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I see no ships – condition precedents under FOB contracts
A recent judgment of the Commercial Court suggests that a FOB buyer can be excused from nominating a vessel by an unaccepted renunciation of contract by a seller. This blog questions the court's approach in this case and examines the basic principles engaged.
Read morePayment against letters of indemnity – is it safe?
In the commodity trading world, it is traditional for payment to be made by the buyer against the presentation by the seller of certain shipping documents including bills of lading. That is the case whether payment is to be made under a letter of credit (LC) or by direct tender of documents to the buyer. However, a common practice has developed, particularly in the oil trade, for parties to agree in their contracts that the seller may, instead of presenting shipping documents to trigger payment, present a letter of indemnity instead. But there are risks to the buyer in paying against such letters of indemnity.
Read more"NEW FLAMENCO" – Supreme Court reverses Court of Appeal
In a shock decision, the Supreme Court has allowed shipowners' appeal in the "NEW FLAMENCO". The Supreme Court held that the sale of the ship following the repudiation of the charterparty was not an act in mitigation, and was not relevant to the calculation of damages for breach of contract.
Read morePushing the (port) limits
The recent case of Navalmar UK Ltd v Kale Maden Hammaddeler Sanayi ve Ticaret AS [2017] EWHC 116 (Comm) essentially re-affirmed the principles set out in the well know case of The Joanna Oldendorff [1973] 2 Lloyd’s Rep 285, dealing with when a vessel was an arrived ship and what must be considered in deciding the limits of the port. However, as this case demonstrates, it remains a matter of fact as to whether a vessel is within the port limits or not.
Read more"Fraud unravels all" – or does it?
The English Commercial Court has upheld the enforcement of a foreign arbitration award against a buyer of goods even though the seller submitted forged bills of lading under the letter of credit
Read moreSecurity for costs – be reasonable!
A recent Judgment in Hong Kong on a security for costs application reinforces the wide discretion of the Court as to the form and quantum of security which should be accepted
Read moreAn acceptable degree of uncertainty
Certainty, we are told, is a good thing, as a matter of both legal principle and commercial common sense. Certainty means predictability, which companies and merchants value because it allows them to plan and make decisions in the knowledge of the likely outcomes. This has been a major feature of English commercial law since at least the time of Lord Mansfield.
Read moreSupreme Court clarifies the impact of a "collateral lie" made by an assured during the claims process
The Supreme Court has ruled that a lie told by an assured during the course of a claim presentation will not necessarily invalidate the assured's right to recover under his insurance.
Read moreTake it to the limit (but no further)
In a recent judgment handed down on 12 April 2016, the Hong Kong Admiralty Court examined whether or not crew members' acts or omissions could be regarded as a shipowner's personal acts or omissions for the purposes of breaking limitation under the Convention on Limitation of Liability for Maritime Claims 1976 ("LLMC") [FN1].
Read moreWhat's in a name? Time Charter Trips explored
The time charter trip or "TCT" is a common hybrid, with attributes of both time and voyage charters.
Read moreIs arbitration stifling the common law?
Recent comments by the Lord Chief Justice of England & Wales have reignited a debate over the balance between finality in arbitration and consideration of important points of law by the Courts.
Read moreDown in Flame(s)
What is the value of money? In a recent Commercial Court decision, it was held that the right to redirect the payment of money (or to give it away) is as valuable as the right to have the money paid into one's own bank account.
Read moreKeep your word! Hong Kong Court enforces indemnity for delivery of cargo without original bills
Shipowners are well aware of the perils of releasing cargo without production of an original bill of lading. In particular, they are likely to lose P&I cover in the event of a misdelivery claim.
Read moreArbitrations and anti-suit injunctions – a Hong Kong perspective
In some jurisdictions (notably Mainland China and Australia), local law does not give effect to the incorporation of arbitration clauses into bills of lading.
Read moreThe "NEW FLAMENCO" – back in step
Court of Appeal overturns High Court and holds that a 'capital' benefit obtained following the sale of a vessel on her early redelivery can reduce a damages claim for repudiatory breach of charterparty.
Read moreSpeed & Consumption – good weather daze?
The High Court of England & Wales has overturned an arbitration Award in a rare appeal on a performance dispute[1].
Read moreAnti-suit injunctions – do not delay
The recent judgment of the English Commercial Court in Essar Shipping Ltd v Bank of China Ltd[1] has highlighted the importance of applying for anti-suit injunctions swiftly once the dispute arises.
Read moreBallast Water Management Convention likely to come in 2016
Three countries, Monaco, Indonesia and Ghana, ratified the IMO Ballast Water Management (BWM) Convention, during the recent IMO Biennial Assembly Meeting, in London.
Read moreThe "RES COGITANS" – still no relief for shipowners in OW Bunker saga
In an eagerly-awaited decision, the English Court of Appeal has unanimously upheld the conclusion of the Commercial Court (itself affirming a decision of London maritime arbitrators) that a bunker supply contract on the OW Bunker terms is not a "contract of sale of goods" to which the Sale of Goods 1979 Act applies[1].
Read moreDamages for repudiation of a voyage charter
The compensatory principle explored The High Court of England & Wales has reviewed the application of the standard compensatory principle in common law to voyage charters repudiated by their charterers, in an appeal from an arbitral Award[1].
Read moreMarine Insurance: Current Good Faith Rules Continue To Cause Blot On The Landscape?
We have less than twelve months until insurance contracts written under English law will be subject to the new provisions of the English Insurance Act 2015.
Read moreNo relief for late commencement of arbitration
Once upon a time, if one was unfortunate enough to miss a contractual, as opposed to statutory, time limit for commencing arbitration, relief could be sought and often obtained from the High Court under Section 27 of the Arbitration Act 1950.
Read moreWhen is a sale contract not a sale contract?
Most people reading this article would probably say that, even if they could not define a sale contract, they would know one when they saw it.
Read moreNot just a question of timing – Supreme Court rules on the assessment of damages for premature cancellation
The Supreme Court has held that a party could only recover nominal damages for premature cancellation (repudiation) of a sales contract on GAFTA Form 49[1].
Read morePushing the (tonnage) limits
This update highlights two recent changes in tonnage limits – one international, the other in Hong Kong.
Read moreCharterparty arbitration clauses: too much of a good thing?
It is a fact of commercial life that, at least with the benefit of hindsight, contracts are not always drafted clearly.
Read moreEnforcing jurisdiction agreements in the EU – Brussels casts out "abusive litigation tactics"
Disputes over jurisdiction (i.e. where a claim is heard and determined) are commonplace in shipping and international trade.
Read moreNew Compulsory Marine Liability Insurance Gives Shipowners and their Insurers the Blues
The Nairobi International Convention on the Removal of Wrecks 2007 comes into force later this month (18 April 2015 and 17 May 2015 for Malta and Tuvalu respectively, but 14 April 2015 for all other contracting states, including the UK).
Read moreHong Kong expected to introduce mandatory low-sulphur fuel regulations
Many vessels currently calling to Hong Kong voluntarily burn low-sulphur fuel, in return for financial incentives under a scheme introduced by the Government in 2012.
Read moreAn uncharacteristic appeal: Ocean Victory decision reversed
Charterers (and their insurers) concerned by the first instance decision in The "Ocean Victory" may rest a little easier following the successful appeal which saw Daiichi Chuo overturn a judgment of over US$130 million against them.
Read moreCocaine Haul Leads to Limitations on War Risk Exclusion
It is a sad fact that drug traffickers like to use ocean-going vessels to help them move their product.
Read moreSingapore High Court allows extension of time in collision case despite multiple opportunities to arrest.
Following a collision between ORINOCO STAR and MELODY in Nigerian waters on 20 June 2011 and subsequent unsuccessful settlement negotiations between the parties, owners of the vessel MELODY issued a writ and proceeded to arrest ORINOCO STAR on 6 December 2013.
Read moreOW Bunker update – Hong Kong company applies for winding-up
Hong Kong Court records available publicly today show that a Petition was presented last Friday to wind up O.W. Bunker China Ltd (a Hong Kong company).
Read moreBunker disputes – Bankruptcy of OW Bunker A/S and associated companies
We are receiving numerous enquiries regarding the fallout from the bankruptcy of OW Bunker A/S and certain associated companies.
Read moreContainer weight fraud
Container weights is a hot topic at the moment, with the IMO set to introduce new requirements for the verification of container gross mass.
Read moreCourt rejects "capital" punishment
Appeal considers relevance of ship sale following early redelivery
Read moreNew Safety and Health Guidelines to Protect Seafarers
The International Labour Organisation has agreed guidelines to assist governments in implementing occupational safety and health provisions previously set down in the Maritime Labour Convention 2006.
Read moreHong Kong's top court confirms loss of cover
The importance of complying with insurance warranties
Read moreNavigating the impact of AI on work: challenges, opportunities, and the human touch
The fear of job losses because of technology and automation, including artificial intelligence, has been with us since the 1960s. For some time, academics have predicted the decline of routine, rules-based and process-driven roles.
Read more12 top tips for using AI in retail and consumer businesses
Last year, we set out our top ten tips for retailers entering the metaverse. This year, AI is the hot topic in retail and pretty much everywhere else! AI is redefining the retail and consumer industry. It can improve consume engagement, aid decision-making, curate tailored promotions, improve efficiencies, and reduce costs. So what do retailers and consumer bran need to be mindful of when deploying AI?
Read moreEU AI ACT-ion stations
The EU is forging ahead with its vision for AI. With wrapping up talks on the EU AI Act between the EU governments, the Commission and the parliamentary negotiators imminent, we bring you up to date on the EU's risk based approach, the scope of the Act, a timeline, key points that will form the basis of the discussions and next steps.
Read moreWhat To Know About AI Fraudsters Before Facing Disputes
Fraudsters are quick to weaponise new technological developments and artificial intelligence is proving no exception, with AI-assisted scams increasingly being reported in the news, including most recently one using a likeness of a BBC broadcaster.
Read moreWhat does a new Labour government mean for the management liability market?
We have a new government and the first Labour government for 14 years. What does it mean for the management liability market? We look at what Labour has promised and with that the areas those in the market will want to consider across directors and officers, employment liability and pensions.
Read moreFix up, look sharp: FRC update
What's the latest on fixed recoverable costs in professional negligence claims?
Read moreFCA announces thematic review of retirement income advice
The pension freedom reforms changed the way consumers access their retirement funds. This FCA thematic review will put firms under the spotlight with a focus on how the retirement income advice market is functioning in response to changing consumer needs in the current economic downturn.
Read moreFCA responds to criticism of the Public Accounts Committee when it comes to BSPS with rejection of suggestion it should reconsider a wider defined benefit transfer review
In a July blog I reported on the House of Commons Public Accounts Committee report entitled "Investigation into the British Steele Pension Scheme". The blog set out a number of recommendations of the Committee in light of its investigations into the FCA's conduct and regulatory oversight of BSPS and, in particular, the 7,834 members that transferred out of BSPS into a personal pension scheme. We have now had a sneak preview of the FCA's response in the recent Committee minutes. Here's what the FCA had to say.
Read moreFCA Review of AML failings at challenger banks
Throughout 2021, the FCA conducted a detailed review into the financial crime controls of challenger banks as they continued to enter the UK financial industry at a rapid pace. Their surge in popularity is partially linked to the Covid-19 pandemic, which has prompted significant changes in the habits of service providers worldwide. Whilst the FCA's review indicated some evidence of good practice, it is clear that challenger banks must do more to reduce the significant risks of financial crime occurring both at the time of customer onboarding and throughout the subsequent customer journey.
Read moreFCA consults on British Steel redress scheme
The FCA intends to open consultation on an industry wide redress scheme covering British Steel Pension transfers. This is perhaps the only option left for the regulator, but a redress scheme will heap further pressure on an area of the advice industry that is already under fire.
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