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"Lowlands Orchid" – Cobelfret Bulk Carriers NV v Swissmarine Services SA

In this case owners claimed demurrage from charterers.  The issue was whether time counted during “super-holidays” at the discharge port.  The recap provided "25,000 mt SHINC".  The recap incorporated the terms of a pro-forma charterparty, clause 63 of which provided "25,000 mt SHINC (excluding superholidays)".  Beatson J. found in favour of charterers.  The judge held that the recap and clause 63 were not inconsistent, but could be read together, such that time did not count during “superholidays”.  In so doing Beatson J. relied on Pagnan v Tradax [1987] 2 Lloyd's Rep.342, The Eternity [2009] 2 Lloyd's Rep.107 and The Leonidas [2001] 1 Lloyd's Rep.533.

The case has important ramifications for owners, charterers and brokers alike.  If a party wishes to prevent a term in a recap from being qualified by the words of an incorporated pro-forma charterparty, then the sensible course would be to include an express term in the recap to that effect.

Charles Kimmins acted for charterers.  Michael Ashcroft acted for owners.

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