Shipping E-Brief Autumn 2014

SHIPPING E-BRIEFAUTUMN 2014

CONTENTS

SHIPPINGDoes a LOU arbitration agreement for the underlying cargo claim completely replace the bill of lading arbitration clause? 2

More pitfalls for owners looking to terminate for unpaid hire 3

Commercial Court confirms traditional understanding of “as is where is” in ship sale and purchase contract 5

Hong Kong ship arrest: enforcing a maritime award via the backdoor? 6

Can a LNG cargo be injurious to the vessel? 7

Implied duty of cooperation in shipbuilding and offshore construction contracts – a change in the law? 8

Collisions and reserve ships: liner operators beware! 9

Evidence not before tribunal shut out by Court on appeal 10

Court upholds English contract termination clause that is invalid under foreign insolvency law 11

BIMCO’s new charterparty clause for electronic bills of lading 13

English Commercial Court enforces obligation to resolve disputes by friendly discussion prior to arbitration 14

NEWS AND EVENTSInce & Co recognised by Legal 500 2014 16

Ince & Co promotes corporate specialist Matthew Stratton to partner 16

Ince & Co recruits Philippe Ruttley as Head of EU and Competition Law 17

Ince & Co has been named In-House Community Firm of the Year 2014 for Hong Kong: Maritime & Shipping 17

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SHIPPING Does a LOU arbitration agreement for the underlying cargo claim completely replace the bill of lading arbitration clause?

Viscous Global Investments Ltd. v. Palladium Navigation Corporation (Quest) [2014] EWHC 2654

In the context of cargo claims brought under four bills of lading, the Commercial Court has recently considered whether an arbitration provision in a Club Letter of Undertaking (LOU) had entirely replaced the arbitration agreement in the bills of lading. If it had not, the Cargo Interests may have been faced with a time bar argument in respect of some of their claims. Luckily for them, the Court found in their favour.

The background factsThe dispute arose out of a shipment of a cargo of bagged rice from Thailand to Nigeria pursuant to four Congenbill 1994 bills of lading.

There was a head time charterparty, a sub-trip time charterparty and a sub-sub voyage charterparty. The first two charterparties provided for LMAA arbitration in London, with the LMAA Small Claims Procedure (SCP) to apply to claims of less than US$100,000. The sub-sub voyage charterparty provided for Singapore arbitration. All three charterparties were governed by English law. Each bill of lading incorporated the “Law and Arbitration Clause” of the “Charterparty, dated as overleaf”, but no charterparty was actually identified (by date).

Cargo damage was alleged upon discharge, and the Cargo Interests sought security from the Owners for their claims under the bills of lading. The Owners’ P&I Club issued a LOU which, among other things, confirmed the Owners’ agreement that the Cargo Interests’ claims (to which the LOU would respond if they succeeded) would be referred to LMAA arbitration in London before three arbitrators and that English Law would apply (including the Hague-Visby Rules and the English Carriage of Goods By Sea Act 1992). The Cargo Interests commenced arbitration under the standard LMAA Terms, but no references were made under the SCP.

The Owners argued that the commencement of arbitration was invalid because the Cargo Interests should have commenced four separate arbitrations (not one) of which some should have been under the SCP (before a sole arbitrator) because the claim values under some of the bills of lading were apparently less than US$100,000; and so the arbitrators had no jurisdiction to decide the claims in this arbitration (and the Cargo Interests were time-barred from commencing new arbitration proceedings to correct this). The Owners argued this on the basis that (1) the head time charterparty’s law and jurisdiction provisions had been incorporated into the bills of lading; and (2) its SCP provision for claims for less than US$100,000 survived the LOU – which amended the bills of lading’s arbitration provision in some limited respects but left the SCP provision intact.

The Cargo Interests argued that the LOU’s arbitration provision had replaced the bills of ladings’ arbitration provision entirely.

The Tribunal’s decisionThe majority arbitrators held that they had jurisdiction to hear a bill of lading claim for more than US$100,000, but (as the Owners were arguing) no jurisdiction to hear a claim for less than this sum. That said, they could not say which claims they could hear because the Cargo Interests had not set out the claim amount under each bill of lading.

The minority arbitrator held that the Tribunal had jurisdiction to decide all of the bill of lading claims (as the Cargo Interests were arguing).

The Commercial Court decisionThe Court agreed with the Cargo Interests that the LOU’s arbitration provision had replaced the bills of lading’s arbitration provision entirely such that the arbitration had been validly commenced. The Court’s reasoning was as follows:

1. There was no reason in principle why this should not be the case, and the authorities relied upon by the Owners to the contrary did not directly apply here. The LOU’s arbitration provision operated comfortably as a new and free-standing agreement which was comprehensive – dealing with the (London) seat of the arbitration; the (LMAA Terms) arbitration procedure; the number of arbitrators (three, appointed in the usual way); the time for appointing the second arbitrator (14 days); and the law governing the dispute (English law, including the Hague-Visby Rules and the Carriage of Goods by Sea Act 1992).

2. This was also the natural meaning of the LOU’s arbitration provision.

3. With this in mind, there was no apparent reason why the parties should not have intended this. On the contrary, there were good reasons why they should:

i. the arbitration agreement would in this way be found in one document (the LOU) rather than two (the LOU and the bill of lading/head charterparty clause);

ii. the parties knew that some of the modest claims would be less than US$100,000 and would therefore have mentioned the SCP in the LOU if they intended it to apply;

iii. it made no sense for them to have been agreeing to four arbitrations under different LMAA procedures; and

iv. it was in fact arguable that the voyage charterparty’s Singapore arbitration provision actually applied instead of the head charterparty’s London/SCP arbitration provision – as to which any dispute was removed if the LOU’s arbitration provision replaced it entirely.

CommentThe Court would seem to have made a common-sense decision giving effect to the words used in the LOU and, apparently, to what the parties would have intended.

Whilst not relevant to the decision reached, the Court’s comment in passing that the Owners “may well be right”, subject to some scope for disagreement, that the head time

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charterparty’s arbitration provision would initially have been incorporated into the bills of lading (rather than the voyage charterparty’s arbitration provision) might be questioned in future cases; there is both textbook authority and case law to the effect that if there is a sub-voyage charterparty, the arbitration provision in that sub-charterparty (not that of the head time charterparty) is incorporated into the bill of lading, consistent with the bill of lading’s phrase “freight payable as per cp dated [ ]”.

Victoria WaiteSolicitor, [email protected]

Evangelos Catsambas Partner, [email protected]

More pitfalls for owners looking to terminate for unpaid hire

Januzaj v. Valilas [2014] EWCA Civ 436

It is a debatable point whether or not the obligation to pay hire under a time charter is a condition of the contract or not, notwithstanding the obiter comments of Mr Justice Flaux in the Astra [2013] EWHC 865 (see the Shipping E-Brief July 2013). Making payment under a commercial contract is said to be “not of the essence of the contract” and therefore not a condition. The significance is that a breach of condition allows the innocent party to terminate the contract in addition to claiming damages. Otherwise, he may be limited to his damages claim but unable to terminate the contract unless the failure to make payment, or indeed making repeated late payment under an instalment contract, amounts to a repudiatory breach of the contract.

The traditional view is that, in order to terminate a time charter and claim damages for losses suffered following a failure to pay hire, the charterer’s conduct must be shown to be (i) repudiatory in the sense that the breach deprives the owner of substantially the whole benefit of the charter; and/or (ii) renunciatory in the sense that it evinces an intention on the charterer’s part no longer to perform the charter at all or to perform the charter in a manner substantially inconsistent with his contractual obligations.

It will very much depend on the facts and circumstances in any given case whether the non-payment or late payment of hire instalments under a time charter amounts to a repudiatory breach. This often requires the owner to make a difficult decision as to whether the charterer’s failure to pay a number of hire instalments, or paying them late, entitles him, the owner, to terminate the charter. If the owner “calls it wrong”, he can find himself in repudiatory breach for wrongful termination and facing a claim for damages from the charterer.

Januzaj v. Valilas is not a shipping case but deals with general principles concerning the law on repudiation. It arguably introduces a further potential pitfall for owners seeking to rely on multiple failures to pay hire, or repeated late payments of hire, in order to demonstrate repudiatory conduct on the part of a charterer.

The background factsThe Claimant was a dentist operating his practice from the Defendant’s premises. The Claimant had agreed to pay the Defendant half his earnings from his practice in return for use of the premises. The Claimant’s earnings came from the UK’s National Health Service (the “NHS”) under an arrangement whereby the Claimant was paid in advance in equal monthly instalments for his work. If, at the end of the year, the Claimant had not done sufficient work, then any over-payment of his advance earnings had to be refunded to the NHS.

A dispute arose between the Claimant and Defendant, as a result of which the Claimant stopped any further payments to the Defendant. The Claimant was particularly concerned that the Defendant would not return his half of any advance

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payments if a refund became due to the NHS. The Claimant failed to make three monthly payments to the Defendant between August and October. In November, the Defendant terminated the agreement on the basis of the Claimant’s repudiatory breach of contract.

The Court decisionsAt first instance, the Court found that the agreement had been terminated wrongfully and awarded the Claimant damages. The majority of the Court of Appeal upheld this decision on the basis that, on the facts, the Defendant should have been aware that the Claimant was only intending to pay late as opposed to evincing an intention not to pay at all. By contrast, the dissenting judgment concluded that the failure to make three payments in a row was a repudiatory breach.

In the context of time charter hire disputesThe onus will be on an owner to demonstrate that he has been deprived of substantially the whole benefit of his time charter and/or that the charterer does not intend to make any further hire payments in the future. Furthermore, The Brimnes [1972] 2 Lloyd’s Rep. 465 made it clear that even persistent late payment of hire instalments will not necessarily amount to a repudiation of the charter.

One of the majority appeal judges in Januzaj v. Valilas suggested that, in determining whether the number of missed or late payments was repudiatory, regard had to be given to the length of the contract as a whole. There is, however, previous case law to the effect that, in deciding whether repeated late payments are repudiatory, it will not simply be a question of looking at the number of payment instalments required over the whole of the contractual period and comparing that number with the number of occasions on which payment has not been made or has been made late. It is also necessary to look at the type of contract in question.

Januzaj v. Valilas was very much decided on its own facts. In that case, the dentist who missed three monthly payments had, in previous years, always managed to complete the requisite amount of work he had to perform for the NHS over the course of the year and so no refund to the NHS had ever been necessary. The majority of the Court of Appeal concluded that the Defendant should, therefore, have known that the Claimant would complete all his NHS work in the relevant year also, so that no refund would have been required and the Claimant would eventually have paid the Defendant all that was owing to him, albeit somewhat late. That was not sufficient to amount to repudiatory conduct.

In a time charter context, however, and in a challenging economic climate, it will often not be at all clear to an owner that he will eventually get his money, albeit late. Charterers may be on the brink of insolvency and may be looking to negotiate a reduced hire rate rather than comply with their original contractual obligations. There may also be a history of repeated defaults on the part of the charterer that can render his behaviour repudiatory as a whole. Nonetheless, Januzaj v. Valilas gives an owner faced with a defaulting charterer some cause for concern that he will be jumping the gun if he

chooses to terminate where a charterer has missed a few hire payments. Is it relevant to consider the length of the charter when deciding whether several unpaid instalments is repudiatory? Are those payments just late or is the charterer not going to pay at all?

CommentGiven the Court of Appeal decision in Januzaj v. Valilas, an owner will need to be cautious about terminating for late payments of hire and there remains uncertainty over exactly how many non-payments will be sufficient to justify a decision by the owner to terminate the charter. Defaulting charterers often suggest to owners that they intend to pay outstanding hire in the future. Such a defaulting charterer, faced with an owner who chooses to terminate the charter as a result, may now argue that the outstanding payments were merely late or that only a few non-payments of hire in the context of a long-term charter is not repudiatory.

David RichardsSenior Associate, [email protected]

Paul HerringPartner, [email protected]

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Jamila KhanPartner, [email protected]

Commercial Court confirms traditional understanding of “as is where is” in ship sale and purchase contract

Michael Hirtenstein & Others v. Hill Dickinson LLP [2014] EWHC 2711 (Comm)

It will be recalled that in the case of Dalmare SPA v. Union Maritime Ltd (Union Power) [2012] EWHC 3537 (Comm), the Commercial Court, albeit in obiter comments, expressed the surprising and contentious view that the words “as is where is” were likely not sufficient to exclude from a sale contract the implied terms of satisfactory quality and fitness for purpose under s.14 Sale of Goods Act 1979 (“SGA”).

Those terms will be implied into sale of goods contracts (including ship sale contracts) entered into in the course of a business, but their inclusion is excluded if a term in the contract is inconsistent with the implied term (s.55 SGA). In Union Power, the Court commented that, if it had been required to decide the point, it would have found the words “as is” were not inconsistent with the implied terms to the extent of excluding them, that they were sufficient only to exclude a right to reject the goods, and would not exclude a claim for damages for breach of the implied terms.

This decision was surprising, given that market understanding has long been, in the context of ship sale and purchase and otherwise, that the terms “as is” or “as is where is” require a buyer to take a ship in the condition and state in which she is to be found at the point in time defined in the contract, all faults included, without any warranty as to quality or condition (see The Morning Watch [1990] and The Brave Challenger [2003]). Such a meaning would appear manifestly inconsistent with the inclusion of the s.14 implied terms.

The decision in Union Power therefore had potentially wide-ranging implications, notwithstanding the obiter nature of the comments.

Michael Hirtenstein & Others v. Hill Dickinson LLPIn Hirtenstein, the Court has now endorsed the traditional meaning of the words. The case arose following the purchase of a luxury yacht that suffered a major engine breakdown only an hour after delivery under the sale contract. The sale, on an amended MYBA form MOA, was on terms that she was sold “as is where is” save for certain specific warranties.

In this case, the parties all appeared to have a common understanding as to what “as is where is” means: that the yacht was to be purchased in her existing condition, be that good or bad, with no recourse against the Seller for any subsequently discovered faults. The Court further commented that it “would regard that phrase as self-explanatory. It clearly signified that the buyer would acquire the Yacht in whatever condition the boat was at the time of purchase with no right to complain subsequently...”.

The Court further dealt with the notion put forward in Union Power that the words “as is” do not by themselves exclude the implied terms but could only exclude a right of rejection,

commenting that “Drawing such a distinction between the right to reject and the right to damages and treating the words ‘as is’ as excluding the former but not the latter seems to me most unlikely to reflect the expectations of ordinary business people or to be an interpretation that would occur to anyone other than an ingenious lawyer.”

CommentThe case therefore supports the view that the terms “as is” or “as is where is” are terms of art when it comes to contracts for the sale of goods, that such terms are inconsistent with any further right of recourse in respect of the condition of the goods, and that they are therefore inconsistent with the implication of warranties under s.14 SGA. That said, Union Power is still authority for the (also perhaps surprising) proposition that the words “as she was” in s.11 of the Norwegian Sale Form (“NSF”) 93 are not the same as “as is where is” and do not of themselves exclude the SGA implied terms. Therefore, anyone selling a vessel on that form of MOA must include a specific term excluding statutory or other implied terms, such as is found in NSF 2012 and the standard amendment to the MYBA form. We suggest it would also be good practice to include an explicit exclusion of warranties in any contract intended to be on truly “as is where is” terms.

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Hong Kong ship arrest: enforcing a maritime award via the backdoor?

Handytankers KS v. Owners and/or demise charterers of M/V Alas (subsequently renamed Kombos) [2014] KHCFI 1281

In a potentially very significant recent judgment, the Hong Kong High Court has upheld the arrest of a vessel despite the Plaintiff already having obtained an arbitration award. The Admiralty Court effectively ruled that a ship can still be arrested despite the existence of an arbitration award, provided that the claim out of which the award originates properly invokes the in rem jurisdiction of the Court. The arrest was allowed to stand because the cause of action in rem remains alive so long as the arbitration award in personam against the owners of the ship remains unsatisfied.

The background factsThe Kombos was chartered by the Plaintiff to PT Arpeni Pratama Ocean Line Tbk (“APOL”) under a Shelltime 4 charterparty (the “Charterparty”) for five years. The Charterparty contained an LMAA arbitration clause, pursuant to which the Plaintiff brought proceedings in London for damages for breach of the Charterparty and unpaid hire due under it. A final award in the region of US$9 million for damages and unpaid hire (the “Award”) was made in favour of the Plaintiff in March 2013.

In April 2014, the Plaintiff invoked the Hong Kong Court’s in rem jurisdiction by arresting the Dewi Umayi (the “Vessel”) owned by APOL. The arrest papers made two important points clear to the Court. First, the arrest of the Vessel was sought for the purpose of providing security for the anticipated judgment in rem in the arrest action, not as a means of enforcing the Award. Second, the claim as pleaded in the endorsement to the writ was one falling under section 12A(2)(h) of the High Court Ordinance (the “Ordinance”), namely a claim arising out of any agreement relating to the use or hire of a ship.

The judgmentCounsel for the Defendant sought to argue that the arrest was fundamentally in the nature of an application to enforce the Award. He continued that this was an abuse of process as, in Hong Kong, there was no head of Admiralty jurisdiction that permitted an arrest to enforce an arbitration award in such circumstances. Counsel for the Defendant also submitted that the arrest procedure was not available once a plaintiff’s claim had crystallised in the form of a judgment or arbitration award.

The Court agreed that there is no head of Admiralty jurisdiction in Hong Kong for the enforcement of arbitration awards. Section 12A(2) of the Ordinance does not cover a claim arising out of “an arbitration agreement”. However, the Court went on to state that it was reasonably clear from a number of judgments of the English and Hong Kong courts that the Court would have in rem jurisdiction if the claim were based on the original cause of action under the charterparty. This is because the cause of action in rem, being different in character from a cause of action in personam, does not merge in the judgment in personam. Instead, it remains available to the person who has it as long as, and to the extent that, the in personam judgment remains unsatisfied.

Consequently, the Court ruled that as the Plaintiff’s claim was pleaded as one for damages arising under a charterparty, it was in substance and in form a claim “arising out of any agreement relating to the use or hire of a ship”. Section 12A(2)(h) of the Ordinance was thereby invoked. It was perfectly legitimate for the Plaintiff to arrest the vessel and keep her arrested as security in respect of any judgment that it may obtain after a hearing in the in rem proceedings.

CommentThis judgment does not go so far as to amend the law regarding the grounds for arrest in Hong Kong. A plaintiff cannot arrest a vessel to enforce a claim based on an unsatisfied arbitration award; this would require an expansion of the jurisdictional heads under section 12A of the Ordinance. In addition, any applicant in Hong Kong would need to ensure that it did not fall foul of provisions of the Foreign Judgments (Restriction on Recognition and Enforcement) Ordinance.

However, provided that the underlying cause of action does fall within Section 12A of the Ordinance, and is correctly pleaded, then it may now be possible to arrest a ship in Hong Kong despite the existence of an arbitration award. Whilst not directly being an arrest to enforce the award, that may well in effect be the result of such an arrest.

It is unclear at the time of writing whether this case will be appealed. However, for now it remains the decision of the Admiralty Court and presents an opportunity for those holding unsecured arbitration awards of an appropriate maritime flavour to pursue enforcement, or enhance settlement leverage via a route previously considered to be unavailable.

Rory MacfarlanePartner, Hong [email protected]

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Can a LNG cargo be injurious to the vessel?

American Overseas Marine Corporation v. Golar Commodities Ltd (LNG Gemini) [2014] EWHC 1347

In this case, the Court was asked to consider the meaning of the words “injurious to the Vessel” in a time charter provision that was in the terms of clause 28 of the standard Shelltime form, and on which there appeared to be no relevant authority.

The background factsThe Owners of a LNG carrier entered into a time charter, clause 30 of which was headed “Injurious Cargoes” and provided as follows:

“No acids, explosives or cargoes injurious to the Vessel shall be shipped and without prejudice to the foregoing any damage to the Vessel caused by the shipment of any such cargo, and the time taken to repair such damage, shall be for Charterers’ account.”

The Owners alleged that the Charterers had loaded a cargo of LNG at the Cameron Terminal in Louisiana that was injurious to the vessel in that it contained debris, in particular metal particles. As a result, the Owners contended that the vessel required major repairs after her cargo pumps and tanks were found to be contaminated. The Owners eventually accepted that there was no evidence that any of the debris caused abrasion or rust or physical damage to the vessel, but argued that a cargo might be “injurious to the Vessel” within the meaning of clause 30 without causing any physical damage to her.

The Commercial Court decisionThe Court held that the clause was directed to physical damage, pointing out that since it expressly covered two types of cargo that might cause physical damage to the vessel, acid and explosives, the inference was that it also covered other cargoes that might cause physical damage. The Court considered that this interpretation was corroborated because: (i) the clause was particularly concerned with repairs of damage caused by such cargoes, and the word “repairs” connoted physical damage; and (ii) the clause provided for an indemnity for time lost to do repairs, but not for time lost by the vessel for other reasons, such as cleaning.

Nevertheless, the Court went on to hold that a cargo could be “injurious” to a vessel without actually causing damage to her, if it is of a kind that has a tendency or propensity to cause damage.

On the facts, however, the Court held that the Owners had not proved that the Charterers shipped a cargo injurious to the vessel. This was because although some of the particles that formed part of the debris found in the cargo tanks during the dry dock in the Philippines were likely to have been from the Louisiana cargo, the distribution of debris suggested that it was not predominantly from the Louisiana cargo. Further, as the vessel had used unusually fine 100 mesh filters in its manifold (which would block particles of more than 0.149mm), any Louisiana cargo debris particles that found their way into the cargo tanks would be ultra small. The Court accepted expert opinion that the LNG industry did not contemplate that ultra small particles of up to 0.25mm were going to cause any damage to the LNG system.

The Court considered it unrealistic to think that the equipment in the cargo system of a LNG tanker was designed to operate without any metallic contamination at all, and instead accepted expert evidence that small metallic particles were unlikely to cause short-circuiting in LNG or LPG tankers, nor was there any evidence that the particles would damage the ball bearings or other parts of the cargo pumps. The cargo system of an LNG tanker was more robust than argued for by the Owners, and the Louisiana LNG shipped by the Charterers did not create potential dangers to the vessel as the Owners contended, and was not a cargo injurious to the vessel.

CommentThis case provides useful judicial guidance on the scope of clause 28 of the standard SHELLTIME form. Although the cargo in question does not have to have caused physical damage to the vessel, it must be of a kind that has the propensity to cause damage. A LNG cargo with ultra small metallic particles will not meet this test.

Aurora VillacellinoAssociate, [email protected]

John SimpsonPartner, [email protected]

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Implied duty of cooperation in shipbuilding and offshore construction contracts – a change in the law?

Swallowfalls Ltd v. Monaco Yachting & Technologies S.A.M. & Anor [2014] EWCA Civ 186

In our Summer 2014 E-Brief, we commented on the case of Swallowfalls v. Monaco Yachting, in which the Court of Appeal construed a loan agreement relating to a yacht construction contract as being “on demand”. The Court also considered whether there was an implied term requiring the buyer to cooperate with the builder to agree, propose an alternative solution or abandon any proposed variation to the contract.

It is common to provide expressly in a construction contract for the ways in which the parties will cooperate with one another. Where this is not addressed by the express terms of the contract, a duty of cooperation may nevertheless be implied in particular circumstances. The scope of such a duty will depend on what is reasonable and necessary in the circumstances of each case and by reference to the terms of the contract. But how far does this go in a shipbuilding contract?

The background factsThe case of Swallowfalls concerned the construction of a yacht that was to be paid for by instalments upon the achievement of particular construction milestones. The Builder had difficulties performing its obligations and required interim finance from the Buyer in order to do so, which was provided by the Buyer as advances on the instalments that would become due under the contract. Upon completion of each milestone, and the Buyer’s counter-signature of the corresponding stage certificate, the outstanding loan amount would be reduced by the amount of the corresponding instalment.

Disputes subsequently arose and the Buyer claimed the balance of the loan. The Builder contended that the balance of the loan that was payable was significantly less than that claimed by the Buyer because:

1. the Buyer failed to countersign a stage certificate upon the Builder’s achievement of a milestone, which delayed the instalment being credited against the loan amount, resulting in the accrual of additional interest; and

2. the Buyer failed to follow the contractual mechanism for Buyer-requested variations, which delayed the completion of milestones and the repayment of the loan.

The Builder argued that it should be implied into the loan agreements between the Builder and the Buyer that:

1. the Buyer would not prevent the Builder from repaying the loan, or delay the Builder in repaying the loan by completing the milestones under the shipbuilding contract; and/or

2. the Buyer would cooperate with the Builder in the confirmation of the achievement of milestones under the shipbuilding contract and, in particular, the counter-signature of stage certificates.

The Court of Appeal decisionThe Court of Appeal did not accept that the first term should be implied but found that the second term was implied and that “will do all that is required to make the contract work”. The Court commented that:

“The second proposed implied term is an ordinary implication in any contract for the performance of which co-operation is required. A shipbuilding contract is such a contract since ... the builder only earns a stage payment when the buyer’s representative signs a certificate that the relevant stage or milestone has been achieved. If the relevant milestone has in fact been reached, the buyer must so certify as part of his implied obligation to co-operate in the performance of the contract. Similarly if the buyer proposes a variation and the builder notifies the buyer of the impact in price, performance and delivery, the buyer must co-operate to agree, propose an alternative solution or abandon the proposed variation. If this is not spelled out in the contract expressly, a duty to co-operate in the project will be implied.”

It is not controversial that the buyer should have a duty to cooperate by countersigning stage certificates upon the achievement of milestones. If such an obligation was not imposed, the buyer could suspend payment by refusing to certify milestones, which is unlikely to have been the intention.

What is more controversial is the comment that if the buyer proposes a variation and the builder notifies the buyer of the impact on the price, performance and delivery, the buyer must cooperate to agree, propose an alternative solution or abandon the proposed variation and that, if this is not spelled out in the contract expressly, it will be implied.

In many cases, the builder will be able to continue construction despite the buyer not having responded to a variation proposal. Some contracts provide that the builder is required to follow the buyer’s variation instructions while awaiting a response (with the time, cost or other consequences being determined later) or that, if the buyer fails to respond within a particular period, the proposed variation will be withdrawn. Even in the absence of such provisions, the builder may be obliged to continue construction in accordance with the original specification unless and until any variation is agreed. In all these cases, an implied duty on the buyer to cooperate by expressly agreeing, proposing an alternative solution or abandoning the proposed variation would not appear to be necessary in order to make the contract workable.

CommentIt appears doubtful that the Court of Appeal was intending to lay down a general principle that a general duty to cooperate will be implied in all shipbuilding contracts where the buyer proposes a variation and the builder notifies the buyer of the impact on the price, performance and delivery, such that the buyer must cooperate to agree, propose an alternative solution or abandon the proposed variation. However, this case could

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Chris KiddPartner, [email protected]

introduce some uncertainty as to the circumstances in which a duty of cooperation will be implied and time will tell how it will be treated by the Court in subsequent cases.

Robin AcworthSolicitor, [email protected]

Collisions and reserve ships: liner operators beware!

Darya Bhakti [2013] 2 HKLRD 926

The quantification of damages for the loss of use of a ship damaged in collision where her owner maintains and substitutes a reserve ship for his damaged ship came up for determination recently in Hong Kong, and in the modern day setting of a liner operation run by a consortium of container ship owners. The case in question was the Darya Bhakti in the Hong Kong Court of Appeal.

Reserve ships Liner operators of container ships are committed to providing regular services with scheduled sailing times and port rotations. In order to maintain such services, they must have similar, and ideally identical, ships available as replacements to provide cover for those occasions when one of the ships in service has to be withdrawn for repair. In earlier years, a suitable replacement ship would often be readily available in the market for short-term charter but the option of chartering-in has become considerably more difficult with the increasing specialization of container ships in terms of their carrying capacities, speeds and fuel efficiencies. An increasing number of liner operators today therefore are investing in reserve ships; that is, a sister ship that is kept deliberately idle in order to be readily available for use as a replacement when another of her sisters in service has to be withdrawn for any reason, such as after collision.

Loss of use Where a ship is damaged in collision, her owner is entitled to claim damages for the loss of the use of that ship during the period it is out of service undergoing repair (the period of detention). Where the owner has no other ships available and charters in a replacement ship to substitute for his damaged ship during the period of detention, he can recover these chartering-in costs as damages. What is the position, however, where the owner keeps a reserve ship and elects not to charter in but to substitute the reserve ship for the damaged ship?

The authoritiesSurprisingly, there are very few reported shipping cases that directly address this issue and such cases as there are date back to the early part of the last century and involve claims for loss of use by non-profit making organizations. These cases do suggest, however, that the owner of a reserve ship trading commercially for profit is entitled to recover loss of use based upon the market rate of hire for such a ship at the time of the collision. As the authors of the leading textbook on collisions note:

“The case where a sister ship otherwise idle takes the place of the damaged vessel must be distinguished from the situation where a stand-by or reserve vessel is specifically kept for that purpose. Here a claim will lie for substantial damages for detention...

There is no clear English authority on the measure of recovery, but US authority tends to give the reasonable rate of charter hire for the ‘spare boat’.”

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The Darya BhaktiOOCL’s vessel, OOCL China, was damaged in collision with the Darya Bhakti whilst on time charter to MISC, following which MISC stopped paying hire to OOCL. The liner consortium of which both MISC and OOCL were then members – the Grand Alliance – substituted the OOCL Japan, another OOCL vessel and identical sister ship that the members of the Grand Alliance had been keeping in reserve. OOCL subsequently claimed damages for the loss of the use of the OOCL China based upon the lost time charter hire for the period that the OOCL China was out of service undergoing repair.

The owners of the Darya Bhakti argued that as OOCL had sub-chartered back some of the slots on the OOCL China from MISC and had not paid slot charter hire to MISC during the detention period, and as all of the containers on board the OOCL China were carried to destination by the OOCL Japan so that the collision did not cause OOCL to suffer any loss of freight income, OOCL’s claim for loss of use had to be reduced accordingly to take account of the “saved” slot charter hire. The Court at first instance agreed, and this decision was upheld by the Court of Appeal.

In reaching this conclusion, the Court at first instance appears to have treated the OOCL Japan as an idle sister ship rather than as a reserve ship; and the Court of Appeal considered this approach to be correct, surprisingly concluding that if the OOCL Japan was a reserve ship, it was a reserve ship of the Grand Alliance and not a reserve ship of OOCL.

CommentThe decision in this case is a particularly disappointing one, not only for OOCL but for all liner operators. It is to be hoped that there will soon be another opportunity for the common law courts to re-visit this issue of reserve ships and the appropriate method for assessing loss of use following a collision, but until then… liner operators beware!

Harry HirstPartner, Hong [email protected]

Evidence not before tribunal shut out by Court on appeal

Central Trading & Exports Ltd v. Fioralba Shipping Company (Kalisti S) [2014] EWHC 2397 (Comm)

When an arbitration award is appealed to the Court on the grounds that the Tribunal had no substantive jurisdiction, there is a complete rehearing of the issue of jurisdiction by the Court and not just a review of the arbitrators’ decision. This means that the Court effectively starts again and decides the jurisdictional issue for itself and does not have to give any particular weight to the arbitrators’ reasoning.

In general, a party is also entitled to put new evidence before the Court that was not put to the arbitrators. As this recent appeal decision in a shipping dispute demonstrates, however, this is not an unqualified right and the Court may, as part of its case management powers, refuse to allow a party to produce documents selectively where to do so would prejudice the other party or where the result would be a breach of the Court’s rules requiring evidence to be presented in a fair manner. Parties arbitrating their disputes should, therefore, keep in mind the importance of complying with the Tribunal’s orders for disclosure and presenting all relevant evidence to the Tribunal at the appropriate time. A failure to do so may result in such evidence being shut out in the event of a subsequent challenge to the Tribunal’s jurisdiction.

The background factsThe underlying claim was for loss and damage to a cargo of bagged rice shipped from Thailand to Nigeria. The Defendant ship-owners disputed the Claimant cargo interests’ title to sue under the bills of lading (which provided for English law and London arbitration). A LMAA tribunal decided as a preliminary issue that the cargo interests had not become holders of the bills of lading and so did not have title to sue. The cargo interests appealed this award to the Court on jurisdictional grounds. A hearing to consider the substantive issue of title to sue is scheduled for October 2014. In the meantime, the Court was asked to consider whether the cargo interests are entitled to submit new evidence in support of their title to sue claim which was not put to the Tribunal.

The Commercial Court decisionThe Court stated that, in a challenge to the arbitrators’ jurisdiction, a party can in general present new evidence that was not before the arbitrators and that the Court will not normally exclude evidence that is relevant and admissible simply because it may cause prejudice to the other party. The Court would, however, as part of its case management powers, exercise control over the disclosure of documents and the service of evidence and would do so in accordance with the interests of justice and fairness.

In this case, the new evidence on which the Claimant sought to rely was available to it in the arbitration. Furthermore, the Tribunal had made an order for full disclosure with which the Claimant had deliberately failed to comply. The Claimant had apparently taken the view that it had presented sufficient evidence to satisfy its burden of proof in the arbitration and considered that the Defendant had been pressing the Tribunal

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to order it to produce evidence on irrelevant matters. Or, as the Court put it, “it thought it had done enough to win and was confident of victory” – a mis-judgment, as it turned out. Furthermore, the new evidence the Claimant now sought to present still did not represent full disclosure on title to sue and basic documents (such as the sale contract for the cargo and documents relating to the letter of credit to pay for the goods) remained outstanding.

The Court concluded that it would be unjust to allow the Claimant to rely on a selection of documents without giving full disclosure, which it had been ordered to give in the arbitration. This did not mean the Court was simply following the arbitrators’ decision that full disclosure should be given; rather, it had decided for itself that this was not a case where selective disclosure was appropriate. While the new and selected documents might make all the difference to the outcome on the title to sue issue, the Defendant could suffer an irremediable prejudice as a result of allowing them in. The Claimant was not therefore allowed to present the new evidence and the hearing of the title to sue issue would be limited to the material that was before the arbitrators.

CommentThis is a clear case of the Court refusing an appealing party “two bites at the cherry”. Arbitrating parties who think they may subsequently wish to challenge the tribunal’s jurisdiction should consider carefully the risks of giving limited or selected disclosure in the arbitration, where this is not done by mutual consent and with the blessing of the tribunal.

Reema ShourProfessional Support Lawyer, [email protected]

David McInnesPartner, [email protected]

Court upholds English contract termination clause that is invalid under foreign insolvency law

Fibria Celulose S/A v. Pan Ocean [2014] EWHC 2124 (Ch)

In a significant case regarding the application of the Cross Border Insolvency Regulations 2006 (“Regulations”), the English High Court decided it would not intervene to prevent termination of an English law contract for insolvency even though such termination was inoperative or invalid under the foreign law governing the insolvency.

A termination notice was served by a Brazilian party on a Korean company in administration in Korea. The insolvency proceedings were recognised in Great Britain under the Regulations and the Korean administrator asked the English Court to grant relief under two heads. Firstly under Article 21.1(a) of the Regulations to grant a stay on the “commencement or continuation of individual actions or individual proceedings concerning the debtors’ assets, rights, obligations or liabilities”. Alternatively and secondly, under Article 21 to grant “any appropriate relief”. After considering the UNCITRAL Model Law on Cross-Border Insolvency (“Model Law”) which formed the basis for the Regulations implemented in the UK, as well as the approaches of the US and Canadian Courts, the English Court held that it had no power to order a stay or to restrain the service of a contractual termination notice on the insolvent company. In doing so, it differed from the approaches of the US and Canadian Courts.

The backgroundThe Regulations (as based on the Model Law) provide a framework for the recognition by, and cooperation of, the English courts in relation to the insolvency proceedings commenced in foreign jurisdictions. Where “main” foreign insolvency proceedings are recognised by the English Courts, the Regulations provide for a stay of proceedings and for appropriate relief at the request of the foreign insolvency office holder, for example staying proceedings by a party against the debtor’s assets.

It is common for contracts to include clauses permitting termination in certain circumstances, including the insolvency of one party. Such clauses are commonly referred to as “ipso facto” clauses.

The background factsPan Ocean Co. Ltd (“Pan Ocean”), a shipping company incorporated in Korea, entered into a carriage of goods contract with a Brazilian company, Fibria Celulose S/A (“Fibria”) in 2011. The contract was subject to English law and contained a clause providing for any dispute to be dealt with by arbitration in London. The contract also contained an ipso facto clause.

In June 2013, Pan Ocean entered insolvency proceedings in Korea. The Korean insolvency office holder applied successfully to the English Court for recognition of the Korean insolvency proceedings. Shortly afterwards, Fibria notified Pan Ocean that it was entitled to terminate the contract. Pan Ocean disputed

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Chloe TownleySolicitor, [email protected]

George KennedyConsultant, [email protected]

that Fibria had the right to terminate as a matter of Korean law. Pan Ocean’s administrator stated that they had the right to elect to continue or terminate the contract under Korean insolvency law, and that the administrator elected to continue the contract. Both parties made separate applications to the English Court.

Fibria applied for permission, pursuant to the Regulations, to commence arbitration against Pan Ocean seeking declaratory relief as to Fibria’s entitlement to terminate the contract.

Pan Ocean’s administrator applied for relief under the Regulations for a declaration that Fibria was not entitled to exercise any right of termination under the contract and/or any such further relief as the Court saw fit. Pan Ocean later applied for further relief in the form of a request from the English Court to the Korean Court asking the Korean Court to give its opinion as to whether the ipso facto clause was void and unenforceable pursuant to Korean insolvency law.

The Court decisionThe Court found in Fibria’s favour and held that it was unable to order relief to Pan Ocean in the form of “staying proceedings” since the giving of the termination notice was not considered to be the commencement or continuation of “proceedings” pursuant to Article 21.1(a) of the Regulations. Furthermore, other forms of relief permitted by the Regulations were restricted to relief that would be available to the Court when dealing with a domestic insolvency and the Court refused to apply foreign law (in this case Korean insolvency law). The Court found it had no power to intervene to prevent the termination notice, as “any appropriate relief”.

The Court also held that even if it had the power to intervene to prevent the termination notice, it would not have been appropriate to do so. The parties had freely chosen English law as the governing law of their contract (which permitted termination under the ipso facto clause). The English Court was not permitted to apply Korean insolvency law to the substantive rights of the parties under a contract subject to English law.

CommentThis is an important judgment of wider legal and practical interest to the shipping industry. It is important as it clarifies how the English courts will treat termination (or so called ipso facto) clauses, when challenged to render them invalid pursuant to the laws of other jurisdictions. It is also interesting when compared with differing approaches in the US and Canada that have applied foreign insolvency law. Broadly speaking therefore, this judgment aids those seeking to rely on an ipso facto clause in an English law contract, irrespective of differing laws in the jurisdiction of the insolvent party.

The decision will be welcomed by shipowners given the extra degree of certainty provided where one of the parties to a contract becomes insolvent. The judgment will have particular application in the context of shipowners purchasing newbuilds in the Far East (in particular China and Korea where ipso facto

clauses are apparently invalid). On the basis of this judgment, buyers are entitled to terminate the shipbuilding contract pursuant to the ipso facto clause in the event the yard enters insolvency proceedings. Furthermore, the judgment may aid buyers demanding payment from Korean Banks under refund guarantees as it can be argued that the demand’s validity under English law should be determinative without the need to consider Korean insolvency law.

This judgment is under appeal.

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BIMCO’s new charterparty clause for electronic bills of lading

Is momentum growing for the wider adoption of electronic bills of lading? Is BIMCO’s new electronic bills of lading clause for charterparties a big step forward? This article looks at why such clauses are required and explains how the clause works.

IntroductionThe concept of electronic bills of lading has been around for at least thirty years, but until now they have not been widely adopted. One of the key obstacles the e-bill has faced is the sheer success and longevity of the traditional paper bill of lading. English law as regards the traditional paper bill has developed over more than 200 years and the upshot is that people know that paper bills work and can therefore be safely relied on. Finding an electronic solution acceptable to owners, charterers, cargo interests, insurers and banks that fulfils all of the functions of paper bills has proven to be a daunting task.

Nevertheless, e-bills must surely one day replace good old paper and their time is increasingly coming. With the law still to catch up and, in the absence of adequate international rules, it has fallen to the market (perhaps no bad thing) to devise the necessary legal framework. Two primary alternative systems, Bolero and essDOCS, now offer subscribers an integrated contractual solution for the creation, transfer and surrender of electronic bills.

The BIMCO clause The new BIMCO electronic bills of lading clause has been driven by demand from the shipping community for a charterparty clause clarifying the conditions under which owners will issue electronic bills. Below we set out (in italics) and explain the wording of the draft BIMCO clause.

(a) At the Charterers’ option, bills of lading, waybills and delivery orders referred to in this Charter Party shall be issued, signed and transmitted in electronic form with the same effect as their paper equivalent.

Why do charterers and owners need to agree that electronic bills may be issued?At present, English law is premised on the issuance of paper bills. For example, the legislation dealing with the transfer of rights of suit to third party lawful holders of a bill of lading (COGSA 1992) only applies to paper bills of lading. As a result, the consignee under an electronic bill of lading will not, as a matter of law, obtain rights of suit and will not therefore be able to pursue a cargo claim against the carrier.

Further, at common law, an electronic bill of lading is incapable of acting as a document of title, given the rule that a master is only obliged to deliver goods against the surrender of an original paper bill of lading.

On this basis an e-bill is not a “bill of lading” as recognised in English law. This naturally deters people from using e-bills.

Systems such as Bolero or essDOCS endeavour to deal with this by having the users of e-bills agree between them a set of rights and obligations similar to those arising under a conventional paper bill. In other words, Bolero and essDOCS operate on a contractual basis between those who sign up to their systems.

To be effective, electronic bills of lading should only be used where two conditions are fulfilled. First, owners and charterers must agree to this in the relevant charterparty. Second, all parties in the cargo chain (shippers, owners, charterers, consignees etc) must sign up to an electronic trading system such as Bolero or essDOCS.

Why are charterers given an option to request the issuance of electronic bills?Sub-clause (a) gives charterers the right to ask for an electronic bill to be issued. In other words, the default position is the conventional paper bill, but the charterer has the option to ask for an e-bill. This is important because for systems such as Bolero or essDOCS to work, everyone involved in the cargo chain must sign up. An “outsider” is therefore not likely to want an e-bill and it would not be negotiable to the world at large. A charterer looking to keep his trading options open must, therefore, be able to use standard paper bills of lading but he wants the option to use e-bills as an alternative.

(b) For the purpose of Sub-clause (a) the Owners shall subscribe to and use Electronic (Paperless) Trading Systems as directed by the Charterers, provided such systems are approved by the International Group of P&I Clubs. Any fees incurred in subscribing to or for using such systems shall be for the Charterers’ account.

Why must owners subscribe to electronic trading systems as directed by charterers?As discussed above, any attempt to use electronic bills of lading outside a contractual circle is currently unfeasible. Sub-clause (b) therefore sensibly makes clear that owners need to sign up to the relevant system under which charterers have made a request for electronic bills of lading to be issued.

Why must the relevant system be approved by the International Group?In order to avoid jeopardising P&I cover, it is crucial that the particular electronic trading system intended to be used is approved by owners’ insurers. We understand that, at present, the two solution providers approved by the International Group are Bolero and essDOCS.

(c) The Charterers agree to hold the Owners harmless in respect of any additional liability arising from the use of the systems referred to in Sub-clause (b), to the extent that such liability does not arise from Owners’ negligence.

What is the purpose of this sub–clause?Generally speaking, whilst charterers and cargo interests have been enthusiastic supporters of electronic bills of lading, the shipowning community has been much more circumspect,

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Richard HickeySolicitor, [email protected]

Bob DeeringPartner, [email protected]

fearing that the replacement of paper bills might lead to an unforeseen increase in owners’ liabilities. Sub-clause (c) is therefore intended to encourage owners to adopt electronic bills by obliging charterers to hold the owners harmless for any liabilities that would not have arisen had paper bills been used.

CommentBIMCO’s new electronic bills of lading clause for charterparties is only a small part of a bigger picture. Any party thinking of incorporating the new clause into its charterparties and then using electronic bills of lading needs to consider carefully a lengthy list of related issues, including whether electronic bills of lading are suitable for the trade in question; which paperless trading system should be adopted; and what the position is regarding insurance. Nevertheless, the new clause is definitely a welcome development that should further encourage owners and charterers to adopt electronic bills of lading.

Ince & Co has advised numerous clients on issues concerning electronic bills of lading, including the drafting or amendment of charterparties to address particular issues. For further information, please contact the authors or your usual contact at the firm.

English Commercial Court enforces obligation to resolve disputes by friendly discussion prior to arbitration

Emirates Trading Agency LLC v. Prime Mineral Exports Private Limited [2014] EWHC 2104

The English courts have previously grappled with the extent to which agreements to negotiate are unenforceable.

The previous authoritiesIn Walford v. Miles [1992] 2 AC 128, it was held that an agreement by the owner of a business to terminate negotiations to sell the business to a third party in exchange for the Claimant’s promise to continue negotiations to buy the business lacked the necessary certainty and was unenforceable. How would the court police such an agreement?

This thinking underpinned later cases relating to dispute resolution clauses. In Cable & Wireless v. IBM [2002] EWHC 2059, the Court commented that an obligation to attempt in good faith to settle a dispute would have been unenforceable because of an obvious lack of certainty, but the contractual obligation to attempt in good faith to settle a dispute through alternative dispute resolution (ADR) was sufficiently certain to be enforced because the procedure to be followed was that recommended by the Centre for Effective Dispute Resolution (CEDR).

Also in Holloway v. Chancery Mead Limited [2007] EWHC 2495, the Court reviewed authorities concerning the enforceability of ADR agreements and agreements to agree, concluding that to be enforceable they had to be sufficiently certain, administrative procedures for selecting a party to resolve the dispute should be defined, and a process to be followed should be defined or sufficiently certain.

In Sul America v. Enesa Engenharis [2012] 1 LLR 671, the Court of Appeal had no doubt that a clause stipulating that prior to arbitration the parties would seek to resolve disputes amicably by mediation was enforceable and a clause that did not set out a defined mediation process or refer to the services of the specific mediation provider would not amount to an enforceable obligation to mediate. Also in WAH v. Grant Thornton [2013] 1 LLR 11, it was held that obligations in the dispute resolution clause were too nebulous to be given legal effect as an enforceable condition precedent to arbitration. To be enforceable, an obligation to attempt to resolve a dispute amicably before referring to arbitration needed to be:

“(a) A sufficiently certain and unequivocal commitment to commence a process;

(b) From which may be discerned what steps each party is required to take to put the process in place; and which is

(c) Sufficiently clearly defined to enable the court to determine objectively (i) what under that process is the minimum required of the parties to the dispute in terms of their participation in it and (ii) when or how the process will be exhausted or properly terminable without breach.”

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However, what if the multi-tiered dispute resolution clause does not require mediation but simply requires that the parties “shall first seek to resolve the dispute or claim by friendly discussion”? Is it also no more than an unenforceable agreement to negotiate?

At least two judges have previously taken that view on similar clauses. Others have, however, been taking the view that Walford v. Miles arguably frustrates the reasonable expectation of parties that the courts will uphold what they have agreed (see, for example Petromec Inc v. Petroleo Brasilerio [2005] All ER 209). Likewise, the courts in other countries, notably Singapore and Australia, have also supported this approach.

Emirates Trading Agency v. Prime Mineral Exports It appears that the English Commercial Court is also now willing to apply this reasoning. In this recent case, the Court considered the following dispute resolution clause:

“….the Parties shall first seek to resolve the dispute or claim by friendly discussion... If no solution can be arrived at between the Parties for a continuous period of 4 (four) weeks then the non-defaulting party can invoke the arbitration clause….”

The Court held that it was enforceable:

“Such an agreement is complete in the sense that no essential term is lacking... There would not be an open-ended discussion concerning each party’s commercial interests without regard to the rights and obligations under the LTC [long term contract]. Thus the agreement has sufficient certainty to be enforceable... Concluding that the obligation was enforceable would be consistent with the public policy of encouraging parties to resolve disputes without the need for expensive arbitration or litigation...”

More surprisingly, the Court went on to say that the obligation to seek to resolve disputes by friendly discussions must import an obligation to seek to do so in good faith. Whilst recognising that it might be difficult to establish that a party has not acted in good faith, there might be cases where that can be shown e.g. where a party refuses to negotiate. The Court did not accept that good faith is too open ended a concept to provide a sufficient definition of what such an agreement must involve: good faith meant “both honesty and the observance of reasonable commercial standards of fair dealing”.

CommentHow this is to be applied in practice remains to be seen, particularly in light of the observation in Walford v. Miles that a party is “entitled to pursue his ... own interest” and to “advance that interest he must be entitled, if he thinks it appropriate, to threaten to withdraw from further negotiations or to withdraw in fact in the hope that the opposite party may seek to reopen the negotiations by offering him improved terms”.

To introduce an obligation of good faith may be easy to state but turn out to be unworkable in practice and will almost certainly introduce uncertainty and difficulties for those involved in “friendly discussions” and giving effect to multi-tiered dispute resolution clauses.

We understand that permission to appeal has been refused by the Court of Appeal.

Chris KiddPartner, [email protected]

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NEWS AND EVENTS Ince & Co recognised by Legal 500 2014

Ince & Co has been awarded the Legal 500 UK 2014 Award for Transport: Shipping Firm of the year.

The legal referral guide has also recommended Ince & Co as a top-tier firm for Law Firms in London in Corporate and Commercial (within M&A: smaller deals, up to £50 million), Commodities, and Shipping. The guide also recommends the Firm in 13 other practice areas as well as listing five Ince & Co lawyers as “leading individuals” and recommending 40 Ince lawyers throughout the guide’s editorial.

Ince & Co promotes corporate specialist Matthew Stratton to partner

Recognising our clients’ increasing need for transactional advice, Ince has promoted Matthew to strengthen its corporate practice at partner level and build on recent successes. Matthew has extensive experience of advising clients in energy, oil and gas, trade, and shipping transactions – as well as working across each of the firm’s other specialist areas.

“The promotion of Matthew Stratton is a signal of the firm’s confidence in our corporate capability, and response to increasing demand from our clients for more complex, cross-border transactional advice,” says Ince & Co’s Senior Partner, James Wilson. “Matthew’s promotion fits squarely within our on-going strategy to provide the premier service required by our clients in our core sectors of shipping, trade, energy, aviation and insurance.”

Stephen Jarvis, who heads Ince & Co’s corporate team in London says: “Our corporate practice is busy. Over the past year we have been involved in a number of high profile transactions across the firm’s specialist sectors, including advising on the recent US$3.4 billion restructuring of Zim Shipping, and the US$160 million sale of PVM Oil Associates.”

Matthew has been with Ince for three years, having joined as a senior associate from the corporate department of another leading London law firm. Matthew specialises in domestic and cross border mergers and acquisitions, corporate restructurings, divestments, joint ventures and investment/agreements.

Matthew StrattonPartner, [email protected]

Ince & Co recruits Philippe Ruttley as Head of EU and Competition Law

Ince & Co is delighted to announce the appointment of new shipping and aviation partner, Philippe Ruttley, who joins the Firm’s London office as Head of EU and Competition Law.

Philippe specialises in EU and Competition law and EU litigation, and also practises EU trade law and EU energy law. He has worked with many clients in the transport industry, advising a wide range of shipping and airlines companies on compliance with EU and Competition law rules, and on international trade law.

“I am delighted to be joining Ince & Co,” Philippe comments. “Ince is one of the leading international law firms in the specialist areas of aviation, shipping, energy, trade and insurance and reinsurance, with strong global capabilities in a broad range of services. The Firm has an impressive client base and a deep pool of talent, and I am excited to be part of the team.”

Michael Volikas, Global Managing Partner of Shipping at Ince says: “We are delighted to bring on board this strategic new hire to further, significantly, our ability to advise clients in these important areas. Philippe’s sector focus mirrors our own and is much valued by clients for the added value that it brings. We look forward to working together with Philippe. Philippe will also bring his important regulatory and WTO experience for our energy and trade clients.”

Ince & Co has been named In-House Community Firm of the Year 2014 for Hong Kong: Maritime & Shipping

Ince & Co is pleased to announce that the firm’s Hong Kong office has been named Asian-MENA Counsel In-House community firm of the year for Maritime & Shipping: Hong Kong.

David Beaves, head of our Hong Kong office, says: “We are delighted to have been named Maritime & Shipping: Hong Kong firm of the year by In-House Community. This achievement reflects Ince’s long-standing and special links between the maritime and shipping industry and Hong Kong, and our continuing commitment to maintain our position as a leading maritime law firm.”

Asian-MENA Counsel’s eighth annual “Representing Corporate Asia & Middle East Survey” measures the views of In-House Community’s 21,000 individual in-house lawyers with a responsibility for legal and compliance issues across Asia and the Middle East.

Philippe RuttleyPartner, [email protected]

David BeavesPartner, Hong [email protected]

Ince & Co is a network of affiliated commercial law firms with offices in Beijing, Dubai, Hamburg, Hong Kong, Le Havre, London, Monaco, Paris, Piraeus, Shanghai and Singapore.

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