Cash buyers (NKD) of the Shagang Giant purported to terminate the MOA on the grounds that Indian Covid-19 restrictions constituted force majeure preventing both Vessel from reaching outer anchorage (“the Delivery Location”) and Sellers (Bart) from transferring title as per the MOA. The Court disagreed. The force majeure clause was applicable to an inability to transfer title, not an inability to deliver; Sellers had not been precluded from the former, either by inability to reach the anchorage or by government restriction. In any event the Court found the Vessel had arrived at the Delivery Location. Sellers were entitled to the deposit (which exceeded the total losses claimed).

The High Court had found the Britannia LOU, despite its inclusion of a sanctions clause potentially suspending payment, to be in a form “reasonably satisfactory to the other” as required by the agreed ASG 2 form; nevertheless it found the Respondent under no obligation to accept it. The CA disagreed. On proper construction the ASG2 was to operate instead of an arrest and there was no right of arrest once security in in satisfactory form had been provided. An opposite finding, which would have allowed a beneficiary to seek better or alternative security elsewhere, was held contrary to Admiralty practice and the “clear purpose and…language of ASG 2”. The appeal was allowed.

The High Court had found the Britannia LOU, despite its inclusion of a sanctions clause potentially suspending payment, to be in a form “reasonably satisfactory to the other” as required by the agreed ASG 2 form; nevertheless it found the Respondent under no obligation to accept it. The CA disagreed. On proper construction the ASG2 was to operate instead of an arrest and there was no right of arrest once security in in satisfactory form had been provided. An opposite finding, which would have allowed a beneficiary to seek better or alternative security elsewhere, was held contrary to Admiralty practice and the “clear purpose and…language of ASG 2”. The appeal was allowed.

The BARECON stipulated for arbitration (LMAA terms / 3 arbitrators) where a failure to appoint within 14 days entitled the commencing party to appoint their arbitrator as sole arbitrator without notice. The Respondent’s appointee was subsequently unable to participate (compensation below firm’s charge-out rate), and the Claimant argued failure to appoint and entitlement to appoint theirs as sole arbitrator. The Court disagreed; although remuneration was not agreed at the time, there was no conditionality when the Respondent’s appointee accepted the appointment and the Respondent “had unequivocally communicated its appointment” to both the Claimant and their arbitrator.

An “Uplift Term” was agreed in c/p (NYPE) under which Owners would supply an additional 200-300 mt delivery bunkers, against increased hire. Owners subsequently supplied 195 mt. Charterers sought a declaration that the minimum quantity had not been supplied and the “Uplift Term” not triggered, whilst Owners argued the “Additional Requirements” clause (defining “abt” as +/- 5%) was applicable. The Tribunal agreed with Owners; the parties intended “abt” to qualify all bunker quantities, its omission a clear mistake the Tribunal had power to correct, and its inclusion necessary for business efficacy.

An “Uplift Term” was agreed in c/p (NYPE) under which Owners would supply an additional 200-300 mt delivery bunkers, against increased hire. Owners subsequently supplied 195 mt. Charterers sought a declaration that the minimum quantity had not been supplied and the “Uplift Term” not triggered, whilst Owners argued the “Additional Requirements” clause (defining “abt” as +/- 5%) was applicable. The Tribunal agreed with Owners; the parties intended “abt” to qualify all bunker quantities, its omission a clear mistake the Tribunal had power to correct, and its inclusion necessary for business efficacy.