| Archives: September 2015

Award 1225 – 2nd degree – Liner agency agreement – Delivery of container s agains t let ter s of guarantee without production of B/L – Legal framework of Carrier/Agent contractual relationship – Time bar application – Agent’s liability. Against the Carrier’s instructions, three containes shipped separately were delivered to the Receiver against simple letters of indemnity contrarily to Carrier’s instructions. The goods were not been paid for and, the Shipper having lodged a claim against the Carrier, the latter indemnified him and turned against the Agent and its parent company to recover his loss. The Agent argued the claim was time-barred by virtue of the limitation of one year to be applied to a port agent contract while the Carrier maintained it was a liner agency contract with a five year time bar. On account of the principle of autonomy of legal entities, the arbitrators dismissed the claim against the Agent’s parent company which was not party to the agency contract and declared themselves not competent to settle a claim against it. Then, they considered the orders concerning the delivery of the containers related to the duties of a port agent, for which a time-bar of one year applied according to art. L5413-5 of the French “Code des Transports”. The Carrier’s claims against his Agent were put forward after more than one year and had to be considered as time-barred except in case of interruption of the time-bar. Therefore, an exchange of e-mails between the Carrier and his Agent was construed by the arbitrators as an acknowledgement by the Agent of his liability at a time when a claim for the third shipment was not yet timebarred. Consequently the arbitral tribunal decided that the Agent should indemnify the Carrier for the thi rd shipment only and that arbitration costs should be equally shared.

Award 1226 – Shipbuilding contract for a catamaran for service in offshore windfarms – Construction delayed – Instalment not paid – Exi s tence of cont ract (yes ) – Customer’s breach (yes) – Damages (no). The delay in building a catamaran destined for service in offshore windfarms was caused by a need for feedback of experience from a first catamaran delivered by the same shipyard but this had not been subject to a written agreement. The defendant customer did not pay the third instalment because the metallic hull was not finished but did not repudiate the contract despite the permissible delays stipulated in it were exceeded long since. The shipyard having given evidence of the completion of the hull and this fact having been admitted by the defendant, the arbitral Tribunal judged that the parties were still bound by the contract and that the defendant should pay the outstanding instalment. However, by virtue of the same contractual terms, the hull remained the property of the shipyard. The Tribunal rejected the shipyard’s claim for damages concerning operating expenses and decided to share equally the arbitration costs.