High Seas Venture Ltd Partnership V Sinom (Hong Kong) Ltd

A statement of facts prepared by a port agent and confirmed by the master and port authority is not final and binding unless the charterparty clearly gives it that effect. Nor does the word “mutually” necessarily reverse the burden of proof. Nevertheless, such a statement has strong evidential value, particularly where it was prepared contemporaneously and there was no protest by the master. A party seeking to displace it must provide convincing live evidence or persuasive contemporaneous documents. Speculation and later reconstruction will generally be insufficient.

The owners claimed demurrage arising from the discharge of iron ore at Yantai. The charterers counterclaimed a small amount of despatch. The dispute concerned whether periods recorded in the statement of facts as stoppages caused by bad weather should count as laytime or demurrage under the charterparty.

The owners argued that the statement of facts was not binding and that the actual causes of delay were shortages of lighters or inadequate fenders. The charterers relied on the contemporaneous statement, the master’s reports and the absence of any protest. The court had to determine the status and evidential effect of the statement of facts, and then decide which disputed periods were attributable to bad weather and which period arose after berthing had been completed.

1. Status of the statement of facts. Clause 11 did not make the statement of facts final and binding. The phrase “on the basis of” did not clearly impose finality. The word “mutually” was taken to require confirmation at least broadly contemporaneously, but it did not alter the statement’s substantial evidential value.
2. Evidential effect. A statement prepared on the spot by the agent, confirmed at the time by the master and later endorsed by the port authority, was powerful evidence. In general it was likely to discharge the charterers’ burden of proving that laytime was interrupted by bad weather. The owners needed convincing live evidence or persuasive contemporaneous documents to show that the statement was wrong. The owners’ evidence and later extrapolation from weather records did not do so.
3. Application to the disputed periods. The charterers established that periods 1, 2 and 3 were stoppages caused by bad weather. The evidence included the statement of facts, the master’s contemporaneous messages, the deck records, forecasts and the absence of a contemporaneous protest. Allegations concerning inadequate fendering, shortage of lighters and mobilisation delay were speculative and lacked contemporaneous support.
4. Berthing period. Period 4 was allowed in favour of the owners. Although the statement of facts described the vessel as berthed and prepared for discharge, the log showed that the vessel had already been made fast. The ambiguity was therefore resolved in the owners’ favour. Period 5 was no longer in issue, subject to correction if that understanding was mistaken.
5. There was judgment for the claimant in respect of period 4 and for the defendant in respect of periods 1, 2 and 3. Counsel were directed to provide an agreed order and any corrections or remaining issues.

First-instance decision in the High Court (Commercial Court). The judgment itself states no prior appellate history.