Case by Case: Recent Episodes
Zeiler Floyd Zadkovich
The easy way to stay on top of the case law that matters.
Luke Zadkovich and Calum Cheyne of Zeiler Floyd Zadkovich discuss a new case each week, in our podcast focused on shipping, international trade and commercial law.
We each read the case, then jump straight on the podcast and hit record. All you hear is our organic conversation and our thoughts on what the case is about, what the Court decided, and how the decision may affect the industry.
Comments, questions, or a case for us to look at? Send it to: insights@zeilerfloydzad.com
Find out more about the firm at: www.zeilerfloydzad.com
Case: CAFI v. GTCS Trading DMCC [2025] EWHC 1350 (Comm)
Guest: Derek Yixin, Associate at Floyd Zadkovich
This week, Luke Zadkovich and Calum Cheyne explore overlapping arbitration agreements and thorny jurisdictional issues, as they are joined by Derek Yixin (Floyd Zadkovich LLP), to discuss the High Court decision in CAFI v. GTCS Trading DMCC [2025] EWHC 1350 (Comm).The background to this case arises out of a series of GAFTA arbitrations. The Claimant, CAFI (“Buyer”), and the Defendant, GTCS (“Seller”), entered into an agreement for the sale of 28,000 MT of Russian wheat to be delivered from Russia to Egypt (“First Contract”). As a result of sanctions-related issues, the Buyer refused to issue payment while the cargo was enroute. The Seller treated this as an anticipatory breach and terminated the First Contract.Following negotiations, the Parties entered into a second contract on materially similar terms, but at a lower price (“Second Contract”). The Second Contract contained a termination clause which stated that the First Contact was “terminated and void”. After delivery of the cargo, the Seller initiated claims under GAFTA arbitration seeking damages for the Buyer’s alleged breach of the First Contract. The Buyer argued that the termination clause in the Second Contract amounted to a waiver of the Seller’s right to claim damages under the First Contract.The First Tier Tribunal dismissed the Seller’s claims on the basis that by accepting the termination provision, the Seller indicated an intention to ‘waive’ its claim for damages. Importantly, the Tribunal held that it had no jurisdiction to consider the effect or validity of the Second Contract as it fell outside the scope of the arbitration agreement under the First Contract. The Seller successfully appealed to the Appeal Board which accepted the Seller’s claims and awarded USD 700,000 plus interest and costs. In doing so, the Appeal Board agreed with the First Tier Tribunal that it had no jurisdiction to interpret the terms of the Second Contract but that notwithstanding this, it remained ‘good evidence’ of what had happened post-termination.In the High Court, the Appeal Board’s award was challenged under sections 67, 68 and 69 of the Arbitration Act 1996. In what is reported to be the first judgment of its kind, Mr Justice Henshaw accepted all three grounds of challenge under the Arbitration Act and set aside the Appeal Board’s award.In this episode, Luke, Calum and Derek delve into the thorny question of what happens where there are overlapping arbitration agreements. In doing so, the trio consider the practical challenges that arise out of potentially competing (or inconsistent) arbitral awards.
Case: Logix Aero Ireland Ltd v Siam Aero Repair Company [2025] EWHC 1283 (KB)
Guest: Matt McGhee of Twenty Essex Chambers
This week, Luke Zadkovich and Calum Cheyne delve into the subjects of fraud and agency, as they are joined by Matt McGhee (Twenty Essex Chambers), to discuss the High Court decision Logix Aero Ireland Ltd v Siam Aero Repair Company [2025] EWHC 1283 (KB).
The background to this case is unfortunate, but not unfamiliar. The buyer, Logix Aero Ireland Ltd (“Logix”), and the seller, Siam Aero Repair Company (“Siam”) were negotiating via email for the sale and purchase of two aircraft engines. Unbeknownst to either party, a fraudster had inserted themselves into the parties’ correspondence. Both parties continued to correspond with the fraudster, all the while thinking that they were communicating with the other. A Letter of Intent, and a final fraudulent invoice was produced, and Logix transferred what it thought to be the purchase price into an account provided by the fraudster. Suffice to say, the money was never seen again, and nor were the engines.
Logix sought remedy in an action against Siam. In response to Logix’s Claim Form and Particulars of Claim, Siam applied for strike out, sought a reverse summary judgment, and applied for indemnity costs. Following this, Logix provided a draft Amended Particulars of Claim, substantially revising the structure of the claim. It was agreed that the strike out application would be decided on the basis of these draft Amended Particular of Claim.
Logix contended that: (i) a binding contract for the sale and purchase of the engines had been concluded; and (ii) Siam had breached their contractual confidentiality obligations, by (albeit unknowingly) providing information to the fraudster.
The argument that a binding contract had been formed was rejected by Willimas J. This issue ultimately turned upon whether the fraudster had apparent authority to act on behalf of Siam in negotiations. Her Honour held that no representation, by words or conduct, had been made by to convey authority of this kind.
The second argument, that Siam had breached its confidentiality obligations, was also rejected. Noting that the fraud ‘worked’ because both parties passed what might have been considered confidential information to the fraudster, Williams J decided that Logix’s loss was caused by the fraudster, and not Siam.
Guided by her Honour’s reasons, Luke, Calum and Matt dissect the principles of agency and authority, along with boilerplate confidentiality clauses. In doing the trio consider the very real issue of fraud in international commercial transactions with a practical eye, discussing various procedural points in relation to claim formation, and contractual drafting.
Case: MSC Mediterranean Shipping Company SA v Conti 11 Container Schiffahrts-GmbH & Co KG MS “MSCFlaminia” [2025] UKSC 14
Guest: David Walsh KC, Essex Court Chambers
Luke Zadkovich and Calum Cheyne return this week to discuss MSC Mediterranean Shipping Company SA v Conti 11 Container Schiffahrts-GmbH & Co KG MS “MSCFlaminia” [2025] UKSC 14 with Counsel for the Respondent, David Walsh KC.
This decision arose out of an incident involving the “MSC Flaminia”, a container ship that exploded while en route from South Carolina to Antwerp, back in 2012, resulting in the death of three crew members.
The Owners of the vessel (Conti), obtained an arbitration award against the Charterers (MSC) for the amount of USD200 million in damages. Following this, Charterers sought to limit to their liability under the Convention onLimitation of Liability for Maritime Claims 1976.
The Supreme Court considered whether the Charterers could do so, given that the limitation was sought with respect to claims brought by Owners, against the Charterers, for losses the Owners originally suffered themselves. In doing do, the Court also considered the scope of Article 2.1(a), (e) and (f) of the 1976 Convention.
Luke, Calum and David discuss the way in which the arguments evolved through the appeal process, and the ultimate rationale behind Lord Hamblen’s decision (withwhom Lord Hodge, Lord Briggs, Lord Leggatt and Lord Burrows agreed). Their discussion provides insightful guidance and clarity on what can be a complexarea of maritime law.
Guest: Jakob Reckhenrich of Quadrant Chambers
Case: The Stema Barge II [2025] EWHC 73 (Admiralty)
This week, Luke Zadkovich and Calum Cheyne sit down to discuss The Stema Barge II [2025] EWHC 73 (Admiralty) with Counsel for the successful Claimant/Second Appellant, Jakob Reckhenrich (Quadrant Chambers).
The dispute arose out of an incident with a dumb barge, the Stema Barge II. During a storm, she dragged her anchor across high voltage electrical cables between England and France, causing damage. As there were a variety of partiesinvolved, liability for the ensuing loss became the key issue.
After success as trial, the Respondent, Stema UK, failed to convince the Court of Appeal that they were entitled to limit their liability under Art 1(2) of the Convention on Limitation of Liability for Maritime Claims 1976 (The Stema Barge II [2021] EWCA 1880). When the Supreme Court refused to grant leaveto appeal , the Respondent attempted to re-frame their case, this time under Article 1(4) of the Convention. Interestingly, the submission was set out in skeleton arguments, but as the Court of Appeal expressed a number of concerns with the point as a line of argument, it was ultimately withdrawn.
The Claimant/Second Appellant argued that Stema UK’s Article 1(4) plea should be struck out on the basis that there was already a final Order on the issue, and that leave to appeal had been refused. In the alternative, cause of actionestoppel and/or the rule in Henderson v Henderson equally applied to prevent Stema UK from advancing the argument.
This discussion considers the principles of res judicata in the context of maritime law. Calum, Luke and Jakob provide an in-depth analysis of the helpfully informative decision of Cockerill J, who ultimately found the Claimant/Second Appellant’s arguments persuasive.
Case: Fimbank Plc v KCH Shippping Co Ltd [2024] UKSC 38
With further reference to:
- Kamil Export (Aust) Pty Ltd v NPL (Australia)Pty Ltd [1996] 1 VR 538
- China Ocean Shipping Co Ltd v PS Chellaram and CoLtd (The “Zhi Jiang Kou”) (1990) 28 NSWLR 354
Guest: Matthew Harvey KC of Owen Dixon Chambers (Melbourne, Australia).In this episode, Luke Zadkovich had the privilege of sitting down with Matthew Harvey KC to discuss Fimbank Plc v KCH Shippping Co Ltd [2024] UKSC 38, a recent case of the UK Supreme Court, dealing with the time bar under Article 3(6) of the Hague/Hague-Visby Rules.
Luke and Matthew dissect Lord Hamblen’s sole judgment, which gives finality to the question of whether the one-year time bar to bring a claim under the Hague/Hague-Visby Rules applies to claims for misdelivery of cargo, which occur after the completion of discharge.
Fimbank argued that that the Rules only created a period of responsibility between loading and discharge, from ship’s rail to ship’s rail, so that claims arising outside of this period, would not be subject to the time bar.
Interestingly, Lord Hamblen, in reaching his conclusion, considered two diverging Australian judgments, one from the New South Wales Court of Appeal (Gleeson CJ, Kirby P and Samuels JA, China Ocean Shipping Co Ltd v PS Chellaram and Co Ltd), and another from the Appeal Division of the Victorian Supreme Court (Fullagar, Marks and Ormiston JJ, Kamil Export (Aust) Pty Ltd v NPL). This episode’s discussion considers the rationale behind all of these decisions, the practical implications for carriers, shippers and consignees alike, as well as touching on the broader principles of the interpretation of international law.
An episode with a distinct Australian flavour, not to be skipped!
Case: Ultra Deep Picasso Pte. Ltd. v. Dynamic Industries Saudi Arabia Ltd., 119 F.4th 437 (5th Cir. 2024)
Guest: Philip Vagin, Senior Associate at Floyd Zadkovich.
In this episode of Case by Case Luke Zadkovich and Calum Cheyne are joined by Philip Vagin, a senior associate with the firm, to discuss a recent US decision on Rule B attachments of bank accounts called Ultra Deep Picasso Pte. Ltd. v. Dynamic Industries Saudi Arabia Ltd.
In this case the first instance federal court in Texas and then the Fifth Circuit Court of Appeals ruled against Ultra Deep’s motion to attach a bank account located outside of the US where the only connection of the bank with the country was that it had a foreign agency registered in Texas. As a fascinating technical twist, the underlying dispute arises out of a charterparty for a highly specialized diving support and construction vessel, which are used to assist diving operations during underwater repair projects.
Luke, Calum and Philip first discuss the background to the proceedings, which arose out of a hire payment dispute after Dynamic Industries failed to pay Ultra Deep for the services of M/V PICASSO used to repair underwater oil & gas projects in Saudi Arabia. Suing in Texas, Ultra Deep attempted to attach – or, technically speaking, garnish – any bank accounts that Dynamic had with Riyad Bank (based in Saudi Arabia) under Supplemental Rule B, as security for its claims in arbitration.
Like many non-US banks, Riyad did not have a full-service branch in the US but maintained a so-called “foreign bank agency” . This meant that Riyad could only provide limited banking services in the US, so that its US customers could not, for example, freely withdraw cash from Riyad’s agency location in Texas.
The discussion – and the US court opinions themselves – center around the requirements that a plaintiff must establish to successfully attach or garnish a bank account in the US. One of the key issues with which the courts grappled is whether it is enough for Rule B attachment that the US court may exercise some personal jurisdiction over the bank itself – or whether the plaintiff also needs to show that the bank account is actually located in the US court’s territory?
The decision in Ultra Deep will no doubt serve as great guidance for parties contemplating US security or enforcement proceedings against bank accounts of international banks.
Case: Euronav Shipping NV v Black Swan Petroleum DMCC [2024] EWHC 896 (Comm)
Guest: Oliver Caplin KC, Twenty Essex In this episode of Case by Case Luke Zadkovich and Calum Cheyne are joined by Oliver Caplin KC to discuss Euronav Shipping NV v Black Swan Petroleum DMCC [2024] EWHC 896 (Comm), a case of which Oliver Caplin was instructed on, acting on behalf of Black Swan Petroleum DMCC.
In this case the High Court of England ruled against Euronav's request for an unusual type of injunction known as an "anti-anti-arbitration injunction" (AAAI). The dispute arises out of a relationship of sub-bailment involving a cargo of crude oil stored aboard a vessel owned by Euronav.
The discussion is centred around Euronav’s attempt to seek an AAAI pursuing the discontinuation of an AAI from the High Court of Malaysia, which had prevented Euronav from continuing an arbitration in London. Black Swan Petroleum (BSP) had obtained the Malaysian order after Euronav (the court later held) voluntarily submitted to Malaysia’s jurisdiction in a related matter.
The court confirmed that to grant such an injunction, there must be a strong likelihood that both an arbitration agreement existed and that it was breached. While it found there was a high chance the parties had an arbitration agreement and that BSP may have breached it by obtaining the Malaysian order, the court ultimately chose not to grant the injunction. It cited several reasons - discussed in length during the podcast - including the importance of respecting the Malaysian court’s proceedings (comity), Euronav's delay in making the application, and the fact that Euronav had voluntarily submitted to the Malaysian court's jurisdiction.
The conversation highlights how party conduct, such as voluntary submission to another jurisdiction, can influence whether the court exercises its discretion to grant such remedies.
Case: Rhine Shipping DMCC v Vitol SA
Guest: Rufus Constable, Associate at Floyd Zadkovich
No Calum this week whilst he is away at Hong Kong Maritime week, however Luke is joined by Rufus Constable, Associate at Floyd Zadkovich.
This case addresses the impact of internal hedging practices used by commodities trading houses and their impact on the damages award in a related charterparty dispute.
Vitol, a major oil trader, voyage-chartered the MT DIJILAH from Rhine Shipping to transport 920,000 barrels of Brent Crude from West Africa to China. A six-day delay at the second loading port, Djeno (Congo), caused by Rhine, led to a rise in the Brent Dated index price. This increased the purchase price Vitol had to pay its seller, as the price was tied to dates linked to the bill of lading issuance.
The trial judge ruled that Vitol’s internal hedging (its practice of offsetting risks within its own trading system) did not reduce the damages due to it from Rhine, even where that internal hedging generated a notional gain in Vitol's books.
The issues on appeal were whether the judge was incorrect in excluding the effect of this internal hedging from the damages calculation, and whether Rhine was entitled to raise new arguments following the first instance ruling.
Case: UniCredit Bank vs. RusChemAlliance
Guest: Dr Paul Macmahon, Associate Professor of Law at the LSE Law School and the Director of the Executive LLM Programme
Episode Summary
In this episode of the podcast, hosts Luke Zadkovich and Calum Cheyne welcome Paul McMahon, an associate professor of law at LSE, to discuss the complexities of determining the governing law of arbitration agreements under English law following the UK Supreme Court decision inUniCredit Bank vs. RusChemAlliance. In this conversation, the speakers delve into this topic’s substantive and procedural complexities and practical effects. They focus on the Supreme Court considerations concerning the law of the main contract and the law of the arbitral seat. They also discuss the role of English law, forum non conveniens, and anti-suit injunctions concerning the nuanced topic of the applicable law to the arbitration agreement.
Guest's background:
Paul MacMahon is an Associate Professor of Law at the LSE Law School and the Director of the Executive LLM Programme. His primary interests are contracts, commercial law, and international arbitration. Before coming to the LSE, Paul taught at Harvard and Cambridge. He studied at Oxford (BA, BCL, DPhil) and Harvard (JD), and served as a law clerk in the United States for Judge Guido Calabresi and Judge John Gleeson. Paul also worked as a litigation lawyer at Skadden, Arps, Slate, Meagher & Flom LLP in New York City and remains a member of the New York Bar. In addition to teaching at LSE, Paul is a regular Visiting Professor at Católica Global School of Law in Lisbon. He has served as an expert on English law in foreign court proceedings.
Key Takeaways:
- There is a lack of consensus on governing law among jurisdictions.
- Practitioners should explicitly state the governing law in arbitration agreements.
- Governing law for arbitration agreements often aligns with the main contract.
- The Enka decision introduced a caveat regarding governing law concerning the law of the seat of the arbitration.
- The proper place for claims seems to be determined by the context of the case.
- The English court's role is to enforce arbitration agreements effectively.
- International instability can influence arbitration disputes.
- The court's decision reflects a balance between legal and policy considerations.
- Future legislation may alter the current arbitration landscape.
Chapters
00:00: Introduction to the Podcast and Guests
02:53The Impact of LinkedIn on Legal Discussions
05:52Paul McMahon's Background and Interests
08:50The Popularity of International Arbitration Among Students
12:03Competition Among Jurisdictions for Dispute Resolution
14:54The Governing Law of Arbitration Agreements
18:13Case Study: UniCredit Bank vs. RusChm Alliance
30:00The Implications of Sanctions on Arbitration
33:05Judicial Perspectives on International Arbitration
37:25Understanding Jurisdiction and Governing Law
40:16The Enka Decision and Its Implications
47:27The Role of English Law in Arbitration Agreements
57:58Assessing the Proper Place for Claims
01:09:27Future Implications for Anti-Suit Injunctions
Keywords arbitration, governing law, international law, dispute resolution, legal education, LinkedIn, sanctions, jurisdiction, commercial law, contracts, jurisdiction, governing law, arbitration, English law, Enka decision, anti-suit injunctions, international arbitration, legal implications, arbitration agreements, Supreme Court
RTI Ltd (Respondent) v MUR Shipping BV (Appellant)On this episode Luke and Calum are joined by Alexander Wright KC - A great debate, with varying views and perspectives looking at whether or not a party was required to accept non-contractual performance to overcome a force majeure issue. This a salient case - which will be a reference point for many Force Majeure cases moving forward, as it sets down matters of general principle. In the case of RTI Ltd v MUR Shipping BV, the central issue was whether a force majeure clause in a contract requires the affected party to accept non-contractual performance to mitigate the event's effects. The High Court ruled that it does not unless explicitly stated. However, the Court of Appeal, with a majority decision, held that in certain circumstances, the clause might require accepting such performance. The dissenting opinion agreed with the High Court. The case is now being appealed to the Supreme Court for a final decision.
This case involves an appeal and cross-appeal arising from two Grain and Feed Trade Association (GAFTA) appeal awards related to Cost & Freight free out (C&FFO) Mundra sales of pulses. The primary issues revolve around the jurisdiction of the court on appeals from arbitration awards under the Arbitration Act 1996.
Appeal by Viterra BV:
- The appeal challenges the jurisdiction of the court concerning appeals from arbitration awards.
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Viterra BV contends that the Court of Appeal made errors in:
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Amending the question of law for which permission to appeal had been granted.
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Deciding a question of law that the GAFTA Appeal Board was not asked to determine and on which it did not make a decision.
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Making findings of fact on matters on which the GAFTA Appeal Board had made no findings.
Cross-Appeal by Sharp Corporation Ltd:
- The cross-appeal addresses the GAFTA Appeal Board’s award of damages to Viterra BV.
- The damages were awarded based on the estimated C&FFO Mundra value of the goods under GAFTA Contract No 24 Default Clause.
- Sharp Corporation Ltd argues that damages should have been awarded based on the "as is, where is" value, which refers to the estimated ex-warehouse Mundra value of the goods. This is because, at the date of default, the goods had already been landed, warehoused, and customs cleared in Mundra.
There are two main themes explored in this podcast:
- The procedural safeguard on court appeals from arbitration decisions; and
- How mitigation and the compensation principle interrelate for quantum.
How is it that the Supreme Court and the Court of Appeal can differ so significantly?
And yet, was there a better, appropriate way to get to the same answer?
How to frame a question for appeal without leaving it susceptible to attack?
And, on the flipside, how to attack an appeal on procedural grounds?
Spotify | Apple Podcasts | YouTube
In this case, Mr. and Mrs. Sherman booked a cruise to the Northwest Passage in Arctic Canada with Reader Offers Ltd (ROL), a travel company known for its advertisements in newspapers and magazines. However, the cruise did not meet the Shermans' expectations. Due to ice conditions, the ship could visit only a small part of the Northwest Passage, missing out on historically significant sites associated with the region's explorers. Instead, much of the cruise was spent exploring the west coast of Greenland.
The Shermans filed a claim in the County Court seeking a refund and compensation, arguing that they should have been informed of the changed itinerary and given the option to cancel. After a seven-day trial, spread over four months, their claim was dismissed by Mr. Recorder Bowes QC. On appeal to the High Court, Mrs. Justice Collins Rice held that ROL breached the contract in two ways and sent the case back to the County Court to determine remedies. ROL appealed this decision, seeking to uphold the Recorder's ruling.
A key point of contention was whether the contract included a specific itinerary, starting at Cambridge Bay and traveling through the Northwest Passage to Pond Inlet before crossing to Greenland for the return flight. The Recorder found that this itinerary was not contractually binding, whereas the Judge disagreed.
Ultimately, the appeal was dismissed, and the case was remitted to the County Court for further consideration of remedies. This case highlights the importance of clear contractual terms in travel arrangements and the significance of accurately representing the scope of services offered.
Click here to download the full case.
In this complex maritime case, the vessel MT POLAR was seized by Somali pirates in 2010 while traversing the Gulf of Aden with a cargo of fuel oil. After ten months in captivity, the vessel was released upon payment of a hefty ransom by the shipowner, totaling US$7,700,000. Subsequently, the shipowner declared a general average, claiming US$5,914,560.75 from the cargo interests.
The cargo interests disputed their liability, arguing that the shipowner's recourse for the ransom payment lay solely in additional insurance obtained under the voyage charterparty, with premiums covered by the charterer. The dispute centered on the interpretation of the war risk clauses and the additional Gulf of Aden clause in the charterparty, and whether these terms were incorporated into the bills of lading.
Arbitration ensued, resulting in a split decision. The arbitrators ruled in favor of the cargo interests, holding that they were not liable for general average. However, their decision was partially overturned on appeal. While Sir Nigel Teare agreed with the arbitrators on some issues, he disagreed on others, ultimately allowing the shipowner's appeal.
The Court of Appeal affirmed the decision, concluding that the cargo interests were indeed obligated to contribute to general average. Despite some differences in opinion on certain issues, the courts ultimately upheld the shipowner's claim, establishing precedent for similar disputes in maritime law.
In this case, the Solicitor General seeks permission from the High Court to bring contempt proceedings against Ms. Trudi Ann Warner. The allegations stem from Ms. Warner’s actions outside the Inner London Crown Court on March 27, 2023, where she displayed a placard targeting jurors involved in the trial of individuals affiliated with the environmental group Insulate Britain.
The placard bore the handwritten words: “JURORS YOU HAVE AN ABSOLUTE RIGHT TO ACQUIT A DEFENDANT ACCORDING TO YOUR CONSCIENCE.” The Solicitor General contends that Ms. Warner deliberately targeted jurors, potentially influencing them to acquit defendants associated with climate activism, irrespective of legal directions from the trial judge. The Solicitor General asserts that such actions constitute interference with the administration of justice, impacting the jurors’ rights and the court proceedings.
The High Court must determine whether there is a reasonable basis for committal and whether pursuing the contempt application is in the public interest. While the legal principles are clear, the central debate revolves around characterizing Ms. Warner’s conduct and assessing its implications.
The case involves weighing the rights of Ms. Warner, particularly her Article 10(1) rights under the European Convention on Human Rights (ECHR), against the need to uphold the integrity of the justice system. Detailed submissions and oral arguments were presented, emphasizing the complexity and significance of the issues at hand.
Ultimately, the High Court’s decision will have far-reaching implications for the balance between freedom of expression and the administration of justice, making it a crucial case to follow and analyse.
Click here to download the full judgement.
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The "subject" of today's episode is The Aquafreedom [2024] EWHC 255 (Comm) and whether agreements on "subjects" or "subs" give rise to binding contracts.
This week’s episode "Ever Given - Salvaging a Contract, Part II" looks at the Court of Appeal’s decision in the Ever Given case.
No doubt our followers will remember when the Ever Given became ‘stuck’ in the Suez Canal. This case has been to determine whether or not a contract existed between the salvors and the shipowners in relation to the salvage work performed to release the ship.
If you want to read more about the case you can access the judgment here: https://media.licdn.com/dms/document/media/D561FAQGgU7VmoTcAnA/feedshare-document-pdf-analyzed/0/1711035368798?e=1712188800&v=beta&t=VXHFJQPxCoOaBQqkqAKsM7S7WIsC9WQYwgomOypGARM
If you would like to listen to the full episode you can find it on:
You can watch the episode on Youtube - https://www.youtube.com/@casebycasepodcast4707
We hope you enjoyed the break.
As promised, we're kicking off 2024 with a Practitioners Clip featuring highlights from our inaugural episode. Join us on a brief journey back to Episode 1, titled 'That's got to SMART - The story of the M/V SMART and Owners' right to demand freight under a bill of lading.' In this episode, Calum and Luke will provide you with some insight into the decision of Alpha Marine Corp. v. Minmetals Logistics Zhejiang Co. Ltd., [2021] EWHC 1157 (Comm).
Should you wish to read the full judgement, it can be located at: https://www.bailii.org/ew/cases/EWHC/Comm/2021/1157.html
Remember to subscribe for more updates and stay tuned for our regular episodes and further Practitioners Tips.
This week, we're reflecting on our previous episodes. As we delve into our extensive catalogue, it's evident how much valuable information we've condensed into a brief timeframe. In light of this, we've made the decision to introduce concise Practitioners Tips, scheduled for release in 2024. But to give you a sneak peek, let’s rewind to September 2021 when the exceptionally talented Philip Vagin joined us for a discussion on Maritime Liens.
If you would like to listen to the full episode you can find it on:
Youtube - (1) #12 Maritime Liens - Incorporating maritime liens by contract in the US and UK - YouTube
Spotify - https://open.spotify.com/episode/4JhwuLrbWpNGeiB66BGEE2?si=OBAgOk7BSqKBlkna_pKgPg
Google - Case by Case - #12 Maritime Liens - Incorporating maritime liens by contract in the US and UK (google.com)
Apple - https://podcasts.apple.com/gb/podcast/12-maritime-liens-incorporating-maritime-liens-by-contract/id1569154701?i=1000537125850
Remember to subscribe for more updates, and stay tuned for our regular episodes and the upcoming Practitioners Tips in the coming year.
Wishing you a fantastic Christmas and a joyful 2024 from our family to yours!
Today it is all about Chocolate, and not in the way you are thinking. Luke and Calum are delving into the legal implications of the decision made on 16 November 2023, by the Honourable Mr Justice Foxton in ChocolateCity Ltd v WEA International Inc [2023] EWHC 2874 (Comm).
Chocolate City is a case that highlights what happens when a lawyer is let lose in the wild to establish a successful record label. In this case a pre-eminent record label in Nigeria. However, where lawyers tread, litigation is never far behind.
Join Luke and Calum as they take the wrapper off the Chocolate and shed some light on what transpired when WEA (part of the Warner Group) and Chocolate City executed a convertible term loan facility agreement. WEA served as the lender and Chocolate City as the borrower. However, when Chocolate City expressed its intention to prepay the loan WEA contested Chocolate City's right to prepay.
If you want to read more about the case you can access the judgment here: Chocolate City Ltd v WEA International Inc [2023] EWHC 2874 (Comm) (16 November 2023) (bailii.org).
Thank you for listening.
Luke and Calum are back in the swing of things and straight into hot topic of litigation funding as they review Therium Litigation Funding A IC and Bugsby Property LLC [2023] EWHC 2627 (Comm)
Its section 44, but with a different take on it. This decision is one of the first cases after the Paccar Case and it’s all about litigation funding. The litigation world was turned upside with the Supreme Paccar Case decision, and this is one of the first cases to follow it.
The old common rule law said, if you are not interested in the litigation you shouldn’t be funding it. Litigation funding is the opposite of this position and is unravelled in this episode as Calum and Luke explain what happens when litigation funders are not paid following a successful claim.
If you want to read more about the case you can access the judgment here here: https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Comm/2023/2627.html&query=(therium)+AND+(litigation)+AND+(funding)+AND+(A)+AND+(IC)
Thank you for listening!
Luke and Calum are back discussing the case of JWL v JPM and s.44 Applications under the Arbitration Act.
Thank you for listening!
Luke and Calum are back with an episode discussing London Arbitration 14/23.
We hope you enjoy!
Luke and Calum are joined by Ed to discuss a RICO (Racketeer Influenced and Corrupt Organizations Act) Statute involving international parties from Russia.
Thanks for listening!
With Luke deep in hearing prep this week, Calum was joined by Miguel to look at a (slightly speculative...) attempt to use the wording of the LMAA Small Claims procedure to bar a claim.
A quick fire one this week - but a snapshot into an interesting maritime law point, London Arbitration 9/23.
Today, Calum Cheyne and Leo Rees-Murphy discuss Philipp (Respondent) v Barclays Bank UK PLC (Appellant) [2023] UKSC 25.
Case by Case 71 - Refining the law on Foreign Experts
"This is not a paid commercial... but ... TimTams!"After the yummy detour, this pod is about a serious arbitration topic.
The scope of an arbitration agreement. We know it well under English law. Here the question is subject to Iranian law. Before an English arbitral panel (and challenged then appealed in the English courts up to the Court of Appeal). What legal principles from the incorporated foreign law should the English arbitral panel be guided by ?
It is a trap for the unwary.
As we say in this episode, if you have any cases where you need to present foreign legal expert evidence before an English arbitral tribunal or court, then highly recommend you have a listen. This case offers an excellent guide.
We also discuss an interesting English arbitration procedure under sections 67 and 73 of the Arbitration Act 1996.
Hope this is useful for you. Let us know if so. And please do join in the fun by subscribing or following us on our channels.
Cheers!
Luke and Calum
Luke and Calum are back this week to talk about case CL-2022-000595.
Thanks for listening !
This week Luke and Calum discuss US Court of Appeals case Bunge, S.A. v. ADM Int'l Sarl, No. 22-1276 (3d Cir. Jun. 2, 2023).
Enjoy!
This week we have a special one in store - Luke and Calum recorded an episode of Case by Case at our New York Lunch & Seminars event with a live audience of clients and colleagues. In this episode, the two recap the most important and interesting cases of 2023 so far.
Enjoy!
This week Luke and Calum discuss English Court of Appeal case FIMBank PLC v KCH Shipping Co Ltd (“The Giant Ace”) [2023] EWCA Civ 569.
This is a good one. All about whether a claim for misdelivery arising after discharge of the goods from the vessel is time barred or not. Hague Rules versus Hague Visby Rules... Is there a big difference between the two versions of the Convention on the application of the one year time bar to post-discharge misdelivery claims? The court states that it found the "bull's eye" in the travaux préparatoires reaching its decision... We ask, with respect, did it really?
This week Luke and Calum discuss the English Court of Appeal case of Unicredit Bank AG v Euronav NV [2023] EWCA Civ 471.
Enjoy!
Case by Case - episode 64: In the Bunker(s)
What are bunkers? Fuel on ships. You know when you hire a rental car and it comes with a full tank... and you need to choose whether to give the car back with a full tank (having filled up yourself) or you pay the top up amount at the rental company's price? Well, we are talking about something similar here. Ships don't usually get delivered, or redelivered, on time charters with full tanks. But how do you deal with the bunkers? Here we look at what formula should apply to work out how much the charterers (ie. the renters) need to pay the owners (ie. the rental company) for the fuel on redelivery. It's a neat one that deals with when charterers redeliver too much ! Remember the price of fuel fluctuates regularly and we're not talking about the mere cost of filling up a car...
Citation is LMLN London Arbitration 3/23.
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Luke & Calum
This week Luke Zadkovich is joined by ZFZ pro bono leader Romina Santos Reyftmann to chat about a very publicly covered trademark dispute, featuring pop singer Katy Perry and an Australian clothing designer under the name of Katie Perry. Tune in for all the details on Australian Federal Court decision of Taylor v Killer Queen, LLC (No 5) [2023] FCA 364. Enjoy!
This week Calum is joined once again by ZFZ senior associate Philip Vagin for a discussion about United States Court of Appeals, Eleventh Circuit case Corporacion AIC, SA, Plaintiff-Appellant, v. Hidroelectrica Santa Rita S.A., a Guatemalan company, Defendant-Appellee, No. 20-13039 (11th Cir. 2023).
Enjoy!
This week Luke and Calum are back with a chat about England & Wales Court of Appeal case DHL Project & Chartering Ltd v Gemini Ocean Shipping Co Ltd [2022] EWCA Civ 1555.
Enjoy!
We go back to the moment when everyone knew what shipping lawyers dealt with. The Ever Given blocked the Suez Canal in March 2021. Luke and Calum remember it like yesterday.
This case is all about the alleged contract between the salvors and the shipowners to refloat the vessel. Was there one or not?
How do you know when two parties have demonstrated an ‘intention to be bound’ to a contract?
Trickier than it first seems and we think there may be a bit of controversy in this one. Well at least a little more unpacking to do on the law.
Does it matter if either party thinks they have a contract?
For example, do internal WhatsApp messages sent at the time saying “Agreement on Main Terms!” make any difference to the analysis?
What is “crossing the fence” in this context?
In Luke and Calum's discussion of Smit Salvage BV v Luster Maritime SA (The 'Ever Given') [2023] EWHC 697 (Admlty) this week, there’s an important lesson on how to plead an alternative claim and the consequences of not doing so. Also on how to present witness evidence in these types of contract formation cases.
We’ve been getting some wonderful feedback from our listeners. Thank you heartily. Means a lot and glad you’re getting value. If you do enjoy, please subscribe on your preferred platforms!
In this episode, Luke is joined by Eva-Maria Mayer, senior associate with ZFZ based in New York. Eva and Luke discuss Smarter Tools Inc. v. Chongqing SENCI Import & Export Trade Co. Ltd. et al., No. 21-724, (2d Cir. Jan. 17, 2023).
We hope you enjoy!
This week Luke and Calum welcome a special guest! Matthew McGhee, barrister with Twenty Essex Chambers to discuss Hong Kong Final Court of Appeal case PT Asuransi Tugu Pratama Indonesia TBK v Citibank NA [2023] HKCFA 3.
We hope you enjoy!
This week Luke and Calum are joined by ZFZ Senior Associate Philip Vagin to discuss London Arbitration 2/23.
Enjoy!
This week Luke and Calum discuss the English High Court case Fastfreight Pte Ltd v Bulk Trident Shipping Ltd (Re Arbitration Act 1996) [2023] EWHC 105 (Comm) (24 January 2023).
In this week's episode, Luke and Calum discuss English Commercial Court case Anron Bunkering DMCC v Glencore Energy UK Ltd [2023] EWHC 295 (Comm).
This week Luke and Calum dive deep into Bitcoin, with the English Court of Appeal case Tulip Trading Limited (A Seychelles Company) v Bitcoin Association For BSV & Ors [2023] EWCA Civ 83 (03 February 2023).
In this episode, Luke and Calum discuss the English Court of Appeal case Brian Leighton (Garages) Ltd v Allianz Insurance Plc [2023] EWCA Civ 8 (11 January 2023).
We're back after a winter break with another studio episode. This time, Luke and Calum discuss English Commercial Court case Trafigura v TKK Shipping [2023] EWHC 26 (Comm).
Episode 50! What an exciting milestone. This episode, we not only celebrate our golden jubilee, but also share a special announcement.
And of course, let us not forget the case - this week looks back at Compagnie Commerciale Sucres et Denrees v C Czarnikow Ltd [1990] UKHL J1011-2.
This week Luke and Calum discuss Bunge Corporation (New York) v Tradax Export SA (Panama) [1981] APP.L.R. 02/25.
This week, Luke Zadkovich and Calum Cheyne go back in time to discuss the 1961 case of Mash & Murrell v. Joseph I. Emmanuel, Ltd. [1961].
This is a big case. Scottish Independence Referendum 2 - the sequel?
As you will have seen from the news, the UK Supreme Court handed down its decision yesterday.
No vote allowed by Scotland without UK parliament consent.
That’s the headline.
But what was the actual legal case about? What issues were considered? Why did the court rule in the way it did? Does the decision leave Scotland with a second bite at the cherry?
We certainly learned much more about this issue, beyond what we read in the news.
Glad to have you along for the ride and hope this provides value.
In this episode, Luke Zadkovich and Calum Cheyne discuss the English Court of Appeal case Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd & Ors [2022] EWCA Civ 1484 (10 November 2022).
Check out our YouTube channel for the full podcast videos: https://www.youtube.com/channel/UCvVvoTu3CZlLPE24ovBREkw
This week Luke and Calum discuss demurrage claims and time bars in a recent SMA case Stolt Tankers BV v. Stryker Fuels LLC (MT “MONAX”) – SMA No. 4449, 4 August 2022.
Make sure to check out our YouTube channel for the video podcast: https://www.youtube.com/channel/UCvVvoTu3CZlLPE24ovBREkw
In this episode, Luke and Calum discuss the English Court of Appeal decision MUR Shipping BV v RTI Ltd [2022] EWCA Civ 1406 (27 October 2022) handed down by Lord Justice Males.
Check out our YouTube channel for the podcast video: Case by Case Podcast - YouTube
This week Luke Zadkovich and Calum Cheyne are joined by London-based, Australia-qualified ZFZ associate Leo Rees-Murphy. The three discuss the Australian Federal Court of Appeal case Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co KG (The BBC Nile) [2022] FCAFC 171.
Don't forget to check out our YouTube channel to watch Case by Case with video: https://www.youtube.com/channel/UCvVvoTu3CZlLPE24ovBREkw
This week Luke and Calum discuss the very recent English High Court case of Trafigura Maritime Logistics PTE Ltd v Clearlake Shipping PTE Ltd [2022] EWHC 2234 (Comm) (03 October 2022).
Don't forget to check out our YouTube channel for the video version: https://www.youtube.com/channel/UCvVvoTu3CZlLPE24ovBREkw
This week Luke Zadkovich and Calum Cheyne are back for a 1 on 1 episode after having a series of exciting guests on the podcast. They discuss London Arbitration 30/22, where the validity of a notice of readiness (NOR) submission via email is put into question. A quick and interesting one!
Don't forget to check the episode out on our new YouTube channel: https://www.youtube.com/channel/UCvVvoTu3CZlLPE24ovBREkw
This week Luke Zadkovich and Calum Cheyne welcome a very special guest to another London studio recording - James d'Apice! James, Calum and Luke had a thrilling discussion about the New South Wales, Australia Supreme Court case Gillespie v Gillespies Cranes Nominees Pty Ltd [2022] NSWSC 1184.
Enjoy the chat to its fullest on YouTube: https://www.youtube.com/channel/UCvVvoTu3CZlLPE24ovBREkw
Moving up in the world! This time Luke and Calum stopped by a London recording studio, and for a guest well worth the upgrade. Jim Leighton of the North of England P&I Club has been a regular listener to the podcast since the early days, and we were thrilled to have him join us on this one.
A great case to cover some serious territory - London Arbitration 29/22 featured in LMLN. A smorgasbord of shipping cases indeed... speed and performance, redelivery not in good condition, hull fouling, bimco piracy clause, vessel damage, redelivery without full bunkers and charges for tug assistance in the Mississippi River.
Jim's experience with handling these FD&D cases is market leading. It shows through in how he cuts through the heart of the issues in dispute. We hope you very much enjoy the episode!
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In this episode of Case by Case, Luke Zadkovich and Calum Cheyne welcome ZFZ London associate Lucy Noble.
The three discuss the English Commercial Court case of CM P-Max III Ltd v Petroleos Del Norte SA (Re MT Stena Primorsk Voyage Charter) [2022] EWHC 2147 (Comm) (12 August 2022).
Don't forget to check out our new YouTube channel for the video recording of this episode!
In this episode of Case by Case, Luke Zadkovich and Calum Cheyne welcome guest arbitrator Tim Hartland to discuss English Commercial Court case DHL Project & Chartering Ltd v Gemini Ocean Shipping Co Ltd [2022] EWHC 181 (Comm).
Case by Case goes video this time! Check out our YouTube channel here to watch the podcast video: https://www.youtube.com/channel/UCvVvoTu3CZlLPE24ovBREkw
This week, Luke and Calum discuss the English Commercial Court case of Lenkor Energy Trading DMCC v Irfan Iqbal Puri [2022] EWHC 2113 (Comm).
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This week ZFZ associate Philip Vagin joins Luke and Calum to discuss London Arbitration 28/22.
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This week, Luke and Calum discuss the recent English High Court case, Eastern Pacific Chartering Inc v Pola Maritime Ltd.
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In this episode of Case by Case, Luke and Calum discuss an LMAA tribunal decision on Covid off-hire. The question in this case is - who's responsible for delays resulting from Covid infections? The two get into the interpretations and relevant clauses that eventually led the tribunal to its verdict.
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In this episode of Case by Case, Luke and Calum discuss the recent ship finance decision of OCM Maritime Nile LLC & Anor v. Courage Shipping Co Ltd & Others (Courage and Amethyst) [2022] EWHC 452 (Comm) from the English Court of Appeal coming from the Commercial Court.
This one involves ship ownership, loans and repossession under unique circumstances of dealing with a US-sanctioned "Specially Designated Global Terrorist".
Listen through for the details on this interesting one and make sure to follow on Spotify or Apple Podcasts to get notified when our next episode drops.
Yes, we have strayed away from commercial litigation and arbitration in the world of PR, celebrity, football, gossip mags, leaks, lies and truth. This case is a surreal insight into the media industry and what goes on around the world of professional football.
It is amazing that this case went through to hearing. That we have a High Court judgment detailing the ins and outs of text messages between ‘wags’ of the English football team and between celebrity and agent. The English football national former captain in the witness box.
Was Ms Rooney’s great reveal Instagram Post that Ms Vardy was leaking personal information about her life a true statement or a lie?
Huge reputations on the line. Some have been smashed by this decision - in no uncertain terms. In football, it was also risky going toe to toe with Mr Rooney. Seems as though, in celebrity PR maneuvering, going toe to toe with Ms Rooney is just as risky...
Us being us, we couldn’t only focus on the personality of the decision. We talk about some quite serious takeaways on legal case strategy, evidence gathering, evidence presentation and how to win a high-stakes case.
If you’ve enjoyed this podcast episode, please do share it in your networks, and like and subscribe to our Case by Case podcast on Spotify or Apple Podcasts. More topical or interesting cases dropping each Thursday.
A little over two years ago, Covid swept across the world for the first time, swiftly followed by law firm bulletins addressing the question of "What is Force Majeure?". Two years on, one of the earliest examples of alleged Force Majeure caused by Covid is subject to a High Court Judgment.
The parties had agreed a contract for the sale of a ship. Due to Covid restrictions, the sellers could not get the ship into the port at which delivery was anticipated to take place. The buyer alleged force majeure, and sought a return of the deposit. The sellers denied that force majeure applied, and claimed that they were entitled to maintain the deposit (plus other sums).
Luke and Calum discuss the principles of "Force Majeure" and the construction points that the Judge considered in reaching a Judgment.
Thank you for listening, and please like/share/subscribe.
Case citation: NKD Maritime Ltd v Bart Maritime (No. 2) Inc [2022] EWHC 1615 (Comm)
In this episode, Joe Gosden, ZFZ partner, joins Luke to discuss a fascinating topic in shipping law.
A bill of lading in the hands of a charterer is a mere receipt of goods. It is not yet a contract of carriage between bill holder and carrier. When that bill is endorsed, it becomes a contract of carriage in the hands of the non-charterer endorsee.
But what happens if the shipper/charterer holding the bill as a receipt novates away the charterparty. Is the bill operable in the hands of that shipper (and no longer the charterer)?
We study the status of the bill - is it only "suspended" when in the hands of the charterer, or does it "spring to life" on endorsement? A birth, so to speak.
There is also an interesting causation argument on whether the bank would have insisted upon presentation of original bills in any event. If not, then did the failure to present OBLs cause any loss?
Joe and Luke also discuss some of the complications for trade finance banks/companies in protecting their position with adequate security and a few war stories they've experienced along the way.
What is litigation privilege? When does it apply? When doesn’t it?
There is a fine line between a probable prospect of litigation and a mere possibility of it. Where to draw that line is the challenge. We explore this in detail.
This episode also serves as a user guide on litigation privilege, highlighting the key principles and how to navigate them.
The dreaded ‘waiver of privilege’ is often on a lawyer’s mind when referring to legal advice in open communications or as in this case, a witness statement. And if it isn't, then it should be...
This is one for arbitration enthusiasts.
“We’ve always done it that way,” is said to be one of the most dangerous phrases in business.
Sometimes a case comes along that questions a process you’ve been doing for years. Appointing arbitrators - easy enough, right?! Well…
In this episode, Calum and Luke discuss what is required for an effective arbitrator appointment.
Is it a contract, is it status or is it a stand-alone three-part test…? Listen in to find out.
In this episode of Case by Case, Luke and Calum discuss the breach of a jurisdiction agreement by a 'security action'.
We're back from a brief break with a fresh episode of Case by Case. This time Luke and Calum review London Arbitration 16/22.
We welcome Ben Hobden, partner at Forbes Hare's Cayman Islands office, specialising in all areas of insolvency, restructuring and commercial litigation. We are delighted to have Ben on the podcast, discussing a very interesting development in the law regarding insolvency and restructuring for Cayman domiciled companies listed in foreign territories.
Read more about Ben here: https://forbeshare.com/team/ben-hobden-partner-litigation-and-insolvency-forbes-hare-cayman-islands/
This week is a big "first" for Case by Case - our first "Live" episode!
Following an invitation from the Society of Maritime Arbitrators in New York, this episode is Calum and Luke discussing the hugely significant case of the Eternal Bliss.
The Eternal Bliss has been said to be one of the most important demurrage cases in recent years. It certainly splits opinion (and this recording is no different).
I suppose all that is left to say is that Case by Case is now formally accepting invitations for live speaking slots!
For the first time, we welcome an external colleague onto the show. Among many accolades and prestigious awards, Ade is a highly-respected Nigerian lawyer, with an expertise in maritime disputes.
Ade joins Luke and Calum on today's episode to discuss a recent decision in the Nigerian Courts, the effect of which appears to constrain the ability of the Nigerian Courts to give an order for a vessel arrest in respect of unpaid crew wages. Good news for Owners - but a decision that would make the Nigerian Court system a real outlier.
This conversation discusses issues of constitutional law and the problems that can arise where a codified constitution comes into conflict with a historical right of arrest.
Ade's profile can be found here: https://www.bloomfield-law.com/our-people/adedoyin-afun
Luke and Calum review London Arbitration 5/22 - A decision which looks at issues involving mitigation, remoteness and correctly particularising a damages claim.
During the podcast, Calum references Court of Appeal obiter comments, which deal with a potentially large claim for failure to re-deliver a vessel on time. The case is The Achilleas, and the citation is: Transfield Shipping v. Mercator Shipping (The Achilleas) [2007] 2 Lloyd’s Rep. 555 (C.A.). The relevant passage is Rix LJ's comments at Para 122 and is set out below:
As for illegitimate voyages, it seems to me that special considerations may arise here, but they have not been the subject of any debate before us, and I would be cautious about expressing any opinion. I would merely mention the possibility that an illegitimate voyage, being outside the contract and, if insisted upon, an anticipatory breach in repudiation of it (The Gregos), may amount in effect to a form of new offer: so that, if an owner in response says "No, but I warn you that I have fixed the vessel for a new charter, and if you insist on the voyage and I perform it, not waiving my right to damages, and I lose my new fixture, I will look to you for compensation", it is not impossible that, albeit late in the day, the charterer will be fixed with knowledge of the new charter (see Mr Gross QC arguendo in The Gregos in the Court of Appeal at [1993] 2 Lloyd’s Rep. 335 at page 345, albeit cf Scrutton’s comment at page 349 at footnote 11). That is not very different from what the parties agreed in The Gregos.
The leading sports news story of 2022 has been a legal one. Novak Djokovic has run the full gamut of the Australian immigration system. First he had a visa, then he was put into detention, then he was released, before finally the Australian Government revoked the visa and sent him home.
In this episode of case by case, Luke and Calum look at the final decision of the Federal Court, by which Djokovic was unceremoniously booted out of the country.
A fair result for someone who clearly didn't want to play by the rules?
A misapplication of the law?
Or a legal system designed to constrain the judiciary on matters of immigration and put all possible power in the hands of the Government?
This episode makes for an interesting look at the law behind the news.
Aiden Lerch joins Luke and Calum on this week's episode, to discuss a recent (and rare) Supreme Court decision on Estoppel by Convention.
Judgment in the CMA CGM Libra has been handed down yesterday by the Supreme Court. The result is that negligent passage planning can render a vessel “unseaworthy”, and liability for that unseaworthiness is not covered by the Article IV Rule 2 exception for errors in navigation.
The Court carried out a detailed and comprehensive review of a number of established precedents. In doing so, the Court also rejected Owners’ arguments that there was a need for an “Attribute Threshold” (where there must be an identifiable “attribute” that is defective to cause the unseaworthiness).
Finally, the Court agreed that the “prudent owner” test was not the sole test for unseaworthiness. While that test remains very important, the Court noted that the unseaworthiness must also go to the vessel’s ability safely to carry out the contracted voyage. That is in line with authorities including The Aquacharm, where an issue that a prudent owner would clearly seek to rectify was not sufficient to amount to unseaworthiness (in the case of The Aquacharm, overstowage preventing a vessel passing through the Panama Canal).
Luke and Calum discuss this significant Supreme Court judgment on a critical area of maritime law.
Luke and Calum welcome special guest Lucy Noble to recap a battle of the forms judgment newly handed down from the English Court of Appeal. The jurisdiction dispute in TRW v Panasonic [2021] EWCA Civ 1558 confirms an important exception to the last shot principle, a question of interpretation which is approached quite differently under US law.
In this episode, Calum and Luke use London Arbitration 20/21 as a launching point into the world of nominations, options and elections. Does a nomination become written into a contract once made? When does it not? What parallels are there with redelivery notices (eg. the Zenovia)? Or analogies with other options in a contract?
Luke and Calum welcome special guest, Eva-Maria Mayer onto the podcast to discuss an interesting point of difference between US and UK law. This one involves a blast from the past, and we take a look at some important historical cases from the English House of Lords and the US Court of Appeals (Fifth Circuit).
Space Shipping Ltd v ST Shipping and Transport PTE Ltd [2021] EWHC 2288 (Comm)
Luke and Calum look at damages, arbitration appeal procedure, partial awards and much more in this recent Commercial Court decision.
In this episode of Case by Case, Luke Zadkovich and Calum Cheyne chat with New York partner Ed Floyd about counting time for a demurrage time bar.
In episode 1 of season 2, Luke Zadkovich, Calum Cheyne and special guest Philip Vagin discuss the incorporation of maritime liens by contract in the US and the UK.
"On demand" or "See to it" - those are the two main types of guarantee. But what do those terms actually mean? Is it always clear if a guarantee is one, rather than the other, type? And, if not, what are the tell tale signs of each of these categories of guarantee?
All of this was discussed in the recent Shanghai Shipyard's case - Judgment handed down on 23 July 2021.
Luke and Calum discuss the case in detail in this podcast.
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When faced with a breach of contract an innocent party will often want to know if they have a right to terminate and walk away from the agreement, or whether they must continue with the contract and limit themselves to a recovery in damages.
This is a tightrope for the parties and their lawyers. Does a breach of that specific term give a right to terminate? Alternatively, is this breach sufficiently significant to give that party a right to terminate?
The Galtrade decision looks at both questions, and Luke and Calum consider it in today's podcast.
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Costs are a hugely important factor in nearly all legal cases. Interestingly, there is a big distinction between English Court and US Court treatment of costs, which was an issue in the recent SMA decision of the MV BETTY KIX.
The decision also looks at issues of arbitrator bias. That is currently a big talking point on the English side of the pond following the Halliburton v Chubb decision. This decision is an interesting counterpoint from the US perspective.
Luke and Calum look at the decision in detail, exploring all of the interesting issues that arise from it.
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In the recent case of the DIVINEGATE, the English court was faced with a difficult jurisdictional question. The Claimant arrested a vessel in Gibraltar thought to belong to the Defendant. The Defendant argued that the arrest was wrongful, and that the Defendant was in fact the time charterer of the arrested vessel.
The Defendant brought a counter-claim against the Claimant, for losses arising as a result of the wrongful arrest. The Claimant argued that the wrongful arrest claim was subject to Gibraltarian jurisdiction.
Luke and Calum discuss the decision, looking in detail at the multi-jurisdictional nature of the world of international trade.
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This episode responds to our first request. Inspired by recent events in the Suez, we are taking a look at the law of General Average.
The case is a fascinating one. In January 2009, Pirates boarded the LONGCHAMP in the Gulf of Aden. They demanded a ransom of USD6m. That was negotiated down to USD1.85 over a period of 51 days. The ransom and the negotiator's fees fell squarely within General Average. But what about the Vessel's operating expenses for the 51 day period of negotiations?
Luke and Calum discuss the result (with a little disagreement between themselves!) but additionally look to the wider application on the law of General Average, and what parties can do when facing a General Average claim.
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In a wonderfully wide-ranging judgment, the Court of Appeal recently looked at the rights and obligations between two parties relating to the sale of a Ferrari 250 GTO.
By looking at this judgment, Luke and Calum discuss the Sale of Goods Act, signing contracts "as agent", and how the Court can penalise a party in costs where that party fails to take steps to resolve a dispute at an early stage.
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Parties routinely exclude "consequential losses" in their contractual agreements. But what is a consequential loss, and what is actually covered by a consequential loss exclusions?
Luke and Calum look at a recent Arbitration decision, London Arbitration 13/21, and explore the law on consequential losses.
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Anyone familiar with the world of shipping, commodities and international trade will be familiar with agreements where the key commercial terms are agreed in a "recap", with full conditions to be incorporated by reference to a separate document (the "printed terms").
But what happens when the terms in the Recap would give a different result - if read in isolation - to the terms in the printed terms? Should the parties try to read both together, to find a way of giving effect to both provisions - or should one set of terms prevail, at the expense of the other?
This was exactly the question before the Court in Septo Trading Inc v Tintrade Ltd [2021] EWCA Civ 718, which Luke and Calum discuss in this podcast.
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In this week's episode, Luke and Calum look to the US Courts and a recent decision on the law regarding "alter ego" attachments.
An "alter-ego" attachment is where a claimant attaches a vessel, or some other asset, owned by a person or corporation that is not, strictly speaking, the respondent to the proceedings on the basis that the person who owns the attached asset is an "alter ego" of the person who is the respondent in the underlying proceedings.
The position under US law is not straight-forward and while there is generally a right to 'pierce the corporate veil' in certain circumstances, different US Circuits apply different tests. Luke and Calum look at the tests, the indicating factors for an "alter ego" attachment, and discuss some real-life examples.
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Luke Zadkovich and Calum Cheyne discuss CVLC v Arab Maritime Petroleum Transport Company [2021] EWHC 551 (Comm).
In this week’s case, Luke and Calum look at Cockerill J’s confirmation that once the Court has given permission to appeal under Section 69 Arbitration Act 1996 at a permission hearing, the question of whether or not leave to appeal ought to have been granted cannot then be re-opened as a defence in the substantive trial on the appealed issues.
The Judge’s reasoning was that the question of permission is a standalone issue, dealt with at the permission stage, which does not require re-visiting at the substantive hearing of the appeal. In this case, the Defendant sought to argue that the question on appeal was not a question that the Tribunal had answered in the arbitration – if that had been correct, it would not have satisfied Section 69(3)(b) Arbitration Act 1996, and the appeal should not have been allowed.
In this case, even though the Judge held that the question could not be re-opened, the Judge also found that even if it was re-considered, permission was in any event rightly granted.
The case also looks at the question of maritime security, and the question of whether there is an implied term in a guarantee that the guarantee itself is sufficient security and no further security can be sought by the beneficiary.
The conversation looks at maritime security instruments, Section 69 appeals and urgent maritime applications. In the conversation, Calum mentions an article by Clare Ambrose, Michael Collet QC and Karen Maxwell on emergency relief in maritime arbitrations. That article is available here: https://twentyessex.com/interim-and-emergency-relief-in-support-of-maritime-arbitration-under-english-law/
In this episode, Calum and Luke look at the recent decision of Alpha Marine Corp. v. Minmetals Logistics Zhejiang Co. Ltd., [2021] EWHC 1157 (Comm).
Owners claimed against charterers for a series of losses arising under a time charterparty. Owners demanded payment of freight directly from shippers, in order to satisfy the alleged debt. Shippers didn’t know who to pay: Owners under the bill, or charterers under the voyage charterparty? Ultimately, Shippers made partial payment into escrow before going insolvent.
Owners’ claims against Charterers largely failed. Charterers claimed that owners’ demands for the freight (against Shippers) were unlawful and were the cause of the delayed/reduced payment.
Owners said they were entitled to take the freight. Charterers argued that a time charterparty contains an implied term that owners could only exercise this right where they were owed money by charterers.
The High Court found no such implied term – reinforcing an owners’ right to demand freight directly.
Judgment available here: https://www.bailii.org/ew/cases/EWHC/Comm/2021/1157.pdf
Listen in for the analysis.
More about the firm at: www.zeilerfloydzad.com