Owners appealed a Chinese court’s judgment holding them liable for cargo (heat) damage under a B/L, but then settled with cargo interests and sought an indemnity under the ICA. Dismissing Charterers’ arguments, the Tribunal held that even though the damage arguably arose post-discharge, the allegation related to carriage, making it a qualifying “Cargo Claim”; it was not improperly settled and thus met the threshold. However, the damage could not be attributed to loading or handling so 8(d) rather than 8(b) applied, resulting in a 50/50 apportionment, which was not displaced by any “act or neglect”.

When US sanctions applied to Charterers, Owners invoked the force majeure clause of the COA. Charterers started arbitration and the Tribunal found that Owners’ refusal to accept payment in € instead of $ was a failure to exercise “reasonable endeavours” specified for reliance on the force majeure clause. The Court overruled the Tribunal, finding that the “drastic impact of sanctions” would not be limited to the payment aspect but involve further “penalties” for continuing to perform a contract with a sanctioned party. Those problems would not have been overcome by payment in €, so the “reasonable endeavours” provision did not oblige Owners to accept non-contractual performance and Owners were not precluded from reliance on the clause.

Owners made pre-contractual speed/consumption representations, which were included in the t/c warranties, save as for the statement “above…is based on..last 3 voys”. In addition to deducting for over-consumption, Charterers alleged misrepresentation, then fixed the Vessel for a considerable voyage (UK-Malaysia) before purporting to rescind/ terminate the t/c. The CA, upholding the decision below, held there was no misrepresentation; statements of past performance were not representations of future performance, nor had they induced the contract. Further, despite Charterers reserving their rights, ordering the Vessel on that long voyage had affirmed the contract.

An amended NYPE provided for holds to be ready to the satisfaction of Charterers’ nominated surveyor, failing which off-hire from failure to passing. The parties agreed, by email, to a “pre-inspection” before the official “final inspection…alongside”. Following holds’ failure at the pre-inspection, Charterers claimed off-hire. The Tribunal found that (i) “pre-inspection” here meant the parties considered it a ‘trial run’ to protect them from any impact of the official inspection (ii) there was a representation in the emails that the CP off-hire regime would be unaffected by the pre-inspection. Therefore, the Vessel was off hire only from failure at the official inspection.

X supplied Owners with bunkers which had been purchased from its subsidiary Y under a sale contract. Y in turn had bought those bunkers from the Supplier who, fearing Y’s failure to pay, obtained payment from Owners directly. Owners subsequently resisted X’s claim for payment of the price and pleaded “failure of consideration” as the sale contract between X and Y limited consumption to X’s own vessel prior to payment. The Tribunal found that the remittance to the Supplier did not release Owners from their payment obligation to X nor did they have any right to set-off. Owners’ defence of failure of consideration also failed as the definition of “Buyer” in the sale contract included the “vessel supplied”, thus Owners had acquired the right to use the bunkers.

Overturning the decisions of the courts below, the SC held the crossing rule (vessel with the other on her starboard side gives way) was applicable to the Alexandra I while approaching channel/awaiting pilot and sent the matter back to the High Court for collision damage to be re-apportioned. It found that Alexandra I had failed to give way. However, the consequences of the failure were avoidable had it not been for the Ever Smart’s own “gross” fault of having no lookout, despite warning by pilot, and breach of the narrow channel rule. Damage was apportioned 70:30 in favour of Alexandra I.