Transatlantica Commodities Pte Ltd v Eurochem Trading GmbH

Where a contract of affreightment requires separate shipments pursuant to separate cargo declarations, failure to provide a vessel for one declared shipment is non-performance of that obligation, rather than delayed performance, if the relevant cargo is subsequently carried by another vessel. A later shipment of a different cargo does not ordinarily cure the earlier breach or require its benefit to be deducted from damages. The orthodox measure is the difference between the contractual and market freight rates, together with consequential costs caused by the substitute fixture.

The owners appealed under section 69 of the Arbitration Act 1996 against an award arising from a contract of affreightment for fertiliser cargoes. The charterers declared a third shipment for an October 2020 laycan. The owners failed to nominate a vessel for those dates and stated that they had no October tonnage. The charterers chartered the Abtenauer on the spot market. A different cargo was later carried by the Friedrich Schulte under the contract at revised dates.

The tribunal awarded the charterers the market/contract freight differential and additional storage costs for the October shipment. The central issue was whether the later Friedrich Schulte shipment constituted delayed performance of the October obligation, so that its alleged benefit had to be taken into account.

1. Appeal dismissed. The tribunal made no error of law in awarding the charterers the market/contract freight differential and storage costs.
2. The tribunal’s reference to the Friedrich Schulte shipment as the third shipment under the contract described the factual position. It did not find that the vessel had performed the shipment declared on 25 September 2020. The tribunal expressly found that the owners had refused to perform the October shipment and that the later shipment did not remedy that breach or negate the charterers’ reservation of rights.
3. The contract contemplated three or four shipments. The 15 October declaration, which led to the Friedrich Schulte shipment, was a separate contractual declaration. The owners had not established that the charterers’ acceptance of that later shipment waived their accrued rights or varied the contract so as to substitute it for the October shipment.
4. Each shipment under a contract of affreightment is a separate adventure, capable of being discharged by breach separately from the other shipments: Classic Maritime v Limbungan [2019] EWHC 619 (Comm) at [61], and Classic Maritime v Limbungan [2019] 1 Lloyd’s Rep 178 at [25]. The principle was consistent with the description of separate and severable adventures in Larrinaga v Société Franco-Americaine des Phosphates (1923) 14 Ll. L. Rep. 457 at 461.
5. The October cargo had been carried by the Abtenauer and could not subsequently be performed by the owners, late or otherwise. The owners’ primary obligation had therefore been replaced by a secondary obligation to pay damages. The orthodox measure was the difference between the contractual and market rates, together with storage costs caused by the later loading of the substitute cargo.

• Arbitration tribunal: awarded the charterers US$382,410 and €4,036.80 for the October shipment, subject to netting and interest.
• High Court (Commercial Court): permission to appeal was granted on 19 December 2025. The appeal under section 69 of the Arbitration Act 1996 was dismissed.