| Archives: December 2017

Award 1236 – C/P Heavyliftvoy – Transportation and laying down of marine turbine at sea and connection to cable of terrestrial grid – Departure from the spot before work completion – Chartering contract or business contract – Freight deemed earned and non- returnable (yes) – Counter-claim time-barred (no) – Shipowner gross negligence (no).
The charter-party related to the loading and transportation of a marine turbine until its laying down to sea bottom (main scope). An option, declared by the charterer, provided in addition for the lifting of the immersed main cable for connection to the marine turbine followed by laying it down to the same spot as the turbine (optional scope). Two lump sums freight covered, one the main scope and the other the optional scope. Some difficulties of positioning led the parties to reverse the process by carrying out the laying down before the connection. After a failed attempt, the ship abandoned the operation and left the spot.

The Shipowner claimed the freight balance when the Charterer counter-claimed the redeeming of various damages and expenses involved to finish the work to which the shipowner opposed time-bar. The arbitral Tribunal considered that the C/P covered two types of contracts, one concerning the transportation of the marine turbine and the laying down, and the other, of business nature, related to the cable connection which was outside the range of a voyage charter. Therefore, if according to the C/P the freight was indeed deemed earned and non- returnable, it was only for the main scope for which the charterer owed the freight balance. The Tribunal decided that the counter-claim was not time-barred. However, denying gross negligence by the Shipowner, and in accordance with the C/ P, it limited the claim related to the Charterer’s expenses to the difference between the two freight lump sums increased with the cost of a new insurance contract the Charterer had to subscribe following the Shipowner’s failure to perform the full contract. Lastly, the claim concerning an insurance franchise was rejected as depending on negotiations between each party and their insurers.

Award 1238 – C/P Gencon – Applicable law – Carriage of lychees to be refrigerated – Cargo damage – Subrogated insurers – Vessel’s liability (yes) – Damage assessment.

A reefer vessel loaded in Madagascar a full cargo of lychees on pallets to Netherlands. After her departure, the temperature readings sent by the vessel indicated that the duration of cooling down prescribed by the C/P was widely exceeded. On arrival, checking of samples shown some fruits were damaged. After dispatches to numerous Receivers, batches of goods were returned or had to be destroyed. The Charterers and the subrogated Insurers claimed to be indemnified for their losses by the disponent Owner and the Shipowner. The Owners opposed procedural arguments and on the merits asserted that Owners’ liability ceases when hatches are opened and that only damages ascertained when discharging could be compensated.

Noting the C/P did not mention any applicable law, the arbitral Tribunal decided to apply lex fori to the procedure and rejected the disponent Owner’s inadmissibility arguments. The B/Ls having not circulated, the action against the Shipowner was declared inadmissible but not the one against the disponent Owner who was judged liable for the damages resulting from the cooling down duration. However his liability was reduced by 20 % in view of an uncertainty about the vessel’s cooling power and the arrival just before Christmas which did not help the fruits sales. The indemnifications amounts, determined by surveys, were adjusted downwards as founded upon a higher figure than provided in the insurance policy.