants added):
applied for a declaration that their claims against the
plaintiff owners of Antea were not subject to limitation “After a limitation fund has been constituted
under article 2 of the Limitation Convention. Hong Kong in accordance with Article 11, any ship or other
had made a reservation under the Convention for the property, belonging to a person on behalf of whom
application to wreck. the fund has been constituted, which has been
arrested or attached within the jurisdiction of a
The judge gave the declaration sought. The Merchant State Party for a claim which may be raised against
Shipping (Limitation of Shipowners Liability) Ordinance, the fund, or any security given, may be released by
Cap 434 provided that article 2(1)(d) of the Limitation order of the Court or other competent authority of
Convention was not to apply unless an order had been such State.”
made by the chief executive for the setting up and The judge did not decline jurisdiction, holding that as
management of a fund to be used for the making of a matter of English law it was better than seriously
payments to harbour or conservancy authorities to arguable that the LOU was not a security within the
compensate them for the reduction, in consequence jurisdiction of the Singapore court. It was not a vessel
of para 1(d) of article 2 of the Convention, of amounts or other property attached within the jurisdiction of any
recoverable by them in claims of the kind there mentioned. state party to the 1976 Convention, nor was the security
No such order had been made by the chief executive. given to obtain the release of a vessel or other property
attached within the jurisdiction of any state party to the
The judgment confirms the effect of the HKSAR reservation
1976 Convention. To the extent physical location was
against article 2(1)(d), limitation against wreck removal
relevant, the LOU was located in Malta, which was not a
claims, for the purpose of the SAR jurisdiction.
state party to the 1976 Convention.
A jurisdiction-related limitation issue arose in the English
The exclusive jurisdiction agreement governed all
court leg of international litigation, in Enemalta plc v
disputes between the parties concerning the LOU. The
The Standard Club Asia Ltd (The Di Matteo).129 According
question whether any order of the Singapore court had
to the claimant’s background facts, the vessel Di Matteo
the effect of releasing the defendant from its LOU would
had damaged the claimant’s high voltage connector
be a dispute to be determined in England according to
cable in international waters, causing a nationwide
English law. There was no principled reason why the court
blackout in Malta. The defendant, a Singapore company,
would not have jurisdiction to determine by declaration
was the vessel’s P&I insurer and had provided security
the present dispute as to the effect on the LOU of an
order by the Singapore court under article 13(2).
128
[2021] HKCFI 396; [2021] 2 Lloyd’s Rep 637.
129

The judgment aligns with the policy of English courts Ship sale
of adherence to the parties’ own exclusive choice of
jurisdiction. Although judicial ship sales are presumably no more
a rarity than otherwise in current times of great
The constituency of entities entitled to limit was considered uncertainty and with significant issues affecting the
in Owners and Underwriters of MV “MSC Susanna” and shipping industry in various ways, there was only a
Another v Transnet (Soc) Ltd and Another (The MSC very small number of reported decision in 2021, and
Susanna).130 The litigation arose from a collision between they were effectively the same case twice, namely
the appellants’ vessel MSC Susanna and the second Malayan Banking Berhad v Proceeds of the Sale of the
respondent’s vessel FNS Floréal in the port of Durban, Ship “Teras Bandicoot”133 and Malayan Banking Berhad
South Africa. During a storm, MSC Susanna had broken her v Proceeds of the Sale of the Ship “Lauren Hansen”,134
moorings and drifted into several other vessels, including McKerracher J in the Federal Court of Australia had to
FNS Floréal which was a French naval vessel controlled by decide various issues arising in relation to an application
the second respondent, the Ministère des Armées of the for default or summary judgment against the proceeds
French Republic. When action was commenced by the of sales ordered by decisions in 2020.135 The vessels Teras
first respondent against the appellants, they responded Bandicoot and Lauren Hansen had been arrested and
by applying to limit liability under the Merchant Shipping sold upon the application of an unrelated creditor and
Act 1951, section 261(1)(b) and by seeking to join the the court held the sale proceeds. The plaintiff bank held
Ministère des Armées to the limitation action. The Ministère ship mortgages over the vessels and sought default or
des Armées resisted the application, arguing that section summary judgment so that its claim could be included
3(6) of the same statute had the effect of excluding the in the determination of priorities. The defendant had not
right to limit as against foreign naval vessels such as FNS appeared. The bank claimed that the mortgages were
Floréal. Section 3(6) read: enforceable because events of default had occurred. It
sought full repayment of the outstanding sums secured
“The provisions of this Act shall not apply to ships by the mortgages, including interest.
belonging to the defence forces of the Republic or
of any other country.” The judge ordered that judgment be entered against
At first instance,131 the judge agreed with the second the defendant, with interest. The court had jurisdiction
respondent, but gave leave to appeal. The Supreme Court in respect of the ship mortgages under section 16 of
of Appeal allowed the appeal and joined the Ministère the Admiralty Act 1988 (Cth). But for the judicial sale, it
des Armées as a defendant in the action. was clear that the bank could have commenced in rem
proceedings against the vessels, so that the claim was
The court considered that linguistically, section 3(6) was properly pursued as an action in rem.
not apt to exclude the invocation of limitation by the
owners of MSC Susanna. While the Merchant Shipping Act There was no reasonable possibility of a defence being
was not concerned with naval vessels, the appellants’ raised against the claim. Although judgment in default
claim to limit liability was clearly a concern of merchant would be possible, summary rather than default
shipping or a matter incidental thereto. The owners of judgment was the appropriate mechanism here.
MSC Susanna were relying upon a right granted by section
261, which was a different proposition from whether naval
defence forces should be able to limit liability for claims
from merchant ships. Accordingly, the Supreme Court of
Appeal of South Africa distinguished Nisbet Shipping Co
Ltd v The Queen.132
133
134
135
Bhagwan Marine Pty Ltd v The Ship “Teras Bandicoot” [2020] FCA 1224; [2021]

130
[2021] ZASCA 135; [2022] Lloyd’s Rep Plus 41. Lloyd’s Rep Plus 52; Bhagwan Marine Pty Ltd v The Ship “Lauren Hansen”
131
Owners and Underwriters of MV “MSC Susanna” and Another v The National [2020] FCA 1225; [2021] Lloyd’s Rep Plus 53; and Bhagwan Marine Pty Ltd v
Ports Authority of South Africa, a division of Transnet (Soc) Ltd and Others The Ship “Teras Bandicoot” (No 2) [2020] FCA 1481; [2021] Lloyd’s Rep Plus
(The MSC Susanna) [2020] ZAKZPHC 51. 57. Noted in Hjalmarsson J, “Maritime law in 2020: a review of developments
132
[1955] 2 Lloyd’s Rep 173. in case law”, Informa.

Multiple proceedings the parties’ vessels in the Indonesian territorial sea.

The vessel had been released against a P&I letter of
Several procedural decisions concerned the right forum undertaking. The defendant had previously commenced
for proceedings, where the parties had different starting proceedings in Indonesia for the same collision, just
points on the matter. Several decisions have been noted within the two-year time bar. Following the arrest, the
above under “Passengers” at page 22. In addition, the plaintiff filed a counterclaim against the defendant in
following may be noted. the Indonesian proceedings. The defendant now sought
the setting aside of the arrest and striking out of the
In The Navios Koyo,136 the Singapore Court of Appeal proceedings. It asserted that the plaintiff must elect
provided some important guidance on its approach to either the Indonesian forum or the Singapore forum,
imposing conditions to accompany a stay. The appellant to which the plaintiff retorted that there was no need
had financed the purchase of a cargo of pine logs for as the counterclaim in the Indonesian proceedings had
the buyer of the cargo and now claimed against the been withdrawn. The defendant further asserted that the
respondent carrier under bills of lading in the Congenbill time bar in Indonesia was two years, not 30 as posited
1994 form, which incorporated a charterparty and its by the plaintiff, and that on the facts of Indonesian law,
arbitration clause. Discharge from the vessel Taikoo the claim must be struck out as having been commenced
Brilliance was completed by 23 September 2019, allegedly too late. Finally, it argued that the plaintiff ought to have
without presentation of the bills of lading and without disclosed the potential time-bar defence when applying
the knowledge of the appellant. for the warrant of arrest, along with its true intention
of obtaining security answerable to the Indonesian
Having initially elected to pursue the buyer of the counterclaim; and the fact that its expert opinion was not
cargo, on 18 August 2020, the appellant commenced by an independent expert.
an admiralty action against the respondent carrier
before the Singapore court and went on to secure the
arrest of the sistership Navios Koyo. Following provision
of security and release of the vessel, the appellant
did not discontinue the admiralty actions in favour of In The Navios Koyo, the
arbitration. The respondent sought and obtained an
unconditional stay in favour of arbitration under section
Singapore Court of Appeal provided
6 of the International Arbitration Act.137 The appellant some important guidance on its
now appealed seeking instead a stay order conditional approach to imposing conditions
upon waiver of the time bar. An arbitration had been to accompany a stay
commenced on 22 December 2020, in which a time-bar
defence had been raised by the respondent.
The Court of Appeal declined to exercise its discretion

to impose the condition sought. The court would not The assistant registrar set aside the warrant of arrest but
insulate the appellant from the consequences of its own dismissed the prayer for striking out, making no order on
actions by imposing a condition carving out an accrued, the matter of forum election. The plaintiff’s conduct in
substantive defence. The time-bar defence was a matter pursuing the same cause in two separate proceedings
to be dealt with in the arbitration itself. The significant was prima facie vexatious, but that vexatious conduct had
quantum of the claim was irrelevant in determining ceased by the time the application fell to be considered as a
whether a condition ought to be imposed and suggestions result of the withdrawal of the counterclaim in Indonesia.
to that effect in existing case law should not be followed. The plaintiff had thereby made an affirmative election
and it was unnecessary to make any order. Before the
In The Big Fish,138 the High Court of Singapore addressed Singapore court, the time bar under Indonesian law was
thorny questions of procedure. The plaintiff had arrested a question of fact. The plaintiff’s position, while perhaps
the defendant’s vessel Big Fish in Singapore for loss tenuous, was not plainly unsustainable or inherently
and damage arising out of a vessel collision between unprovable, and the issue should not be decided at this
stage in proceedings.
136
[2021] SGCA 99; [2022] Lloyd’s Rep Plus 44. However, there had been material non-disclosure by
137
That decision is reported at The Navios Koyo [2021] SGHC 131.
138
[2021] SGHCR 7; [2022] Lloyd’s Rep Plus 45. the plaintiff in support of the arrest application such as

to justify the setting aside of the warrant of arrest. The The judge held that the claimant had established that
plaintiff was aware of the special collision time bar under the charterparty clause was incorporated into the
Indonesian law and it was, if applicable, of such weight as bill of lading and that SQO was in breach thereof by
to deliver a “knock-out-blow” to the claim. The plaintiff’s commencing proceedings in Vietnam. The wording of the
arrest application had led the assistant registrar to arbitration clause was sufficiently wide, not only based
believe that the applicable time bar was 30 years. on The Delos140 but in particular with reference to Fiona
Trust & Holding Corporation v Privalov,141 to encompass
In ZHD v SQO,139 the claimant ZHD sought an anti-suit breaches beyond the narrow bill of lading liabilities. The
injunction. ZHD was the carrier and the defendant SQO claims had been made promptly, not least in the sense
was the notify party under a bill of lading issued in that the Vietnamese proceedings had not progressed
respect of a cargo of corn loaded on board the claimant’s very far. There were no strong reasons against granting
vessel Precious Sky. Issues having been identified with the anti-suit injunction. Notably, the expiry of the time
the cargo by surveyors at the discharge port, the vessel bar was of SQO’s own doing.
was arrested and subsequently released by Vietnamese
courts. SQO proceeded before the Vietnamese courts, ZHD
objecting to jurisdiction on the basis that the bill of lading Forum non conveniens
incorporated the arbitration clause from a sub-charter.
A complication was the risk that the Vietnamese court The test in Spiliada Maritime Corporation v Cansulex Ltd142
required a notarised original of the sub-charter, which continues to be applied and developed with two cases to
the carrier could not supply, not being a party thereto. be noted here from the Singapore and Hong Kong SAR
The carrier was also concerned that the Vietnamese courts respectively. In Sinopec International (Singapore)
court might proceed with the jurisdiction challenge and Pte Ltd v Bank of Communications Co Ltd,143 the underlying
the merits at the same time, forcing it to defend so as issue in the litigation was the plaintiff’s presentation
not to lose its rights. The carrier therefore proceeded under letters of credit issued by the defendant bank. This
with London arbitration, seeking an anti-suit injunction in
respect of the Vietnamese proceedings. 140
[2001] 1 Lloyd’s Rep 703.
141
[2007] UKHL 40; [2008] 1 Lloyd’s Rep 254.
142
[1987] 1 Lloyd’s Rep 1.
139
[2021] SGHC 245.
Powering
Shipping
Maritime & Commercial on
i-law.com is the leader in
maritime law research
about.i-law.com
Marcomm 210 x 112 2021 update.indd 1 26/01/2022 16:54:07

was the defendant’s application to stay proceedings on To succeed in its fraud defence, the defendant must prove
grounds that it had not been properly served and also the existence of the alleged prior sale contracts regarding
that a more appropriate forum was available and that the cargo. On the evidence, some relevant third-party
proceedings were in progress elsewhere. witnesses located in China could not be compelled to
testify before the Singapore court, which was a factor in
The plaintiff had presented documents to a collecting the consideration of stage 1 of the Spiliada test. However,
bank in Hong Kong but these had been rejected by that evidence could alternatively be obtained through
the defendant through its Hong Kong branch due to discovery. It had not been shown that witnesses said
“suspected bill of lading fraud”. It appeared that the to possibly be in Hong Kong SAR or Japan were in fact
plaintiff’s buyer had become concerned about its own located in those jurisdictions.
buyer’s ability to pay for the cargo, that the cargo had
been discharged without presentation of the bills of Finally, the judge noted that the competing civil
lading (but against letters of indemnity) and that the proceedings in China were for a negative declaration and
buyer had filed a police report in Shanghai alleging had been commenced well after the present proceedings,
fraud. The defendant bank’s position, which the plaintiff apparently for strategic reasons to bolster the case that it
disputed, was that the entire sale transaction was a was a more appropriate forum. They should be given no
sham to obtain payment by other means than from the weight in the forum non conveniens analysis.
ultimate buyer in financial difficulties.
In Pusan Newport Co Ltd v Owners and/or Demise
The judge held, declining to stay proceedings, that the Charterers of the Ships or Vessels “Milano Bridge” and
claim had been properly served on the defendant and “CMA CGM Musca” and “CMA CGM Hydra”,145 the plaintiff
that it had not been shown that any other court was a was the South Korean operator of a commercial maritime
distinctly more appropriate forum than Singapore. terminal at the port of Busan and had no business
operations outside South Korea. The defendants were
The defendant’s Tokyo and Singapore branches were the owners of the vessel Milano Bridge. The plaintiff
part of the same legal entity and although it was the sought damages for damage to cranes and business
Tokyo branch that had issued the letters of credit, interruption arising out of an allision involving contact
service upon the Singapore branch was effective to between the vessel, some of the plaintiff’s cranes and
found jurisdiction. Noting Taurus Petroleum Ltd v State another vessel. The sister ship CMA CGM Musca had been
Oil Marketing Company of the Ministry of Oil, Republic of arrested in Hong Kong SAR in respect of the claim but the
Iraq144 wherein the UK Supreme Court recognised that dispute was otherwise unrelated to Hong Kong. There
the effect of article 3 of the UCP 600 was that branches were several sets of litigation in progress, including a
of the same bank were to be treated as separate for the limitation fund set up in South Korea, and an accident
purpose of determining the situs of the debt, the judge investigation as well as litigation materially identical
nevertheless went on to conclude that article 3 could to the present proceedings in Japan. The defendants
not alter the rules of service of process. applied for the action to be stayed on the grounds of
forum non conveniens or lis alibi pendens.
In terms of connecting factors for the purpose of the first
limb of the Spiliada test, the governing law of the letter of The judge stayed the proceedings. Most connecting
credit was determined at the time the contract was made. factors pointed to South Korea. The most that could be
For a freely negotiable credit, the governing law must be said for Hong Kong was that the court was available
that of the place where the parties had contemplated and jurisdiction had been founded by service on the
that documents would be presented, which given that the sister ship. The burden of proving that there was another
plaintiff was a Singapore business must be taken to be clearly or distinctly more appropriate forum rested on the
Singapore. In any event, the general similarity between defendant. This was not a matter of a standard of proof,
Hong Kong SAR and Singapore law meant that the but of a holistic determination. On the liability issue,
governing law was a factor of limited weight. several important witnesses were based in South Korea
and most of the documentation was in Korean, making
Regarding availability of third-party witnesses, the South Korea the clearly and distinctly more appropriate
approach of Singapore courts was that compellability was forum. On the issue of quantum, key witnesses including
in issue, unless there was evidence of unwillingness of a the plaintiff’s CEO and loss adjusters and surveyor were
witness to testify in Singapore.
144
[2017] UKSC 64; [2018] 1 Lloyd’s Rep 29. 145
[2021] HKCFI 1283.

based in South Korea. Korean law governed the plaintiff’s continued with the arrest after having received information
action in tort. South Korea was clearly and distinctly the of this fact. At that stage, the Admiralty Marshal indicated
more appropriate forum. that there were outstanding port charges, which the
claimants characterised as effectively a claim by the
defendants for a contribution to port charges.
The Admiralty Registrar held that having commenced a

claim, arrested the vessel and thereafter discontinued
In The Milano Bridge, CGM Musca and the claim, the claimants were the unsuccessful party in
CMA CGM Hydra there was more than a the litigation and were not entitled to recover any of their
whiff of strategy about the plaintiff’s costs. The first defendant was entitled to all of its costs
associated with the claim until the claim was discontinued.
choice of the Hong Kong jurisdiction, Insofar as there was “a port costs issue” that was a matter
causing the judge to point out that the which should have been resolved between the claimants
court frowned upon forum shopping and the Admiralty Marshal.
In Owners of “Ken Breeze” v Owners of “Pacific Grace” and

Others,148 the question arose of how to allocate the costs of
a trial which by agreement had been stayed in one forum
As for the plaintiff’s loss of the juridical advantage of in favour of another. The two ships Ken Breeze and Pacific
the higher tonnage limitation in Hong Kong in the event Grace had on 6 November 2020 collided in PRC territorial
of a stay, it was not so conclusive that a stay should be waters. The owners of Ken Breeze had issued a collision
refused where the connections to Hong Kong were weak. action in rem against the owners of Pacific Grace before
The judge distinguished Bright Shipping Ltd v Changhong the Hong Kong SAR court. Cargo interests with damaged
Group (HK) Ltd (The CF Crystal and The Sanchi).146 cargo on board the Ken Breeze also commenced an action
in rem against Pacific Grace and the defendants issued
There was more than a whiff of strategy about the bail bonds to all of the plaintiffs.
plaintiff’s choice of the Hong Kong jurisdiction, causing
the judge to point out that the court frowned upon forum The parties subsequently agreed to stay the Hong Kong
shopping. proceedings in favour of the Haikou Maritime Court,
agreeing adequate security for those proceedings, but
only after extended negotiations culminating in the
Costs defendant’s offer on 12 August 2021 being accepted by
plaintiffs.
A small number of significant costs decisions from
shipping-related proceedings will be noted next. In The issue arose of costs in the Hong Kong proceedings.
Monjasa Ltd and Another v The Vessel “Astoria” and The defendants considering that they were the successful
Another,147 the vessel Astoria had been arrested and party and should have their costs. The plaintiffs retorted
subsequently released following which the claimants that the defendants had been dilatory in coming up with
applied for permission to discontinue the claim. The suitable replacement security to enable a stay.
claimants accepted that they had a liability for costs
arising from the arrest of the vessel, but there was a The judge noted that costs followed the event and held
dispute as to which of the parties should be liable for the that where the defendant’s application for a stay had been
further costs incurred before the claim was discontinued successful, they should have their costs. If the plaintiffs
largely arising out of “the port charges issue”. complained that the defendants had failed to come
up with an acceptable offer until 12 August 2021, the
The claimants were bunker suppliers claiming for same criticism could be levied against the plaintiffs. This
bunkers supplied under section 20(2)(m) of the Senior was particularly so where the ship plaintiff, in resisting
Courts Act 1981. Before the claim was commenced, the the stay application, had failed to address the issue of
defendant bareboat charterer had already terminated the whether Hong Kong was the natural and appropriate
charterparty and redelivered the vessel. The claimants forum for the action.
146
[2018] HKCFI 2474; [2019] 1 Lloyd’s Rep 437.
147
[2021] HKCFI 2832; [2022] Lloyd’s Rep Plus 50.

THE VIEW FORWARD
The UK Supreme Court on 11 November 2021 granted

permission to appeal in the shipbuilding contract case
Shanghai Shipyard Co Ltd v Reignwood International
Investment (Group) Co Ltd,149 examined above at page 17.
The Supreme Court is here in a position to provide
authoritative guidance on what factors are to be given
weight in the interpretation of shipbuilding guarantees,
and perhaps also other contracts.
This correspondent is very much looking forward to the

appeal in the silver bars case, Argentum Exploration Ltd
v The Silver and all Persons Claiming to be Interested in
and/or to Have Rights in Respect of, the Silver, being
the Government of the Republic of South Africa (The SS
Tilawa),150 reported in the 2020 edition of this Review.151 An
appeal in the case is scheduled for hearing by the Court
of Appeal in mid-March 2022. This was a decision by Sir
Nigel Teare and the case raises interesting issues of state
immunity and salvage.
There appears to be an application for permission to appeal

pending in M/V Pacific Pearl Co Ltd v Osios David Shipping
Inc,152 the letter of undertaking case noted above at
page 34. The case considers the issue of what constitutes
a letter of undertaking in “reasonably satisfactory” form –
a limited issue that is of tremendous importance to the
industry. The case is listed as “awaiting bundles”.
An appeal is also pending in SK Shipping Europe Ltd v

Capital Crude Chartering Inc and Others, from an order
issued on 5 February 2021. The hearing is tentatively
scheduled for 8 or 9 February 2022.
149
150
[2020] EWHC 3434 (Admlty); [2021] 2 Lloyd’s Rep 1. Source for appeal data:
https://casetracker.justice.gov.uk/ (accessed on 24 January 2022).
151
Hjalmarsson J, “Maritime law in 2020: a review of developments in case
law”, available on www.i-law.com at www.i-law.com/ilaw/doc/view.
htm?id=417041
152

i-law.com
Maritime intelligence |
Our Maritime & Commercial

subscription package for lawyers
The Maritime & Commercial package on i-law.com is the premium digital collection of publications for shipping and
commercial lawyers. We help our customers meet the demands of their clients anywhere in the world with our
combination of intuitive technology and user-friendly functionality. Our customers rely on i-law to provide them with the
answers they need at the right time to be able to make business-critical decisions, minimise risk and win more cases.
Frequenc
High y
ly Interact with the definitive
r
Bi
ea
maritime & commercial law database

-w
ey
ee
Twic
kly
u Get access to all the key maritime & commercial judgments in one place
i-law.com
Maritime intelligence |
u Fully searchable and mobile-friendly content
Mon
ally
u Save time trawling through irrelevant information

nu
th
An
ly
u Selection of user tools, including alerts

Quarterly
Key: Online Email
Bi-weekly Annually
Lloyd’s Maritime Law Newsletter Maritime law: a review of developments in case law
Lloyd’s Maritime Law Newsletter compiles succinct summaries of recent Edited by Dr Johanna Hjalmarsson this annual review summarises
court decisions from around the world. In addition, it provides and explains some of the most important legal developments in
commentary of selected London arbitration awards through an maritime law from the previous year. The latest edition of this
exclusive agreement with the London Maritime Arbitrators Association. significant review is now available on i-law.com.
LMLN also now includes commentaries and text of arbitral decisions
from Singapore, through an agreement with the Singapore Chamber of
Twice yearly
Maritime Arbitration.
The Ratification of Maritime Conventions
Lloyd’s Law Reports Check which maritime conventions apply to your vessels in this
Over 18,000 law reports dating back to 1919 from the respected comprehensive reference resource that details all international
commercial courts of England and Wales. Our online service provides the conventions and ratifying states.
deepest, and most structured case law database of maritime and
commercial decisions in the world. We now routinely include accelerated
publication of decisions from the appellate courts and increased coverage
High frequency (typically weekly
of first instance decisions and influential decisions from other jurisdictions. when courts are in session)
Lloyd’s Law Reports Plus
Monthly To complement Lloyd’s Law Reports, the Plus series provides exclusive
access to verbatim court judgments and detailed headnotes months
Lloyd’s Shipping and Trade Law
before they are available in print. It also offers specially selected
Lloyd’s Shipping and Trade Law gives you more than just the news, it
online-only law reports.
dissects cases and advises of their significance so you are kept
informed of the factors affecting the rights and liabilities of the Lloyd’s Law Reporter
shipping and trade communities. Weekly court reporting service of important new judgments. The Law
Reporter service is available online and for email delivery, and
Maritime Risk International
includes “early headnotes” on the decisions handed down.
Detailed coverage of legal, technical and insurance issues facing the
shipping industry. MRI keeps you informed of the implications of key
court decisions as well as providing in-depth analysis and expert
advice on topical issues such as loss prevention, carriage of goods,
salvage, ship security, pollution and maritime law.
Quarterly
Our
Our annual
annual subscription
subscription service
service includes
includes the
the full
Lloyd’s Maritime and Commercial Law Quarterly
Stay abreast of maritime and commercial law developments with our
full range of periodical publications listed
range of periodical publications listed above, and is
comprehensive quarterly scholarly journal. LMCLQ is edited by above, and is complemented
complemented by a digitised
by a digitised selection of leading
distinguished expert Professor F D Rose.
maritime and commercial book and
selection of leading maritime commercial
titles.
book titles (see listing on the next page).
Quarterly Find out more about our best-value
Chinese Maritime and Commercial Law Reports Find out more
subscription about
packages, our
or to best-value
supplement your
We’ve been providing legal professionals with maritime and subscription
collection packages,
with print or to us:
editions contact
commercial research support for decades. Now you can get full
judgment translations of the most noteworthy decisions in Chinese supplement your collection with
EMEA office: +44 (0)20 3377 3996;
shipping and commercial law from us. Selection and translation is
carried out by distinguished maritime law experts, Editors-in-chief
print
APAC editions
office: see:USA office: +1 212 600 3460
+65 6508 2430;
Professor Si Yuzhuo, and Philip Peng. customersuccess@lloydslistintelligence.com
Please note that Chinese Maritime & Commercial Law Reports is only available by about.i-law.com
about.i-law.com clientservices@i-law.com
separate subscription, and is NOT included in the package collection. +44 20 7017 7565 (EMEA) or +65 6508 2428 (APAC)
APPENDIX: JUDGMENTS ANALYSED AND CONSIDERED IN THIS REVIEW
2021 judgments analysed

A v B (The Tai Hunter) (QBD (Comm Ct)) [2021] EWHC 793 (Comm); Fesco Voyager, The (QBD (Comm Ct)) [2021] EWHC 2641 (Comm);
[2021] Lloyd’s Rep Plus 114 [2022] Lloyd’s Rep Plus 38
AAI Ltd, trading as Vero Insurance v Technology Swiss Pty Ltd Financial Conduct Authority v Arch Insurance (UK) Ltd (SC) [2021]
(FCAFC) [2021] FCAFC 168; [2022] Lloyd’s Rep IR Plus 5 UKSC 1; [2021] Lloyd’s Rep IR 63
ABN AMRO Bank NV v Royal & Sun Alliance Insurance plc and Others Galtrade Ltd v BP Oil International Ltd (The Pioneer) (QBD (Comm
(QBD (Comm Ct)) [2021] EWHC 442 (Comm); [2021] Lloyd’s Ct)) [2021] EWHC 1796 (Comm); [2021] Lloyd’s Rep Plus 117
Rep IR Plus 22; [2021] Lloyd’s Rep IR 467; (CA) [2021] EWCA Happy Lucky, The (QBD (Comm Ct)) [2021] EWHC 2641 (Comm);
Civ 1789; [2022] Lloyd’s Rep IR Plus 2 [2022] Lloyd’s Rep Plus 38
AI Giorgis Oil Trading Ltd v AG Shipping & Energy Pte Ltd (The Happy Shipping Ltd (Owners of the M/V “Happy Lucky”) v Marine
Marquessa) (QBD (Comm Ct)) [2021] EWHC 2319 (Comm); Shipping Co Ltd (Owners of the M/V “Fesco Voyager”) (QBD
[2022] Lloyd’s Rep Plus 7 (Comm Ct)) [2021] EWHC 2641 (Comm); [2022] Lloyd’s Rep
Alexandra 1, The (SC) [2021] UKSC 6; [2021] 1 Lloyd’s Rep 299 Plus 38
Alize 1954 and Another v Allianz Elementar Versicherungs AG and Herculito Maritime Ltd and Others v Gunvor International BV and
Others (The CMA CGM Libra) (SC) [2021] UKSC 51; [2021] 2 Others (The Polar) (CA) [2021] EWCA Civ 1828; [2022] Lloyd’s
Lloyd’s Rep 613 Rep Plus 9
Alpha Marine Corporation v Minmetals Logistics Zhejiang Co Ltd (The Holyhead Marina Ltd v Farrer and All Other Persons Claiming or
Smart) (QBD (Comm Ct)) [2021] EWHC 1157 (Comm); [2022] Being Entitled To Claim Damages In Connection With Storm
1 Lloyd’s Rep 1 “Emma” Striking Holyhead Marina on 1 and 2 March 2018 (CA)
ANL Singapore Pte Ltd v Visy Paper Pty Ltd (FCA) [2021] FCA 439 [2021] EWCA Civ 1585; [2022] Lloyd’s Rep Plus 29
Arklow Shipping Unlimited Co and Others v Drogheda Port Co DAC JDA Co Ltd and Others v AIG Insurance New Zealand Ltd and Others
(The Arklow Valour) (IEHC) [2021] IEHC 601; [2022] Lloyd’s (NZHC) [2021] NZHC 2912; [2022] Lloyd’s Rep Plus 30
Rep Plus 28 K Line Pte Ltd v Priminds Shipping (HK) Co Ltd (The Eternal Bliss) (CA)
Arklow Valour, The (IEHC) [2021] IEHC 601; [2022] Lloyd’s Rep Plus 28 [2021] EWCA Civ 1712; [2022] 1 Lloyd’s Rep 12
Astoria, The (Admlty Ct)) [2021] EWHC 134 (Admlty); [2022] Lloyd’s Karpik v Carnival plc (The Ruby Princess) (FCA) [2021] FCA 1082;
Rep Plus 49 [2022] Lloyd’s Rep Plus 11
Begum (on Behalf of Mollah) v Maran (UK) Ltd (CA) [2021] EWCA Civ Ken Breeze, The (HKCFI) [2021] HKCFI 2832; [2022] Lloyd’s Rep
326; [2021] 2 Lloyd’s Rep 505 Plus 50
Big Fish, The (SGHC) [2021] SGHCR 7; [2022] Lloyd’s Rep Plus 45 Knight v Black and Others (BCSC) 2021 BCSC 19; [2021] 2 Lloyd’s
Black Sea Commodities Ltd v Lemarc Agromond Pte Ltd (QBD (Comm Rep 410
Ct)) [2021] EWHC 287 (Comm); [2022] Lloyd’s Rep Plus 19 Lauren Hansen, The (FCA) [2021] FCA 286; [2022] Lloyd’s Rep Plus 43
BP Oil International Ltd v Vega Petroleum Ltd and Another (QBD Lavender Shipmanagement Inc v Ibrahima Sory Affretement
(Comm Ct)) [2021] EWHC 1364 (Comm); [2021] Lloyd’s Rep Trading SA and Others (The Majesty) (QBD (Comm Ct)) [2020]
Plus 118 EWHC 3462 (Comm); [2021] 2 Lloyd’s Rep 23
Caraka Jaya Niaga III-11, The (SGHC) [2021] SGHC 43; [2021] 2 Loretta, The (No 1) (FCA) [2021] FCA 240; [2022] Lloyd’s Rep Plus 21
Lloyd’s Rep 549 Loretta, The (No 2) (FCA) [2021] FCA 241; [2022] Lloyd’s Rep Plus 22
CMA CGM Hydra, The (HKCFI) [2021] HKCFI 1283 Loretta, The (No 3) (FCA) [2021] FCA 498; [2022] Lloyd’s Rep Plus 23
CMA CGM Libra, The (SC) [2021] UKSC 51; [2021] 2 Lloyd’s Rep 613 Luna, The, and Another Appeal (SGCA) [2021] SGCA 84; [2021]
CMA CGM Musca, The (HKCFI) [2021] HKCFI 1283 Lloyd’s Rep Plus 120
Columbus, The (QBD (Admlty Ct)) [2021] EWHC 113 (Admlty); M/V Pacific Pearl Co Ltd v Osios David Shipping Inc (QBD (Comm Ct))
[2021] 1 Lloyd’s Rep 440 [2021] EWHC 2808 (Comm); [2022] Lloyd’s Rep Plus 12
Columbus, The (QBD (Admlty Ct)) [2021] EWHC 310 (Admlty); Majesty, The (QBD (Comm Ct)) [2020] EWHC 3462 (Comm); [2021]
[2021] Lloyd’s Rep Plus 67 2 Lloyd’s Rep 23
CSBP Ltd v BBC Chartering Carriers GmbH & Co KG (FCA) [2021] FCA 554 Malayan Banking Berhad v Proceeds of the Sale of the Ship “Lauren
CV Stealth, The (No 4) (QBD (Comm Ct)) [2021] EWHC 2288 (Comm); Hansen” (FCA) [2021] FCA 286; [2022] Lloyd’s Rep Plus 43
[2022] Lloyd’s Rep Plus 6 Malayan Banking Berhad v Proceeds of the Sale of the Ship “Teras
Di Matteo, The (QBD (Comm Ct)) [2021] EWHC 1215 (Comm); [2022] Bandicoot” (FCA) [2021] FCA 285; [2022] Lloyd’s Rep Plus 42
Lloyd’s Rep Plus 40 Maria, The (QBD (Comm Ct)) [2021] EWHC 2565 (Comm); [2021]
Eastern Pacific Chartering Inc v Pola Maritime Ltd (The Pola Devora) Lloyd’s Rep Plus 104
(QBD (Comm Ct)) [2021] EWHC 1707 (Comm); [2022] Lloyd’s Marquessa, The (QBD (Comm Ct)) [2021] EWHC 2319 (Comm);
Rep Plus 14 [2022] Lloyd’s Rep Plus 7
Enemalta plc v The Standard Club Asia Ltd (The Di Matteo) (QBD Milano Bridge, The(HKCFI) [2021] HKCFI 1283
(Comm Ct)) [2021] EWHC 1215 (Comm); [2022] Lloyd’s Rep Monjasa Ltd and Another v The Vessel “Astoria” and Another (Admlty
Plus 40 Ct)) [2021] EWHC 134 (Admlty); [2022] Lloyd’s Rep Plus 49
Eternal Bliss, The (CA) [2021] EWCA Civ 1712; [2022] 1 Lloyd’s Rep 12 Mookda Naree, The (QBD (Comm Ct)) [2021] EWHC 558 (Comm);
Euronav NV v Repsol Trading SA (The Maria) (QBD (Comm Ct)) [2021] [2022] 1 Lloyd’s Rep 41
EWHC 2565 (Comm); [2021] Lloyd’s Rep Plus 104 MSC Susanna, The (SA SC) [2021] ZASCA 135; [2022] Lloyd’s Rep
Ever Smart, The (SC) [2021] UKSC 6; [2021] 1 Lloyd’s Rep 299 Plus 41
Falcon Trident Shipping Ltd v Levant Shipping Ltd (QBD (Comm Ct)) Nautical Challenge Ltd v Evergreen Marine (UK) Ltd (The Alexandra 1
[2021] EWHC 2204 (Comm); [2022] Lloyd’s Rep Plus 36 and Ever Smart) (SC) [2021] UKSC 6; [2021] 1 Lloyd’s Rep 299

Navig8 Ametrine, The (QBD (Comm Ct)) [2021] EWHC 3132 (Comm); Salt Ship Design AS v Prysmian Powerlink Srl (QBD (Comm Ct)) [2021]
[2022] Lloyd’s Rep Plus 16 EWHC 2633 (Comm); [2022] Lloyd’s Rep Plus 20
Navig8 Chemicals Pool Inc v Aeturnum Energy International Pte Ltd Septo Trading Inc v Tintrade Ltd (The Nounou) (CA) [2021] EWCA Civ
(The Navig8 Ametrine) (QBD (Comm Ct)) [2021] EWHC 3132 718; [2021] 2 Lloyd’s Rep 591
(Comm); [2022] Lloyd’s Rep Plus 16 Shanghai Shipyard Co Ltd v Reignwood International Investment
Navios Koyo, The (SGCA) [2021] SGCA 99; [2022] Lloyd’s Rep Plus 44 (Group) Co Ltd (CA) [2021] EWCA Civ 1147; [2022] Lloyd’s Rep
Navision Shipping A/S v Precious Pearls Ltd; Conti Lines Shipping NV Plus 1
v Navision Shipping A/S (The Mookda Naree) (QBD (Comm Ct)) Sinopec International (Singapore) Pte Ltd v Bank of Communications
[2021] EWHC 558 (Comm); [2022] 1 Lloyd’s Rep 41 Co Ltd (SGHC) [2021] SGHC 245
New Hydra, The (QBD (Comm Ct)) [2021] EWHC 566 (Comm); [2021] Smart, The (QBD (Comm Ct)) [2021] EWHC 1157 (Comm); [2022] 1
2 Lloyd’s Rep 580 Lloyd’s Rep 1
Noble Chartering Inc v Priminds Shipping Hong Kong Co Ltd (The Tai Sompo Insurance Singapore Pte Ltd v Royal & Sun Alliance
Prize) (CA) [2021] EWCA Civ 87; [2021] 2 Lloyd’s Rep 36 Insurance plc (SGHC) [2021] SGHC 152; [2021] Lloyd’s Rep
Nord Naphtha Ltd v New Stream Trading AG (CA) [2021] EWCA Civ IR Plus 31
1829; [2022] Lloyd’s Rep Plus 18 Space Shipping Ltd v ST Shipping and Transport Pte Ltd (The CV
Nounou, The (CA) [2021] EWCA Civ 718; [2021] 2 Lloyd’s Rep 591 Stealth) (No 4) (QBD (Comm Ct)) [2021] EWHC 2288 (Comm);
Ocean Winner, The, and Other Matters (SGHC) [2021] SGHC 8 [2022] Lloyd’s Rep Plus 6
Owners and Underwriters of MV “MSC Susanna” and Another v Splitt Chartering APS and Others v Saga Shipholding Norway AS
Transnet (Soc) Ltd and Another (The MSC Susanna) (SA SC) and Others (The Stema Barge II) (CA) [2021] EWCA Civ 1880;
[2021] ZASCA 135; [2022] Lloyd’s Rep Plus 41 [2022] Lloyd’s Rep Plus 10
Owners of “Ken Breeze” v Owners of “Pacific Grace” and Others Star Centurion, The (HKCFI) [2021] HKCFI 396; [2021] 2 Lloyd’s
(HKCFI) [2021] HKCFI 2832; [2022] Lloyd’s Rep Plus 50 Rep 637
P&O Princess Cruises International Ltd v The Demise Charterers of Star Quest, The, and Others (SGHC) [2016] SGHC 100; [2017] Lloyd’s
the Vessel “Columbus”; P&O Princess Cruises International Ltd Rep Plus 50
v The Owners and/or Demise Charterers of the Vessel “Vasco Stema Barge II, The (CA) [2021] EWCA Civ 1880; [2022] Lloyd’s Rep
da Gama”; and in the Matter of the Claim for Port Dues by Port Plus 10
of Tilbury London Ltd (QBD (Admlty Ct)) [2021] EWHC 113 Susanna, The (SA SC) [2021] ZASCA 135; [2022] Lloyd’s Rep Plus 41
(Admlty); [2021] 1 Lloyd’s Rep 440 Tai Hunter, The (QBD (Comm Ct)) [2021] EWHC 793 (Comm); [2021]
Pacific Grace, The (HKCFI) [2021] HKCFI 2832; [2022] Lloyd’s Rep Lloyd’s Rep Plus 114
Plus 50 Tai Prize, The (CA) [2021] EWCA Civ 87; [2021] 2 Lloyd’s Rep 36
Pacific Pearl Co Ltd, M/V v Osios David Shipping Inc (QBD (Comm Ct)) Tangent, The (QBD (Comm Ct)) [2021] EWHC 1025 (Comm); [2022]
[2021] EWHC 2808 (Comm); [2022] Lloyd’s Rep Plus 12 Lloyd’s Rep Plus 32
Perfect Best Asset Management Inc v ADL Express Ltd and Another Taxidiotiki-Touristiki-Nautiliaki Ltd (trading as Aspida Travel) v The
(HKCFI) [2021] HKCFI 2310; [2022] Lloyd’s Rep Plus 15 Owners and/or Demise Charterers of the Vessel “Columbus”
Perusahaan Perseroan (Persero) PT Pertamina v Trevaskis Ltd and and the Owners and/or Demise Charterers of the Vessel “Vasco
Others (The Star Centurion) (HKCFI) [2021] HKCFI 396; [2021] da Gama” (QBD (Admlty Ct)) [2021] EWHC 310 (Admlty);
2 Lloyd’s Rep 637 [2021] Lloyd’s Rep Plus 67
Pioneer, The (QBD (Comm Ct)) [2021] EWHC 1796 (Comm); [2021] Technology Swiss Pty Ltd v AAI Ltd, trading as Vero Insurance (FCA)
Lloyd’s Rep Plus 117 [2021] FCA 95; [2021] Lloyd’s Rep IR 377
Pola Devora, The (QBD (Comm Ct)) [2021] EWHC 1707 (Comm); Tecnomar & Associates Pte Ltd v SBM Offshore NV (SGCA) [2021]
[2022] Lloyd’s Rep Plus 14 SGCA 36
Polar, The (CA) [2021] EWCA Civ 1828; [2022] Lloyd’s Rep Plus 9 Tecoil Shipping Ltd v Neptune EHF and Others (The Poseidon) (No 2)
Poseidon, The (No 2) (QBD (Admlty Ct)) [2021] EWHC 1582 (Admlty); (QBD (Admlty Ct)) [2021] EWHC 1582 (Admlty); [2021] 2
[2021] 2 Lloyd’s Rep 429 Lloyd’s Rep 429
Poseidon, The (QBD (Admlty Ct)) [2020] EWHC 393 (Admlty); [2021] Tecoil Shipping Ltd v The Owners of the Ship “Poseidon” (QBD
2 Lloyd’s Rep 421 (Admlty Ct)) [2020] EWHC 393 (Admlty); [2021] 2 Lloyd’s
Pusan Newport Co Ltd v Owners and/or Demise Charterers of the Rep 421
Ships or Vessels “Milano Bridge” and “CMA CGM Musca” and Tenacity Marine Inc v NOC Swiss LLC and Another (QBD (Comm Ct))
“CMA CGM Hydra” (HKCFI) [2021] HKCFI 1283 [2020] EWHC 2820 (Comm)
Readie Construction Ltd v Geo Quarries Ltd (QBD) [2021] EWHC Teras Bandicoot, The (FCA) [2021] FCA 285; [2022] Lloyd’s Rep
3030 (QB); [2022] Lloyd’s Rep Plus 3 Plus 42
Regal Seas Maritime SA v Oldendorff Carriers GmbH & Co KG (The Tregidga v Pasma Holdings Pty Ltd (FCA) [2021] FCA 721; [2022]
New Hydra) (QBD (Comm Ct)) [2021] EWHC 566 (Comm); Lloyd’s Rep Plus 13
[2021] 2 Lloyd’s Rep 580 Tregidga v Pasma Holdings Pty Ltd (No 2) (FCA) [2021] FCA 1439
River Countess BV and Others v MSC Cruise Management (UK) TWW Yachts Sarl v The Yacht “Loretta” (No 1) (FCA) [2021] FCA 240;
Ltd (QBD (Admlty Ct)) [2021] EWHC 2652 (Admlty); [2022] [2022] Lloyd’s Rep Plus 21
Lloyd’s Rep Plus 33 TWW Yachts Sarl v The Yacht “Loretta” (No 2) (FCA) [2021] FCA 241;
Robertson and Another v Bembridge Harbour Improvements Co Ltd [2022] Lloyd’s Rep Plus 22
(The Tangent) (QBD (Comm Ct)) [2021] EWHC 1025 (Comm); TWW Yachts Sarl v The Yacht “Loretta” (No 3) (FCA) [2021] FCA 498;
[2022] Lloyd’s Rep Plus 32 [2022] Lloyd’s Rep Plus 23
Royal Caribbean Cruises Ltd and Another v Reed and Another (FCA) Vasco da Gama, The (QBD (Admlty Ct)) [2021] EWHC 113 (Admlty);
[2021] FCA 51; [2022] Lloyd’s Rep Plus 25 [2021] 1 Lloyd’s Rep 440
Royal Caribbean Cruises Ltd and Another v Reed and Another (No 3) Vasco da Gama, The (QBD (Admlty Ct)) [2021] EWHC 310 (Admlty);
(FCA) [2021] FCA 225; [2022] Lloyd’s Rep Plus 26 [2021] Lloyd’s Rep Plus 67
Royal Caribbean Cruises Ltd v Browitt (FCA) [2021] FCA 653; [2022] Warner v Scapa Flow Charters (No 2) (CSOH) [2021] CSOH 92; [2022]
Lloyd’s Rep Plus 31 Lloyd’s Rep Plus 24
Ruby Princess, The (FCA) [2021] FCA 1082; [2022] Lloyd’s Rep ZHD v SQO (QBD (Comm Ct)) [2021] EWHC 1262 (Comm); [2022]
Plus 11 Lloyd’s Rep Plus 46

Judgments considered
Aktieselskabet Reidar v Arcos Ltd (CA) (1926) 25 Ll L Rep 513 Mitsubishi Corporation RTM International Pte Ltd v Kyen Resources
Alexandra 1, The (QBD (Admlty Ct)) [2017] EWHC 453 (Admlty); Pte Ltd (SGHC) [2019] SGHCR 6
[2017] 1 Lloyd’s Rep 666; (CA) [2018] EWCA Civ 2173; [2019] MSC Susanna, The [2020] ZAKZPHC 51
1 Lloyd’s Rep 130 Nautical Challenge Ltd v Evergreen Marine (UK) Ltd (The Alexandra
Alize 1954 and Another v Allianz Elementar Versicherungs AG and 1 and Ever Smart) (QBD (Admlty Ct)) [2017] EWHC 453
Others (The CMA CGM Libra) (QBD (Admlty Ct)) [2019] EWHC (Admlty); [2017] 1 Lloyd’s Rep 666; (CA) [2018] EWCA Civ
481 (Admlty); [2019] 1 Lloyd’s Rep 595; (CA) [2020] EWCA Civ 2173; [2019] 1 Lloyd’s Rep 130
293; [2020] 2 Lloyd’s Rep 565. Navios Koyo, The (SGHC) [2021] SGHC 131
Argentum Exploration Ltd v The Silver and all Persons Claiming to be Nisbet Shipping Co Ltd v The Queen (PC) [1955] 2 Lloyd’s Rep 173
Interested in and/or to Have Rights in Respect of, the Silver, Nordglimt, The (QBD (Admlty Ct)) [1987] 2 Lloyd’s Rep 470
being the Government of the Republic of South Africa (The Nounou, The (QBD (Comm Ct)) [2020] EWHC 1795 (Comm); [2021]
SS Tilawa) (QBD (Admlty Ct)) [2020] EWHC 3434 (Admlty); 1 Lloyd’s Rep 258
[2021] 2 Lloyd’s Rep 1 Ocean Victory, The (SC) [2017] UKSC 35; [2017] 1 Lloyd’s Rep 521
Begum (on Behalf of Mollah) v Maran (UK) Ltd (QBD) [2020] EWHC Owners and Underwriters of MV “MSC Susanna” and Another v The
1846 (QB); [2021] Lloyd’s Rep Plus 32 National Ports Authority of South Africa, a division of Transnet
Bhagwan Marine Pty Ltd v The Ship “Lauren Hansen” (FCA) [2020] (Soc) Ltd and Others (The MSC Susanna) [2020] ZAKZPHC 51
FCA 1225; [2021] Lloyd’s Rep Plus 53 Polar, The (QBD (Comm Ct)) [2020] EWHC 3318; [2021] 1 Lloyd’s
Bhagwan Marine Pty Ltd v The Ship “Teras Bandicoot” (FCA) [2020] Rep 150
FCA 1224; [2021] Lloyd’s Rep Plus 52 Priminds Shipping Hong Kong Co Ltd v Noble Chartering Inc (The Tai
Bhagwan Marine Pty Ltd v The Ship “Teras Bandicoot” (No 2) (FCA) Prize) (QBD (Comm Ct)) [2020] EWHC 127 (Comm); [2020] 2
[2020] FCA 1481; [2021] Lloyd’s Rep Plus 57 Lloyd’s Rep 333
Bonde, The (QBD (Comm Ct)) [1991] 1 Lloyd’s Rep 136 Richco International Ltd v Alfred C Toepfer International GmbH (The
Bright Shipping Ltd v Changhong Group (HK) Ltd (The CF Crystal and The Bonde) (QBD (Comm Ct)) [1991] 1 Lloyd’s Rep 136
Sanchi) (HKCFI) [2018] HKCFI 2474; [2019] 1 Lloyd’s Rep 437 Rookes v Barnard and Others (HL) [1964] 1 Lloyd’s Rep 28
Caterpillar (NI) Ltd (formerly known as F G Wilson (Engineering) Ltd) Sanchi, The (HKCFI) [2018] HKCFI 2474; [2019] 1 Lloyd’s Rep 437
v John Holt & Co (Liverpool) Ltd (CA) [2013] EWCA Civ 1232; Septo Trading Inc v Tintrade Ltd (The Nounou) (QBD (Comm Ct))
[2014] 1 Lloyd’s Rep 180 [2020] EWHC 1795 (Comm); [2021] 1 Lloyd’s Rep 258
CF Crystal, The (HKCFI) [2018] HKCFI 2474; [2019] 1 Lloyd’s Rep 437 Shanghai Shipyard Co Ltd v Reignwood International Investment
Cheong Yuk Fai v China International Freight Forwarders (HK) Co Ltd (Group) Co Ltd (QBD (Comm Ct)) [2020] EWHC 803 (Comm);
(HKCA) [2005] 4 HKLRD 544 [2021] 2 Lloyd’s Rep 51
CMA CGM Libra, The (QBD (Admlty Ct)) [2019] EWHC 481 (Admlty); Space Shipping Ltd v ST Shipping and Transport Pte Ltd (The CV
[2019] 1 Lloyd’s Rep 595; (CA) [2020] EWCA Civ 293; [2020] Stealth) (No 4) (QBD (Comm Ct)) [2017] EWHC 2808 (Comm);
2 Lloyd’s Rep 565 [2018] 1 Lloyd’s Rep 276
CMA CGM SA v Classica Shipping Co Ltd (The CMA Djakarta) (CA) Spiliada Maritime Corporation v Cansulex Ltd (HL) [1987] 1 Lloyd’s
[2004] EWCA Civ 114; [2004] 1 Lloyd’s Rep 460 Rep 1
CMA Djakarta, The (CA) [2004] EWCA Civ 114; [2004] 1 Lloyd’s Rep 460 Splitt Chartering APS and Others v Saga Shipholding Norway AS and
Conoco Britannia, The (QBD (Admlty Ct)) [1972] 1 Lloyd’s Rep 342 Others (The Stema Barge II) (QBD (Admlty Ct)) [2020] EWHC
CV Stealth, The (No 4) (QBD (Comm Ct)) [2017] EWHC 2808 (Comm); 1294 (Admlty); [2021] 2 Lloyd’s Rep 307
[2018] 1 Lloyd’s Rep 276 Star Quest, The, and Others (SGHC) [2016] SGHC 100; [2017] Lloyd’s
Delos, The (QBD (Comm Ct)) [2001] 1 Lloyd’s Rep 703 Rep Plus 50
Donoghue v Stevenson (HL) [1932] AC 562 Stema Barge II, The (QBD (Admlty Ct)) [2020] EWHC 1294 (Admlty);
Eternal Bliss, The (QBD (Comm Ct)) [2020] EWHC 2373 (Comm); [2021] 2 Lloyd’s Rep 307
[2020] 2 Lloyd’s Rep 419 Susanna, The [2020] ZAKZPHC 51
Ever Smart, The (QBD (Admlty Ct)) [2017] EWHC 453 (Admlty); Tai Prize, The (QBD (Comm Ct)) [2020] EWHC 127 (Comm); [2020] 2
[2017] 1 Lloyd’s Rep 666; (CA) [2018] EWCA Civ 2173; [2019] Lloyd’s Rep 333
1 Lloyd’s Rep 130 Taurus Petroleum Ltd v State Oil Marketing Company of the Ministry of
Evia, The (No 2) (HL) [1982] 2 Lloyd’s Rep 307 Oil, Republic of Iraq (SC) [2017] UKSC 64; [2018] 1 Lloyd’s Rep 29
Fiona Trust & Holding Corporation v Privalov (HL) [2007] UKHL 40; Tecnomar & Associates Pte Ltd v SBM Offshore NV (SGHC) [2020]
[2008] 1 Lloyd’s Rep 254 SGHC 249
Gard Marine & Energy Ltd v China National Chartering Co Ltd (The Teras Bandicoot, The (FCA) [2020] FCA 1224; [2021] Lloyd’s Rep
Ocean Victory) (SC) [2017] UKSC 35; [2017] 1 Lloyd’s Rep 521 Plus 52
Herculito Maritime Ltd and Others v Gunvor International BV and Teras Bandicoot, The (No 2) (FCA) [2020] FCA 1481; [2021] Lloyd’s
Others (The Polar) (QBD (Comm Ct)) [2020] EWHC 3318; Rep Plus 57
[2021] 1 Lloyd’s Rep 150 SS Tilawa, The (QBD (Admlty Ct)) [2020] EWHC 3434 (Admlty);
Holyhead Marina Ltd v Farrer and Others (QBD (Admlty Ct)) [2020] [2021] 2 Lloyd’s Rep 1
EWHC 1750 (Admlty); [2021] 2 Lloyd’s Rep 221 Torepo, The (QBD (Admlty Ct)) [2002] EWHC 1481 (Admlty); [2002]
K Line Pte Ltd v Priminds Shipping (HK) Co Ltd (The Eternal Bliss) 2 Lloyd’s Rep 535
(QBD (Comm Ct)) [2020] EWHC 2373 (Comm); [2020] 2 Totsa Total Oil Trading SA v Bharat Petroleum Corporation (QBD
Lloyd’s Rep 419 (Comm Ct)) [2005] EWHC 1641 (Comm)
Khedive, The (HL) (1882) 7 App Cas 795 Totsa Total Oil Trading SA v New Stream Trading AG (QBD (Comm
Kodros Shipping Corporation v Empresa Cubana de Fletes (The Evia) Ct)) [2020] EWHC 855 (Comm)
(No 2) (HL) [1982] 2 Lloyd’s Rep 307 Warner v Scapa Flow Charters (SC) [2018] UKSC 52; [2019] 1 Lloyd’s
Lauren Hansen, The (FCA) [2020] FCA 1225; [2021] Lloyd’s Rep Plus 53 Rep 529
MIOM 1 Ltd v Sea Echo ENE (No 2) (QBD (Admlty Ct)) [2011] EWHC Wood v Capita Insurance Services Ltd (SC) [2017] UKSC 24; [2018]
2715 (Admlty); [2012] 1 Lloyd’s Rep 140 Lloyd’s Rep Plus 13

Achieve more with Maritime
& Commercial on i-law.com
i-law.com is your essential online legal companion, combining
user-friendly functionality with our quality maritime law content.
Our extensive shipping law library, including Lloyd’s Law Reports
dating back to 1919, provides the information you need at the
right time, anywhere in the world.
Discover the power of i-law.com

today at about.i-law.com

2021 Mar Law Review

Uploaded by

Copyright:

Available Formats

2021 Mar Law Review

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

2021 Mar Law Review

Uploaded by

Copyright:

Available Formats

Maritime law in 2021:

Bills of lading – Charterparties – Contracts – Collision – Insurance –

Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com i

Johanna has been at the University of Southampton since

ii Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com

Maritime law in 2021: a review of

Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com 1

CONTRACTS pertained to the attributes and equipment on the one

The issue was whether defects in the vessel’s passage

2 Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com

Drawing a line between articles III and IV of the Hague Charterparties

The Court of Appeal allowed the appeal. In the absence

Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com 3

4 Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com

Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com 5

6 Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com

in civil and commercial matters.

Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com 7

Taking a common-sense approach, the tort claim might

Lloyd’s Law Reports Bound Volumes

2021 BV vol 2 83x210.indd 1 26/01/2022 15:42:22

8 Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com

Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com 9

More than one set of bills of lading properly issued

Referring to Cheong Yuk Fai v China International Freight Forwarders (HK) Co

10 Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com

The arbitrator had held that the shipper as the voyage

Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com 11

Letters of indemnity self-explanatory and the defendant had acted in breach

At previous stages of litigation, interim orders had

The judge held that delivery having been affected in

12 Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com

Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com 13

14 Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com

Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com 15

16 Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com

following the month in which the relevant invoice is Ship building

The Court of Appeal declined to apply a negative

International Pte Ltd v Kyen Resources Pte Ltd [2019] SGHCR 6. 58

Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com 17

i-law-MRI-ad-210x71-strip 2021 update.indd 1 26/01/2022 16:44:47

18 Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com

In all, it may be observed that the contract terms used

However, the only reasonable and proper conclusion

Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com 19

Yacht Brokers Association). 64

20 Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com

Ship breaking resulting in the shipyard causing injury to the claimant;

First, the duty of care alleged did not sit comfortably

Secondly, on the alternative argument, it was arguable

Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com 21

PASSENGERS the vicinity of a handrail which he was not using, there

22 Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com

The contract of carriage was said by the applicants to have

Informa UK Ltd 2022. Enquiries: customersuccess@lloydslistintelligence.com 23

Lloyd’s Shipping & Trade Law

Decarbonisation and December 2021

1. Decarbonisation and shipping

implementation of the Convention”.7 Dr Meixian Song

Referring to Cheong Yuk Fai v China International Freight Forwarders (HK) Co