Transpetrol Maritime Services Ltd v SJB (Marine Energy) BV "Rowan"

A recap term in a voyage charterparty may replace, rather than supplement, a standard-form approvals clause. The wording must be construed objectively; commercial sense and asserted intentions cannot add omitted terms. A vessel-information statement qualified by WOG and without owner’s guarantee performs a different function from an approvals warranty. That qualification is not imported into a substituted clause 18. TBOOK gave the approval promise limited futurity: at the charter date the owner had obtained the named approvals and knew of no existing facts that would cause their loss during the voyage. Later defects or adverse vetting comments did not establish breach where they were unknown at the charter date.

The owner and charterer agreed a voyage charterparty by recap email for the tanker Rowan. The recap incorporated the Vitol Voyage Chartering Terms but included a differently worded clause 18 concerning oil-company approvals, together with a separate vessel-information statement qualified by WOG and without owner’s guarantee.

During the voyage, a sea-chest valve defect was identified and Shell declined to accept the vessel following an inspection. The charterer claimed damages for the resulting cargo sale. The High Court, in 2008 Folio 1002, read the recap clause and the printed Vitol clause together and upheld the claim. The central issues on appeal were the contractual terms, their construction, and whether the owner was in breach.

1. Appeal allowed. The charterer’s cross-claim was dismissed.
2. The recap email’s clause 18 replaced the printed Vitol clause 18. The new heading, the wording used, and the treatment of other substituted clauses showed that the parties intended substitution rather than incorporation of both provisions.
3. The vessel-information provision and clause 18 performed different functions. The WOG qualification belonged to the description and information given about the vessel. The expression “without owner’s guarantee” had a settled meaning of excluding liability absent fraud or bad faith, as explained by The Lendoudis Evangelos [1997] 1 Lloyds Rep 404. That qualification could not be imported into clause 18, where it was absent.
4. On its true construction, TBOOK gave the substituted approvals promise limited futurity. At the charter date, the owner had to have procured approvals from the named oil companies and know of no facts then existing that would cause those approvals to be lost during the charter. In this market, approval letters were treated as approvals even though they might state that no blanket approval had been granted.
5. The named approvals existed at the charter date. There was no evidence that the owner then knew of facts which would cause their withdrawal or alteration. The valve problem and Shell’s adverse comments emerged later. They therefore did not establish breach.
6. Longmore LJ expressed no final view on the construction of the unamended Vitol clause 18 or its qualification by TBOOK. He noted obiter that the wider construction might create a far-reaching warranty, potentially overlapping with the seaworthiness warranty and requiring difficult predictions about third-party decisions. Davis LJ agreed with the reasons and result but likewise reserved that issue. Sir David Keene agreed.

• Court of Appeal (Civil Division)—[2012] EWCA Civ 198: appeal allowed and the charterer’s cross-claim dismissed.
• High Court of Justice, Queen’s Bench Division, Commercial Court—2008 Folio 1002: HHJ Mackie QC read the recap and standard Vitol approvals provisions together and upheld the charterer’s claim.