The bagged rice was damaged by the rough and careless handling of the stevedores at both ports of Freetown and Dakar in West Africa. Under paragraph 8(b) of the ICA, it falls 100% to the Charterers.
The vessel was chartered under an amended NYPE 1946 Form to carry bagged rice from Tuticorin to Freetown, Sierra Leone and then to Dakar, Senegal. Disputes arose between the parties and referred to arbitration under the LMAA Terms, according to the applicable “BIMCO Standard Law and Arbitration Clause” in the charter party. Owners appointed an arbitrator, and the Charterers have failed to appoint an arbitrator despite being given notice. Thus, the Owners appointed [X] as the sole arbitrator in the reference.
Owners served Claim Submissions and claimed various indemnities and sums pursuant to the settlement of two cargo claims under the 1996 InterClub Agreement (“the ICA”), together with interest and costs. Then, the tribunal ordered the Charterers to serve their defence. Upon their failure to comply, the tribunal made a peremptory order, notifying them that he would proceed to an award without further reference to Charterers if they failed to serve their defence within the time limit. Again, the Charterers failed to comply.
The relevant terms cited in the award were: clause 8 “That the captain shall prosecute his voyages with the utmost despatch..” and the ICA that sets the liability apportionment between the parties for cargo claims.
During discharging, the [X] company attended the operation to inspect the cargo on behalf of the receivers/ underwriters. According to their report, the cargo was damaged by the stevedores’ negligence and rough handling. The claims against the Owners by the holders of the bills of lading were circa 160k, and the Owners have properly settled at 100k.
[Y] Company attended the operation to inspect the cargo on behalf of the receivers/ underwriters. Their report also stated that the cargo was damaged by the stevedores’ negligence and rough handling. Therefore, the claims against the Owners by the holders of the bills of lading were circa 105k, and the Owners have properly settled at 46k.
In summary, the Owners claimed indemnities or a monetary award for: (i) US$146,000.00 pursuant to their settlement of the Freetown and Dakar claims (per para 8(b) of the ICA fell 100% on the Charterers); (ii) £15,166.45 and € 9,160.00 in respect of Club correspondent’s costs (para 3(c) of the ICA); (iii) interest; and (iv) costs.
The arbitral tribunal
Having carefully considered all the evidence submitted by the Owners, the tribunal was satisfied that the cargo was damaged by the rough and careless handling of the stevedores at both Freetown and Dakar, which, under paragraph 8(b) of the ICA, fall 100% to the Charterers. Furthermore, in the absence of any contrary evidence or challenge by the Charterers, the tribunal accepted the Owners’ evidence that they had properly settled the two cargo claims according to their obligations under paragraph 4(c) of the ICA.
Owners were awarded their claims in full, along with interest and costs, under the normal rule that costs follow the event.
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