| Archives: September 2017

Award 1234 (second degree) – C/P Mediterranean Iron Ore – Grounding outside the fairway – Navigational fault – Hague-Visby rules applicable – Shipowner not responsible – Restitution of Insurers contribution to General Average (no). A vessel grounded with a pilot on board on her way from the loading terminal to open sea. Part of the cargo having to be transferred on to a lighter in order to free the vessel, a dispute arose between the owners and the cargo insurers, the latter submitting that the grounding was caused by excessive loading of the vessel as a result of a breach of mandatory rules and of the voyage C/P, therefore claiming the restitution of their contribution to General Average. Based on relevant data, including GPS, the Arbitral Tribunal observed that the vessel had grounded outside the recommended fairway owing to a navigational fault induced by the pilot without any alleged violation of the ISM TCode and/or SOLAS Convention having any impact. The Hague-Visby rules, incorporated by reference from the voyage C/P, being applicable, the navigational fault defence raised by the owners is therefore operative so the insurers claim for restitution of the General Average was rejected.

Award 1235 – Rice in bags under B/L – Shortage and wet damage to cargo – Letter of undertaking by P&I Club – Insurer subrogated in the rights of the importer – Qualification as sea carrier and responsibility of the shipowner (yes).
A vessel having loaded in Thailand a cargo of rice in bags for Lomé (Togo) had to stay on roads 36 days before coming alongside for starting the discharging which was completed 67 days after berthing. Following the arrest of the vessel on account of cargo damages a letter of undertaking was issued by her P&I Club.

The subrogated insurers based their claim on two B/Ls issued without heading but mentioning the ship owner’s name. The latter, although producing a time C/P and a voyage C/P showing he was not the actual sea carrier, did not prove however the third party holder of the B/Ls and his insurers knew who the actual carrier was. Therefore the arbitrators followed the Cour de cassation case-law VOMAR allowing the B/L holder to proceed against the ship owner.

In accordance with the 1924 Brussels Convention the ship owner has been found responsible for the cargo damages but the arbitrators have limited his responsibility to those damages ascertained before discharging and applied a rebate of 30% for the mouldy bags in view of the abnormal discharging duration.