CSSA Chartering and Shipping Services S.A v Mitsui O.S.K. Lines Ltd [2017] EWHC 2579 (Comm)

Case No CL-2016-000130[2017] EWHC 2579 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
COMMERCIAL COURT (QBD)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/10/2017
Before
MR JUSTICE POPPLEWELL
Between
CSSA CHARTERING AND SHIPPING SERVICES S.AClaimantMITSUI O.S.K. LINES LTDDefendant
John Russell QC (instructed by Clyde & Co LLP) for ClaimantStewart Buckingham (instructed by Kennedys Law LLP) for DefendantHearing Hearing dates: 9 October 2017
JudgmentMR JUSTICE POPPLEWELL :Introduction
[1]This case raises a novel point in respect of the obligation on an owner under a voyage charter to get the vessel to the loading port. In Monroe Brothers Limited v Ryan [1935] 2 KB 28 the Court of Appeal held that where a voyage charterparty contains an obligation on an owner to proceed with all convenient speed to the loading port and gives a date when the vessel is expected to load, there is an absolute obligation on the owner to commence the approach voyage by a date when it is reasonably certain that the vessel will arrive at the loading port on or around the expected readiness to load date; and that the exceptions in the charter apply once the approach voyage is commenced, which is part of the chartered service, but do not apply to the period prior to commencement of the approach voyage.[2]That was a case where the charterers entered into a charter for an intermediate voyage after entering into the charter. The Monroeobligation has been held to arise where: i) the owner’s obligation is simply to proceed to the loading port without any reference to speed or despatch, it being implied that such obligation is to do so with all convenient speed or utmost despatch (Louis Dreyfus & Co v Lauro (1938) 60 Lloyd’s Rep. 94); ii) what is given is an estimated time of arrival at the loading port rather than of expected readiness to load (Mitsui O.S.K Lines Ltd v Garnac Grain Co. Inc. (The Myrtos) [1984] 2 Lloyd’s Rep. 449); iii) where the vessel is at the time of charter still performing her previous service (Louis Dreyfus v Lauro) to the knowledge of the parties (Evera S.A. Commercial v North Shipping Company Ltd (The North Anglia) [1956] 2 Lloyd’s Rep 367);[3]In this charter, the owners gave no ETA at the loading port nor any date of expected readiness to load, but the charter contained a laycan range and the usual express power of termination by the charterers if the vessel did not arrive before the specified cancelling date. The Claimant charterers contend that in this charterparty the Monroe obligation arises by reference to the cancelling date i.e. that there was an absolute obligation on the owners to commence the approach voyage by a date when it was reasonably certain that the vessel would arrive at the loading port by the cancelling date. The Defendant owners dispute that such absolute obligation exists in this charter, and contend that their obligation was one to use due diligence to ensure that the vessel commenced the approach voyage by such date.

The facts

[4]The Defendant was the disponent owner (“Owners”) of the VLCC “PACIFIC VOYAGER” (“the Vessel”) which was chartered under a charter on the Shellvoy 5 form dated 5 January 2015 to the Claimant (“Charterers”) for a voyage from Rotterdam, or ship to ship transfers off Rotterdam, to the Far East. At the time of the fixture the Vessel was laden with cargo under a previous charter, under which she was shortly to discharge part of her cargo in Egypt, south of the Suez Canal, thereafter go to Alexandria to reload a part cargo, and thence proceed to Antifer, Le Havre for final discharge.[5]In the morning of 12 January 2015, whilst the Vessel was transiting the Suez Canal, she suffered rapid water ingress in no.1 starboard ballast tank, and developed a starboard list. The cause was attributed to contact with a submerged object connected with dredging operations being undertaken nearby. There is no suggestion that the Vessel, or the Owners, were in any way at fault, or could reasonably have prevented what happened.[6]An underwater survey confirmed that her cargo had to be discharged there and that she would have to be drydocked for repairs before performing any further laden voyages. The Owners told the Charterers of the incident through the broking channels on 13 January 2015 and there followed correspondence in which the Charterers were informed of the progress of surveying and the prospects for future performance of the charter voyage. The cancellation date was 2359 on 4 February 2015, at which time the state of play communicated by the Owners to the Charterers was that the Vessel was due to drydock in Cadiz on 8 February 2015 and that repairs there would take “months”. On 6 February 2015 the Charterers terminated the charterparty and subsequently brought a claim for damages, which have been agreed as to quantum at US$1,202,812.50.[7]The charterparty terms were contained in a fixture recap which adopted the Shellvoy 5 form subject to amendments by the CSSA Additional Voyage Terms as further amended in the fixture recap. The relevant terms included the following: i) By clause 3:
“3. Subject to the provisions of this charter the vessel shall perform her service with utmost despatch and shall proceed to [Rotterdam or STS off Rotterdam] … and there…. load a full cargo….” ii) By clause 11: “11. Should the vessel not be ready to load by [2359 local time on 4 February 2015] Charterers shall have the option of terminating this charter unless the vessel has been delayed due to Charterers’ change of orders pursuant to Clause 26, in which case the laydays shall be extended by the period of such delay. However, if Owners reasonably conclude that, despite the exercise of due diligence, the vessel will not be ready to load by [the cancelling date] Owners may, as soon as they are able to state with reasonable certainty a new date when the vessel will be ready, give notice to Charterers declaring the new readiness date and asking Charterers to elect whether or not to terminate this charter. Unless Charterers within 4 days after such notice or within 2 days after the termination date (whichever is earlier) declare this charter terminated, [the laycan dates] shall be deemed to be amended such that the new readiness date stated shall be the commencement date and the second day thereafter shall be the termination date. …….. The provisions of this Clause and the exercise or non-exercise by Charterers of their option to terminate shall not prejudice any claims which Charterers or Owners may have against each other.” iii) By part 1(A) of the charter, as amended, the owners guaranteed the vessel’s description “at the date hereof and from the time when the obligation to proceed to the loadport(s) attaches.” iv) By clause 1 the owners undertook to exercise due diligence to ensure the seaworthy condition of the vessel “from the time when the obligation to proceed to the loading port(s) attaches and throughout the charter service.” v) The printed Part 1(B) of the Shellvoy 5 form provides for completion of “Position/Readiness” by two entries, one under “Now” and the other under “Expected ready to load”
. The agreed terms in the fixture recap provided for the inclusion in 1(B) of words which did not adopt either heading as such, but instead gave details of the anticipated timetable for completion of the current voyage in the following terms:
“POSITION: ETA AIN SUKHNA 9 JAN, 2015 (PART DISCHARGE) ETA SUEZ CANAL 10 JAN, 2015 (TRANSIT) ETA SIDI KERIR 12 JAN, 2015 (RE-LOADING) ETA ANTIFER 25 JAN, 2015 (DISCHARGING) ALL ABOVE BSS IAGW / WP”
ETA SUEZ CANAL 10 JAN, 2015 (TRANSIT) ETA SIDI KERIR 12 JAN, 2015 (RE-LOADING) ETA ANTIFER 25 JAN, 2015 (DISCHARGING) ALL ABOVE BSS IAGW / WP”

Submissions

[8]On behalf of the Charterers, Mr Russell QC submitted that the laycan window identified the time at which the parties expected the Vessel to arrive at the loading port and was therefore equivalent to an ETA for the purposes of the Monroe obligation. The cancelling date therefore provided the date by reference to which there was an absolute obligation on the Owners to commence the approach voyage.[9]On behalf of the Owners, Mr Buckingham accepted that if the charter had contained an ETA at the loading port, there would have been a Monroe obligation as a matter of implication, but that no such implication fell to be made in this charter where no such estimate was given by the Owners. He submitted that a cancelling date was not, and is not equivalent to, an estimate by owners of an arrival date at the loading port, but merely a contractual option afforded to the charterers if the vessel should not arrive by that date. In this case the parties had not contracted for an ETA from the Owners, leaving that part of the printed form uncompleted, but rather had contracted for ETAs of stages on the existing previous voyage, all qualified by the rubric IAGW/WP. He submitted that the only relevant obligation on the Owners was an implied term that they would exercise due diligence to get the Vessel to the loading port by the cancelling date, relying on Marbienes Compania Naviera S.A. v Ferrostaal A.G. (The Democritos) [1975] 1 Lloyd’s Rep 386 (Kerr J); [1976] 2 Lloyd’s Rep 149 (CA); and that the wording of the second paragraph of clause 11 “despite the exercise of due diligence” supported this conclusion.

Analysis and conclusion

[10]I would start by identifying four matters which form important background to the current issue. First, owners and charterers under a voyage charterparty have conflicting interests in relation to contractual terms governing the timing of the arrival of a vessel at the loading port: “The date at which the vessel will arrive at the loading port or place and be ready to load is a matter of considerable importance to the charterer or shipper, who needs to know as soon and as accurately as possible when he must have the cargo ready to load, and who may well suffer loss if shipment is delayed. The owner, on the other hand, is usually unable to predict precisely when the vessel’s existing engagements will be completed or what conditions will be encountered on any intervening voyage, and it is in his interests to reserve as much latitude as possible to himself regarding the date when the vessel must be ready to load. It is, therefore almost unknown for a charter to contain a contractual promise on the owner’s part, for breach of which he would be liable in damages, that the vessel will be ready to load by or on a specific date.” [Cooke on Voyage Charters 4th edn para 4.1][11]Secondly, and because the issue is one of contractual allocation of risk between these conflicting interests, the issue turns in every case upon the particular charterparty terms agreed between the parties. It is a question of construction and/or implication of terms. That process of interpretation is informed by the established case law, including that at first instance, because the standard charterparty forms and the adaptation of them have been developed in accordance with the well-established principles governing commonly used expressions and devices; and the parties may be taken to have contracted on the basis of those principles when adopting or adapting those forms, and when using those expressions and devices. The desiderata of certainty in commercial contracts and of giving effect to the parties’ bargain dictate that when interpreting the particular charter in question the Court should apply reported decisions on similar wording, including those at first instance unless there is good reason to depart from them. The allocation of risk is commonly dealt with by the owners giving an ETA at the loading port (see the opening paragraph of Devlin J’s judgment in The North Anglia at p. 370) with the consequences established in the Monroe line of authorities. Where there is no such ETA, it is to the other charterparty terms that one must look to determine the allocation of risk.[12]Thirdly, a cancelling clause provides some protection for a charterer, but it does not comprise a promise by the owners that the vessel will arrive by the cancelling date, and the only remedy it affords to charterers if the vessel does not arrive by that date is one of bringing the charter to an end. The option to terminate can only be exercised once the cancelling date has past, and so the charterers must usually wait and see whether the vessel arrives before being able to rely on it. If exercised, it brings the charter to an end but confers no right to damages. On its own it is therefore of some, but limited, value in contributing to the relative certainty charterers desire in making arrangements for the cargo to be loaded.[13]Fourthly, the chartered service begins with the approach voyage to the loading port. The charterparty terms apply to that period, including the exceptions and limitations on owners’ liability for delay or mishaps. Those are a matter of contractual bargaining between the parties. By contrast, the employment of the vessel in other service prior to the chartered service is not the subject matter of such bargaining between the parties. The exceptions and limitations in the charter do not apply to the progress of the vessel whilst engaged in potentially profit earning activity by the owners pursuant to a previous charter to which the subsequent charterers are not party: Monroe.[14]Against that background I find it helpful to start by examining the rationale for the imposition of the Monroe obligation in those cases to which it has been held to apply. As articulated by Branson J in Louis Dreyfus v Lauro at p. 97, cited with approval by Devlin J in The North Anglia at p. 372 Col 2, it arises by reason of the combination between the expected date of arrival or readiness, and the term requiring the vessel to use all convenient speed or utmost despatch to proceed to the loading port. The judgments in Monroe itself do not spell out why that is so, but illumination is to be found in the judgment of Devlin J in The North Anglia, as so often from that great judge. The obligation to proceed to the loading port with all convenient speed must arise at a particular identifiable time. Because the obligation to proceed with all convenient speed attaches to the chartered service, which is to commence with the approach voyage, the obligation is fashioned to identify the point at which the vessel must commence the approach voyage. Where that is not agreed as a fixed date, the process must start within a reasonable period from the date of the charter (Tarrabochia v Hickie (1856) 1 H & N 183). What amounts to a reasonable time is governed by the other charterparty terms, and depends upon what they contemplate as the time when loading will take place. Thus if the charterparty contains an estimated time of arrival or readiness to load, it is by reference to that estimated date that the parties must have intended the obligation to proceed to attach as the required date for the commencement of the approach voyage. Therefore the obligation is to commence the approach voyage by a date when it is reasonably certain that the vessel will arrive at the loading port on or around the expected readiness to load or arrival date. This is the exposition of Devlin J at p. 374 Col 2 and 375 col 2.[15]It is formulated as an absolute obligation, not one merely of due diligence, for two reasons. First, the date at which the duty to proceed to the loading port arises is one which the parties need to be able to identify with reasonable certainty. It is the date for the commencement of the chartered service and the date when the express duty to proceed to the loading port arises. Moreover it is often the date by reference to which other obligations of the owners are framed. In this case the Owners’ obligations both as to the description of the Vessel and the seaworthiness of the Vessel are expressly identified as attaching at the moment the duty to proceed to the loading port arises. Secondly, the date when the approach voyage is to start marks the point at which the parties have bargained for the allocation of risk and responsibility for delays and other contingences by the application of the charterparty terms. Prior to that point the charterparty terms allocating risk and responsibility for delay do not apply and the charterer has no say; whereas during that prior period the owners are entitled to employ the vessel for their own profit in other chartered service on whatever terms they have bargained for, or will bargain for, with another charterer. The subsequent charterer has, in the words of Branson J in Louis Dreyfus v Lauro at p. 96 col 1 “nothing to do with [that] charter”, and accordingly the allocation of the risk of mishap or delay during that prior charter service should fall on the owner vis a vis the subsequent charterer in the absence of clear language indicating a contrary intention. Greer LJ identified the same allocation of risk in Monroe when he said at p.37 “… by entering into that [intermediate] charter [the owners] took upon themselves the risk that by doing so they might be prevented from fulfilling the [chartered voyage in dispute].” The rationale was captured by Devlin J in The North Anglia at p. 376 col 1 when addressing the submission in that case that the obligation should simply be one which attached from the conclusion of the prior service whenever that might be:
“In short, the position is this, that if a shipowner wants to make the beginning of one voyage contingent upon the conclusion of the one before, he must say so in clear terms. There is clearly a number of things which would have to be worked out if such an arrangement should be made as would be fair to both sides. It may be that the shipowner had it in mind in this case that that was what he wanted. But, if he did have that in mind, he has not put it into such language as would make it plain to any reasonable charterer that the charterer was being invited to accept the risks of delay under an earlier charter-party in which that charterer was not concerned. To pass those risks on to a person who was not a party to that charter requires, in my judgment, if not express language, at least much clearer language than that which has been adopted in the present case.”
[16]In this case Mr Buckingham does not contend for such an extreme position as that rejected in The North Anglia, namely that the duty to proceed only attaches whenever discharge under the prior employment is in the event completed (a submission also rejected in Geogas S.A. v Trammo Gas Ltd (The Baleares) [1993] 1 Lloyd’s Rep 215 at 225). He submitted that the Owners were under an obligation to exercise due diligence to start the approach voyage by a date which could reasonably be expected to enable the Vessel to arrive at the loading port by the cancelling date. He suggested that this was an aspect of, and flowed from, the Owners’ essential obligation in relation to timing of arrival at the loading port, established by The Democritos, namely an implied term that the Owners would exercise due diligence to ensure the arrival of the Vessel at the loading port by the cancelling date.[17]There are a number of difficulties with this submission. First, The Democritos provides no authority or guidance as to the arrival terms to be implied into a voyage charter. That was a time charter case in which the commencement of the time chartered service depended upon arrival at the loading port. There was therefore no part of the chartered service comprising the approach voyage, as there usually is in voyage charter cases, and no express duty to proceed to the loading port with utmost despatch. This is a critical distinction, because the Democritos implied term would be inconsistent with the express terms of most voyage charterparties, including this one, in which there is an express obligation to proceed to the loading port. Clause 3 imposes a duty to proceed to the loading port with utmost despatch. It does not provide that the Owners must use due diligence to do so. The duty is expressed to be an absolute one, although subject to charterparty exceptions. In this respect the case is on all fours with The North Anglia, and the reasoning of Devlin J at p. 373 col 1 applies with equal force.[18]Mr Buckingham sought to avoid this difficulty by arguing that the obligation once the vessel came under the clause 3 duty to proceed was an absolute one, but that the question as to when that obligation arose was governed only by a standard of due diligence, being an obligation to exercise due diligence to have the vessel commence the approach voyage at such a time as might be expected to ensure her arrival prior to the cancelling date. This, however, exposes the second difficulty with his submission, which is that the implied term for which he contends is not the same as the Democritos implied term and does not flow from it. The term suggested by Mr Buckingham is separate and different from the Democritos implied term in two respects. The Democritos implied term is aimed at the time of arrival at the loading port, whereas the current issue concerns identification of the moment when the duty to proceed with utmost despatch to the loading port commences, a different and prior event; fulfilment or breach is measured by reference to a different point of time. Moreover the term alleged differs from the Democritos implied term in that it concedes an absolute obligation once the duty to commence the approach voyage arises. A due diligence obligation in relation to commencing the chartered service therefore derives no logical support as an implied term from The Democritos, and is nowhere to be found expressly in the charterparty terms.[19]Thirdly, a term of the kind for which Mr Buckingham contends would give rise to unacceptable commercial uncertainty. If the obligation to commence the approach voyage is dependent on due diligence in relation to the previous employment of the vessel, it will often be impossible to say whether the point of time has arisen when the owner has come under the obligation to proceed to the loading port without an investigation into potentially complex and disputed evidence as to the cause of any delay. In this case there has been no allegation of want of due diligence, but what if the incident might have been caused by deficient maintenance of the vessel? It would be inimical to commercial certainty that the Charterers’ right to have the vessel sail for Rotterdam should depend upon an investigation of the cause of the casualty and/or whether any defect in the Vessel was due to want of due diligence or latent defect, matters on which the Charterers would have no knowledge or right of access to information. A charterer should not readily be taken to have agreed to such uncertainty in relation to an obligation designed to increase his level of certainty in relation to making arrangements for the loading of the cargo most efficiently. This is not just to say that an absolute term serves charterers’ interests. Owners too have an interest in certainty as to when the chartered service must commence, which triggers their description and seaworthiness obligations, and so that they can assess their rights and obligations should they fail to meet the date, and can adjust their conduct accordingly. Moreover the use of a yardstick of due diligence may introduce uncertainties of law as well as fact, as Devlin J observed in The North Anglia at p. 376 col 1:
“It might have to be considered whether it meant due diligence in relation to the earlier voyage itself, so that if the shipowner had been minded to protect himself in regard to that voyage with some very favourable exceptions, he could claim he was proceeding with due diligence because he had protection under the terms of that earlier charterparty. Or it might have to be considered whether it would be a covenant to proceed with due diligence wholly irrespective of any exceptions he might have in the earlier charter-party…”
[20]I do not consider that the words “despite the exercise of due diligence” in clause 11 assist Mr Buckingham’s argument. The paragraph is for the benefit of the Owners in seeking to enable a measure of certainty to be imposed without their having to wait until the cancellation date before knowing whether the charterparty will be terminated. The wording identifies the precondition to the operation of the rights in that part of the clause, but it does not define the whole content of the Owners’ obligations in relation to the duty under clause 3 or the commencement of the chartered service. Indeed given that the Shellvoy 5 form has provision for the inclusion of an expected readiness to load date, and Mr Buckingham’s concession that in cases where such a date or an arrival ETA is inserted the Monroe obligation would arise, it is difficult to see how these words could have the effect contended for.[21]I conclude, therefore, that as in each of the voyage charter cases I have cited, there is in this charterparty an absolute duty on the Owners to commence the approach voyage, when the clause 3 obligation to proceed to the loading port attaches, at a particular point of time. That time is to be a reasonable time, and the identification of when is reasonable falls to be determined in the light of the other charterparty terms. There was some debate in argument as to whether the issue was one of construction or implication. I did not find this of assistance. Since Mr Buckingham accepted that on any view there needs to be implied some term as to when the clause 3 obligation arises, it is not a case in which it is necessary to impose the rigorous requirements which arise when considering whether to imply any term of the first type referred to by Lord Neuberger in Marks & Spencer PLC v BNP Paribas Security Services [2016] AC 742 at [15]. If it mattered I would treat it as an issue of construction, as did both Greer LJ and Roche LJ in Monroe. The only implication is the implication into clause 3 that the obligation to proceed is one to do so within a reasonable period of time, which is an implication of law; it is then a matter of construction what a reasonable time is: see Devlin J in The North Anglia at p. 375 col 2.[22]What then do the terms of this charterparty suggest is a reasonable time? There is some force in Mr Buckingham’s contention that a cancelling date cannot simply be equated with an estimated [latest] time of arrival for these purposes. The cancelling date is the trigger for the charterers’ termination option, the exercise of which exposes the owners to no liability; as such, it does not constitute any contractual promise by the owners. Unlike an ETA it does not on its face involve an estimate of an arrival time to which owners are committing. Where owners give ETA at the loading port, that statement must be honestly given and made on reasonable grounds: Samuel Sanday & Co v Keighley Maxted & Co. (1922) 27 Comm. Cas. 296. Where no ETA is given, no such responsibility is undertaken. An owner might be prepared to agree to a cancelling date which he regards as just possible, but very unlikely, that he will meet because of the attractiveness of the charter terms and/or a perception that the cancellation option will not be exercised by charterers. If the latter is his driving motivation, he might even agree to a cancelling date he does not believe the vessel can meet. He is entitled to bet on his own commercial interests in this way in a case where he could not establish that he had reasonable grounds to believe that the vessel would arrive by that date and so could not give an ETA of that date.[23]In this case, I do not regard the cancelling date as the critical term which informs the question of what is a reasonable time at which the clause 3 duty to proceed attaches. The charterparty also contains ETAs which these Owners were prepared to give in relation to the estimated time of arrival of the Vessel at the intermediate ports for the cargo operations on the previous voyage, including her final discharge at Antifer. These estimates were qualified by the rubric “IAGW/WP” (If All Goes Well/Weather Permitting), but that is no different in substance from the caveats which are implicit in an unqualified ETA at the loading port, which is merely an estimate based on what can reasonably be expected to occur in the normal course of events and without unexpectedly adverse weather. These intermediate port ETAs attracted the attendant Sanday v Keighley Maxted obligation that they must have been honestly given and on reasonable grounds. They are considered contractual statements, albeit estimates not guarantees, in the same way as an ETA at the loading port. They are equivalent to an ETA of arrival at the loading port for the purposes of deriving a time at which the Vessel could be expected to commence her approach voyage and come under the obligation in clause 3 to proceed there with utmost despatch. The only difference is that the intermediate port ETAs help identify that point working forwards, whereas when an ETA at the loading port is given the time is calculated working backwards. That is an immaterial distinction in the context of determining what is a reasonable time for commencing the approach voyage by reference to owners’ estimates for the progress of the vessel towards arrival at the loading port, which is what informs the content of the Monroeobligation. They are of equivalence in being the estimates on which charterers can reasonably rely in identifying the commencement of the chartered service and in order to make arrangements for loading. Further confirmation that the ETAs at intermediate ports were intended to perform the same function as an ETA at the loading port is to be found in the fact that in the fixture recap they were identified for insertion in part 1(B) of the Shellvoy 5 form which the printed words show is intended to record an expected ready to load date.[24]The Owners gave intermediate port estimates which involved the Vessel arriving at Antifer on 25 January 2015 for final discharge of her previous cargo. Such estimate carries with it an estimate that she would take a reasonable period after arrival at Antifer to complete discharge. She was bound thereafter to embark on the chartered service. It is therefore the end of that additional period of reasonable discharging time that the Owners gave as an estimate of the expected commencement of the approach voyage and of the chartered service. In my judgment that is the time at which the Owners were under an absolute obligation to commence the relatively short approach voyage to Rotterdam, namely at the end of a reasonable discharging period for the Vessel if she were to arrive for final discharge at Antifer on 25 January 2015.[25]This was not the way in which the term was pleaded or put forward by Mr Russell QC, but when suggested in argument it was adopted by him in the alternative, and Mr Buckingham quite properly did not object to his doing so.[26]It makes no difference to the result on the facts of this case whether the obligation is formulated in these terms or by reference to the cancelling date. However in case it be of assistance in other cases, I should record my view of what the position would have been had no ETAs been given for the intermediate port arrivals under the Vessel’s previous employment. In those circumstances I would have accepted Mr Russell’s argument that there was an absolute obligation to commence the approach voyage by a date when it was reasonably certain that the Vessel would arrive at the loading port by the cancelling date. Although there are differences between a cancelling date and an estimated arrival date, they are not sufficient to treat them differently for the purposes of the Monroeobligation. In most cases it will be right to say, as Mr Russell submitted, that the laycan window represents the expectation of the parties as to when the vessel will arrive at the loading port, so as to perform the same function in relation to the Monroe obligation as an ETA. In The Democritos, the cancelling date was used to identify the time of arrival which the owners were under the implied obligation to use due diligence to achieve. This indicates that a cancelling date, in addition to serving the function of triggering the charterers’ contractual right of termination, may also properly be regarded as the parties’ [latest] anticipated time of arrival at the loading port for the purposes of defining the owners’ obligation in relation to such time of arrival. So too does Mr Buckingham’s own formulation of the obligation in relation to commencement of the approach voyage, which was framed by reference to arrival of the vessel by the cancelling date in the normal course of events albeit qualified as a due diligence rather than absolute obligation. Indeed, if the cancelling date is to be ignored, the date at which the express obligation to proceed to the loading port attaches cannot be identified by reference to any arrival time at the loading port, and the only real alternative is that it arises whenever the previous employment is in fact concluded, a solution which would require clear wording to that effect because of the improbable allocation of risk which it entails.[27]I am further fortified in this conclusion by the fact that it is shared, albeit tentatively, by the editors of Cooke on Voyage Charters 4th edn. at para 4.12, the editors of Carver on Charterparties at para 8-025; and that it was the considered conclusion of an LMAA arbitration tribunal in an award summarised in Lloyds Maritime Newsletter 15/93.

The Claimant’s alternative argument

[28]The Charterers argued in the alternative that the Owners renounced the charterparty because by their communications between 13 January 2015 and 4 February 2015 they declared their inability to perform the charterparty until “months” after completion of drydock commencing on 8 February 2015; that this would have been substantially inconsistent with their contractual obligations because this was a voyage charterparty entered into on 5 January 2015 for a single voyage to take place in early February 2015 and performing the contract “months” in the future would have deprived the Charterers of substantially the whole benefit of the contract; and that the Owners accepted this renunciation by their termination notice on 6 February 2015.[29]Since this point does not arise in the light of my decision on the Monroeobligation, I can state my conclusions briefly, without feeling the need to set out the correspondence in detail or my reasoning at length. The parties addressed the point on the hypothesis that (contrary to my conclusions) there was no Monroe term, because it was only in such circumstances that the point mattered, and I shall address it on the same hypothetical basis.[30]On that basis, Mr Buckingham argued that the claim failed because(1) there was no renunciation and/or(2) the termination notice was not an acceptance of a common law renunciation but only the exercise of a contractual option to terminate pursuant to clause 11. He is right on the first point but not on the second.[31]The effect of the correspondence was that the Owners made clear that they were willing to perform the charter once the Vessel completed the necessary drydocking and repairs. This was not, therefore, a case of a declared unwillingness to perform but, on the Charterers’ case, of an inability to do so in accordance with the contract terms, of the kind I sought to identify in paragraph 208(3) and (4) of my judgment in Spar Shipping AS v Grand China Logistics Holding Co Ltd [2015] 2 Lloyd’s Rep 407. The difficulty in the way of this argument is that if, which is the stated hypothesis, the Owners were not in breach of any express or implied term in failing to proceed to the loading port or arrive there by 6 February 2015, it cannot be said that they were unable to perform the charter in accordance with its terms. If the contractual allocation of risk had been such that delays caused by mishaps on the previous voyage without the fault of the Owners did not render them in breach of any contractual promise, there was no inconsistency between the contract terms and the Owners performing the chartered voyage after drydock, notwithstanding that that would have occurred months later than the parties contemplated had the Suez incident not occurred. Performance of the charterparty after remedying the consequences of the Suez incident would be in accordance with the charterparty terms if the risk of such delay had been apportioned to the Charterers and the Owners were not thereby in breach of any term.[32]On the second point, applying the principles usefully summarised by Tomlinson J in Shell Egypt West Manzala GmbH v Dana Gas Egypt Ltd [2010] EWHC 465 (Comm) at [32], the termination notice was sufficient to amount to an acceptance of the renunciation, had there been any, because it evinced an unequivocal intention to terminate the charterparty; and the contractual right to terminate under clause 11 was not inconsistent with, and did not exclude resort to, common law remedies for breach of the charterparty.

Conclusion

[33]Accordingly the claim succeeds and there will be judgment for the Claimant for US$1,202,812.50.