![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Commercial Court) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Ts Lines Ltd. v Delphis NV [2009] EWHC 933 (Comm) (25 February 2009) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2009/933.html Cite as: [2009] 2 Lloyd's Rep 54, [2009] EWHC 933 (Comm) |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
B e f o r e :
____________________
TS LINES LTD |
Claimant |
|
- and - |
||
![]() ![]() |
Defendant |
|
And |
||
![]() ![]() |
Claimant |
|
- and - |
||
ULRIKE F KAI FREESE GmbH & CO. KG |
Defendant |
____________________
Official Shorthand Writers and Tape Transcribers
Quality House, Quality Court, Chancery Lane, London WC2A 1HP
Tel: 020 7831 5627 Fax: 020 7831 7737
MR. D. GOLDSTONE QC (instructed by Mays Brown) appeared on behalf of Ulrike.
MR. M. DAVEY (instructed by More Fisher Brown) appeared on behalf of Delphis NV.
____________________
Crown Copyright ©
MR. JUSTICE BURTON:
"Unless caused by Charterers' servants, if the vessel is off-hire… for a period of 20 consecutive days… then the charterers have the option to re-deliver the vessel when next cargo-free".
The Charterers cancelled the Charterparty pursuant to that clause on 28th September 2007, relying on what the Charterers asserted to be a consecutive period of off-hire since 7th September. The Arbitrators found that the Charterers were not entitled to terminate, as there had not been 20 consecutive days.
"4. TS Singapore was chartered by the sub-charterers for use in the
very substantial containerised liner service that they operate between Asian ports. At the relevant time she was being employed in anti-clockwise rotation between Japan, three ports in China, Hong Kong (midstream), Vietnam, Thailand (two ports), Hong Kong (midstream and in berth), Xiamen (China) and Japan. At the time of the incident with which we are concerned, a round voyage had just started at Nagoya, Japan, followed by Tokyo and Yokohama. The next intended port was Shanghai, after which she was destined to call at Ningbo, Xiamen, and then Hong Kong.
5. The shop had loaded and discharged containers at Yokohama
overnight 5/6 September 2007. The pilot was aboard and the ship cast off at 02.36 hours on 6th September, the tugs casting off 18 minutes later.
6. However, instead of sailing direct to Shanghai, as ordered by the
charterers, at 04.06 hours the ship anchored outside Yokohama, the master apparently fearing the approach of Typhoon Flitow. The charterers protested at this contending that the typhoon would not arrive for some time, whilst the master maintained that some 20 other ships had already taken the same precaution as had he.
7. In the small hours of 7th September TS Singapore dragged her
anchor and hit a nearby breakwater, suffering not insubstantial damage in consequence. As a result, the ship stayed at Yokohama until 22nd September, the owners declaring general average on 12th September. Class imposed a condition on her departure from Yokohama, namely, that she proceed direct to Hong Kong (rather than Shanghai) to discharge the entire cargo, including cargo destined for [Shanghai], after which she was to sail to Guangzhou for repairs. And that was what happened."
"24. Ultimately, it seems to us that the question is whether the ship,
plainly having become inefficient for the charterers' purposes from the moment of the collision with the breakwater, and also being inefficient at least from the time she passed the waypoint…" (this is a reference to the moment when, as the arbitrators found, the route to Shanghai and the route to Hong Kong diverged) "…she was efficient for the purposes required of her by the charterers whilst she was sailing from Yokohama to the waypoint. Was she then performing the service required of her?
25. On balance, although not without some hesitation, we have
come to the conclusion that these questions are to be answered in the affirmative. Although the ship was in fact on her way to Hong Kong, for the first part of the voyage she was on the route she would follow for Shanghai, where the charterers wanted her to go. For that part of the voyage she was performing the service required of her, albeit she then deviated. She was for that part of the voyage efficient for the purpose the charterers required of her, even though ultimately it was much later before she fulfilled it entirely".
"26. We can see that the man in the street when told the facts might say that it was purely coincidental that the ship was sailing over the same ground for the first part of the voyage, but that in truth she was going to Hong Kong to repair and at no stage was she going to Shanghai for cargo operations, as the charterers wanted. But we think he might equally say the opposite, and although our view is in any event as expressed above, we also bear in mind firstly that the provisions relied upon here are purely for the charterers' benefit and so it is for them to bring themselves clearly within such provisions; and secondly that the remedy which clause 81 affor4ds the charterers is a drastic one with possibly very serious consequences (the owners here have estimated their losses at around $7.73 million), which simply underlines the same point."
"Any time lost, either in port or at sea, deviation from the course of the voyage, or putting back whilst on voyage caused by sickness of or any accident to the crew ... or due to an accident or breakdown to the vessel, the hire shall be suspended from the time of inefficiency in port or at sea, deviation or putting back, until the vessel is again efficient in the same or equivalent position, whichever is the shorter distance to the port where the vessel is originally destined, and the voyage resumed therefrom ... In the event of loss of time arising for arrest, government restrictions or boycott ... payment of hire shall cease for the time thereby lost."
"Whether on the facts found, and on the true construction of the Charterparty the vessel was off-hire for a continuous period of (at least) 20 days between 7th and 28th September 2007, and, in particular, whether, following an accident to the vessel on 7th September 2007, as a result of which the Vessel went off-hire … the vessel is to be treated as having temporarily become "efficient" again for the purposes of Clause 57 .. for the period that its route on her voyage to a repair port, in accordance with the Condition of Class, happened to coincide with the route she would have taken to her next intended port of call in accordance with Charterers' order, and notwithstanding that the Vessel was off-hire immediately before and after such period and was, throughout the period 7th to 28th September 2007, incapable of performing Charterers' orders to proceed directly to her next port of call for cargo operations".
"It appears to me, therefore, that at that period there was a right in the ship owner to demand payment of the hire because at that time his vessel was efficiently working; the working of the vessel was proceeding as efficiently as it could with reference to the particular employment demanded of her at the time".
"If charterers keep possession of a vessel which is in a thoroughly efficient state for all the purposes contemplated at the time by the contract, and required by them, they must in terms of the contract pay the stipulated hire".
"The payment of hire was to cease until she was again in an efficient state. I should have said the same if it had been "in a state to resume her service", her service being the carriage of goods as a steamer upon the stipulated voyages".
"She should be 'efficient to do what she was required to do when she was called upon to do it".
"If the ship is for any reason not in full working order to render the service then required from her .. then hire is not payable .."
"A ship is prevented from working when she is prevented from performing the next operation that the charter service requires of her (see The Berge Sund [1993] 2 Lloyd's Rep 453 per Staughton LJ at p459)".
"A vessel is time-chartered. It is ordered by the charterers to Port X for discharge. Port X is 1,000 miles away. Shortly after commencing the voyage, the vessel suffers damage which needs to be repaired before the vessel can discharged the cargo at Port X. The owners arrange for repairs to be carried out at a repair yard 50 miles beyond Port X. The vessel proceeds the 1,000 miles towards Port X and then continues on the last 50 miles to the repair yard. Is the vessel off-hire under a period off-hire clause for the entire time spent proceeding the 1,000 miles to Port X?"
He submits that the answer to that hypothetical question is no, and so it ought to be in relation to the similar one being posed by Mr. Siberry QC here.
"Thus, because the vessel was only able to proceed very slowly, she was not fully efficient for the purposes of the service then required to proceed to the discharge port".
"In order to be able to say that the vessel was off-hire, the Appellants need to find a way of characterising the service required by them of the vessel at the relevant time as being something other than proceeding towards Shanghai, which was something the vessel was fully efficient to do (and did do) during the relevant time".
That, in my judgment, ignores the fact that what the vessel at the relevant time was supposed to be doing was not proceeding towards Shanghai, but proceeding to Shanghai, in order to discharge its cargo there, and indeed no doubt collect other cargo.