Award 1220 – C/P Synacomex 90 – Wheat in bulk – Cargo wetting – Claimant insurers – Admissibility (yes) – Legal subrogation (yes) – FIO clause – Ship owner’s liability (no). During cargo discharging in an African port,
heavy rains interrupted operations several times. Some cargo having been wetted, the insurer ordered a survey in the receiver’s warehouse after the vessel’s departure in order to assess the damage. Having indemnified the insured, the subrogated insurer claimed compensation from the ship owner based on the charter-party terms which included the provisions of the Brussels Convention of 1924. The ship owner challenged the validity of the subrogation, opposed the claim timebar and, on the merits, maintained that clause 5 of the charter-party attributed the risk of the discharge operation to the charterer. The arbitrators observed that the subrogation resulted from the indemnity paid by the insurer to the insured, therefore the claimant was entitled to the legal subrogation by virtue of article L 172-29 of the French Insurance Code and that the claim was not time barred. On the merits, the statement of facts and timesheet showed that holds had been closed in due time before rain started and that moisture could only happen after the goods were out of the holds. According to clause 5 of the charter-party, cargo was to be discharged at the risk of charterer, applying consequently a well-established jurisprudence of CAMP, the arbitrators judged that by agreeing on clause 5, the intention of both parties was that it prevailed over article 3-2 of the Brussels Convention of 1924 and dismissed the insurer’s claim.