| Archives: November 2013

Award 1212 – C/P Synacomex 90 – Demurrage – Dispute on notice of readiness – Inaccessibility and unavailability of loading berth – Force majeure (yes). A few hours before the vessel’s arrival on waiting anchorage at a river mouth and while the loading berth was occupied, another vessel ran aground in the channel thus impeding the access to seagoing vessels. The ship owner disputed the charterer’s demurrage account with regard to the beginning of laytime and his declaration of force majeure. With respect to the beginning of laytime, the Arbitral Tribunal validated the notice of readiness, albeit tendered before the date of commencement of laydays in the C/P, since it had been accepted by the charterer’s agent, thereby allowing the vessel to join the waiting queue. It also judged that the unusual nature of the blocking and its exceptional duration did indeed constitute a force majeure case entailing the suspension of laytime, limited, however, to the delays suffered by the charterer at loading berth, and decided that the charterer should pay some extra demurrage.

Award 1210 – (second degree) – Partnership agreement between an individual producing broker and a marine insurance brokerage company in order to develop a portfolio jointly – Cancellations of policies managed by the broker – Competence of CAMP (yes) – Client misappropriation (yes). Following the transfer of shares of the insurance brokerage company to another company, the policies managed by the broker were cancelled and then replaced by him for his own account. The first degree arbitration found by default the broker for client misappropriation but he requested a second degree examination without pleading on the merits but only on CAMP incompetency and an adjournment awaiting the decision of the Tribunal of Commerce in respect of invalidity of the transfer of shares of the brokerage company. The arbitrators decided their own competence in view of the arbitration clause of the agreement and the fact that the CAMP referral preceded the Tribunal de Commerce one. On the merits, an expert’s report had shown grave client misappropriation detrimental to the partner company. The arbitrators found against the second degree claimant, absent during proceedings, who was sentenced to indemnify the company holding its rights from the original partner for the loss suffered, to pay costs by virtue of Article 700 of the Civil Procedure Code and to bear the full expenses of the arbitration.

Award 1214 – Cargo insurance – Sugar cargo – Defaulting buyer – Extended storage – “All risks except…” policy – Appraisement of loss suffered by seller. Following a buyer’s failure to pay, goods were stored in sheds in an African port. After lengthy legal actions, the seller was able to recover and resell the goods which, in the meantime, had become impaired and depreciated. The cargo insurers declined to indemnify the seller on the grounds that the origin of the damage occurred before the policy was concluded. The arbitral Tribunal considered that, even if the rule of good faith is of the essence in matters of insurance, it was not proved that the assured tried to conceal the situation he had to face. It decided that, the proof of the loss being ascertained, the guarantee “all risks except…” should cover all risks which were not of commercial or financial nature, therefore, the depreciation was the loss capable of being compensated, but not the storage costs, the origin of which was a commercial dispute.