Readers of our blog will recall that this case is still pending consideration by the Supreme Court. The case was due to be heard this month but was stood out at the request of the parties.
We hope that this important case will eventually come before the Supreme Court. No previous case has considered the incorporation of war risk and other insurance provisions appearing in a charter into bills of lading issued pursuant to that charter.
By way of a reminder, the law as it stands rests with the Court of Appeal’s decision1 which affirmed the judgment of Teare J at first Tinstance2. He in turn partly overruled the Tribunal (consisting of Timothy Young KC, Dominic Kendrick KC and Simon Gault) who first considered the matter. As it stands, the cargo owners and their insurers remain liable for around US$5M being their General Average contribution towards ransom payments paid by Owners and their insurers to the Somali hijackers to release the ship and cargo.
We’ve now had seven arbitrators and/or judges look at this issue. The original panel of three accepted cargo owners’ arguments. The four judges since have disagreed. We therefore eagerly await the majority verdict of the five Supreme Court judges on what is likely to be an important issue of concern to cargo owners (and their insurers) who are seeking to move cargoes in an increasingly dangerous world.
1 Herculito Maritime Limited (Owners’ interests) v. GUNVOR (Cargo Interests), “THE POLAR” [2021] EWCA Civ 1828.
2 Herculito Maritime Ltd and others v Gunvor International BV and others (the “POLAR”) [2020] EWHC 3318 (Comm).
Nick Burgess
Partner
