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Michael Nolan QC (instructed by Laurence Marron Solicitors) for C Transport (Charterers)
'''ARBITRATION ACT 1996 SECTION 69 APPEAL ON POINT OF LAW:TIME CHARTERPARTY: CONTINUING WARRANTY OF SPEED AND CONSUMPTION: VESSEL SUSTAINED UNDERWATER FOULING DUE TO PROLONGED STAY IN TROPICAL WATERS RESULTING IN UNDERPERFORMANCE: WHETHER A DEFENCE FOR OWNERS TO PROVE THAT VESSEL UNDERPERFORMED BECAUSE OF COMPLIANCE WITH CHARTERERS’ ORDERS'''
'''Summary'''
“Where the owners give a continuing undertaking as to performance of the ship, and the ship has in fact underperformed, it is a defence for the owners to prove that the underperformance resulted from their compliance with the charterers’ orders: see The Pamphilos [2002] 2 Lloyd’s Rep 681 per Colman J., at page 690. In that case, the ship’s failure to achieve the promised performance resulted from marine fouling, which was in turn the result of the owners’ complying with the charterers’ order to wait for 21 days at a tropical port.”
'''Judgment'''
The judge first summarised the material facts (above), referred to the relevant time charter clause (above), and stated that the question of law to be decided on appeal was:
