- Baltic Exchange Freight and Commodities Forum, Copenhagen
On 27 September 2018, the Baltic Exchange will be holding its Freight and Commodities Forum in Copenhagen.
The event will open with a networking lunch followed by sessions on:
- Commercial Impact of the 2020 Sulphur Cap
- Dry Market Outlook
- Bulk Commodity Trends
- Dry Benchmark Revisions
- Freight Risk Management
The forum is open to member companies and invited guests only.
The event will commence with a networking lunch at 1 pm.
To view the full programme, click here.
To register, click here.
- Baltic Tanker Market Session, Copenhagen
On the morning of 27 September, the Baltic Tanker Market Session will bring together clients and brokers from across the European wet markets to hear freight and commodity output forecasts from leading analyst as well as updates on benchmark revisions and proposals. This will be followed by a networking lunch for all market participants.
Part of the Baltic Exchange Freight & Commodities Forum
The session will take place between 11.30 am – 1 pm.
To view the full programme, click here.
To register, click here.
- Member update: 15 August
The following companies have applied for Corporate Membership.
Company Individual Chartank Tramontana SL Mr A de Orueta Mrs P Segura Mr G Ariceta Maritime 24 (Pte) Ltd Mr J Gandorf Mr R J Bruenn Simec Shipping Limited Capt S Gupta
The following individuals have applied for Membership under an existing member company.
Company Individual IHS Global Limited Ms S Law Arrow Group of Companies, The Miss A Alatari Cass Business School Mr J Elsahli Sea Corporation Pty Ltd Mr C G Thompson Koch Supply & Trading LP Mr P Oncale BHP Billiton Freight Singapore Pte Ltd Mr L Krijgsman Miss S J Thompson Ms D Susanti Mr R Knight
Any comments should be passed to Karen Karanicholas by 22 August 2018.
- Time Bars: Mind Your Ps and Qs
Many a heart-stopping moment has been had at desks around the globe on becoming aware of an imminent time bar. The recent High Court decision in P v Q  EWHC 1399 (Comm) highlights not only the risks facing parties when they learn of claims immediately after a time bar, but also the limited relief available from the English courts in those circumstances.
The case concerned four parties in a chain of back-to-back voyage charters on the Norgrain 1973 form, anonymised to reflect the confidentiality of the underlying arbitrations and so identified as ‘P’, ‘Q’, ‘R’ and ‘S’.
The details explored
Clause 67 of each charterparty provided that any claims “must be notified in writing to the other party and claimant’s arbitrator appointed within thirteen (13) months of the final discharge of the cargo and where this provision is not complied with, the claim shall be deemed to be waived and absolutely barred”.
Discharge was completed on 16 October 2015. At 6:44pm on 16 November 2016, the final day of the 13 month period, China National Chartering Co Ltd, as disponent owner, gave notice to P, its charterer, of a third party claim brought against it.
This case is an especially-powerful example of how time bars can cause difficulties in a charterparty chain
P received this notification after its office had closed and so the first P knew about it was the following morning, 17 November, after the time bar had passed.
On 17 November, P gave notice of the claim to its charterer, Q, and requested details of whether other parties in the chain had received notifications of any claims. Crucially, however, P’s operations department did not notify its legal department until 23 November and no arbitration against Q was commenced until 25 November.
On receipt of P’s notice on 17 November, Q gave its own notice of claim and commenced arbitration against R by a notice sent to R’s broker.
R became aware of Q’s notice via the broker on 17 November but contested that its broker did not have authority to accept service of an arbitration notice. To protect its position Q eventually served a notice of arbitration directly on R on 30 November.
Although aware of Q’s notice of claim since 18 November, R did not instruct lawyers until 28 November. On 29 November R appointed an arbitrator and on 1 December gave notice of the claim and commenced arbitration against S.
The notifications and commencements of arbitration between the parties were therefore all sent and received after the 13-month time bar had passed. P, Q and R, applied to the High Court for:
Declarations that each claim had been notified in time, despite the wording of clause 67; and
In the alternative, an extension of time for the commencement of arbitration in each charterparty under section 12 of the Arbitration Act 1996.
Construction of Clause 67
The first issue was whether clause 67 should be given its literal meaning such that all claims were time-barred.
It was argued that there should be an implied limitation on the literal meaning of the clause in circumstances where claims could not be made within a specified time limit because a party was simply not aware of the claim before the time bar passed.
Sitting as a Deputy High Court Judge, Sir Richard Field QC, rejected this argument. He said the wording of clause 67 was clear and unambiguous and found no reason to depart from its natural and ordinary meaning.
Specifically, he found that it had been open to the parties when they concluded the charters to include additional wording to cater for the situation they now faced. Examples proposed by the charterers’ counsel included stipulating a longer time limit, or inserting a provision similar to Art III rule 6 bis of The Hague-Visby Rules which effectively extends time bars for indemnity claims.
Reinforcing its decision, the Court said that “in opting for these commercial advantages by agreeing to Clause 67, the parties took the risk that it might not be possible within the 13 month time limit to pass on a claim validly received within the period”.
Extensions of time pursuant to s.12 Arbitration Act 1996
Having found against all the parties on the first issue, the Court considered whether to grant extensions of time for the commencement of arbitration under section 12 of the Arbitration Act 1996.
Section 12(3) provides that an extension shall only be granted if the Court is satisfied:
That the circumstances are such as were outside the reasonable contemplation of the parties when they agreed the provision in question, and that it would be just to extend the time; or
That the conduct of one party makes it unjust to hold the other party to the strict terms of the provision in question.
In considering these requirements, Sir Richard Field QC approved and applied Hamblen J’s observations in SOS Corporation Alimentaria SA & Anor v Inerco Trade SA  EWHC 162 (Comm) on the construction of s.12. He said that the Court’s starting point should be that the parties had contemplated that a claim should remain time barred if the circumstances faced by the barred party were “not unusual”, “not unlikely” or “prone to” occur.
The Court accepted that P’s receipt of the claim after the close of business on the last day of the time bar, such that any claim down the chain could only ever be brought out of time, did not amount to “not unusual” or “not unlikely” circumstances. Therefore, the Court had to consider the actions of each party and decide whether it would be just to extend time in each case, depending on whether that party had acted “expeditiously and in a commercially-appropriate fashion”:
P first became aware of the claim on 17 November; however, its legal department were not told about it until 23 November and a notice of arbitration was not then given to Q until 25 November.
The Court found that P had not acted expeditiously and in a commercially appropriate fashion and no extension was therefore granted. P’s claim was therefore time barred.
Q gave notice of the claim and commenced arbitration against R to R’s agents on 17 November. Q therefore sought an extension until 30 November, the date on which its notice of arbitration was served directly on R.
The Court said that “whatever the niceties of the argument as to [R’s agent’s] authority to receive the notice sent on 17 November 2016, that notice was received by R and read on 18 November 2016” such that Q was considered to have acted expeditiously. The extension to 30 November was therefore granted.
R was first notified of the claim by Q on 17 November, through its agents. However, even though R said its agents could not validly accept service of a notice of arbitration, R did not instruct lawyers until 28 November and did not notify or start arbitration against S until 1 December.
The Court considered that the delay after 17 November indicated R’s failure to act expeditiously under section 12. Instead, the Court suggested that R should have served its notice of claim and commencement of arbitration on S by 22 November — i.e. within three business days of notification.
Time bar importance
It is unlikely that anyone in the industry needs reminding of the importance of heeding contractual time bars. However, this case is an especially-powerful example of how time bars can cause difficulties in a charterparty chain, and how parties will be held to a strict interpretation of a relevant time bar clause they have freely agreed.
Alongside the Court’s literal construction of clause 67, it is equally important to note how its discretion was exercised under section 12 of the Arbitration Act. Although the claim started by China National Chartering Co Ltd stopped at P, given the Court’s construction of clause 67 and refusal to extend time to commence arbitration against Q, the Court’s approach to the circumstances faced by each party give a stark insight into what conduct will be considered “expeditious and commercially-appropriate” when seeking relief from a contractual time bar.
Perhaps most interesting is the Court’s indication that Q was taken to have acted expeditiously and appropriately despite R disputing its agents’ authority to accept service; and that it thought R should have started arbitration against S no later than 22 November, just three working days after giving notice on 17 November.
Considering the Court’s robust approach, and the potential impact of any time bar, we would recommend as quick a response as possible when presented with a claim hard up against, or just after, any time bar which may apply. The Court’s reference to the delay in P’s legal department becoming involved highlights the importance of getting urgent legal advice in such situations.
As a final point, a fast response may be especially important should a party wish to rely on the cooperation of its Club or commercial insurer. Given the common requirement in many policies for an insured to protect rights of recovery against other parties, a delayed response when faced with an imminent time bar could also impact the provision of cover should relief not be granted.
Nick Austin and Stuart Jackson are Partner and Associate respectively at Clyde & Co. Contact Nick on +44 (0) 20 7876 4715 or by emailing firstname.lastname@example.org.
- Baltic FC Vs Danish (DRFB) and Spanish Brokers
The Baltic FC will join Danish brokers heading to Madrid for a three-way tournament against Spanish Brokers from 14-16 September. Anybody interested in joining in, either on the field or for socialising off the field, please contact 1st XI: Nat Twiggs (email@example.com) / Vets XI: Alan De Rosa or Tony McDonald (firstname.lastname@example.org).
Photos from the last round in Copenhagen can be found here.
- Baltic Wine Society: Spanish Tasting
On Wednesday 5 September the Baltic Exchange Wine Society welcomes back wine expert David Hughes to host a celebration of the emerging wine regions of Spain.
Guests will be welcomed with a glass of Reserva Cava followed by a further six wines of varied styles of grape, accompanied by a selection of tapas.
The event is priced at £15 for members, £20 for non-members (prices exclude VAT) which includes all seven wines and tapas.
Seats are limited so those interested in attending should register their interest in good time by emailing email@example.com
To view the flyer, click here.
- Baltic Exchange Golf Society: Company Cup
The Baltic Exchange Golf Society (BEGS) Company Cup will take place on Thursday 13 September at The Shire London, the UK’s only Seve Ballesteros designed course.
The Company Cup is open to all shipbroking golfers, with the format below:
- Two-person teams, competing in four balls over one round on the Seve Ballesteros Master’s course.
- Stableford scoring system, with the combined score counting to each two-person team.
- Each team does NOT have to consist of employees from the same company, clients/visitors are welcomed.
- Teams can be two principals from the same company or different offices, a principal and a broker or two brokers.
- There is no limit on the number of teams any one company wishes to enter, the more the merrier.
- There will be additional prizes for nearest to the pin, longest drive in the rough and longest drive on the fairway.
- Baltic Exchange is looking for a sponsor for a hole in one competition on one Par 3, with a car as the prize.
- Official handicap certificates are not required, but anyone playing off 24 or higher that does not have an official club handicap cannot score more than 30pts.
- This event can contribute as one of the sports for the overall David Bradley Cup winner.
Running times are as follows:
08:30 – Arrival time, bacon roll & coffee
09:15 – Tee off for morning 9 holes (front 9)
12:45 – Sit down lunch
14:00 – Tee off for 18 holes
19:00 – Drinks/prize giving
(All times are approximate & subject to change.)
Availability is on a first come first served basis.
Anyone interested in registering should contact James Pendered.
- Seaview Sailing Weekend
Come and enjoy a weekend of sailing and socialising on the Isle of Wight. The Seaview Sailing Weekend is open to company teams (three or more people) as well as individuals of all abilities teaming-up. Split into six short races aboard Mermaid boats, sailors range from expert to learner, offering competition at all levels.
There will be ample opportunities for comparing notes and socialising from arrival on Friday, 7 September evening through to lunch on Sunday, 9 September including around a three-course dinner at the Yacht Club on Saturday night with late bar, tombola and prize giving. To find out more, email Philip Bacon, AM Nomikos (UK) Ltd.
Photos from previous events can be found here.
Recent entries in the Regatta include:
Lykiardopulo & Co
Howe Robinson Shipbrokers
Holman, Fenwick & Willan
Peter Dohle Schiffahrts
- FONASBA BIMCO joint seminar on agency agreements
FONASBA and BIMCO invite London shipping professionals to a seminar on the recently released Agency Appointment and General Agency Agreements. The event will introduce both documents, highlight and explain the main clauses and allow participants to discuss the benefits of using the new agreements with members of the FONASBA/BIMCO drafting team. The seminar will be followed by a networking reception.
Attendance is free but pre-registration is required. For more details, click here.