Eitzen Bulk A/S v TTMI Sarl [2012] EWHC 202 (Comm)

[2012] EWHC 202 (Comm)

Case No 2011 FOLIO 884

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

COMMERCIAL COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 14/02/2012

Before

MR JUSTICE EDER

Between

EITZEN BULK A/SClaimant

TTMI SARLDefendant

John Passmore (instructed by Elborne Mitchell LLP) for Claimant

Timothy Saloman QC (instructed by Clyde & Co) for Defendant

Hearing Hearing dates: 3 February 2012

Judgment

Introduction

[1]This is an appeal by the Claimant (“Eitzen”) under s.69 of the Arbitration Act 1996 of an Award of three arbitrators (Mr P O’Donovan, Mr E Mocatta and Mr J C Sheppard) dated 27 June 2011. Leave to appeal was granted by Teare J on 4 November 2011 in respect of the following question of law:

“In clause 15 of the SHELLTIME 4 form, do the words “price actually paid” mean the price paid by the party seeking reimbursement under the clause or the price paid when the bunkers were stemmed?”

[2]In addition, there is before the Court a related application by Eitzen under s.70(4) of the 1996 Act issued on 22 December 2011 (ie almost 6 months after the date of the Award and almost 6 weeks after the Order of Teare J granting leave to appeal) seeking an order that the Tribunal provide further reasons in relation to one particular aspect of its Award.

Background

[3]The Award concerns the vessel MV “Bonnie Smithwick” under two charterparties:(1) a charterparty dated 10 May 2007 (“the head charter”) between TTMI SARL (“TTMI”) as disponent owners and Eitzen as charterers; and

(2) a charterparty dated 13 October 2008 (“the subcharter”) pursuant to which the vessel was re-let by Eitzen back to TTMI.

[4]The relevant facts as appear from the Award can be summarised as follows. The head charter was on an amended SHELLTIME 4 form with rider clauses. It was for a period of minimum 11 maximum 13 months. The rate was US$ 34,500 per day (after variation of the original rate). Pursuant to the head charter, the vessel was delivered to Eitzen on 16 August 2007.

[5]The SHELLTIME 4 form contains the following material provisions:

“7(a) Charters shall provide and pay for all fuel….. 7(b) In respect of bunkers consumed for owners purposes these will be charged on each occasion by charterers on a first-in-first-out basis valued on the prices actually paid by charterers. 15 Charterers shall accept and pay for all bunkers on board at the time of delivery, and owners shall on redelivery (whether it occurs at the end of the charter or on the earlier termination of this charter) accept and pay for all bunkers remaining on board, at the price actually paid, on a first-in-first-out basis. Such prices are to be supported by paid invoices. 20 Should the vessel be lost, this charter shall terminate and hire shall cease at noon on the day of her loss; should the vessel be a constructive total loss, this charter shall terminate and hire shall cease at noon on the day on which the vessel’s underwriters agree that the vessel is a constructive loss; should the vessel be missing, this charter shall terminate and hire shall cease at noon on the day on which she was last heard of. Any hire paid in advance and not earned shall be returned to charterers and owners shall reimburse charterers for the value of the estimated quantity of bunkers on board at the time of termination, at the price paid by charterers at the last bunkering port. 24(b) If during any year from the date on which the vessel enters service (anniversary to anniversary) the vessel falls below or exceeds the performance guaranteed in clause 24(a) then if such shortfall or excess results: (i) from a reduction or an increase in the average speed of the vessel, compared to the speed guaranteed in clause 24(a), then an amount equal to the value at the hire rate of the time so lost or gained, as the case may be, shall be included in the performance calculation; (ii) from an increase or a decrease in the total bunkers consumed, compared to the total bunkers which would have been consumed had the vessel performed as guaranteed in clause 24(a), an amount equivalent to the value of the additional bunkers consumed or the bunkers saved, as the case may be, based on the average price paid by charterers for the vessel’s bunkers in such period, shall be included in the performance calculation.”

[6]All the above terms were included in the head charter apart from clause 24(b) which was deleted. Notwithstanding such deletion, it was common ground between the parties that reference to it was permissible (or at least not impermissible) as an aid to construction of clause 15.

[7]As stated in paragraph 32 of the Award, the vessel used three different grades of fuel i.e. IFO or High Sulphur Fuel Oil, Low Sulphur Fuel Oil (LSFO) and Marine Diesel Oil (MDO). Like the Tribunal, to simplify matters, I will merely refer to the price of IFO of which the vessel burned more than other grades.

[8]Under Eitzen’s disponent ownership, the vessel performed a series of time charter trips and voyage charters. In particular, by a charterparty dated 3 September 2008, Eitzen subchartered the vessel to Cargill International SA (the “Cargill charter”) for a time-charter trip with a cargo of coal from Columbia to Europe, in the event Wilhelmshaven. So far as bunkers are concerned, the Cargill charter provided for payment at fixed prices on the basis of IFO US$625/mt, LSFO US$750/mt and MDO US$1,100/mt both ends. That was the price that Cargill paid to Eitzen for bunkers on board on delivery under the Cargill charter. Following completion of that voyage, Cargill redelivered the vessel to Eitzen on 18 October 2008 and pursuant to the terms of the Cargill charter, Eitzen was obliged to and did, in effect, buy back the bunkers on board at that time at the same stipulated prices.

[9]Meanwhile, by October 2008, the market in both charter rates and bunker prices had dropped considerably. At that stage, there still remained a relatively short unexpired period under the head charter. In the event, it was agreed that following completion of the Cargill charter, Eitzen would re-let the vessel back to TTMI for 1 time charter trip, at the rate of US$ 13,000 per day. That is the subcharter referred to in paragraph 3(2) above. Thus, under the subcharter, the roles of the parties were reversed with Eitzen becoming “owners” and TTMI becoming “charterers”. The subcharter was for a duration of about 30/35 days without guarantee. According to the recap for the subcharter, redelivery under the head charter was to be automatic and simultaneous with redelivery under the subcharter.

[10]With regard to redelivery of bunkers, the recap for the subcharter provided as follows:

“BUNKERS: VSL TO REDELD WITH BUNKERS AS PER REQMNTS OF CURRENT PERIOD C/P”

[11]With regard to all other matters, including bunkers on delivery, the subcharter provided as follows:

“OWISE TERMS AND CONDS AS PER HEAD C/P”

. By virtue of this clause, it was common ground that the subcharter was also on the SHELLTIME 4 form, with amendments and rider clauses as in the head charter.

[12]Following redelivery under the Cargill charter and pursuant to the subcharter, the vessel was then immediately delivered by Eitzen to TTMI on 18 October 2008 and performed a voyage from Norfolk, Virginia, to Constanza, carrying a cargo of coal. It appears from paragraph 41 of the Reasons that the Cargill prices were used for the purpose of calculating the price of bunkers on board on delivery of the vessel by Eitzen to TTMI under the subcharter. The precise reason for doing so is unclear to me. In any event, there is, as I understand, no issue between the parties as to such exercise. After Constanza, the vessel was dry-docked in Turkey for about 6 weeks. During the performance of the subcharter, TTMI in its capacity as charterers bunkered twice. On 17 November 2008, TTMI stemmed 400 mts of IFO at US $283 per ton. On 17 January 2009 TTMI stemmed 900 mts of IFO at US $270 per ton. The vessel was eventually redelivered by TTMI to Eitzen under the subcharter and also simultaneously by Eitzen to TTMI under the head charter, on passing Cape Passero on 20 January 2009.

[13]In the arbitrations, there were two main issues in dispute. The first was the issue of whether redelivery on passing Cape Passero (rather than DLOSP Constanza) was wrongful. The Tribunal held that redelivery on passing Cape Passero was in accordance with the subcharter. There is no appeal against this part of the Award.

[14]The second issue was about bunkers, particularly the prices to be paid for bunkers on redelivery under the subcharter and the head charter. As stated above, there was as I understand, no specific issue with regard to the price of bunkers payable by TTMI to Eitzen on delivery under the subcharter. The respective arguments of the parties before the Tribunal are far from straightforward but can be summarised as follows. A. Price of bunkers payable by Eitzen to TTMI on redelivery under the subcharter

[15]With regard to the bunkers on redelivery by TTMI to Eitzen under the subcharter, TTMI contended that the reference in the subcharter recap to the “current period C/P” was to the bunker provisions in the Cargill charter. On that basis TTMI maintained that on redelivery by TTMI under the subcharter Eitzen was liable to pay the set Cargill prices for bunkers. In the arbitration, this was disputed by Eitzen on the basis that the reference in the subcharter recap to “current period C/P” was not the Cargill charter but the head charter. This was rejected by the Tribunal. There is no appeal of this part of the Award. B. Price of bunkers payable by TTMI to Eitzen on (simultaneous) redelivery under the head charter

[16]It was common ground that clause 15 governed the redelivery pricing but there was a dispute between TTMI and Eitzen as to the proper construction of that clause and its application to the present facts. In particular, Eitzen argued that the “price actually paid” was the price which Eitzen was obliged to pay TTMI on redelivery under the subcharter which was, as set out above, the Cargill prices. This was disputed by TTMI. In particular, it was TTMI’s case that under clause 15, the words “price actually paid” refer to the prices actually paid for the bunkers which had been put on board and remained on board the vessel on redelivery assessed on a first-in-first-out basis as supported by invoices paid by TTMI to the bunker suppliers. Thus, TTMI’s case was that on redelivery by Eitzen under the head charter its (ie TTMI’s) obligation under clause 15 was to pay Eitzen these prices for the bunkers. In the event, the Tribunal accepted TTMI’s case. This part of the Award is the subject of Eitzen’s appeal.

Construction of clause 15

[17]In light of the above, it is now common ground that clause 15 of the SHELLTIME 4 form governed bunkers on delivery and redelivery under the head charter. In effect, the Tribunal decided that the words “price actually paid” in clause 15 mean the price paid when the bunkers were stemmed. Thus paragraph B of the substantive part of the Award states:

“B. Bunkers We declare that the price and quantity of bunkers that Eitzen was obliged to re-purchase from TTMI on redelivery under the subcharter was the same as agreed between Eitzen and Cargill. On redelivery under the head charter TTMI was obliged to repurchase from Eitzen, the same quantities of bunkers, but at the prices actually paid on a first-in first-out basis, as supported by invoices paid by TTMI to bunker suppliers in Gibraltar and Piracus on 17th November 2008 and 19th January 2009.”

Quantum was left open in the hope that that this could be agreed failing which the Tribunal reserved its powers to consider this further. The relevant part of the Tribunal’s reasons for its conclusion are set out in paragraphs 59-62 of the Reasons as follows:

“59. In relation to the effect of clause 15 of the SHELLTIME 4 form, we consider that it must be interpreted as it stands with the natural meaning of the words being applied. Eitzen tried to explain that as its purpose was to reimburse the sub charterer for money he had expended on supplying bunkers, it could be satisfied by showing the sub charter redelivery prices, quantities and redelivery statement. However, we feel that the wording requires more than that. It mentions “prices actually paid on a first-in-first-out basis” and then continues to require such prices to be supported by “paid invoices”

. The meaning is simple and clear, paid invoices must be supplied. 60. Allowing reliance only on documentation produced on redelivery under a subcharter, would or might well mean importing into the head charter a price mechanism that was not related to what had actually been paid. In this case we know that the Cargill Eitzen prices, that had been imported into the subcharter were not actual prices paid for bunkers, but represented historic values at the beginning of September. They did not represent the price paid by Cargill on redelivery at Wilhelmshaven in mid October of about US$420 per ton. Allowing this result would or could result in the swap or same price mechanism of tcts being brought into a long term charter where the bunker price regime is quite different. This would be illogical. 61. We accept that where the bunkers were supplied and paid for by another party the charterer may have difficulty in obtaining copies of these invoices from the subcharterer for this purpose, but we do not consider it to be impossible. If attempts to do so were made and were then unsuccessful, other considerations might apply; since there is no doubt that the owner must pay for the bunkers on board on redelivery. We were not shown any such requests in this case, and it seems that Eitzen were content, not to ask Cargill for copies but to rely on the payment they had made to Cargill as evidence of a price actually paid. However we do not think this really amounts to a price actually paid supported by paid vouchers. 62. We do not consider that redelivery payments to Cargill constitute a “price actually paid” for the purpose of clause 15, and that TTMI are entitled on redelivery under the head charter to pay Eitzen for the bunkers supplied at Gibraltar and Piraeus at the prices they actually paid to obtain them. – US$283 & US$270.”

[18]The parties’ respective arguments may be summarised as follows. Eitzen’s case is that “price actually paid” means the price actually paid by the party seeking payment under clause 15. In contrast, TTMI’s case is that “price actually paid” refers to the price paid to bunker suppliers. Where bunkers are stemmed by the party seeking reimbursement then obviously the two approaches to the meaning of “price actually paid” amount to the same thing. Where, however, a party buys bunkers upon delivery or redelivery under one charterparty and then delivers or redelivers the same bunkers under clause 15 in another charterparty, the two approaches will almost inevitably be different. In such case, it is necessary to decide whether, under clause 15, the party seeking payment is entitled to(1) the “price actually paid” by him, or

(2) the price paid by him or by a third party when the bunkers were stemmed.

[19]In support of its case that “price actually paid” means price actually paid by the party seeking payment, Eitzen advanced three main arguments. First, the clause is “unworkable” with the meaning found by the Tribunal. Second, the clause is intended to provide reimbursement. Third, Eitzen is entitled to rely on an estoppel on the basis that both parties used Eitzen’s construction of clause 15 for the purpose of delivery of bunkers under the head charter (and delivery under the sub-charter).

[20]In summary, Eitzen submitted as follows:a. Clause 15 requires that “prices are to be supported by paid invoices”. Where a party has bought bunkers on an earlier delivery or redelivery, and then seeks payment under clause 15, that party will not usually be in possession of, or have any right to obtain, invoices issued to a third party when the bunkers were stemmed. This is particularly so having regard to the confidentiality provisions contained in most charterparties as, for example, appear in clause 47 of the SHELLTIME 4 form. It follows that the Tribunal’s decision on the meaning of “price actually paid” will often be unworkable. The fact that the decision will often be unworkable is a very strong indication that it is wrong.

b. By contrast, owners or charterers seeking payment for bunkers on delivery or redelivery should always be able to obtain a paid invoice from the party from whom they bought the bunkers. The Tribunal seems to have assumed that the party who, on an earlier delivery or redelivery, has sold the bunkers (to the party seeking payment under clause 15) could not issue an “invoice”.

[21]Although Mr Passmore did not refer me to any particular authority to support this part of Eitzen’s case, I am prepared to assume in favour of Eitzen that a construction which is “unworkable” is one which should generally be rejected. However, it is in my view important to recognise the limits of this kind of argument on an appeal under s.69 of the Arbitration Act 1996. Here, the Tribunal specifically addressed this argument and set out its conclusions in paragraph 61 of its Reasons which I have already quoted in full above. Thus, the Tribunal concluded that although a charterer may have difficulty in obtaining copies of relevant invoices, it did not consider it was impossible. On a hearing of an appeal on a question of law under s.69 of the 1996 Act I do not consider that it is permissible for the Court to go behind such conclusion.

Reimbursement

[22]In broad terms, it was Mr Passmore’s second main submission that clause 15 is intended to provide reimbursement, so “price actually paid” means the price actually paid by the party seeking payment. In particular, it was submitted by Mr Passmore in summary as follows: i) The situation where there is no subcharter may be considered first. Upon delivery under clause 15, if the owner is paid anything more or less than the amount he paid for the bunkers on board the vessel, then he will make a profit or suffer a loss on those bunkers. Such a profit or loss would have nothing to do with the relationship between the price paid and the market at the time of delivery: it would arise simply because the owner would be paid more or less than he paid for the same bunkers. Upon redelivery under clause 15, if the charterer is paid anything more or less than the amount he paid for the bunkers remaining on board the vessel (on a first-in-first-out basis), then he will make a profit or a loss on those bunkers. Again, such a profit or loss will be made regardless of the market. Clause 15 is designed to eliminate this sort of profit-making and loss-suffering. ii) If (as submitted by Eitzen) the price payable by the charterer on delivery is the price which was paid by the owner for those same bunkers, then by virtue of variations in the markets in different parts of the world, and fluctuations in those markets, that price is almost bound to be higher or lower (even if only slightly higher or lower) than the market price at the time of delivery. If the price is higher than the market price then the charterer may have to use bunkers (on a first-in-first-out basis) bought at an above-market price; if the price is lower than the market then the charterer may gain by using bunkers bought below-market. iii) Such a “loss”, or gain, is inherently likely to arise from charterparty provisions regarding delivery and redelivery of bunkers which do not contain a mechanism for determination and payment of the market price at the time of delivery or redelivery. A loss or gain of this sort would similarly occur if the price paid by the charterer were the price paid when the bunkers were stemmed (as submitted by TTMI). Further, although under TTMI’s construction such loss or gain would not be at precisely the same level as the loss or gain under Eitzen’s construction, there is no reason to suppose that, under TTMI’s construction, such loss or gain would be smaller. The likelihood of such a loss or gain can only be removed by the incorporation of bunkers delivery and redelivery provisions which provide for determination and payment of market prices as at the time of delivery or redelivery. Provisions of this sort are very common (in charterparty forms such as NYPE 1946 edition and the Baltime form), but of course they do not appear in the SHELLTIME 4 form. iv) Secondly, situations where the charterer enters into a subcharter may be considered. The difference here is that, if the subcharter is a time charter, the subcharterer may stem and pay for bunkers during the currency of the subcharter, in which case the charterer (under the head charter) might have to buy some of those bunkers upon redelivery under the subcharter. It is unlikely that, when a charterparty is made, the owner will have any knowledge of the terms of any subcharters, particularly any subcharters after the first subcharter. Those terms may well be for payment of the market price at the time and place of redelivery; alternatively, they may provide for payment of stipulated prices, and “same prices both ends”, which will no doubt be based on a snapshot of the market at or near to delivery under the subcharter. If bunkers bought by the subcharterer are redelivered under the subcharter and then under the head charter, according to Eitzen’s case the owner under the head charter will pay the “price actually paid” by the charterer who seeks reimbursement under clause 15. This will have the effect, which is surely the intention of clause 15, that the charterer will make no profit or loss on the redelivery of bunkers under the head charter. v) Thus, the Tribunal was wrong in its reasoning that, in circumstances where the party seeking reimbursement has bought the bunkers on an earlier delivery or redelivery, the price paid is irrelevant because it represents “historic values”. Where payment is sought for bunkers which were not stemmed by the party seeking reimbursement, but were bought on an earlier delivery or redelivery, the price paid when the bunkers were stemmed is similarly historical. In fact, the bunkers are bound to have been stemmed before they were bought and sold by a charterer, so the price when stemmed is likely to be more “historical” than the price used for the earlier delivery or redelivery. Furthermore, in these circumstances, because the price paid when the bunkers were stemmed was paid by a third party, it is simply irrelevant to the parties making and receiving payment under clause 15.

[23]Mr Passmore advanced this argument with great skill and persuasiveness. In broad terms the basis of such argument is that Eitzen’s construction is the more businesslike and therefore reasonable. I agree that where a term of a contract is open to more than one interpretation, it is generally appropriate to adopt the interpretation which is more consistent with business common sense: see Rainy Sky v Kookmin Bank

[2011] 1 WLR 2900

at [30]. However, like the Tribunal, I am not persuaded that Mr Passmore’s argument as summarised above is more consistent with business common sense. It may well be that the time of the payments made by charterers for bunkers on redelivery under a subcharter is historically closer to the point when redelivery occurs under the head charter but such payments would not necessarily be the relevant market prices for bunkers at such time. They might (as in the present case under the Cargill charter) be fixed by reference to some other point of time or to some other yardstick over which the owner under the head charter would have no control whatsoever. As Mr Saloman QC submitted, it seems to me most unbusinesslike that the head owner should be taken to have agreed to pay a price for bunkers on redelivery over which he has no control and which is not necessarily related to any particular market price or price actually paid to a bunker supplier. In response, Mr Passmore submitted that this did not matter much because the price payable was in the control of at least one of the parties to the head charter ie the charterer. However, in my view, this does not address the main focus of Mr Saloman QC’s submission in this context.

[24]The problems thrown up by the facts of the present case were well recognised by the Tribunal. As stated in paragraph 56 of the Reasons, the SHELLTIME 4 form of charterparty is “…. not well suited to being the source document in a chain or sequence of time charters. Clause 15 is far more appropriate where there is a long term charter between two parties who can be expected to have copies of all invoices paid for bunkers supplied to the vessel. However, it is the underlying charterparty form and we shall have to interpret it as best we can”. I respectfully agree with these comments. In truth, it seems to me that the wording in clause 15 is open to more than one interpretation and, like the Tribunal, the Court must do the best it can in the circumstances. In my view, that task is best performed by considering the specific arguments advanced by Mr Saloman QC on behalf of TTMI in seeking to support the Tribunal’s conclusion.

History of the Standard Form

[25]Mr Saloman QC sought to rely on the fact that clause 15 of the present (ie 2003) SHELLTIME 4 form is in substantially different terms to the previous (1984) version of clause 15 of the SHELLTIME 4 form which provided in material part that the obligation of the owner on redelivery was to: “accept and pay for all bunkers remaining on board at the then-current market prices at the port of….redelivery….or if such prices are not available payment shall be at the then-current market prices at the nearest port at such prices are available; provided that if delivery or redelivery does not take place at a port payment shall be at the price paid at the vessel’s last port of bunkering before.…redelivery”.

[26]In addition, Mr Saloman QC referred me to a publication “Shelltime 4 and Shell LNG Time: a Comparison of Shelltime 1984 Shelltime 2003 and Shell LNG Time1” 1st Edition (2010) published by Intertanko” from which (see p.48) it appears that the current price at the time of the delivery/redelivery calculator was commonly amended by the chartering community to a price based on a price actually paid on a first-in-first-out basis. He also referred me to an earlier (1996) Intertanko publication which stated that at least as early as 1996 the market apparently used an amended version of the SHELLTIME 1984 form’s clause 15, the amendment being based on “price actually paid”. Even on the assumption that such material is admissible as an aid to the proper construction of the head charter in the present case, I do not consider that these references are of any real assistance to Mr Saloman QC. Indeed, the fact that the original 1984 version (which as set out above provided that if redelivery does not take place at a port, payment shall be at the price paid at the vessel’s last port of bunkering before delivery) was deleted and replaced by the current version of clause 15 might be said to support Eitzen’s case. In the event, it seems to me that although this historical exegesis is interesting it is ultimately unhelpful in determining the present issue.

Market Understanding

[27]Mr Saloman QC submitted that TTMI’s construction is in effect one which would “reasonably be understood by the community of market users of the 2003 form”. That may or may not be the case but there is nothing in the Award or Reasons to support such conclusion and, short of a custom, it seems to me that any such “market understanding” would, in any event, be inadmissible. A variation of this submission was Mr Saloman QC’s further submission that TTMI’s construction is supported by Wilford on Time Charters (2008) at paragraph 38.85 which states as follows: - “The original SHELLTIME 4 required payment for bunkers to be at market prices current at delivery or redelivery, as the case may be, at the port of delivery or redelivery respectively. That has been replaced in the revised form here quoted by a provision for payment of the price originally paid for the bunkers by the owners or the charterers, respectively; see Line 289. For that purpose, Lines 289 and 290 require a “first-in-first-out” rule to be applied to determine what bunkers are being taken over. The paid invoices that Line 290 requires to be produced to support the bunker prices claimed will therefore be for the most recent purchase prior to delivery, or redelivery, as the case may be, unless that was for less than the quantity being taken over, in which case that purchase and the next most recent as well, and so on.”

[28]In particular, Mr Saloman QC submitted that this passage from Wilford reflects the view of the Intertanko Comparison monogram referred to above that price “actually paid” means the actual price or prices paid to the bunker suppliers and “paid invoices” means those of the bunker suppliers. Although that submission may have some force, it seems to me that the main difficulty is that it does not appear (or at least it is not clear) that Wilford had in mind the particular problems which arise in the present case where a charterer under the SHELLTIME 4 form subcharters the vessel and then delivers and obtains redelivery of the vessel under such subcharter. Nevertheless, I agree with Mr Saloman QC that this passage does provide at least some support for his construction.

The wording of clause 15

[29]In truth this is, or should, be the starting point of the exercise of construction. In this context, Mr Saloman QC relied upon three main points. First, the use of the word “actually”. In particular, Mr Saloman QC submitted that this must refer or at least must most naturally refer to the price paid to the third party who actually supplied the fuel at the pumps. In my view, that submission is, at best, very weak. The word “actually” is an adverb qualifying the word “paid”. On its face it does not seem to have anything to do necessarily with the process of supplying and paying for the fuel at the pumps.

[30]Second, Mr Saloman QC submitted that TTMI’s construction is supported by the express requirement to produce “paid invoices” which, submitted Mr Saloman QC, can only reasonably be understood to mean paid invoices from the bunker suppliers. Although this argument appears to have found favour with the Tribunal, I am not so impressed by it. When a charterer pays for bunkers on board on delivery or an owner pays for bunkers on board on redelivery, such payment would normally be against production of an invoice from the owner or charterer respectively. Once payment is made, I see no reason why these invoices would not be referred to as a matter of ordinary language as “paid invoices”.

[31]Third, Mr Saloman QC relied upon the specific requirement for “first-in-first-out” assessment. Here, I agree with the Tribunal that such wording does indeed support the case advanced by TTMI in particular because this would seem to refer to the physical act of stemming bunkers (ie “in”) and the actual physical act of consuming bunkers (ie “out”). Moreover, the structure of the wording would seem to link the price actually paid to that physical movement of fuel – in particular the price paid for the fuel being taken “in” at any particular moment in time. On behalf of Eitzen, Mr Passmore submitted that this analysis was flawed when the wording is compared with clause 7(b). In particular, Mr Passmore submitted that clause 7(b) similarly provided for a “first-in-first-out” basis of valuation but since that clause also expressly provided that such valuation was to be carried out “on the prices actually paid by charterers” and given the additional words “by charterers” the reference to “first-in-first-out” cannot have the meaning attributed to that phrase by TTMI. I recognise the potential force of that point but I am unpersuaded by it. I accept that it is perhaps odd that the words “by charterers” appear in clause 7(b) (as also in clause 24(b)(ii)) whereas no such words appear in clause 15. I cannot readily find an explanation for this difference. In my view, it is anomalous. However, it does not seem to me necessarily to follow that the reference to “actually paid by charterers” as these words appear in clause 7(b) means actual payment by the named charterers themselves. For example the opening words of clause 7(a) stipulate that “charterers shall provide and pay for fuel…” However, in circumstances where a charterer subcharters the vessel such obligation will never actually be performed by the charterer himself. In such circumstances, the acts of providing and paying for the fuel will actually be performed by the subcharterers. In effect, for the purposes of the head charter, the subcharterers will be carrying out these acts on behalf of the charterers. So, in principle, I see no reason why the reference to “prices actually paid by charterers” in clause 7(b) should not refer to the payments made to the actual suppliers.

Estoppel

(b) Estoppel

[32]The third main submission relied upon by Eitzen in support of the appeal was an estoppel as set out in paragraph 6 of the Claim Form viz:

“(6) the Tribunal failed to hold that, since both parties had relied upon construction of the phrase “price actually paid” (set out in sub-paragraph (1) above) upon delivery under the head charter (of “BONNIE SMITHWICK” and another vessel, “SEAROSE G”) and delivery under the subcharter, the Defendant was estopped from claiming that the phrase meant price paid when bunkers were stemmed;”

In this context, Mr Passmore submitted that Eitzen should have the benefit of an estoppel by convention which prevents TTMI from arguing that “price actually paid” means price paid when bunkers were stemmed. Mr Passmore accepted, as he was bound to do, that the Tribunal does not deal with this estoppel case anywhere in its Reasons (although he did accept that the Tribunal must impliedly at least have rejected it). It is on this basis that Eitzen issued belatedly a separate application dated 20 December 2011 for an order for further reasons under S.70(4) of the 1996 Act supported by the second witness statement of Peter Tribe dated 22 December 2011. There was some debate before me as to whether such application was out of time. In principle, it seems to me that such application was, as submitted by Mr Saloman QC, out of time, although the Court no doubt retains a jurisdiction to order the Tribunal to state further reasons of its own motion under s.70(4) of the 1996 Act. In any event, it seems to me that any such application is hopeless and that the Court should as a matter of discretion decline to order further reasons because it would be an entirely futile exercise. This is so for the following reasons, which were advanced by Mr Saloman QC.

[33]It is common ground that Eitzen raised a plea of estoppel in the arbitration. However, this argument got nowhere on the facts. Eitzen had pleaded a case that there was “a mutual understanding or at least an understanding on the part of Eitzen known to and acquiesced in by TTMI” that the words “price actually paid” had the construction which they argued for. Although it appears that there was evidence as to the prices charged and paid for bunkers on delivery which might be said to be consistent (at least in part) with Eitzen’s case, any such case would in the ordinary course have required the tendering by Eitzen of evidence:(a) Evidence that TTMI had, and expressed to Eitzen, its own understanding of what clause 15’s terms meant.

(b) Evidence what Eitzen’s understanding of what the correct construction of clause 15 was.

(d) Evidence that the parties proceeded on the basis of the alleged understanding as to the meaning and effect of clause 15.

(e) Evidence that TTMI communicated its understanding as aforesaid to Eitzen.

(f) Evidence proving the other factual ingredients of such an estoppel (such as reliance, the injustice of relying on the true construction of the clause, etc). In the event, Eitzen called none of its several relevant witnesses to give oral evidence. Nor did it put in any evidence under the Civil Evidence Acts. It proved none of the relevant facts. By contrast Mr Goforth, the relevant witness from TTMI, gave evidence and was found in terms by the Tribunal to be “a credible and accurate witness”. Moreover, the essence of Mr Gofoth’s evidence was that the same prices/quantities both ends agreement and the clause 15 regime were quite different. That evidence was accepted: it is inconsistent with the suggested estoppel. His evidence about hybrid arrangements was also accepted by the Tribunal. That too was inconsistent with the alleged estoppel.

[34]Notwithstanding, Mr Passmore submitted that I should make an order requiring the Tribunal to state further reasons because even if such further reasons would not assist in establishing an estoppel, nevertheless it would assist his first main argument in relation to “unworkability”. In that context, Mr Passmore took me to certain documents exhibited to the second witness statement of Mr Tribe which, he submitted, showed that in fact TTMI had been unable to obtain paid invoices from original bunker suppliers in respect of at least some of the bunkers on board on delivery of the vessel under the head charter. However, it seems to me that this attempted use of the power to order further reasons is misconceived. As I have said, my view is that the application for further reasons was out of time. In any event, it seems to me that in truth Mr Passmore is seeking in this context to rely upon the post-contractual conduct of the parties as an aid to construction. On well-established principles, that is impermissible. For all these reasons I reject the application by Eitzen for further reasons.

Conclusion

[35]For the reasons set out above, I reject Eitzen’s submissions with regard to unworkability and the alleged estoppel. Equally I reject Eitzen’s submission that clause 15 is intended to provide reimbursement. I recognise that the clause is badly drafted and is potentially open to more than one interpretation. However, I am persuaded that the conclusion reached by the Tribunal is correct principally because of the specific requirement in the clause for “first-in-first-out” assessment. Accordingly, I dismiss the appeal, uphold the Award and answer the question of law:

“In clause 15 of the SHELLTIME 4 form the words “price actually paid” mean the price paid when the bunkers were stemmed.”

Counsel are requested to seek to agree a draft order (including costs) failing which I will deal with any outstanding issues.