QUEENS BENCH DIVISION
COMMERCIAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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FRONTIER INTERNATIONAL SHIPPING CORP. |
Applicant |
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- and - |
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SWISSMARINE CORPORATION INC. |
Respondent |
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Mr.Charles Kimmins (instructed by Hill Taylor Dickinson) for the Respondent
Hearing dates : 16 December 2004
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Crown Copyright ©
Mr Nigel Teare QC :
"9. The cargo to be discharged by the consignee at port of discharge, free of expense and risk to the vessel, (See Clause 30). If longer detained, consignee to pay vessel demurrage at the rate of $10,500 US Currency per day (or pro rata for part thereof) dispatch money for lay time saved (See Clause 30) In case of strikes, lockouts, civil commotions, or any other causes or accidents beyond the control of the consignee which prevent or delay the discharging, such time is not to count unless the vessel is already on demurrage. ..
26. The Charterer's liability shall cease as soon as the cargo is shipped except for all other matters provided for in this CP where Charterers liability is specified, and the freight, dead freight and demurrage in loading/discharging (if any) are paid, the Owner having a lien on the cargo for freight, demurrage and average.
30.
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B. The cargo to be discharged free of risk and expense to the vessel at the average rate of 10,000 metric ton, per weather working day of 24 (twenty four) consecutive hours including Saturdays, Sundays and holidays.
44. Force Majeure
Any time lost through war or the anticipated imminence thereof, between any nations, restraints or rulers, governments or peoples, legislation, decrees, regulations or the like in the country of origin or receipt or of vessel's flags; blockade, sanctions, civil commotion, political disturbances, revolution, revolt or riot, strikes, lockout, industrial disturbances accidents or stoppages, whether total or partial, at mines, ports, railways, roadways, or other means of transportation, epidemics, acts of God, storms, frost, floods, snow, tempest or washaway, or any other event or occurrence of any nature or kind whatsoever beyond the control of the Charterers, not to be computed as part of the loading time unless vessel already on demurrage (unless any cargo be actually loaded during such time.)
In the event of any stoppage or stoppages arising from any of these causes continuing for the period of 6 (six) running days from the time of the vessel's being ready to load, this Charter shall become null and void; .."
a) Clause 9 concerns demurrage at the discharge port. In the standard Americanised Welsh Coal Charter Form (amended 1979) the liability for demurrage at the loadport is expressed to be that of the Charterers (see clause 4 line 39) whilst liability for demurrage at the discharge port is expressed to be that of the consignee (see clause 9 line 64). The consignee is not a party to the charterparty but the Owner has a lien on the cargo for demurrage. It was accepted by the Charterers that in this case the addition of the word "discharging" to clause 26 had the effect that the Charterers were liable for demurrage at the discharge port as well.
b) Clause 44, which deals with exceptions to laytime at the load port contains a similar phrase to clause 9; "any time lost through strikes .or any other event or occurrence of any nature of kind whatsoever beyond the control of the Charterers, not to be computed as part of the loading time unless vessel already on demurrage". Although the Charterers did not concede that under clause 44 a strike was only excepted if it was beyond the control of the Charterers Counsel accepted that it would be difficult to argue that a strike need not be shown to be beyond the control of the Charterers for the purposes of being an exception to the running of laytime at the loadport.