Mon, 05 November, 2018
In this important decision, the Court of Appeal considered the obligation of an owner under a voyage charterparty to commence the voyage, in circumstances where the charterparty did not contain a date of expected arrival or expected readiness to load at the load port.
It is well settled that, if a voyage charter contains a provision that the shipowner will proceed with all convenient speed or utmost despatch to a load port, and also gives a date of expected arrival or expected readiness to load at the load port, then the law imposes on the owner an absolute obligation to commence the voyage to the loading port at such time as it is reasonably certain that the vessel will arrive on or around the expected date. In effect, the shipowner is held to the estimated date of arrival or readiness to load which he has given in the charterparty. That was first settled by the Court of Appeal in Monroe Brothers Ltd v. Ryan  2 KB 28, and was followed by Devlin J. in Evera S.A. Commercial v. North Shipping  2 Lloyd’s Rep. 367. In those cases, the charterparties had specified a date when the Vessel could be expected to load. In The Myrtos  2 Lloyd’s 449, the principle was extended to a charterparty which had an expected time of arrival at the loadport rather than an expected readiness to load.
Monroe Brothers Ltd. v. Ryan also decided that the general exceptions clause in a voyage charterparty does not apply until the approach voyage to the load port has commenced. Therefore, if an excepted cause has prevented the owner from commencing the approach voyage by the relevant date, the owner is unable to rely upon the exception as relieving him from liability.
In the instant case, the charterparty was on an amended Shellvoy 5 form which provided that, subject to its terms, the Vessel was to perform her service with utmost despatch and proceed to the load port, but it did not contain an expected time of arrival or readiness to load. It did, however, give details of the anticipated timetable for completion of the voyage under the prior charter, on which the Vessel was currently engaged. Those details comprised the Vessel’s current position, and ETAs for transiting the Suez Canal, loading and then discharging at Antifer, all qualified “iagw/wp” (“if all going well/weather permitting”). The charterparty also contained a cancelling clause.
Whilst the Vessel was transiting the Suez Canal, she struck a submerged object, leading to serious flooding. Lengthy repairs were required. The charterers exercised their right under the cancelling clause, and terminated the charter. They also claimed damages, alleging that the owners were in breach for failing to commence the approach voyage to the load port.
The question for the Court was whether, in the absence of any date for the Vessel’s expected time of arrival or readiness to load, there was nevertheless an absolute obligation to begin the voyage to the loading port and, if so, the point in time at which that absolute obligation took effect. It was common ground that the rule identified in Monroe v. Ryan (that the exceptions in the charterparty did not apply until the approach voyage had commenced) could not be challenged in the Court of Appeal, and therefore was presumed to be correct for these purposes. The owners were therefore unable to rely on those exceptions in relation to the incident.
Popplewell J. at first instance had decided that the ETAs contained in the charterparty relating to the performance of the Vessel’s current voyage were the equivalent of an expected time of arrival or readiness to load. Accordingly, he held that the owners were under an absolute obligation to commence the voyage to the load port at the end of a reasonable discharging period for the Vessel after the ETA given in the charterparty for final discharge at Antifer under the prior charter. He also held that, if it was wrong to use the ETA for discharge then, in the alternative, the owners were obliged to commence the approach voyage at a date when it would reasonable be expected that the Vessel could arrive by the cancelling date.
Before the Court of Appeal, the owners argued in summary that:
a. On a proper construction of the wording of the instant charterparty, the obligation to commence the approach voyage and proceed with “utmost despatch” could only attach when the Vessel had departed from the last discharging port, under the previous charter, and that, since she never did, the obligation in fact never arose. Therefore, the owners were not in breach. This followed from the absence of an expected time of arrival or readiness to load, and the fact that the obligation of utmost despatch was expressly made “subject to the terms of this charter”. The inclusion of the itinerary of expected dates for the previous charter made clear that the Vessel was performing a prior service before the voyage under the instant charterparty, which was underscored by the fact that these were qualified “bss iagw/wp”.
b. The cancelling clause was irrelevant because it merely gave the charterer an option to cancel, without any right to claim damages.
a. The reasoning of Popplewell J. should be upheld, in that the inclusion of the itinerary for the previous charter showed that it was intended as an equivalent to a statement in respect of the time at which the Vessel was expected to arrive or be ready to load.
b. Alternatively, the obligation to commence the approach voyage with the utmost despatch must at least arise at such time as it was reasonable to suppose that the vessel should sail to meet the cancelling date.
The Court of Appeal upheld the decision of Popplewell J. Adopting the reasoning of Devlin J. in Evera, if the obligation to proceed with utmost despatch was to be given any effect at all, some time for sailing had to be put in. That meant that the Vessel had to proceed either “forthwith” at the date of the charter, or “within a reasonable time”. The inclusion of the itinerary showed that “forthwith” could not be meant. In Evera, Devlin J. had held that a shipowner was permitted to have recourse to the expected date of readiness to load. There was no particular magic in the concept of a date of expected readiness to load, and the itinerary for the prior charter was equally useable to enable the Court to decide what was the reasonable time at which the obligation of utmost despatch was to attach. The addition of the qualification “bss iagw/wp” was not merely intended to indicate that the Vessel was subject to a previous charter. It underscored that the itinerary consisted of estimates, given honestly and on reasonable grounds. If an owner wished to make the beginning of the chartered service contingent on the conclusion of the voyage under the previous charter, then much clearer words were required.
The Court therefore did not need to consider whether, in the absence of the itinerary under the prior charter, reliance could be put on the cancelling date. That was a question for another day.
This is an important decision, providing guidance on how the principles identified in Monroe v. Ryan are to be applied where there is no statement of the expected time of arrival or readiness to load at the load port. That is a not unfamiliar scenario in modern day voyage charters.
Where such statements are absent, the question in any particular case will be whether an equivalent can be identified, which the parties can be taken to have intended be used as the basis for an absolute obligation requiring the owners to proceed to the load port by a particular date. In this case, the Court of Appeal considered that the itinerary for the voyage under the prior charter was just such an equivalent.
The owners are applying to the Court of Appeal for permission to appeal to the Supreme Court.
Simon Croall QC and Stewart Buckingham represented the owners, instructed by Michael Biltoo and Freddie Mehlig, Kennedys LLP, and John Russell QC represented the charterers, instructed by David Bennet, Harriet Defreyne Kelk, Clyde & Co LLP.
Simon Croall QC is Head of Quadrant Chambers. He is an established commercial silk who has appeared in every court (including two recent appearances in the Supreme Court). He is a sought after trial advocate as well as being respected in the appellate courts. In recent years much of his work has been in the context of International Arbitrations.
He led the team for Owners in the landmark House of Lords case on remoteness in contract damages Transfield Shipping v Mercator Shipping ("The Achilleas")  1 AC 61. Recent reported highlights include another important case on damages Fulton Shipping v Globalia (The New Flamenco) in the Supreme Court  UKSC 43, the Court of Appeal  EWCA 1299 and below  2 Lloyd’s Rep. 230; The Longchamp  UKSC 68 first reported English authority on the interpretation of Rule F of the York Antwerp Rules, arising in the context of ransom piracy payments; ST Shipping & Transport Pte Ltd v Space Shipping Ltd (“The CV Stealth”)  1 Lloyd's Rep. 276;  2 Lloyd’s Rep. 17(claims arising out of the detention of a vessel by Venezuelan authorities); Jiangsu Shagang Group v Loki Owning Group (“MV Pounda”)  2 Lloyd's Rep. 359 and Essar Shipping v Bank of China  1 Lloyd’s Rep. 427.
He also has a global practice with a depth of experience working with Chinese and south east Asian clients. This was recognised by his ranking as a leader in International Arbitration by Chambers Asia Pacific 2018 and Legal 500 Asia Pacific Guides. Simon was named one of the top 10 maritime lawyers of 2017 by Lloyd's List. Simon has been nominated for Shipping Silk of the Year at the Chambers & Partners Bar Awards 2018.
He is also a recommended as a leading silk Shipping and Commodities (Legal 500 UK and Asia Pacific, Chambers UK, Asia Pacific and Global editions), Energy (Legal 500 UK) and Information Technology (Chambers UK).
Stewart is a commercial barrister, specialising in commercial law, mainly focussing on commercial litigation and international arbitration. He has extensive trial, interlocutory and arbitration experience, and also undertakes advisory work and drafting. His takes a commercially driven approach tailored to the practical needs of his clients, and aims to deliver excellence in the services he provides. He is particularly adept at dealing with complex technical disputes.
He has been consistently ranked as a 'Leading Junior' in both the leading directories for several years. Comments have included:
"praised for his approachability and user-friendliness, and is further admired for his advocacy skills"; "a delight to work with"; "easily understandable advice and commercially minded, down-to-earth style" (Chambers UK).
‘A leading junior for many years now, he has a can-do attitude and a deep understanding of the legal and commercial issues.’ (The Legal 500).
John is an experienced and determined advocate and has acted as lead Counsel in numerous Commercial Court trials, international and marine arbitrations and appellate cases, including in the Supreme Court. He relishes both detailed legal argument and cross-examination of lay and expert witnesses. He will always ensure that a client's case is presented in the most persuasive manner possible, both in writing and orally. John provides advice to a wide range of clients. He combines first rate technical legal analysis with a pragmatic, commercial, problem solving approach to cases. John accepts instructions in many fields of commercial dispute resolution with a particular focus on shipping, commodities, international trade and marine insurance.
“Very easy to work with and a very good litigator.” “An excellent advocate whose assessment of cases is invaluable.” (Chambers UK, 2019)
"He’s incredibly impressive, and is someone who always comes up with points that are insightful. He’s incredibly impressive, excellent on his feet and a joy to work with." (Chambers UK, 2018)
"...Particularly highly rated, he has a sharp mind and provides clear advice...." (Legal 500, 2017)
"The kind of barrister you would want to have on your side. He's not afraid to challenge anyone on anything." "He's bright, commercial, user-friendly and he delivers when you need it." (Chambers & Partners UK 2017)
Mon, 05 November, 2018
Arbitrator Brandon Malone, provides the editorial looking at the factors influencing the outcome of dispute resolution and its impact on contract drafters.
Ruth Hosking examined some of the responses to the 2018 International Arbitration Survey, here she focuses on the question: “Do you have access to enough information to make an informed choice about the appointment of arbitrators?”.
Simon Rainey QC looks at the decision in Sodzawiczny v Ruhan & Others  EWHC 1908 (Comm) and section 9(1) of the Arbitration Act 1996.
Our next Quadrant Chambers International Arbitration Panel Debate event: “Feeding Back to Arbitrators” will be taking place on 20 November. Simon Rainey QC will be chairing the panel, which includes future LCIA president, Paula Hodges QC, Herbert Smith Freehills LLP, Joe Tirado, Garrigues, Damian Honey, HFW and Ruth Hosking. For more info click here.
In the summer we produced an extended version of the newsletter, which can be found here.
Tue, 30 October, 2018
In the recent decision Warner v Scapa Flow Charters  UKSC 52, the Supreme Court considered the Athens Convention and whether Scot’s law as the law of the forum could affect a period of “suspension” or “interruption” of a limitation period and its effect on whether a particular claim was time-barred.
Mr Warner chartered a vessel for a week of diving off Cape Wrath in Scotland. On 14th August 2012, when in full diving gear, he fell on the deck of the vessel. However he went ahead with the dive. He got into trouble and despite the assistance of other divers he died. His widow brought a claim against owners Scapa Flow Charters (SFC).
Mr Warner’s widow issued a claim against SFC alleging negligence and sought damages both as an individual and as guardian of their young son, Vincent, who had been born in November 2011. The claim was issued on 14th May 2015.
SFC lodged a defence that the action was time-barred under the Athens Convention, which, in the case of a death occurring during carriage, imposes a time bar of two years (and not the normal three years in English and Scots law) from the date on which the passenger would have disembarked.
At first instance (the Outer House), the widow’s claims both for herself and her son were struck out as time-barred. On appeal (before the Inner House) the widow’s claims for herself were held to be time-barred but those in respect of her infant son were held not to be time-barred.
The issue was whether Scot’s law as the law of the forum could effect a period of “suspension” or “interruption” of a limitation period so as to permit the widow’s and the son’s claim to continue.
The Athens Convention has the force of law in the UK pursuant to section 183 and Schedule 6 of the Merchant Shipping Act 1995. It also applies to domestic UK sea carriage under The Carriage of Passengers and their Luggage by Sea (Domestic Carriage) Order 1987 (SI 1987/670). It does not need contractual incorporation albeit it can be contractually incorporated both intentionally and unintentionally.
Article 16 of the Athens Convention, provides:
(1) Any action for damages arising out of the death of or personal injury to a passenger or for the loss of or damage to luggage shall be time-barred after a period of two years.
(2) The limitation period shall be calculated as follows:
(a) in the case of personal injury, from the date of disembarkation of the passenger;
(b) in the case of death occurring during carriage, from the date when the passenger should have disembarked, and in the case of personal injury occurring during carriage and resulting in the death of the passenger after disembarkation, from the date of death, provided that this period shall not exceed three years from the date of disembarkation;
(3) The law of the court seized of the case shall govern the grounds of suspension and interruption of limitation periods, but in no case shall an action under this Convention be brought after the expiration of a period of three years from the date of disembarkation of the passenger or from the date when disembarkation should have taken place, whichever is later.
The parties were agreed that Mr Warner would have disembarked no later than 18 August 2012.
On its appeal, SFC argued that
(1) The natural meaning of the words “grounds of suspension and interruption of limitation periods” in Article 16(3) was they they must be grounds which give rise to a break in a period or course of events which is already in train; and/or
(2) The words “grounds of suspension and interruption of limitation periods” have a technical meaning derived from certain civil law systems, where a distinction was drawn between a “suspension” and an “interruption”.
a. A “suspension” was said to refer to the situation in which a limitation period, which had started to run was paused by an event, such as the onset of mental incapacity, and then resumed its running when the incapacity ceases with the rest of the period remaining.
b. An “interruption” was said to refer refers to a situation in which the limitation period, having been halted by an event, commences afresh when the halting event ceases and the time which has expired before the halting event does not count towards the running the limitation period.
Thus, SFC argued that a suspension or an interruption operates only if the limitation period had already begun to run before the pausing or halting event occurred. If that was right, then the Scots law of limitation enacted in section 18 of the Prescription and Limitation (Scotland) Act 1973 did not contain such “grounds of suspension and interruption” as to extend the limitation period. This was because, section 18 of the 1973 Act only postponed the start of the limitation period instead of interrupting or suspending it as the Athens Convention envisages. Therefore the claim by the infant was time-barred by the two-year time bar.
The Supreme Court dismissed SFC’s appeal and held that the claim advanced on behalf of the minor son was not time-barred.
The Supreme Court, adopting an “uniform” and non-technical approach to the words “suspension and interruption” in Article 16(3) of the Athens Convention, held that
(1) A “suspension” in its natural meaning could readily cover the postponement of the start of a limitation period
(2) This was so even though there was a valid distinction between a “suspension” and an “interruption” such that
a. In an “interruption” of a prescription period which had been running, the period commences again as of new and the prior period is in effect cancelled.
b. However in the case of a “suspension” if the prescription period has started to run, the running of time resumes at the point it was before the suspension so that the time which has passed before the suspension counts towards the prescription period.
The Supreme Court held that an interpretation of Article 16(3) which led to the conclusion that domestic rules which have the effect of postponing the start of a limitation period were of no effect would give rise to serious anomalies.
Many legal systems suspend the operation of prescription or limitation when a claimant is a minor or is subject to a recognised legal disability such as mental incapacity. If SFC were right, the Convention would recognise as a ground of suspension a legal incapacity which arose after the prescription or limitation period commenced, but rather oddly would not recognise such incapacity that predated the start of that period. Thus a minor born before the commencement of the prescription or limitation period could not take advantage of the added year for which article 16(3) provided but a minor born after the commencement of the period would benefit from that added year.
The Supreme Court, quite sensibly, held that the words “the grounds of suspension … of limitation periods” were sufficiently wide to cover domestic rules which postpone the start of a limitation period as well as those which stop the clock after the limitation period has begun.
However, in fact, section 18 of the Prescription and Limitation (Scotland) Act 1973 did not in law postpone the start of a limitation period. If a Scottish Claimant’s legal disability predated the start of the limitation period, the Scottish provision simply instructed the court to disregard the time thereafter when the Claimant was under a legal disability. However the practical effect of the disregard on the calculation of the expiry of the three-year limitation period would be the same as a postponement of the start of the limitation period.
The Supreme Court held that even if the period of limitation was subject to a “suspension and interruption” the limitation period imposed by Athens was nevertheless subject to the long stop in Article 16(3) “… of three years from the date … when disembarkation should have taken place …”. A domestic “suspension” provision could not defer the expiry of the Convention’s limitation period beyond that long stop.
This is a very sensible decision removing any difference of approach to a domestic limitation regime which might draw a distinction between a “suspension” and “limitation” and reflects English obiter dicta in Higham v Stena Sealink Ltd  2 Lloyd’s Rep 26. However the best advice remains: issue a claim within 2 years in a shipping case!
For a copy of the judgment click here.
Jonathan has a broad practice covering all aspects of commercial and transport law.
He is consistently ranked by Chambers UK and Legal 500 as a Leading Senior Junior, with Chambers UK (2018) commenting “A tenacious advocate with an admired intellectual capacity. His redoubtable practice focuses on complex cases involving personal injury and fatality” and “He is easy to work with and responsive. He quickly identifies the issues” and Chambers UK (2016) commenting that he is “Noted by peers for his meticulous preparation, strong advocacy skills and easy manner with clients” and Legal 500 (2016) describing him as “Very well prepared”
Jonathan has a strong international practice and he is qualified to practise in England & Wales, Northern Ireland (practising) and Australia (currently non-practising). He has also advised on disputes involving Australia, Canada, the Channel Islands, Hong Kong, Northern Ireland, Scotland, Singapore, and the United States of America.
Jonathan has acted in disputes involving many of the major airlines, cruise and tour operators, UK airports and the CAA. He also acts on behalf of shipyards, ship-owners, rig owners, crewing agencies and shipping unions and the Royal Yachting Association. He is involved in a large volume of wet and dry shipping cases including cargo claims, pilotage, collisions and groundings. International ship-building, rig-construction and repair cases are also a strong feature of his practice.
He frequently acts in inquests involving aviation and maritime incidents and the civil claims which follow.
Fri, 26 October, 2018
We are delighted to have been awarded Shipping Set of the Year at the Chambers & Partners Bar Awards 2018.
In the 2018 edition, we are recommended as a band 1 leading shipping & commodities set and have 20 leading silks and 17 leading juniors.
This well-known shipping set has its roots in admiralty law and as such demonstrates masterful expertise in both wet and dry shipping disputes. It has excellent bench strength in the form of both silks and juniors, whom clients describe as "exceptional in their own right" and "willing to listen to solicitors' needs." Arbitration and mediation services are offered in addition to skilled courtroom advocacy. Many members are multilingual, which aids their participation in international cases. Several of them recently appeared in the Court of Appeal in Yemgas FZCO & Others v Superior Pescadores, which hinged upon the meaning of the clause paramount in bills of lading.
Wed, 24 October, 2018
In this case the English High Court found that despite the negligence of the Master in requiring the unnecessary strapping of cargo, Charterers could not claim against Owners for losses flowing from that negligence.The case highlights the potentially wide reach of the exceptions available to shipowners in cases where the Hague/Hague-Visby Rules are incorporated into charterparties.
The dispute arose out of the shipment of a cargo of soyabeans on the MV PRIVOCEAN from New Orleans to China via the Panama Canal in November 2014. Owners’ claim was for a balance of about US$400,000 of hire. The master had required that the cargo in hold number 2 be strapped in order to ensure the stability of the ship in accordance with SOLAS (The International Convention for the Safety of Life at Sea 1974). This entailed the Charterers incurring additional expenditure of some US$ 410,000 which they counterclaimed from Owners by way of damages on the grounds that the strapping was unnecessary and that the master’s insistence upon it was negligent.
Charterers contended that their counterclaim should succeed on two principal grounds:
(1) That the wording of clause 2 of the NYPE 1946 form meant that an inference could be made that Owners should be liable for the cost of unnecessary strapping.
(2) That the Master’s negligence in ordering the strapping of cargo in hold number 2 meant that the cost of such strapping should be for Owners’ account. Charterers argued that the stability of the vessel could have been ensured through other means, such as ballasting or distributing the cargo differently.
The Tribunal’s Decision
The Tribunal found that the Master had indeed been negligent and that adequate stability could have been achieved without the need for strapping. The negligence was found to have been a breach of clauses 8 and 83.
However, the Tribunal found that the negligence of the Master was in the management of the ship. Accordingly Owners were not liable by reason of section 4(2) of US COGSA (as incorporated in the relevant charterparty) which is in the same terms as Article IV Rule 2(a) of the Hague/ Hague-Visby Rules. Further, the Tribunal decided that clause 2 did not come to Charterers’ aid.
The High Court Claim
Permission was granted to Charterers to appeal the decision on two questions of law, namely:
(1) Is the effect of clause 2 of NYPE form 1946 edition that unnecessary and non-requisite fittings insisted upon by the Master are for the account of Owners?
(2) Where the primary purpose of a loading and stowage operation is to put the cargo on board so that it can be carried to the discharge port, and where the Master negligently causes the cargo to be loaded and stowed in such a way that money and time are wasted by fitting and removing unnecessary cargo fittings, is the negligence of the Master in the management of the ship (within the meaning of section 4(2) of COGSA and Article 4, rule 2 of the Hague/Hague-Visby Rules), or the management of the cargo?
Cockerill J upheld the Tribunal’s decision on both questions. The Judge concluded that in relation to the first question of law, clause 8, not clause 2 governed the parties’ obligations in respect of the loading and stowing of cargo. The effect of clause 8 is “well known”, it is a broad transfer of responsibility of such operations to Charterers. Without more any qualification for necessity as suggested by Charterers could not properly be read into clause 2.
As to the second question of law, the Judge again started from the position that as per clause 8 of the charterparty the responsibility for loading had been transferred to Charterers. The Master’s role in creating the stowage plan was, the Judge held, “supervisory and not primarily related to the care of the cargo”. The Master’s actions in this regard were considered by the Judge as “pertaining to the stability of the vessel” and the Judge noted that the Master took the same view. Thus the primary nature and object of the acts which caused the loss were related to ship management in the sense of the stability of the vessel and not the care of the cargo. This was so despite the relevant acts affecting the cargo. Thus the section 4(2) exception applied and excluded Owners from any liability.
Implications of the decision
This was an unusual case in that the counterclaim brought by Charterers in relation to which Owners sought to rely upon Article 4 rule 2 was not for damages for lost or damaged cargo, but rather for wasted costs. However, it was not suggested that the defence is limited to cases of physical loss or damage (see also in this regard The Aquacharm  1 Lloyd’s Rep. 7 at p. 10 per Lord Denning MR).
As with many such cases, the result will be very fact specific. A relevant factor in this case was held by the Judge to be the timing of the acts complained of – the negligent act of refusing to contemplate a particular stowage plan predated any act of loading. However, in a case such as this, it was not just the nature of the relevant act but the object of the act which determined the claim. At first blush the strapping of the cargo would appear to be an act concerning the care of the cargo, but once the precise acts complained of and which caused the loss were identified and the object of the acts examined, it followed that the negligent acts related to the management of the vessel. So the case shows that just because an act affects cargo, does not mean that it cannot be considered as being an act “in the management of the vessel”.
A copy of the draft judgment from the hearing is here.
David Goldstone QC and Saira Paruk acted for Owners, instructed by Stuart Parkin, Waterson Hicks. John Passmore QC acted for Charterers, instructed by David Handley, Clyde & Co LLP
David is a highly experienced barrister who has appeared in the High Court, Court of Appeal and Supreme Court and has acted for most of the UK`s leading commercial solicitors. He is now accepting appointments as arbitrator and mediator but also continues to advise clients across the full spectrum of commercial law, international trade and shipping.
David remains a leading barrister in the shipping sector and is ranked as a leading silk both by the Legal 500 and Chambers and Partners. Although he no longer acts as an advocate David brings a wealth of knowledge and experience to his advisory practice. He was "rightly rewarded with silk" (2007 Legal 500 - shipping) in 2006 and since then has gone from strength to strength. In recent years, he has been described as "a first-class brain who is exceptionally clever, analytical and incisive" (2007 Chambers UK - shipping and commodities), as "absolutely phenomenal", "runs rings around the opposition and can grasp complex issues exceptionally quickly" (2009 Chambers UK - Shipping and commodities) and as “outstanding” and “for some, the brightest man at the Bar” (2014 Legal 500). He is comfortable with technical cases including engineering, chemistry and related disciplines and is able to advise both in relation to wet and dry matters.
Saira practises in all of Chambers’ key areas of work as both sole counsel and as a junior.
Saira regularly appears in the Commercial Court and in arbitrations in a wide range of commercial disputes including shipping, carriage of goods, shipbuilding, insurance and reinsurance, and private international law. She also has extensive experience of interlocutory matters of all kinds including jurisdictional challenges, freezing orders and injunctions.
Saira’s recent reported cases include Polaris Shipping Co Ltd v Sinoriches Enterprises Co Ltd (The "Ocean Virgo")  EWHC 3405 (Comm) successfully appealling an arbitration award, Carlos Soto SAU v AP Moller-Maersk A/S (The SFL Hawk)  EWHC 458 (Comm) as sole counsel in a Commercial Court trial, Crowther & Another v Rayment & Another  EWHC 427 (Ch) as sole counsel successfully resisting the appointment of an arbitrator.
John Passmore QC
John Passmore QC has a commercial litigation and arbitration practice, involving a wide range of business sectors, with emphasis on aviation, banking, insurance, energy, commodities and derivatives, professional negligence, shipbuilding and offshore construction, and wet and dry shipping.
John is an experienced team-leader. His inclusive approach ensures that all members of the team, from the business, in-house counsel and partners, to associates, para-legals and trainees, as well as junior Counsel, can contribute to strategy and tactics.John deals with sale and purchase, charterparty, COA and bill of lading and COA disputes, in relation to all types of vessels and all types of cargoes. John also deals with collision and limitation claims, and all aspects of Admiralty practice and procedure such as general average, liens, arrest, judicial sale and priorities.
"John is technically gifted and really grasps complex legal and factual claims, whilst understanding the commercial imperatives." (Chambers UK, 2018)
Tue, 23 October, 2018
Arbitrators at 10 Fleet Street are delighted to welcome international arbitration specialist Ania Farren. She sits as arbitrator, appointed by both institutions and parties and is now accepting appointments. In addition to her arbitral experience, she has over 15 years' experience as counsel specialising in international arbitration, both commercial and investment treaty, with a particular focus on energy related disputes.
Ania is also Managing Director at Vannin Capital, overseeing the funding of arbitration matters. She has worked in leading arbitration practices in London and Paris, including Bryan Cave Leighton Paisner (BCLP), where she was a partner in the International Arbitration group.
In addition to her legal work, Ania was the ICC YAF representative in the UK between 2012 and 2017, appointed to the ICC UK Committee for Arbitration and ADR in 2015 and has been Vice Chair of the committee since 2017. She was a member of the ICCA/Queen Mary Taskforce on Third Party Funding and Chaired the Sub-Committee on privilege. She is also Co-Chair of the International Arbitration Charity Ball Committee and on the organising committee for London Disputes Week.
On joining, Ania said: “I am delighted and honoured to have been invited to join the ranks of arbitrators at Arbitrators at 10 Fleet Street. Quadrant Chambers have already made me feel very welcome. I am particularly proud to be the first female arbitrator to join Arbitrators at 10 Fleet Street, and hopefully the first of many more.”
Ania joins fellow arbitrators Lord Clarke of Stone-cum-Ebony, Sir David Steel, David Steward and Richard Lionberger.
“Arbitrators at 10 Fleet Street" is a separate arbitrator wing set up by leading commercial disputes set Quadrant Chambers.
Wed, 17 October, 2018
Following two successful full terms by Luke Parsons QC, we are delighted to announce that Simon Croall QC has been elected our new Head of Quadrant Chambers. Simon begins his term with immediate effect. Luke Parsons QC continues to practice full time from Quadrant Chambers.
On his new appointment, Simon Croall QC said: “It is an honour to have been elected as Head of Quadrant Chambers. I am grateful to Members of Chambers for the trust they have placed in me. I am sure I speak for us all in expressing heartfelt thanks to Luke Parsons QC for the immense contribution he has made to Quadrant as its Head. Quadrant is better placed than ever to continue its growth and development as a leading commercial set. Along with my colleagues I look forward to building on his work and ensuring that our clients, across a broad range of markets, are always provided with an excellent service relevant to their business needs.”
Luke Parsons QC said “Simon was a natural choice for Head of Chambers having been deeply involved with Chambers’ strategy over the last ten years. It has been a privilege to be Head of Quadrant Chambers. I have enjoyed my terms immensely and am hugely proud of these Chambers and all that it has achieved. I look forward to being part of Quadrant’s continuing success and development under Simon’s leadership”.
Simon Croall QC is a commercial silk who has appeared in every court (including two recent appearances in the Supreme Court). He is a sought after trial advocate as well as being respected in the appellate courts. In recent years much of his work has been in the context of International Arbitrations.
Reported highlights include Fulton Shipping v Globalia (The New Flamenco) in the Supreme Court  UKSC 43,  1 WLR 2581 (a leading case on the mitigation of loss); The Longchamp  UKSC 68;  1 Lloyd's Rep. 1 (the application of the York Antwerp Rules to modern piracy); Transfield Shipping v Mercator Shipping ("The Achilleas")  1 AC 61 (a landmark case on remoteness of loss), Rafaela S  2 AC 423 (another House of Lords appearance), AET Inc v Arcadia Petroluem (“The Eagle Valencia”)  2 Lloyd’s Rep. 257 (CA) and Mediterranean Salvage v Seamar  2 Lloyd's Rep. 639 (CA) on implied terms.
He has a global practice with a depth of experience working with Chinese and South East Asian clients. This was recognised by his ranking as a leader in International Arbitration by Chambers Asia Pacific 2018 and Legal 500 Asia Pacific Guides. He is also recommended in the leading legal directories in the fields of commodities, energy, shipping and information technology.
Simon Croall QC’s profile is available here.
Luke Parsons QC's profile is available here.
Quadrant Chambers holds a pre-eminent position as a leading international commercial disputes set with a strong sector-driven approach. We are recommended in the UK, Asia-Pacific and Global legal directories and as a leading set in the fields of commercial dispute resolution, aviation, commodities, energy, insurance & reinsurance, international arbitration, shipping and travel. Quadrant has been shortlisted for Chambers of the Year 2018 at the British Legal Awards and was named International Arbitration Set of the Year at the 2017 Legal 500 UK Awards .
Mon, 08 October, 2018
Please find a copy of the judgement here.
The container carrier EVER SMART (ES) and VLCC ALEXANDRA 1 (A1) collided at the mouth of the exit channel from Jebel Ali in the small hours of 11 February 2015. ES was outbound and A1 was waiting in the pilot boarding area to embark the pilot who had just left ES. Both vessels were found guilty by the first instance judge (at  EWHC 453 (Admlty)) of poor lookout: ES in failing properly to observe A1; and A1 in failing to listen properly to a VHF conversation involving a third vessel, with the result that A1 ended up crossing the line of the channel in front of ES, supposing (wrongly) that ES was planning to turn to port.
The central issue on the appeal was whether the crossing rules (rules 15-17 of the Collisions Regulations (“ColRegs”) applied to the vessels’ encounter. If they did, ES was the stand-on and A1 the give-way vessel. The judge held, and the Court of Appeal (at  EWCA Civ 2173) agreed, that they did not apply. That was because –
The Appellant ES interests argued – and the Court of Appeal accepted () – that the requirement on the stand-on vessel is not to be interpreted literally or unthinkingly, but rejected the submission that there was no risk of inconsistent action being required by the two rules. That being so, the two rules could not both apply and so rule 9 displaced rule 15.
Even if that was wrong, the Court upheld the judge’s finding that the vessels were not crossing, because A1 was not on a course (even though she was making way over the ground and the two vessels remained on a constant bearing throughout their encounter) but waiting for a pilot. Thus the crossing rules did not apply in any event.
The Court also rejected the Appellant’s argument that the judge had misdirected himself on apportionment. Here the issue concerned the proper treatment of the greater (and, as he held, unsafe) speed of ES in terms of causative potency: having held that there was not much to choose between the two vessels in terms of bringing about the collision, he “dialled up” the responsibility of ES because her higher speed was liable to do more damage. That, said the Court, was correct in principle. The guidance of Teare J. in the earlier case of The Nordlake  2 All ER (Comm) 449 was expressly approved (at ).
Finally, the Court dismissed A1’s cross-appeal. A1 sought to argue that – even if the crossing rules did not apply – it did not have to give way, because it was picking up a pilot, or a “vessel constrained in her ability to manoeuvre” within the meaning of ColReg rule 18.
The decision therefore provides important guidance on –
Nigel Jacobs QC and James M. Turner QC appeared for the Appellant.
Nigel Jacobs QC is a specialist in shipping, insurance, commodity and commercial disputes. His appears both in the High Court and in arbitration. He is regularly instructed in (worldwide) freezing injunction, anti-suit injunctions and jurisdictional disputes. His recent arbitrations include the termination of a substantial Middle Eastern joint venture and a successful challenge to the conclusion of a long-term charterparty. He is currently involved in an unsafe port case (South America) and a number of other casualties. He is also increasingly appointed as an arbitrator.
"Very user-friendly and good on his feet." "He brings a strong intellect to the work. He’s very approachable and incredibly diligent." (Chambers UK, 2018)
..."He is very good on big-picture strategy, doesn’t micro-manage and is calm under pressure"... (Legal 500, 2017)
..."He did a fantastic job on his feet."... "He's very hard-working and good with juniors."... (Chambers UK 2016)
James M. Turner QC is a specialist shipping and commercial advocate with over 20 years' experience right across those fields - from shipbuilding to collision and salvage; from unsafe port, bareboat and other charterparty disputes to demand guarantees, bills of exchange and letters of credit; from commodities to joint ventures.
His experience as a team leader, stretching well back before taking silk, is in high-value, technical and expert-heavy cases, particularly involving shipbuilding contracts and charterparties. He is valued for his technical knowledge and his ability to direct the collation of evidence.
James appears regularly in the Admiralty and Commercial Courts and in arbitration in London. In addition, the international nature of his practice frequently takes him to continental Europe and to the Far East.
"a super advocate and a fantastic opponent"... "You know he will give you a good run for money" (Who's Who Legal, 2018)
"Tactically he’s very smart. He has strong analytical skills and a very good commitment to the cause." (Chambers UK, 2018)
"He’s good legally and also a good strategic thinker." (Chambers UK, 2018)
Wed, 03 October, 2018
Quadrant Chambers is thrilled to have been shortlisted for Chambers of the Year at the British Legal Awards 2018.
The awards celebrate achievement, excellence and innovation in the legal profession.
The awards take place on 29 November. The full shortlist can be found here.
Tue, 18 September, 2018
A contract contains two modes of performance, A or B. Historically, the obligor has used mode A which becomes unavailable due to a natural disaster. If the obligor can show that it is also impossible to use mode B for reasons beyond its control, can it rely on a force majeure provision to excuse non-performance? Does it need to show it would have performed using mode A but for the mode A-disabling event? Classic Maritime v Limbungan Makmur SDN BHD  EWHC 2389 (Comm) addresses these questions and others in an area of law that is perhaps not as well-settled in all respects as some might think.
At 3.45pm on 5 November 2015, the worst environmental disaster in Brazilian history unfolded. A tailings dam operated by Brazilian mining company Samarco Mineracao SA (“Samarco”) collapsed. A tidal wave of 32 to 40 million cubic metres of mining waste swept across green valleys, villages and farmland.
Iron ore production at Samarco’s mine was brought to an abrupt halt. Shipments of Samarco’s iron ore pellets, hitherto shipped through Ponta Ubu in Brazil, were suspended.
Ponta Ubu was one of two ports from which the charterers, Limbungan Makmur SDN BHD (“Limbungan”), had the option to load iron ore pellets on the vessels of Classic Maritime Inc., under a COA for 59 shipments of iron ore pellets from Brazil to Malaysia between 2009 and 2017. The other load port was Tubarao, from which another Brazilian mining company, Vale SA (“Vale”), shipped iron ore pellets.
In the Samarco aftershock, it was Limbungan’s case that Vale experienced a surge in demand, earmarked its supply to existing customers, and left newcomers such as itself wanting. Limbungan was therefore prevented from shipping from Ponta Ubu and Tubarao due to circumstances beyond its control. This excused its failure to perform post-5 November 2015 under Clause 32 of the COA, a fairly typical force majeure or exceptions clause, which stated inter alia:
“Neither the Vessel, her Master or Owners, nor the Charterers, Shippers or Receivers shall be responsible for…failure to supply, load…cargo resulting from: Act of God…floods…landslips…accidents at mine or production facility…or any other causes beyond the Owners’, Charterers’, Shippers’ or Receivers’ control; always provided that such events directly affect the performance of either party under this Charter Party.”
Classic countered that Limbungan had an absolute and non-delegable obligation to provide cargo and had no arrangements to do so. Instead, it hoped to perform with the gratuitous support of two companies within the same broad corporate family, Lion DRI or Antara. Those companies had asked Limbungan to ship their iron ore pellets to their steel-making plants in Malaysia from Ponta Ubu since 2011, but without any contractual nexus existing between them. The bursting of the dam was thus of no legal relevance. The problem was that the now sole supplier, Vale, would not supply Limbungan or its affiliates, although matters would have been different if Limbungan had made proper efforts and pushed for a long-term supply contract.
What is more, Classic argued that Limbungan would not have performed anyway. It had failed to perform two pre-dam burst shipments as Lion DRI and Antara had not required Limbungan to carry iron ore pellets in a weak market, a state of affairs which would have continued irrespective of the dam burst. The dam burst was not a force majeure event and Classic was entitled to US$20.5 million in damages to compensate it for lost freight.
Against this, Limbungan argued that it had put its eggs in the Samarco/Ponta Ubu basket as it had exclusively shipped Samarco pellets since August 2011. Whether it had enforceable agreements with Samarco, Lion DRI or Antara was not determinative; its settled practice was clear. The obligation after the dam burst was to make new arrangements ex Tubarao, provided it was possible to do so. Clause 32 applied because it was not possible. This was an alternative modes of performance case per Warinco v Mauthner  2 Lloyd’s Rep 151, 154 in that Limbungan had opted for one mode of performance which had become unavailable. As it could not avail itself of the one remaining mode, it was excused.
Further, it was sufficient that Limbungan was prevented from performing by the dam burst. It was contrary to authority to insist that Limbungan had to show it would have performed had the dam not burst and contrary to the compensatory principle to award damages to Classic in respect of shipments which would never have occurred given the dam burst.
The Court rejected Classic’s claim, and in the process made findings of wider legal significance.
The case is believed to be the first authority since the Bremer line of authorities from the 1970s and early 1980s to consider whether the party relying on a force majeure or exceptions clause has also to show it would have performed but for the event relied upon to be excused from non-performance. The answer given in those cases was “no”. For the time being, the textbooks may need to be rewritten to reflect the affirmative answer to this question given by Teare J.
This gives pause for thought. Had Ponta Ubu and Tubarao both been wiped out by a meteor, so that any performance was unquestionably prevented, on one view, asking whether Limbungan could or wanted to perform would be academic. It might be said the parties intended Clause 32 to excuse Limbungan from liability in precisely such a case, particularly since Clause 32 is intended to deal with frustrating and force majeure events, and in the context of frustration, but for causation has always been irrelevant. Not only that: asking whether Limbungan would have performed but for the dam burst is conducive to a doubtful and speculative examination of what Limbungan’s intentions and arrangements would have been in a counter-factual setting, which Megaw LJ Bremer Handelgesellschaft v Vanden Avenne-Izegem PVBA  2 Lloyd’s Rep 329 cautioned against.
This also appears to be the first case where the argument has been made (by Classic) – and rejected – that the arrangements necessary to activate the alternative modes of performance principle need to be legally binding. They do not: the arrangements can have a looser, more informal character.
Finally, this case exemplifies the compensatory principle at work: if Limbungan had performed instead of breaching the COA, it would have performed with Samarco out of Ponta Ubu. The problem from Classic’s perspective is that with the intervention of the dam burst, Limbungan would have been able to claim force majeure under Clause 32 (as on this hypothesis it would have performed but for the dam burst). The outcome in both the breach and non-breach positions is therefore that Classic would not have enjoyed the benefit of contractual performance. Classic cannot be put in a better position than if the breach had not occurred.
Teare J refused permission to appeal on the ground that Classic’s proposed appeal on the application of the compensatory principle (or perhaps more accurately Classic’s case that the principle allowed it to recover substantial damages to represent loss of charter freights which in fact it could never have earned assuming Limbungan performed rather than breached the COA) had no realistic prospect of success.
A copy of the Judgment, can be found here.
Simon Rainey QC is one of the best-known and most highly regarded practitioners at the Commercial Bar with a high reputation for his intellect, advocacy skills, commercial pragmatism and commitment to client care. He has established a broad commercial advisory and advocacy practice spanning substantial commercial contractual disputes, international trade and commodities, energy and natural resources, insurance and reinsurance shipping and maritime law in all its aspects,. He appears in the Commercial Court and Court of Appeal and also the Supreme Court (with two recent landmark victories in NYK v Cargill  UKSC 20 and Bunge SA v Nidera SA  UKSC 43.) He regularly handles Arbitration Act 1996 challenges.
He is next in the Supreme Court in October 2018 on the issues as to the burden of proof under the Hague / Hague-Visby Rules raised on the appeal in Volcafe Ltd v Compania Sud Americana de Vapores SA  EWCA Civ 1103.
He has been cited for many years as a leading Silk in the areas of Commodities, Commercial Litigation and Dispute Resolution, International Arbitration, Energy and Natural Resources, and Insurance and Reinsurance by Chambers UK and/or Legal 500 and is ranked as the “Star Individual” for shipping by Chambers UK in 2015, 2016, 2017 and again in 2018, Simon: ‘impresses with his mastery of the brief... exceptionally gifted, he has the strong confidence of his clients, and is an excellent presenter of complex material....’ and ‘….is one of those super silk guys who has judges eating out of his hands.” “He has the gift of going straight to the problem." He was ranked as Shipping Silk of the year 2017 by both Chambers and Partners UK and Legal 500 UK Awards. He was nominated for international arbitration silk of the year 2017 at the Legal 500 UK Awards and has been shortlisted for Shipping Silk of the Year at the Chambers & Partners 2018 Awards. He was named one of the Top Ten Maritime Lawyers in 2017 and again in 2018 by Lloyd’s List.
He is frequently appointed as arbitrator (LCIA, ICC, LMAA, SIAC, UNCITRAL and ad hoc, sitting both sole and as co-arbitrator) and has given expert evidence of English law to courts in several countries. He also sits as a Recorder in the Crown Court and as a Deputy High Court Judge (Queen’s Bench and Commercial Court).
He sits as a deputy High Court Judge in the Commercial Court and is Honorary Professor of Law, Business and Economics, University of Swansea.
Andrew has a broad commercial practice which encompasses commercial dispute resolution, international arbitrations, shipping, insurance and reinsurance and banking and financial services.
Andrew regularly appears both as sole and junior counsel in the High Court (including the Commercial Court, the London Mercantile Court, Queen's Bench Division and the Chancery Division) as well as arbitrations.
Andrew’s experience includes several high-value cases, including in relation to the delivery of drill ship with a contract value of over US$517m (with Duncan Matthew QC and Christopher Smith), the loss of the “Bulk Jupiter”, which involved allegations of cargo liquefaction (with Luke Parsons QC and Tim Hill QC), disputes arising out of the construction of two jack-up rigs, each with a contract value of c.US$225 million each (with Lionel Persey QC), the termination of contracts for 2 platform supply vessels (with Simon Rainey QC), Classic Maritime v Limbungan  EWHC 2389 (Comm), a Commercial Court action regarding the performance of a long-term COA (with Simon Rainey QC), and Sea Glory v Al Sagr  1 Lloyd's Rep 14. an important reported decision in the field of marine insurance involving issues of non-disclosure, breach of warranty, and illegality.
Andrew is recommended as a leading junior in the Legal 500 UK and Asia Pacific editions, where he is described as ‘Excellent on detail, strategy and responsiveness.’