Triton Navigation Ltd. v Vitol SA

Under a voyage charter, a charterer has an absolute and non-delegable duty to procure cargo that is available for loading within the contractual laytime. A supply arrangement which leaves the supplier free to postpone delivery behind other commitments does not satisfy that duty. It creates a procurement problem for the charterer, not mere berth or loading congestion.

Exceptions from laytime and demurrage do not relieve a charterer from that duty without clear language. A clause suspending time following rejection of an unclean vessel does not protect the charterer where the effective cause of the subsequent delay is its own failure to provide cargo. Shipowners’ fault interrupts laytime only where it caused the relevant delay.

Triton, the owner of the tanker Nikmary, claimed load-port demurrage from Vitol, the voyage charterer. Vitol had bought gasoil from Reliance for loading during November 2000, but the vessel arrived late and was initially rejected as unclean. A valid notice of readiness was tendered on 5 December 2000.

Reliance then gave priority to its December domestic and contractual commitments. It did not load the vessel until early January. Moore-Bick J awarded Triton US$291,691.75 demurrage on 23 January 2003. Vitol appealed, relying on the berth-delay exception, the cleaning clause, and alleged shipowners’ fault. The central issue was whether Vitol had provided cargo available for loading when the vessel became ready.

Appeal dismissed unanimously. Mance LJ gave the judgment, with which Mummery and Simon Brown LJJ agreed.

1. A voyage charterer’s duty to provide cargo is absolute and non-delegable. It is distinct from the physical operation of loading. In the absence of clear and distinct language, a laytime exception protects the charterer only in relation to loading and does not transfer the risk that cargo cannot be procured. The duty to perform preliminary obligations, including provision of cargo, must be discharged in time to permit loading within the stipulated laytime: (1884) 9 App. Cas. 470, [1925] AC 799 and [1957] QB 401.

2. Vitol had not made cargo available when the vessel became ready on 5 December. Reliance was free, under the continuing arrangements between it and Vitol, to give priority to its December commitments. The delay therefore arose from Vitol’s contractual procurement arrangements, rather than physical congestion at the berth or a delay in loading accessible cargo. Even if Reliance had been obliged to supply within the charter laydays, Vitol’s remedy would have been against Reliance; it would not excuse Vitol’s duty to Triton.

3. Clause 6 did not apply. It neither covered the duty to provide cargo nor excused a delay arising from arrangements within Vitol’s control.

4. Clause 30(c)(v) could not suspend laytime or demurrage for a period caused by Vitol’s failure to provide cargo. Its reference to costs and consequences caused by the vessel’s lack of cleanliness preserved the relevance of causation. A literal contrary construction would produce anomalous results and would not displace the ordinary allocation of the risk of cargo procurement. The court did not need finally to decide whether separately appointed inspectors conducting a joint inspection could satisfy the reference to a jointly appointed inspector.

5. The principle that shipowners’ fault may interrupt laytime did not assist Vitol. Triton had neither breached the charter nor committed a relevant fault causing the delay. The vessel’s earlier ineffective notice of readiness and unclean presentation had no causal effect on the later delay, which followed Reliance’s decision to defer supply.

Vitol remained liable for the demurrage awarded by the judge.

• Court of Appeal (Civil Division): In [2003] EWCA Civ 1715, the court dismissed Vitol’s appeal and upheld the demurrage award.
• High Court, Queen’s Bench Division (Commercial Court): Moore-Bick J awarded Triton US$291,691.75 demurrage on 23 January 2003. A citation for that judgment was not stated in the judgment.