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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hyundai Merchant Marine Co Ltd v Furness Withy (Australia) Pty  EWCA Civ 599 (25 January 2006)
Cite as:  2 Lloyd's Rep 175,  2 All ER (Comm) 188,  EWCA Civ 599,  2 CLC 1042
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION COMMERCIAL COURT
(MR MICHAEL CRANE QC)
B e f o r e :
LORD JUSTICE RIX
SIR PAUL KENNEDY
|HYUNDAI MERCHANT MARINE CO LIMITED||CLAIMANT/RESPONDANT|
|- v -|
|FURNESS WITHY (AUSTRALIA) PTY||DEFENDANT/APPELLANT|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR P EADY (instructed by Holman Fenwick & Willan, LONDON EC3N 3AL) appeared on behalf of the Respondent.
Crown Copyright ©
"Should the vessel be captured or seized or detained or arrested by any authority or by any legal process during the currency of this Charter Party, the payment of hire shall be suspended until the time of her release, and any extra expenses incurred by and/or during the above capture or seizure or detention or arrest shall be for Owners account, unless such capture or seizure or detention or arrest is occasioned by any personal act or omission or default of the charterers or their agents or by reason of cargo carried or calling port of trading under this charter."
"The vessel was probably stopped because she was a first time caller to the United States and in so far as there was a USCG policy of inspecting first time callers, the policy was general to Gulf ports rather than specific to New Orleans. If this is right the vessel would probably have been stopped at any Gulf port on her first visit to the United States, albeit inspection might be regarded as even more likely if New Orleans is the nominated port."
"one time charter trip via safe anchorage(s), safe berth(s), safe port(s) always afloat, always institute Warranty Limits from US Gulf to South Korea with bulk grain, duration of about 65 - 75 days without guarantee … within below mentioned trading limits."
"… maintain her class and keep the vessel in a thoroughly efficient state in hull, machinery and equipment with inspection certificates necessary to comply with current requirements at port of call for and during the service."
"Fumigations ordered because of cargoes carried or ports visited while vessel is employed under this Charter to be for Charterers account."
"Nothing herein stated is to be construed as a demise of the vessel to the Time Charterers. The owners to remain responsible for the navigation of the vessel, insurance, crew, acts of pilots and tugboats and all other matters, same as when trading for their own account."
"… to be for Owners' account and Charterers are not to be responsible for any consequences resulting from such offence."
"In the event of loss of time due to boycott of the vessel by labour, because of vessel's flag or nationality of Owners, Master, Officers or Crew, or the terms and conditions under which the Master, Officers or Crew are employed, payment of hire shall cease for the period of such inefficiency and Owners to pay all directly related expenses occasioned thereby."
"Throughout the period of this Charter, vessel to have on board a Current valid Suez Canal and Panama Canal Certificate, and vessel and her fittings/equipment to comply with all applicable requirements/regulations of the Canal Authorities. Any delays and extra expenses incurred in transit of Canal through vessel's lack of proper Certificate/fittings to be for Owners' account. Vessel does not have Suez Canal searchlight."
"Normal quarantine time and expenses for the vessel's entering port shall be for Charterers' account, but any time of detention and expenses for the quarantine due to pestilence, illness etc. of Master, officers and crew shall be for Owners' account. Any detention and/or expense due to ports called or cargoes carried to be for Charterers' account."
"All this falls far short of demonstrating the necessary causal link between the nomination of New Orleans, as distinct from some other Gulf port, and detention by the USCG. In my judgment the evidence leads to the conclusion that the risk of boarding and inspection by the USCG under laws enacted after the World Trade Center attack was a risk general to any vessel calling at any US Gulf port, particularly if she was calling at a US port for the first time. This risk did not flow from an act or omission of Charterers or from their nomination of a particular loading port. It was a risk inherent in the voyage agreed in the single trip time charter."
"I think that the explanation of most, though not all, of these apparently conflicting dicta, is that each must be judged in relation to the problem in the case in which it was used. Questions of causation can give rise to problems both of law and of fact. Once the problem has been formulated it will be seen whether its solution requires the application of some legal principle or arises out of some point of construction or is to be obtained by resolving a matter of fact or inference from fact."
Order: Appeal dismissed.