Lloyd's Maritime and Commercial Law Quarterly
ENGLISH SHIPPING LAW
Stephen Girvin*
CASES
181. Agile Holdings Corp v Essar Shipping Ltd (The Maria)1
Time charterparty—Inter-club New York Produce Exchange Agreement 1996, cl.8(b)—meaning of “similar amendment”—NYPE 1946, cll 8 and 49
H time chartered its vessel, Maria, to E, for a single trip time charterparty, carrying direct reduced iron (DRI), a highly combustible cargo.2 The charterparty was on amended NYPE 46 terms, cl.89 providing that cargo claims between H and E were to be settled in accordance with the Inter-Club New York Produce Exchange Agreement 1996 (“the Agreement”).3 During loading, a loading belt at Port Lisas, Trinidad, caught fire. The supercargo advised that loading could continue but, notwithstanding this advice, the cargo burned during the voyage and the cargo interests, an associated company of E, brought a claim against H.
Clause 8 of the charterparty provided that E were to “load, stow, and trim, tally and discharge the cargo at their expense under the supervision of the captain”, while cl.49 provided that stevedores were to “remain under the direction of the master who will be responsible for proper stowage and seaworthiness and safety of the vessel”.
H sought a declaration that E was obliged to indemnify it under cl.8(b) of the Agreement against any liability it was found to have to the cargo interests. That clause made E 100 per cent liable for cargo claims arising from the handling of cargo, unless the words “and responsibility” had been added to cl.8 of the charterparty or there was a “similar amendment making the master responsible for cargo handling”. In either of those cases, liability would be apportioned 50/50.
The arbitral tribunal4 found that the claim arose from the handling of the cargo and that “and responsibility” was absent from cl.8. It went on to hold, however, that cl.49 was a
* MPA Professor of Maritime Law, Director, Centre for Maritime Law, Faculty of Law, National University of Singapore. I acknowledge the assistance of Mr Elson Ong, Research Associate, Centre for Maritime Law, in editing the Noter Up.
1. [2018] EWHC 1055 (Comm); [2018] Lloyd’s Rep Plus 79; [2018] Bus LR 1513 (QBD: HHJ Waksman QC).
2. A high-density variety, known as HBI (hot briquetted iron), was the cause of the total loss of the Ythan in 2004: see Primetrade AG
v
Ythan Ltd (The Ythan) [2005] EWHC 2399; [2006] 1 Lloyd’s Rep 457; noted S Girvin [2006] IMCLY § 150.
3. Ie, the “Inter-Club New York Produce Exchange Agreement 1996 (as amended September 2011)”. The unamended NYPE 1946 form does not provide for the settlement of claims by the Agreement, the latter having been first drafted only in 1970 (amended in 1984, 1996, and 2011). Cf, however, NYPE 93, cl.27; NYPE 2015, cl.27.
4. Mr Alan Oakley, Mr Michael Baker-Harber, and Mr Robert Thomas QC.
English Shipping Law
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