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NYK Bulkship (Atlantic) NV v Cargill International SA ("The Global Santosh")

The Court of Appeal handed down judgment today in an appeal and cross-appeal against a decision of Field J (on an appeal under section 69 of the Arbitration Act 1996) concerning the meaning of “charterers’ agents” in a very common additional off hire provision where the NYPE form is used ([2013] EWHC 30 (Comm); [2013] 1 Lloyd's Rep. 455). The clause provided the vessel was off hire for any period she was arrested, save for the proviso that she would not be off hire if such arrest was "occasioned by any personal act or omission or default of the Charterers or their agents". The appeal raised issues as to the construction of the proviso, the scope of Charterers’ obligation under clause 8 of the NYPE form, and the cause of the arrest. The Court dismissed the appeal and allowed the cross-appeal in part, upholding the judge’s decision to remit the question of causation to the Tribunal.  The Court differed from the judge below in his reasoning in relation to the construction of the word “agents”. The effect of the decision is that it is likely “charterers’ agents” will encompass all sub-charterers and shippers/ receivers on charterers’ “side of the line” under a time charter, which could have ramifications not only for the effect of a number of common additional clauses, but also for references in the printed NYPE form to “agents”, particularly for clause 18 insofar as it concerns charterers’ responsibility to lift vessel arrests “incurred by them or their agents”.

Andrew W Baker QC and Daniel Bovensiepen acted for the Appellant/ Cross-respondent (instructed by Holman Fenwick Willan LLP)

Timothy Young QC acted for the Respondent/ Cross-appellant (instructed by Maritime Law Office Skinitis)