Exceptions To Laytime

E.D. & F Man Sugar Ltd – v – Unicargo Transportgesellschaft mbH

[2012] EWHC 2879 (Comm)

INTRODUCTION

The present economic crisis and the ferocity with which owners and charterers are fighting charterparty disputes have recently increased the instances of scrutiny by the courts of numerous charterparty clauses. We are also seeing a number of new situations where the application and scope of particular clauses are being tested.

A recent example of the scope of an exception to laytime clause being tested is the case of E.D. & F Man Sugar Ltd ("Charterers") – v – Unicargo Transportgesellschaft mbH ("Owners") [2012] EWHC 2879 (Comm). This was an appeal from an arbitration award in relation to a claim by Owners against Charterers for demurrage in the sum of US$397,912.77.

FACTS

The Charterers had chartered the vessel to carry a cargo of sugar and, on the date of the fixture (9th June 2010), declared Paranagua as the loading port. In an email dated 4th June 2010 the local agents advised the parties that a fire had occurred at the Compania Brasilliera Logistica A/A terminal ("CBL"), which was normally used by the Charterers to load the cargo. On the 15th June 2010 the agents instructed the Parties to change the vessel's berthing programme to the Pasa terminal in Paranagua, although they were also told that the contemplated berthing programme for this terminal would be revised involving a long waiting time.

The vessel arrived on 20th June 2010 and tendered notice of readiness to load at 2330 hours. The Statement of Facts showed that in the absence of an available berth the vessel remained off the port until 14th July 2010, when she weighed anchor and entered the inner roads of the port awaiting berthing instructions.

One of the relevant clauses under consideration in this case was clause 28 which states as follows:

"Clause 28: In the event that whilst at or off the loading place...the loading...of the vessel is prevented or delayed by any of the following occurrences: strikes, riots, civil commotions, lock outs of men, accidents and/or breakdowns on railways, stoppages on railway and/or river and/or canal by ice or frost mechanical breakdowns at mechanical loading plant, government interferences, vessel being inoperative or rendered inoperative due to the terms and conditions of appointment of the Officers and crew time so lost shall not count as laytime."

A number of conclusions in the Tribunal's award were challenged by the Charterers on appeal...