| Archives: October 2012

Award 1201 – C/P Gencon – English law – Carriage of lychees to be refrigerated – London Reefer Clause – Cargo damage – Subrogated insurers – Vessel’s liability – Damage assessment. Within a few days after vessel’s departure, it appeared that maximum duration of cooling down prescribed by the C/P would be exceeded, inducing the Charterers to request the appointment of a surveyor by the local Tribunal of commerce before her arrival. The surveyor, having ascertained large quantities of fungal growth in the cargo, recommended a quick sale after sorting. The subrogated insurers demanded to be indemnified on a market price basis for the losses by the Disponent Owner. Having dismissed numerous exceptions raised by the defendant regarding the applicability of the arbitration clause, the competence of the Arbitral Tribunal and the admissibility of the claim, the arbitrators considered that typewritten clauses giving precise instructions on the cooling down procedure to be followed on board prevailed over the printed clause 2 and the London Reefer Clause which, being mentioned without its wording in the C/P, obviously had not been discussed during the C/P negotiations. They decided that, because the cargo damage was more extensive in the compartments where the refrigeration had been the slowest, the causal link between the length of time taken to cool down the cargo and the damage was ascertained. They assessed the losses on the basis of the amount put forward by the insurers but subtracted a proportion of the

damage due to the ageing of the lychees after a given date and related sorting expenses.