QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Rolls Building, 7 Rolls Buildings Fetter Lane, London EC4A 1NL |
||
B e f o r e :
____________________
OLDENDORFF GmbH & Co KG ("Oldendorff") |
Claimant |
|
-and- |
||
SEA POWERFUL II SPECIAL MARITIME ENTERPRISES ("Head Owners") |
Defendant |
|
AND |
||
OLDENDORFF CARRIERS GmbH & Co KG ("Oldendorff Carriers") |
Claimant |
|
-and- |
||
SCIT SERVICES LIMITED ("SCIT Services") |
Defendant |
|
AND |
||
SCIT TRADING LIMITED ("SCIT Trading") |
Claimant |
|
- and - |
||
XIAMEN C&D MINERALS CO., LTD ("Xiamen C&D") m.v. "Zagora" ("the Vessel") |
Defendant |
____________________
Michael Ashcroft QC and Oliver Caplin (instructed by Ince & Co LLP) for the Defendant - Head Owners
SCIT Services, SCIT Trading and Xiamen C&D were not represented
Hearing date: 5 December 2016
____________________
Crown Copyright ©
Mr. Justice Teare :
The sale of the cargo
The contracts of carriage
The appointment of agents
The letters of indemnity
Communications concerning delivery
Events at the discharge port
The arrest of the vessel and enforcement of the LOIs
The course of this action
The Owners' claim against Oldendorff
"…discharge and delivery are different concepts. Discharge is the movement of the cargo from the ship "over the ship's rail" ashore. Delivery is the transfer of possession of the cargo to a person ashore. Discharge and delivery may occur simultaneously but they need not do so. A cargo may be discharged ashore into a warehouse and only delivered as later date. Delivery is effected by the shipowner who has the cargo in his possession. "
"It is obvious to me when I see that LOI from Xiamen ,,,from my knowledge of the company, that Xiamen…does not intend to take delivery of the cargo itself. Its only intention is to have the cargo discharged from the ship and then not deliver to anyone else. It is a form of protection ie restricting who the cargo could be released to."
"71. Our understanding from this message was there would not be an actual employee of Xiamen coming on board. ………
72. We further understood that it would only be the discharge port agent, ie Sea-Road who had just been appointed, who would be attending onboard, and that Sea-Road were authorised to handle discharge of the cargo on behalf of Xiamen. We had this belief because Charterers were both (i) providing a draft LOI requesting delivery to Xiamen or such person as represents them, and (ii) at the same time stating that no employee from Xiamen would be coming onboard and instead the local agent Sea-Road would handle the discharge. We understood from this message and the exchanges to date that Charterers were identifying Sea-Road as the party representing Xiamen to whom delivery was to be made under the LOI. ………."
Oldendorff Carriers' claim against SCIT Services
Conclusion