Other Cases

DMC/SandT/13/11

England

Dalmare SpA v Union Maritime Ltd & Anor

English High Court: Queen’s Bench Division: Commercial Court; Flaux J; [2012] EWHC 3537; 13 Dec 2012:[[1]]

SALE OF VESSEL "AS SHE WAS AT THE TIME OF INSPECTION": STATUTORY IMPLIED TERM AS TO QUALITY UNDER SALE OF GOODS ACT 1979: WHETHER SELLERS HAD EXCLUDED APPLICATION OF STATUTORY IMPLIED TERM; WHETHER SELLERS IN BREACH OF STATUTORY IMPLIED TERM

DMC/SandT/13/02

England

Wuhan Ocean Economic & Technical Cooperation Co Ltd v Schiffahrts-Gesellschaft “Hansa Murcia” MBH & Co KG

English Queen’s Bench (Commercial Court): Cooke J: [2012] EWHC 3104 (Comm): 6 November 2012:[[2]]

CONTRACT FOR CONSTRUCTION OF VESSEL: ADDENDUM FOR SELLERS TO OBTAIN EXTENSION OF REFUND GUARANTEE: IMPLIED TERM TO OBTAIN EXTENSION WITHIN REASONABLE TIME BEFORE EXPIRY OF ORIGINAL GUARANTEE: INNOMINATE TERM: BUT BREACH OF IMPLIED TERM NOT A REPUDIATORY BREACH AS, UNDER THE TERMS OF THE GUARANTEE, BUYERS COULD MAINTAIN THE SECURITY BY COMMENCING ARBITRATION

DMC/SandT/12/09

England

Acergy Shipping Ltd v. Société Bretonne De Réparation Navale SAS

Queen’s Bench Division (Commercial Court): David Steel J: [2011] EWHC 2490 (Comm): 5 October 2011: [[3]]

CONTRACT FOR PROVISION OF REPAIR SERVICES TO VESSEL: FIRE CAUSING DAMAGE BEYOND REPAIR WORK UNDERTAKEN: INTERPRETATION OF CONTRACT: SCOPE OF INDEMNITY CONTAINED THEREIN

DMC/SandT/12/08

England

Geofizika DD v. MMB International Limited and Greenshields Cowie & Co Ltd: “The Green Island”

English Court of Appeal; Lord Neuberger, Thomas LJ, and Sir Nicholas Wall; [2010] EWCA Civ 459, [2010] 2 Lloyds Rep 1; 28 April 2010: [[4]]

INCOTERMS 2000 CIP: CARRIAGE ON DECK: OBLIGATIONS OF FREIGHT FORWARDER: CONTRACTUAL INTERPRETATION: CAUSATION

DMC/SandT/12/05

England

Thai Maparn Trading Co Ltd v Louis Dreyfus Commodities Asia Pte Ltd (The “Med Salvador” and “Goa”)

English Commercial Court: Beatson J: [2011] EWHC 2494 (Comm): 4 October 2011:[[5]]

INTERNATIONAL SALE OF GOODS: FOB CONTRACT: WHETHER BUYERS IN BREACH OF CONDITION PRECEDENT IN CONTRACT BY FAILING TO ISSUE 7 DAY ETA OF VESSEL: WHETHER SELLERS IN REPUDIATORY/RENUNCIATORY BREACH BY REJECTING BUYERS’ NOTICE AND STATING THAT CARGO WOULD NOT BE READY IN TIME

DMC/12/02

England

ASTRAZENECA UK LIMITED v. ALBEMARLE INTERNATIONAL CORPORATION and ALBEMARLE CORPORATION

English High Court; Flaux J; [2011] EWHC 1574 (Comm); 21 June 2011:[[6]]

CONTRACT: CLAUSES GRANTING THE RIGHT OF FIRST REFUSAL: EXCLUSION CLAUSES AND DELIBERATE BREACH

DMC/SandT/11/28

England

Rainy Sky SA v Kookmin Bank

UK Supreme Court: Lord Phillips, Lord Mance, Lord Kerr, Lord Clarke and Lord Wilson: [2011] UKSC 50: 2 November 2011[[7]]

SHIPBUILDING: LETTER OF GUARANTEE: CONTRACTUAL INTERPRETATION BEING A UNITARY PROCESS: ROLE OF COMMERCIAL CONSIDERATIONS: WEIGHT TO BE GIVEN TO VIEW OF COMMERCIAL JUDGE

DMC/11/25

England

Conarken Group Limited and Farrell Transport Limited v. Network Rail Infrastructure Limited

English Court of Appeal; Pill, Moore-Bick, and Jackson LJJ; [2011] EWCA Civ 644, 27 May 2011:[[8]]

TORT: DAMAGES: SUMS PAYABLE UNDER VICTIM’S CONTRACTS WITH THIRD PARTIES: FORESEEABILITY AND REMOTENESS: REASONABLENESS OF CALCULATIONS

DMC/SandT/11/22

England

Suek AG v Glencore International AG

Queen’s Bench Division (Commercial Court): Burton J: [2011] EWHC 1361 (Comm): 27 May 2011:[[9]]

CARRIAGE OF GOODS: CIF CONTRACT: CONSTRUCTION: ENTITLEMENT TO GIVE NOTICE OF READINESS: CONCURRENT CAUSES LEADING TO DELAY IN BERTHING: COMMENCEMENT OF LAYTIME

DMC/SandT/11/20

England

Great Eastern Shipping Co Ltd v. (1) Far East Chartering Ltd (2) Binani Cement Ltd

English High Court, Queen’s Bench Division: Judge Mackie QC: [2011] EWHC 1372 (Comm): 27 May 2011:[[10]]

WHETHER SHIPOWNER ENTITLED TO ENFORCE LETTER OF INDEMNITY GIVEN BY RECEIVER TO CHARTERER FOR DELIVERY OF CARGO WITHOUT PRESENTATION OF BILLS OF LADING: CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999: WHETHER LETTER GIVEN TO CHARTERER: WHETHER CARGO “DELIVERED”: WHETHER LETTER OF INDEMNITY UNENFORCEABLE ON GROUNDS OF PUBLIC POLICY: WHETHER OWNERS ENTITLED TO RECOVER UNDER A UNILATERAL CONTRACT

DMC/SandT/11/17

The Netherlands

HDI-Gerling Industrie Versicherung AG et al v APM Terminals Rotterdam B.V. The ‘Pretoria’

Court of Rotterdam: Ms P.A.M van Schouwenburg –Laan, LJN:BO0063, September 29, 2010:[[11]]

STEVEDORE DAMAGE TO VESSEL DURING LOADING: WHETHER STEVEDORES LIABLE FOR THE DAMAGE CAUSED UNDER DUTCH LAW: BURDEN OF PROOF

DMC/SandT/11/16

United Kingdom Supreme Court

Jones v. Kaney

UK Supreme Court; Lords Philips, Hope, Brown, Collins, Kerr, Dyson, Lady Hale; [2011] UKSC 13; 30 March 2011:[[12]]

REMOVAL OF EXPERT WITNESS IMMUNITY IN CIVIL PROCEEDINGS

DMC/SandT/11/13

England

Shell Egypt West Manzala GmbH and another v Dana Gas Egypt Limited Queen’s Bench Division (Commercial Court): Tomlinson J: [2010] EWHC 465 (Comm): 10 March 2010:[[13]]

CONTRACT: JOINT VENTURE FOR GAS EXPLORATION: REPUDIATORY BREACH COMMITTED BY ONE PARTY: INNOCENT PARTY TERMINATED CONTRACT BASED ON WRONG BELIEF THAT CONTRACTUAL TERMINATION CLAUSE WAS TRIGGERED: WHETHER INNOCENT PARTY COULD JUSTIFY TERMINATION OF CONTRACT

DMC/SandT/2011/12

England

Choil Trading SA v Sahara Energy Resources Limited (The “Prem Mala”) English Commercial Court: Christopher Clarke J: [2010] EWHC 374 (Comm): 26 February 2010: [[14]]

SALE OF GOODS CARRIED BY SEA: FOB SALE CONTRACT: CIF ON-SALE CONTRACTS: QUANTIFICATION OF DAMAGES FOR DELIVERY OF CONTAMINATED GOODS IN BREACH OF FOB CONTRACT: RECOVERABILITY OF HEDGING LOSSES INCURRED IN MITIGATION IN RELATION TO CIF CONTRACTS: WHETHER TRUE CONSTRUCTION OF FOB CONTRACT EXEMPTION CLAUSE EXCLUDED RECOVERY OF HEDGING AND ADDITIONAL EXPENSES/COSTS INCURRED AS A RESULT OF BREACH OF CONTRACT

DMC/SandT/11/11

English High Court

Azimut–Benetti SpA v. Healey

English High Court: Blair J.: [2010] EWHC 2234 (Comm): 3 September 2010: [[15]]

SHIPBUILDING CONTRACT: LIQUIDATED DAMAGES: GUARANTEE: WHETHER LIQUIDATED DAMAGES CONSTITUTE A PENALTY: WHETHER A PRE-ESTIMATE OF LOSS IN THE CASE OF BREACH: WHETHER A DETERRENT: WHETHER GUARANTEE REMAINS ENFORCEABLE WHERE A PROVISION IN THE UNDERLYING CONTRACT CONSTITUTES A PENALTY: PUBLIC POLICY

DMC/SandT/11/10

United Kingdom

Oceanbulk Shipping & Trading SA v TMT Asia Ltd & ORs

United Kingdom Supreme Court: Lord Phillips, Lord Rodger, Lord Walker, Lord Brown, Lord Mance, Lord Clarke, Sir John Dyson): [2010] UKSC 44: 27 October 2010: [[16]]

CONTRACTS: SETTLEMENT AGREEMENT: INTERPRETATION: ‘WITHOUT PREJUDICE’ COMMUNICATIONS: WHETHER FACTS DISCLOSED DURING ‘WITHOUT PREJUDICE’ NEGOTIATIONS ADMISSIBLE AS AN AID TO CONSTRUCTION OF SETTLEMENT AGREEMENT

DMC/SandT/11/09

English Court of Appeal

Thomas Crema v. Cenkos Securities PLC

English Court of Appeal (Civil Division); Hughes LJ, Aikens LJ, Chancellor Morritt; [2010] EWCA Civ 1444, 16 December 2010: [[17]]

CONTRACT PARTLY WRITTEN AND PARTLY ORAL: WHETHER TERM SHOULD BE IMPLIED: RELEVANT PRINCIPLES: RELEVANCE OF MARKET PRACTICE: EXPERT EVIDENCE: LIMITATIONS OF EXPERT EVIDENCE

DMC/SandT/11/08

English Court of Appeal

Kookmin Bank v Rainy SA and others English Court of Appeal: Thorpe and Patten LJJ and Sir Simon Tuckey: [2010] EWCA Civ 582, [2010] 1 CLC 829: 27 May 2010:[[18]]

SHIPBUILDING: LETTER OF GUARANTEE: CONTRACTUAL INTERPRETATION: EXTREME CONSEQUENCES REQUIRED TO DEPART FROM MEANING OF WORDS AS CONVEYED TO REASONABLE PERSON: NO DEPARTURE SIMPLY BECAUSE COURT WOULD REACH DIFFERENT BALANCE OF PARTIES’ INTERESTS AND OBLIGATIONS UNDER CONTRACT

DMC/SandT/10/25

England

Angara Maritime Ltd v Oceanconnect UK Ltd and Oceanconnect.com Inc (The “Fesco Angara”)[[19]]

Queen’s Bench Division, London Mercantile Court: HHJ Mackie QC: [2010] EWHC 619 (QB): 29 March 2010

SALE OF GOODS: BUNKERS/MARINE FUELS: S.25(1) OF THE SALE OF GOODS ACT 1979: SALE OF BUNKERS TO TIME CHARTERERS: BUNKERS DELIVERED TO VESSEL: FAILURE BY TIME CHARTERERS TO PAY SUPPLIERS FOR BUNKERS: RIGHT OF SUPPLIERS TO SUE OWNERS IN CONVERSION AND/OR BAILMENT FOLLOWING PREMATURE REDELIVERY OF VESSEL BY TIME CHARTERERS TO OWNERS

DMC/SandT/10/26

England

Soufflet Negoce SA v Bunge SA

English Court of Appeal: Longmore, Wilson and Toulson LJJ: [2010] EWCA 1102: 13 October 20101

http://www.bailii.org/ew/cases/EWCA/Civ/2010/1102.html

FOB CONTRACT: GAFTA 49 FORM: “IN READINESS TO LOAD”: WHETHER THIS MEANS THAT VESSEL MUST BE “READY” TO LOAD IN A LAYTIME SENSE: RISK OF GOODS DAMAGED BY UNCLEAN HOLDS ON BUYER

DMC/SandT/2010/25

England

Habas Sinai Ve Tibbi Gazlar Isthisal Endustri AS v Sometal SAL

English Commercial Court: Christopher Clarke J: [2010] EWHC 29 (Comm): 18 January 2010 [[20]]

Available on BAILII @ http://www.bailii.org/ew/cases/EWHC/Comm/2010/29.html

ARBITRATION: INCORPORATION OF ARBITRATION AGREEMENT/CLAUSE INTO CONTRACT: GENERAL REFERENCE TO PRIOR CONTRACTS BETWEEN SAME PARTIES WHICH INCLUDED ARBITRATION AGREEMENT/CLAUSE: WHETHER WORDS USED SUFFICIENT TO INCORPORATE PRIOR ARBITRATION AGREEMENT/CLAUSE

DMC/SandT/10/17

South Africa

The MV “Ioannis NK”[[21]]

The owner of the cargo lately laden on board the MV “Ioannis NK” v The Master and Crew & Others (AC 66/2009)

High Court of South Africa (Western Cape High Court, Cape Town) exercising its admiralty jurisdiction: Cleaver J.; 26 August 2009

EXAMINATION OF CREW FOR PURPOSE OF OBTAINING EVIDENCE WHERE DISPUTE SUBJECT TO FOREIGN PROCEEDINGS: EXCEPTIONAL CIRCUMSTANCES UNDER THE ADMIRALTY JURISIDICTION REGULATIONS ACT 1983: FACTORS TO BE CONSIDERED: RIGHTS OF CREW MEMBERS FOLLOWING A CASUALTY

DMC/SandT/10/16

England and Wales

Kolmar Group AG v Traxpo Enterprises Pvt Limited [[22]]

English High Court: [2010] EWHC 113 (Comm)

INTERNATIONAL SALE OF GOODS: FOB CONTRACT: ECONOMIC DURESS BY DEMANDING PAYMENT FOR LESSER AMOUNT OF GOODS AT HIGHER PRICE THAN AGREED UNDER THE CONTRACT: TORT OF INTIMIDATION: DAMAGES FOR BREACH OF CONTRACT

DMC/SandT/10/11

High Court of England and Wales

Sotrade Denizcilik Sanayi Ve Ticaret AS v Amadou LO and others (The “Duden”)[[23]]

Queen's Bench Division (Commercial Court): Jonathan Hirst, Q.C.: [2008] EWHC 2762 (Comm); [2009] 1 Lloyd's Rep. 145: 19 November 2008

CARRIAGE OF GOODS BY SEA: CHARTERPARTY: LONDON ARBITRATION CLAUSE INCORPORATED IN BILLS OF LADING: CONSERVATORY ARREST BY CARGO OWNER AND INSURER: JURISDICTION: ANTI-SUIT INJUNCTION: WRONGFUL INDUCEMENT OR PROCUREMENT OF BREACH OF EXPRESS AND IMPLIED TERMS OF BILL OF LADING CONTRACT: REFUSAL TO ACCEPT PROTECTION AND INDEMNITY CLUB UNDERTAKING

DMC/SandT/10/09

English High Court

Kallang Shipping SA Panama v AXA Assurances Senegal and Comptoir Commercial Mandiaye Ndiaya (The “Kallang”)[[24]]

Queen's Bench Division (Commercial Court): Jonathan Hirst, Q.C.: [2008] EWHC 2761 (Comm); [2009] 1 Lloyd's Rep. 124: 19 November 2008

CARRIAGE OF GOODS BY SEA: CHARTERPARTY: LONDON ARBITRATION CLAUSE INCORPORATED IN BILLS OF LADING: IMPLIED TERMS: ARREST BY CARGO OWNER AND INSURER: SECURITY: JURISDICTION: WRONGFUL INDUCEMENT OR PROCUREMENT OF BREACH OF CONTRACT: PROTECTION AND INDEMNITY CLUB: LETTERS OF UNDERTAKING

DMC/SandT/10/08

Singapore

TAT SENG MACHINE MOVERS PTE LTD V. ORIX LEASING SINGAPORE LTD:[2009] SGCA 42 [[25]]

Singapore Court of Appeal: Andrew Phang Boon Leong JA, Chao Hick Tin JA, V K Rajah JA: 11 September 2009

BAILMENT – BAILOR’S RIGHT TO IMMEDIATE RIGHT TO POSSESSION IF BAILEE’S BEHAVIOUR REPUGNANT TO TERMS OF BAILMENT – WHETHER CONTRACTUAL RIGHTS RESTRICTED BAILOR’S RIGHTS UNDER COMMON LAW

TORT – CONVERSION – WHETHER ACT OF REMOVING MACHINE FROM PREMISES AND DELIVERING IT AS INSTRUCTED AMOUNTED TO CONVERSION OF MACHINE – WHETHER ACT OF STORING MACHINE AT WAREHOUSE AMOUNTED TO CONVERSION OF MACHINE – WHETHER ACT OF REDELIVERING MACHINE TO PURPORTED OWNER AMOUNTED TO CONVERSION OF MACHINE

DMC/SandT/10/7

Hong Kong

The “Blue Bridge” (formerly known as The “Great Power”) [[26]]

Hong Kong SAR Court of First Instance: Reyes J in Chambers: HCAJ No. 136/1999: 1 February 2010 http://www.hklii.org/hk/jud/eng/hkcfi/2010/HCAJ000136_1999-69593.html

CARRIAGE OF GOODS BY SEA: SETTING ASIDE DEFAULT JUDGMENT ENTERED INTO AGAINST A SHIPOWNING COMPANY THAT HAD BEEN DISSOLVED: APPLICATION BY RE-INSURER TO INTERVENE: AUTHORITY TO ACT FOR PRINCIPAL IN LITIGATION: DELAY IN APPLICATION TO INTERVENE: REAL PROSPECT OF SUCCESS