Wikborg Rein updates

Aconcagua Bay – when is a berth 'always accessible'?
Wikborg Rein
  • Shipping & Transport
  • United Kingdom
  • 08 August 2018

The Aconcagua Bay was voyage chartered for the carriage of cargo from the US Gulf. While the vessel was loading, a bridge and lock were damaged and the vessel could not leave the berth for 14 days. The owners claimed damages for detention from the charterers for the period of delay. The main issue was whether a warranty in a voyage charter that the berth is 'always accessible' means that the vessel can always enter and leave the berth.

Supreme Court strikes blow against forum shopping in direct action
Wikborg Rein
  • Shipping & Transport
  • Norway
  • 08 August 2018

In a landmark decision the Supreme Court has set aside a Court of Appeal decision which concluded that the Norwegian courts have jurisdiction under the Lugano Convention in a direct action concerning a ship collision in the Singapore Strait. The decision provides welcome clarification to liability insurers across Europe, as it sets out that the Lugano Convention is a self-contained and exclusive code governing matters relating to insurance.

Inter-club Agreement – no-fault regime?
Wikborg Rein
  • Shipping & Transport
  • United Kingdom
  • 01 August 2018

The Court of Appeal recently provided important clarification in relation to the apportionment of liability for cargo claims as between shipowners and charterers under the Inter-club Agreement. The issue before the Court of Appeal was whether the word 'act' in the phrase 'act or neglect' in Clause 8(d) of the Inter-club Agreement means a culpable act in the sense of fault or whether it means any act, culpable or not.

EFTA Surveillance Authority closes assessment of Norwegian International Ship Register
Wikborg Rein
  • Shipping & Transport
  • Norway
  • 01 August 2018

In 2014 the European Free Trade Association (EFTA) Surveillance Authority commenced an audit of the Norwegian International Ship Register. Subsequently, the EFTA Surveillance Authority opened a case against Norway for a possible breach of the European Economic Area Agreement. The case concerned a geographical trade limitation applicable to ships flying the flag of the Norwegian International Ship Register.

Letters of indemnity for delivery of cargo without production of bill of lading
Wikborg Rein
  • Shipping & Transport
  • United Kingdom
  • 25 July 2018

In Songa Winds, the London High Court found that letters of indemnity requesting delivery without the production of bills of lading to an intermediate trader of cargo are triggered even if delivery is to the trader's buyer. The use of letters of indemnity to allow the delivery of cargo to a named party without the production of a bill of lading is relatively common, but infrequently called upon.

When is a commercial agreement entered into for the provision of towage assistance to a distressed vessel?
Wikborg Rein
  • Shipping & Transport
  • Norway
  • 25 July 2018

A recent Agder Court of Appeal decision regarding remuneration for towage of the vessel Kvitnos underscores that where commercial terms have been discussed, a party wishing to claim a salvage award should expressly reserve its rights to do so. The case also illustrates that oral agreements may give rise to disputes when parties have divergent impressions of what has been agreed, especially in distressed situations where time is of the essence and information is scarce.

Owners' lien on cargo
Wikborg Rein
  • Shipping & Transport
  • United Kingdom
  • 10 January 2018

The English High Court recently confirmed when it will order the sale of liened cargo which is the subject of arbitration proceedings. This decision may be of interest to shipowners that are faced with a situation in which cargo belonging to a charterer remains on board a vessel for a long period without the owners receiving hire, while still incurring operating costs.

Management of foreign-owned ships on NIS
Wikborg Rein
  • Shipping & Transport
  • Norway
  • 03 January 2018

In some transactions, a non-Norwegian company may wish to register its ship with the Norwegian International Ship Register. This can be done only if the ship is managed by a shipping company that has its head office in Norway. This requirement has a bearing on the contractual structures and financing schemes that can be put in place and also raises issues concerning enforcement.

New Flamenco – Supreme Court dances in different direction
Wikborg Rein
  • Shipping & Transport
  • United Kingdom
  • 03 January 2018

A recent Court of Appeal decision overturned the High Court judgment against the time charterers of a ship, reinstating the arbitration award in their favour. The decision has added another reason for delaying a final assessment of the loss of profit on a repudiated long-term charter by waiting to see whether the owners will sell the vessel.

Supreme Court provides guidance on damages and mitigation in New Flamenco
Wikborg Rein
  • Shipping & Transport
  • United Kingdom
  • 26 July 2017

The Supreme Court recently handed down its judgment in New Flamenco (Globalia Business Travel SAU of Spain v Fulton Shipping Inc). In this long-awaited decision, the court considered whether a benefit obtained by the owners relating to the sale of the vessel following the charterers' repudiatory breach of a charter should be taken into account in assessing the damages that the owners were entitled to recover.

Risks of deliberately delaying discharge
Wikborg Rein
  • Shipping & Transport
  • United Kingdom
  • 19 July 2017

A recent Commercial Court decision held that a charterer is 100% responsible under the Inter-Club Agreement for damage to cargo arising from an order to the vessel to delay discharge until the receivers are able to pay for the cargo. Given that it is common for shipments to be delayed, more disputes relating to deliberately delaying discharge can be expected in the future.

Supreme Court defines parameters of safe port undertakings
Wikborg Rein
  • Shipping & Transport
  • United Kingdom
  • 12 July 2017

The Supreme Court recently handed down a judgment addressing three issues of importance to shipowners, charterers and insurers alike, defining the parameters of the safe port undertakings, the rights of subrogation of insurers where vessels are operated under bareboat charter and the right of charterers to limit their liability under the Convention on the Limitation of Liability of Shipowners.

Landmark Supreme Court judgment on wreck removal
Wikborg Rein
  • Shipping & Transport
  • Norway
  • 21 June 2017

The Supreme Court recently clarified a number of unsettled issues that will have an impact on other wreck removal cases, including whether vessel owners can use their right to limit liability as a defence against a wreck removal order. Among other things, the decision has clarified the highly disputed interpretation of the relationship between owners' duty to take action and their right to limit liability.

When charterers fail to pay hire: dilemma for owners finally resolved, but proceed with caution
Wikborg Rein
  • Shipping & Transport
  • United Kingdom
  • 15 February 2017

In a recent case, the Court of Appeal decided unequivocally that missing a single instalment of hire under a time charter is not a breach of condition. In other words, there is no right to terminate for one missed instalment and claim damages for loss of bargain – usually the difference between the charter and market rate for the remainder of the charter period. The court also set out useful guidance on what constitutes 'renunciation' (anticipatory repudiatory breach) of a time charter.

Considered ratification of Nairobi International Convention on the Removal of Wrecks
Wikborg Rein
  • Shipping & Transport
  • Norway
  • 15 February 2017

A year and a half after the entry into force of the Nairobi International Convention on the Removal of Wrecks, the Ministry of Transport has completed a consultation process on a proposal to ratify the convention and implement it into Norwegian law. The ministry has suggested that the convention be implemented on a dual basis, alongside existing legislation.

How not to start an arbitration
Wikborg Rein
  • Shipping & Transport
  • United Kingdom
  • 08 February 2017

Two recent London decisions involving shipping companies have highlighted problems that can be encountered when starting an arbitration. The first decision concerned an issue with identifying whether a non-signing counterparty is bound by the agreement containing the arbitration clause. The second decision concerned the question of which parties are authorised to accept service of arbitration notices.

Arbitration clauses and third parties in bills of lading and other agreements
Wikborg Rein
  • Shipping & Transport
  • Norway
  • 01 February 2017

Since arbitration requires agreement between the parties, a third party is not normally bound by, or enti­tled to invoke, an arbitration clause. However, there are exceptions to the rule. It is recommended, when drafting arbitration clauses, to take into account not only the position of the contractual parties, but also the position of possi­ble third parties, since this may reduce or avoid the risk of difficult procedural questions that may arise if claims are later made by or against a third party.

The New Flamenco: keeping in step with damages and mitigation
Wikborg Rein
  • Shipping & Transport
  • United Kingdom
  • 19 October 2016

A recent Court of Appeal decision acknowledges the difficulties of laying down general principles of law in connection with an innocent party's obligation to mitigate its loss following a repudiatory breach of contract. The case arose in the context of assessing damages for early redelivery where there was no available market at the time of the breach against which to measure the loss.

OW Bunkers: owners stung by double payment
Wikborg Rein
  • Shipping & Transport
  • United Kingdom
  • 24 August 2016

The Supreme Court has handed down judgment in the long-running OW Bunkers case. The decision is unlikely to be welcomed by owners, which now face the prospect of having to pay twice for bunkers: once to their immediate supplier, which may be insolvent, and again to the physical supplier of the bunkers.

Norway and Brazil cooperate on maritime transport
Wikborg Rein
  • Shipping & Transport
  • Norway
  • 03 August 2016

Norway and Brazil signed a memorandum of understanding in November 2015 to enhance cooperation within the area of maritime transport. The memorandum is in line with the Norwegian government's long-term cooperation strategy for Brazil and is intended to increase both public and private sector cooperation and awareness to create mutual economic opportunities and promote investment.

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