Richard Lord QC (instructed by Holman Fenwick Willan LLP ) for the claimant in the first claim.
The defendant did not appear and was not represented.
Stewart Buckingham (instructed by Whale Rock Legal Ltd ) for the defendant in the second claim.
The claimant did not appear and was not represented.
The claimant in the first claim, Minerva Navigation Inc, entered into a charterparty with the defendant, Oceana Shipping AG, with Minerva as owners and Oceana as charterers. Oceana then entered into a sub-charterparty with the defendant in the second claim, Transatlantica Commodities SA. Both charterparties were on amended New York Produce Exchange (“NYPE”) 1946 forms. Disputes arose between Transatlantica and Oceana which were mirrored by disputes between Oceana and Minerva. The disputes were referred to arbitration under the head charterparty. The claim by Transatlantica was for sums for hire during a period in which the vessel was drifting at sea. Oceana passed that claim on to Minerva. The arbitrators found that the sums claimed were recoverable under the off hire clause. Minerva and Oceana appealed. In issue was the meaning of the off hire clause in the charterparties and whether under that clause the vessel was off hire for a particular period merely because it was not efficient for the services required during that period or whether the charterers had to also show a net loss of time.
The judge, having considered a number of authorities at paras 45–83, concluded, at para 84, that the off-hire clause permitted the charterers to deduct time for the duration of the off hire event but only to the extent that there was a net loss of time to the chartered service. It was not sufficient for the charterers merely to show that, as regards the service immediately required, there was a net loss of time. The arbitrators erred in their findings on that issue. There was no net loss and the appeals were allowed.