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At first instance, Andrew Smith J ([2009] EWHC 1843 (Comm), [2010] 1 Lloyd’s Rep 87) allowed the Shipowners’ claim, but only on the basis of The “Winson”. The Charterers appealed.
The Court of Appeal (Longmore and Smith LJJ and Sir Mark Waller) ([2010] EWCA Civ 772, [2010] 2 Lloyd’s Rep 409) allowed the appeal[[http://www.onlinedmc.co.uk/index.php?title=ENE_1_Kos_Limited_v_Petrobras]], and only upheld the Shipowners’ claim for the bunkers consumed. Longmore LJ, delivering the leading judgment, held that the principle in The “Winson” was confined to recovering expenses incurred. It could not assist the Shipowners in recovering loss of use of the Vessel at the market rate as the present case disclosed no element of emergency or necessity. There was also no obvious injustice in the Charterers retaining the comparatively small benefit that the stay of the cargo on board the Vessel represented.
The Shipowners appealed to the Supreme Court.
