CONTRATO DE FLETAMENTO. TIEMPO DE PLANCHA. Interpretación restrictiva de la aplicación de los términos del contrato de fletamento en el cual se excluye el tiempo de planchada o estadía (laytime) en determinados casos de fuerza mayor.

CAUSA: A3/2012/3016 - ED&F Man Sugar Ltd v Unicargo Transportgesellschaft mbH (The “Ladytramp”) Court of Appeal [2013] EWCA Civ 1449, - Royal Courts of Justice Strand, London, WC2A 2LL19/11/2013.-, click aquí

CONTRATO DE FLETAMENTO. TIEMPO DE PLANCHA Interpretación restrictiva de la aplicación de los términos del contrato de fletamento en el cual se  excluye el tiempo de planchada o estadía (laytime) en determinados casos de fuerza mayor.   

“As the judge records, in essence the tribunal concluded that the charterers were unable to rely upon Clause 28 of the charterparty for two reasons which are now relevant:

i) It was the obligation of the charterers, when the CBL terminal became unusable due to the fire, to nominate an alternative berth and the fact that the CBL terminal was unusable did not mean that the charterers were unable to perform their obligation to nominate "1-2 safe berths" for loading the contractual cargo. Clause 28 did not apply to that obligation unless the CBL terminal had been "named" in the charterparty so as to render the charterers unable (from a legal standpoint) to nominate an alternative berth. There were a number of alternative berths at which cargo could have been loaded. As it was not impossible for the charterer to nominate a "safe berth" where the cargo could be loaded, the only sense in which loading was "prevented or delayed" was that it was impossible to load at the berth originally intended. The arbitrators described this as "the short answer" to the charterers' reliance upon Clause 28;

ii) Clause 28 made no mention of "fires" as an excepted peril and "in common sense terms" the inoperability of the conveyor belt appeared to have been the result of physical damage due to the fire rather than any mechanical breakdown.”

“In the light of the argument before this court, I set out below the arbitrators' reasoning on the mechanical breakdown point. This was founded of course upon their finding at paragraph 13 as to the destruction of the conveyor belt system linking the terminal to the warehouse. I should also explain that paragraph 69 of the arbitrators' reasons deals with charterers' attempted reliance upon "government interferences" as additionally bringing them within the protection of Clause 28, an argument not pursued before us following its rejection by both the arbitrators and the judge. Paragraph 70 of the arbitrators' reasons, which I set out below, is therefore dealing with both mechanical breakdown and government interferences:- However, as the owners emphasised, exception clauses such as Clause 28 in any event have to be construed strictly against the party relying upon them and Clause 28 contained no mention of 'fires'. Nor was it easy to see how the phrase "mechanical breakdowns at mechanical loading plants" could apply in the present case, since in common sense terms the inoperability of the conveyor belt appeared to have been the result of physical damage due to the fire rather than any mechanical breakdown. Even if the charterers had been in a position to invoke Clause 28, we concluded therefore that they would nevertheless have faced considerable difficulties in persuading us that they were entitled to rely upon any of the specific force-majeure events set out in that clause."

“It was because the arbitrators thought that there was a short answer to charterers' reliance upon Clause 28 that they dealt "as succinctly as [they could]" with the mechanical breakdown point. However, in agreement with the judge, I consider that they came to the right conclusion. On the facts which they were invited to and did find, there was in my view no mechanical breakdown of the conveyor belt system. It is possible that further investigation, not undertaken by the parties before the arbitration, might have revealed that the fire had itself been caused by mechanical breakdown, but the charterers advanced no evidence before the arbitrators with a view to establishing that this was the case. Indeed, as I have shown, the charterers asserted that the cause of the fire was irrelevant. Accordingly, in my view the charterers have simply failed to establish that they are entitled to invoke the protection of Clause 28.”