Award 1256 : Synacomex 90 – Wheat in bulk – Missing goods – The charterer’s right to bring action for breach of contract against the ship owner on the grounds of a voyage charter – Area of uncertainty regarding the draft surveys and apportionment between the parties – Loss in transit.
A dispute arose between the shipowner and the charterer of a vessel concerning the apportionment of the observed missing goods (in a cargo of wheat) by the consignees on arrival of the vessel (in Guinea). After ascertaining its jurisdiction, the arbitral tribunal confirms the charterer’s right to bring action for breach of contract against the shipowner on the grounds of the voyage charter, while recognizing its legitimate interest in bringing action as, after having tried for several weeks to resolve the problem and reach a settlement with the shipowner, it had finally decided to pay the consignee compensation in order to bring to an end to its obstructive actions (repeated seizures) that caused it a heavy loss.
The tribunal also finds that no provision of the charter party rules out the applicability of the loss in transit exception, which is therefore enforceable both on the holder of the bill of lading and on the charterer, on the understanding that for the tribunal, even though the loss in transit is deemed a case of exception, it rather constitutes a presumption of lack of loss with reservations, it being understood that the loss is still within limits fixed by common practice (here, 1% of the total volume of the cargo).
Lastly, as regards the missing goods and the shipowner’s liability, the tribunal considers that in a voyage charter the principle is that the shipowner is liable for loss and damage, but without there being any presumption of responsibility. And the arbitrators consider two factors
when faced with the difficulty of explaining the missing goods. The arbitrators therefore ruled that if the loss in transit clearly exonerates the shipowner, there is no reason to make either party bear the full risks linked to the inaccuracy of the draft surveys. In these circumstances, the Tribunal decided that an amount equivalent to 0.7% of the total cargo weight was to be borne by each party -for the margin of uncertainty of the draft surveys-, that the balance of the claim – representing approximately 1% of the total cargo weight as the loss in transit – was to be borne by the charterer and to apportion.
the arbitration costs equally between the parties.
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