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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Hawk Shipping Ltd v Cron Navigation Ltd [2003] EWHC 1828 (Comm) (11 July 2003) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2003/1828.html Cite as: [2003] EWHC 1828 (Comm) |
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QUEEN'S BENCH DIVISION
COMMERCIAL COURT
B e f o r e :
____________________
HAWK SHIPPING LIMITED | Claimant | |
- and - | ||
CRON NAVIGATION LIMITED | Defendant |
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MR. M. NOLAN (instructed by Messrs. Michael Lloyd & Co.) appeared on behalf of the Defendant.
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Crown Copyright ©
MR. JUSTICE TOULSON:
"This is the wrong measure because it ignores the point that charterers could have chartered another vessel. The true measure of charterers' damages is the difference between the charter party hire rate and the hire rate of a substitute vessel".
"The tribunal may on its own initiative, or on the application of a party;
(a) correct an award so as to remove any clerical mistake or error arising from an accidental slip or omission or clarify or remove any ambiguity in the award".
They invited the Arbitrator to correct or explain further his award in three areas. The first is not relevant to this application. The second concerned the charterer's loss of earnings claim. The owners referred to para.53.1 of their defence and counterclaim, to which I have already made reference, and they said in their letter as follows:
"14. In the circumstances, an award of US$46,600 under this head could only be correct if the tribunal had found (i) that no substitute vessel could have been found over the next 233 days; (ii) or that, for the period for which one could have been found, the hire rate of any substitute vessel would have had to have been US$200 per day higher than the hire of the Sea Hawk 2. However, there were no such findings.
15. Charterers did address this point but, with respect, produced no evidence to suggest that no substitute vessel could have been hired, nor any convincing evidence on the point to suggest that the hire rate of a substitute vessel would have had to have been higher.
16. In the circumstances, Owners submit that the appropriate finding for the tribunal to make would be that the charterers would have been able to hire a substitute vessel at around the same rate, within a reasonably short period, such as a month at the outside. On that basis, the total claim under this head would be US$200 times 30 days, that is US$6000.
17. The Tribunal is asked to correct its award accordingly, or alternatively to explain on what basis its existing award can be supported".
I cannot see how that request properly fell within the scope of s.57(3)(a) even on a generous reading, but the Arbitrator did respond to it in a manner to which I will come.
"Although alleged by the owners, there was no satisfactory evidence that a suitable replacement vessel could have been located. The carriage of ammonium nitrate (the intended cargo for the remainder of the charter) demands a relatively sophisticated vessel, as the product is not to be loaded above heated bunker tanks or adjacent to the engine room bulkhead. In addition a vessel carrying ammonium nitrate has to provide flag and class certification that she is permitted to carry that product. It is not simply a matter of finding a ship similar in size and type to the 'SEA HAWK II'.
The owners were free to provide evidence of the availability of alternative suitable tonnage but failed to do so. Consequently this was not a mistake or an ambiguity on my part".