February 2010
Cobelfret, as owners of the vessel “Lowlands Orchid”, and Swiss Marine, as charterers, entered into a voyage charter for the carriage of 165,000 Mts 10% moloo coal in bulk from Richards Bay to Rotterdam and Immingham. Cobelfret claimed demurrage of US$142,177.25 and Swiss Marine claimed dispatch of US$106,500 in relation to discharge at Immingham.
The tribunal, by a majority, found for Swiss Marine and awarded dispatch. Owners appealed the finding, having been granted permission by Cooke J.
The fixture recap stated:
"Scale load / 25,000 MT SHINC"
(i.e. Sundays and holidays included)
and
"otherwise as per Eurosailor – CP dated 2 March 2004 logically amended to reflect main terms agreed as above..."
That printed charter form provided for a discharge rate of
“63. Discharging Rate: …25,000 metric tons Sundays and Holidays, included, excluding Super Holidays".
The central issue was whether laytime counted at Immimgham for the period from 1800 on 24 December and 0600 on 27 December and turned on whether clause 63 was inconsistent with the recap.
Owners’ case was that holidays were dealt with in the fixture recap by the “H” in “SHINC” and the additional words “o/wise as per Eurosailor”. They argued this meant that only matters not dealt with in the recap should be incorporated and, therefore, that the exclusion of “Super Holidays” taken from clause 63 was inconsistent with the fixture recap and thus could not be incorporated.
It is trite law that where there is an inconsistency between negotiated terms and pro-forma terms, the former will prevail. Accordingly, the question was whether there was an inconsistency between the “SHINC” provision of the negotiated recap and the exclusion of “Super Holidays” in the pro-forma. In this respect, Beatson J considered the test applied in Pagnan SpA v Tradax Ocean Transportation SA [1987] 2 Lloyd’s Rep. 342:
“… it is not enough if one term qualifies or modifies the effect of another; to be inconsistent a term must contradict another term or be in conflict with it, such that effect cannot fairly be given to both clauses.” (Bingham LJ)
Thus the challenge was to determine if what, at face value, might be conflicting provisions amounted to qualifications or contradictory terms of the charter? That is, could the clauses sensibly be read together?
The court did not believe clause 63 prevented any effect being given to the recap provision. The provision of the recap was qualified by clause 63 such that time would count during holidays unless they were super holidays. It is not unusual for a wide provision to be limited or qualified by another provision which does not necessarily lead to inconsistency.
The appeal was dismissed because the two provisions could sensibly and commercially be read together.
Cobelfret Bulk Carriers NVv Swissmarine Services SA [2009] EWHC 2883 (Comm)
