«Το παραπάνω φορτίο στάλθηκε στο παραπάνω πλοίο… στο Rabigh… για παράδοση στο λιμάνι της Μομπάσα, αλλά εμείς, η Trafigura Beheer BV, σας ζητάμε δια του παρόντος να διατάξετε το πλοίο να προχωρήσει στους Αγίους Θεοδώρους και να παραδώσει το εν λόγω φορτίο στο λιμάνι Αγίων Θεοδώρων και να παραδώσει στη Motor Oil (Ελλάς) Α.Ε. χωρίς προσκόμιση της αρχικής(των) φορτωτικής.»
…..”The above cargo was shipped on the above vessel … at Rabigh … for delivery at the port of Mombasa but we, Trafigura Beheer BV, hereby request you to order the vessel to proceed to Agioi Theodori and give delivery of the said cargo at the port of Agioi Theodori and give delivery to Motor Oil (Hellas) SA without production of the original bill(s) of lading.”
The telex continued that in consideration of the owner’s complying with that request the charterers would indemnify them against the consequences of delivering the cargo without production of the original bill of lading. The document was in almost identical form to that previously provided when it was proposed to deliver the cargo in Lagos…..
“Chrts latest LOI, for the delivery of the goods at Ag Theodori, rcvd and found in order.
The master instructed accordingly.”
Later on 24 March there was an exchange of telexes regarding a possible addendum to the charterparty to reflect the agreement reached. There is in the bundle a document entitled ‘Addendum Nr 2’ which states that ‘it has been mutually agreed and understood between’ the owners and the charterers that:
“Owners grant the option to charterers to discharge in the Med Area as follows:
Rate: Lumpsum 320,000 USD basis 1/1
Max D/A for owners account USD 30,000
All other terms, conditions, details remain unaltered.”
The document was sent to the owners by the charterers attached to a fax sent on 24 March which simply stated: ‘kindly find attached herewith charter party + addendum nr 1 – nr 2’…..
The judge said in paragraph 4 of his judgment that in formal terms the parties agreed an addendum no 2 to the original charterparty. He must have had the above ‘Addendum Nr 2′ in mind. However, the owners say in their respondent’s notice that the judge was wrong to hold that the parties agreed addendum no 2. They say that they rejected the proposed addendum and that, following that rejection, no further addendum was drawn up. They rely upon the reply which they sent to the charterers’ fax, also on 24 March, which includes the following:
“… many tks indeed for yr addendum no 2 which its content dly ntd and pls note that the same is referred to the new voyage which vsl is performing right now and therefore as per our freight invoice dtd 9.3.00 has to have a complete different cp date ie 9.3.00.
Not only but on top of it you should specify that the l.sum of usd 320,000 has been agreed to perform a voyage ex novo ie from Abidjan to eastmed and all other terms and conditions remain unchanged as per cp dtd 16.12.99 hope above clear enough to enable you to draw the addendum accordingly. …”
It is not I think suggested that the charterers replied to that fax.
In compliance with the charterers’ requests the vessel in fact proceeded to Agioi Theodori. She tendered notice of readiness at about 0700 on 27 March and made fast at noon. In a document said to have been attached to an invoice dated 31 March it was estimated that discharge would be complete and her hoses disconnected at about 2400 on 31 March. In the event discharge of the cargo at Agioi Theodori by delivery to Motor Oil (Hellas) SA was completed on 1 April.
On 31 March the owners sent the charterers a fax under the heading ‘CP 09.03.00’ attaching an invoice for US$28,410.30 in respect of drifting expenses off West Africa, sampling at Gibraltar roads and 12 hours estimated demurrage at Agioi Theodori. The first two items were presumably simply costs said to have been incurred. The third was calculated on the basis that laytime would began to run at 1200 on 27 March, that the laytime allowed was four days and that it followed that, if the hoses were disconnected at 2400 on 31 March, the owners would be entitled to 12 hours demurrage at US$11,000 per day or pro rata for part of a day. There is no other evidence of an agreement relating to laytime at the discharge port of Agioi Theodori. The charterers paid the invoice on 3 April.
The contractual position seems to me to have been as follows. I would accept the submission that the owners did not agree addendum no 2 as proposed by the charterers on 24 March. Nor, as I see it, did the charterers accept the proposal in the owners reply fax. The position is that no further written agreement was drawn up, either by way of fresh charterparty or by way of addendum to the existing charterparty. There is, however, no doubt that the parties reached an agreement with regard to the voyage to and delivery of the cargo at Agioi Theodori. The question is what the agreement was.
As already stated, it was an oral agreement reached on 11 March. The freight was agreed as US$320,000. It was also agreed that the charterers would pay storage charges at the demurrage rate plus the costs of the deviation to Abidjan. As indicated above, the charterers paid the invoices which the owners sent them. There was thus no issue in respect of the voyage to Abidjan. The owners were paid their expenses together with demurrage at the charterparty rate. Nor was there any issue as to the freight for the voyage to the Eastern Mediterranean or as to the charterers’ liability to pay the expenses connected with sampling off Gibraltar.
The exchange of telexes on 24 March suggests that both parties were content that an addendum to the charterparty should be drawn up. It appears that the owners’ objection to the proposed addendum no 2 was that it referred to an option being granted by owners, whereas since the vessel was performing a new voyage, the addendum should be given a ‘completely different cp date’. For some reason the owners referred to a charterparty of 9 March, although it is correctly accepted by Mr Boyd that no agreement was made on 9 March which was capable of being drawn up either by way of separate charterparty or by way of addendum to the existing charterparty.
Subject to the question whether the agreement made on 11 March should be described as a new charterparty or not, there seems to me to have been little, if anything, between the parties. Indeed, in the exchanges of 24 March both parties expressly contemplated that there should be an addendum to the charterparty. The charterers suggested ‘all other terms, conditions, details remain unaltered’, whereas the owners suggested ‘all other terms and conditions remain unaltered as per cp dtd 16.12….. hope above clear enough to enable you to draw the addendum accordingly’….
To Be Continued