| Archives: April 2016

Award 1228 – Time-charter NYPE 1946 – Rice in bags – Damages and shortage on discharging – Inter-Club Agreement – Interest in acting and admissibility (no) – “Nobody may plead by proxy” rule. A bulkcarrier was time-chartered for the transportation of a cargo of rice in bags time-charterer did not not respond to the owner’s P&I Club notification holding him accountable by virtue of the Inter- Club Agreement included in the charter- party, so the shipowner applied to CAMP in order to condemn the time-charterer, as sea carrier, to refund the shipowner his share of the amount paid to the cargo interests. However the respondent argued that the amicable settlements had in fact been paid by the shipowner’s P&I Club to the subrogated insurers when the arbitration claim was filed in the name of the only shipowner. Therefore, the shipowner had no claim against the time- charterer as, according to French law, the party which sues before a tribunal must do it for itself, hence it must have suffered the damages.
In fact, on the face of the arbitration file, it was verified that, as a last resort, it was the P&I Club which paid the amicable settlements to the cargo interests and which had the interest to act against the charterer. The claimant, who had received no power of attorney from his P&I Club, therefore had its claim dismissed under the principle that “nobody may plead by proxy”.

Award 1218 : Rice in bags under B/L – Shortage and torn bags at discharging – CAMP competence – Receivers entitled to sue – Carrier’s liability for shortage (yes), for torn bags (partly).
During discharge in Abidjan of a cargo of rice in bags loaded in Vietnam and Thailand, shortage and wastage due to torn bags were ascertained.
A letter of undertaking from P and I Club gave competence to CAMP. The receiver holding a bill of lading to order is a legitimate holder and is entitled to sue the carrier identified as such on the bill of lading.
The carrier, whose liability was judged according to the provisions of the Brussels Convention, was condemned to pay in full for the shortage but only 50 % for loss resulting from torn bags in view of their frequent occurrence.

Award 1217 : Transport of refrigerated containers – Lack of means of wedging inside containers – Shipper’s fault – Carrier’s liability (no).
Two refrigerated containers, one packed with boxes of frozen chickens and the other with boxes of frozen pork, were loaded in Brazil on different vessels bound for Asia. On arrival, a partial thawing was observed due to obstruction of cold air supply inside the containers caused by the collapse of piles of boxes.
The arbitrators considered that for the shipper to pile up boxes inside a container omitting to provide proper dunnage in empty spaces was tantamount to professional misconduct. To no avail, the shipper pleaded the carrier’s assumption of liability since it was clear for the arbitrators that the shipper’s misconduct was the certain and sole cause of the damages. On the ground of article 4.2.i of the Brussels Convention 1924, the carrier was exempted of any liability.

Award 1216 : Hull and machinery insurance of a fishing boat – Indemnification denial – Clause printed in indistinctive types – Insurer condemned – No measures of conservation taken by the insured – Partial indemnification.
Following damage suffered by a fishing boat when alongside, the underwriter refused to pay out on the basis that the general provisions of the insurance contract stipulating that cover would not be in place in the absence of a navigation license which the insured did not have any longer
Despite the fact that the clause in question appeared on page 1 of the contract, by the terms of article 112-4 of the Code of Insurances which applies to all marine insurances since 1994 and according to an established body of case-law, clauses of
exclusion or forfeiture which do not appear in very visible types are null and void. Therefore, the insurer must indemnify the insured. However, in the absence of measures of conservation taken by the insured, by virtue of the article 172.23 of the same Code, it could not claim for payments corresponding to the worsening of the damage and the addition of various expenses

Award 1215 : C/P Synacomex 90 – Social unrests, strike, curfew – Force majeure (no) – Laytime calculation.
During the so-called “Arab Spring” a vessel was chartered to discharge a cargo of wheat in bulk in a Tunisian port. After remittance of her notice of readiness and while the authorities ordered a curfew from 21.00 to 05.00 hours, the vessel had to wait a few days before coming alongside and her discharging was frequently interrupted by a sit-in of the receiver’s staff. The dispute related to the laytime calculation.
The arbitrators considered the charterer did not prove the curfew constituted a force majeure case which prevented discharging. The demonstrations of the staff in charge of the discharge, were aimed at protesting against the nomination of a new chief executive. This was insufficient, in French law, to qualify as strike. In addition, because the charter-party had been concluded during the Tunisian events, the charterer could not claim that he was not able to anticipate such disturbances. It was judged therefore the charterer could not take advantage of exonerating circumstances.