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'''Summary'''
A clause in the American Americanised Welsh Coal Charter form (1979 amendment) provided that “... [i]n case of strikes,… or any other causes included but not limited to breakdown of shore equipment or accidents beyond the control of the Charterers which prevent or delay the discharging, such time is not to count unless the vessel is already on demurrage.” The English Court of Appeal affirmed the decision of Field J and held that so long as the strike was the effective cause of the delay, the period of delay in cargo operations directly caused by strike was to be discounted from the calculation of laytime and further, the charterers were also protected from the effects of strikes which prevented or delayed the vessel from entering berth in order to discharge.
This note has been contributed by Ken T.C. Lee, LLB(Hons), PCLL (University of Hong Kong), BCL(Oxon) and barrister-at-law in Hong Kong.
'''Background'''
In March 2008, Louis Dreyfus Commodities Suisse SA (“the Shipowners”) chartered four of its vessels (“the Vessels”) to Carboex SA (“the Charterers”) for the carriage of coal from Indonesia to Ferrol, Spain on the American Americanised Welsh Coal Charter form (1979 amendment).
Clause 4 governed the laytime at the loading port and provided that:
The Charterers appealed against the decision of the tribunal. At the appeal before Field J, [insert huyperlink] the parties invited the court to consider a third issue which it was said would decide the issues of construction common to those raised by questions (i) and (ii) above, namely whether the strike exception in Clause 9 applied to a vessel which was unable to berth due to berth congestion caused by a strike.
Field J ([2011] EWHC 1165 (Comm), [2011] 2 All ER (Comm) 365) [[http://www.onlinedmc.co.uk/index.php/Carboex_v_Louis_Dreyfus_Commodities]] held that, following Leonis Steamship v Joseph Rank Ltd (No 2) (1908) 13 Com Cas 295, the ordinary meaning of Clause 9 was that it covered not only delay in discharging caused by congestion due to a strike but also delay in discharging caused by congestion due to the after-effects of a strike which had ended. This was so whether the vessel arrived at the discharging port before or after the strike had ended. Statements by various members of the House of Lords in the Marwood case were obiter and were not binding on the Court. Field J thus allowed the appeal and set aside the award.
The Shipowners appealed against the judgment of Field J.
