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  • Russian RICO | Case by Case (Ep. 74)

    As we are watching the breaking late-night US news that the former President, Donald Trump, and 18 others, have been indicted by grand jury with conspiracy under the RICO Act in the state of Georgia,... Read more
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  • Guide to FuelEU Maritime
  • Russian RICO | Case by Case (Ep. 74)

    Russian RICO | Case by Case (Ep. 74)

    As we are watching the breaking late-night US news that the former President, Donald Trump, and 18 others, have been indicted by grand jury with conspiracy under the RICO Act in the state of Georgia, USA – this Case by Case episode (#74) comes at an opportune time.

  • Pre-emptively Peremptory? | Case by Case (Ep. 73)

    Pre-emptively Peremptory? | Case by Case (Ep. 73)

    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.

  • Fresh Quince-of-Bel Care Duties | Case by Case (Ep. 72)

    Fresh Quince-of-Bel Care Duties | Case by Case (Ep. 72)

    With Luke on the move this week, Calum drafted in his compatriot Leo Rees-Murphy to discuss the recent Supreme Court decision in Philipp v Barclays.

  • Refining the Law on Foreign Experts | Case by Case (Ep. 71)

    Refining the Law on Foreign Experts | Case by Case (Ep. 71)

    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.

  • Captured in Time | Case by Case (Ep. 70)

    Captured in Time | Case by Case (Ep. 70)

    Case by Case – episode 70: Captured in Time

    We are back this week with an interesting shipping case. Just as we become podcaster septuagenarians.

    I could open this with a profound question like, “what is the meaning of time?”

    But this is a more concrete question about whether breach of a vessel hull cleaning clause was intended to create a debt claim for hire post-charter or damages claim.

  • From Gadani to the Garage | Case by Case (Ep. 69)

    From Gadani to the Garage | Case by Case (Ep. 69)

    Case by Case – episode 69: From Gadani to the Garage

    If you are on holidays and hire a car, then you will agree with the car hire company where that car needs to be redelivered. If you drop it off somewhere not agreed, then there will be a cost charged.

    We’re talking about the same kind of thing here.

  • The Place to Rule B | Case by Case (Ep. 68)

    The Place to Rule B | Case by Case (Ep. 68)

    Case by Case – episode 68: The Place to Rule B.
    “This is in our sweet spot…” so we start on video. And it is. Our original USP as a law firm was to handle US and UK legal matters seamlessly. We’ve grown, combined and added EU legal work into the mix too, and Australian law. This case explores the limits of the USA Rule B attachment in the context of maritime indemnity claims and how drafting of the underlying UK dispute can influence the US court’s approach to the attachment. Indemnity claims in the maritime space come in different shapes and sizes. They could be under an LOI for delivery without presentation of bills. Edward and Luke first started working together on such a case at different firms, where I handled the UK indemnity claim and Ed attached a litigated US claim under Rule B. That’s where our story all started.

  • A case by case of Case by Case: Live in New York | Case by Case (Ep. 67)

    A case by case of Case by Case: Live in New York | Case by Case (Ep. 67)

    Calum and Luke had a lot of fun in NY doing this session in front of key clients last week. Our colleagues’ heckling notwithstanding. Essentially, we skip through 6 recent English cases from the first half of 2023. Some we’ve done before and some are new. Traversing plenty of territory in the shipping, commodities and insurance space. This pod will give you a good flavour of what’s been going on in the courts.
    And yes, that’s our wacky art wall in the NYC office and not a virtual background…

  • Bull’s Eye??? | Case by Case (Ep. 66)

    Bull’s Eye??? | Case by Case (Ep. 66)

    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?

  • Cause and (no) effect | Case by Case (Ep. 65)

    Cause and (no) effect | Case by Case (Ep. 65)

    This week Luke and Calum discuss the English Court of Appeal case of Unicredit Bank AG v Euronav NV [2023] EWCA Civ 471.

    This is a fascinating case that gets into the heart of the status of paper bills of lading. It highlights the dangers for banks in relying on paper bills, where the charterparty allows for novation of the charterparty and delivery against a letter of indemnity from charterers.

  • In the Bunker(s) | Case by Case (Ep. 64)

    In the Bunker(s) | Case by Case (Ep. 64)

    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.

  • Aussie Gurls v California Gurls | Case by Case (Ep. 63)

    Aussie Gurls v California Gurls | Case by Case (Ep. 63)

    Case by Case – episode 63: Aussie gurls v California gurls
    Katie Perry vs Katy Perry

    Delighted to be joined by Dr Romina Santos Reyftmann on the pod this week. Romina is our Pro Bono Coordinator at Zeiler Floyd Zadkovich. We recorded this episode, “Last Friday Night” – well kind of.

  • Florida Judges Call Off New York Vacation | Case by Case (Ep. 62)

    Florida Judges Call Off New York Vacation | Case by Case (Ep. 62)

    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!
  • The Usual Subjects | Case by Case (Ep. 61)

    The Usual Subjects | Case by Case (Ep. 61)

    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.

  • Ever Given – Salvaging a Contract | Case by Case (Ep. 60)

    Ever Given – Salvaging a Contract | Case by Case (Ep. 60)

    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.

  • Bankers eat Quince(care) late in HK | Case by Case (Ep. 58)

    Bankers eat Quince(care) late in HK | Case by Case (Ep. 58)

    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!

  • Navigating the port unsafely | Case by Case (Ep. 57)

    Navigating the port unsafely | Case by Case (Ep. 57)

    This week Luke and Calum are joined by ZFZ Senior Associate Philip Vagin to discuss London Arbitration 2/23.

  • Process of Deduction | Case by Case (Ep. 56)

    Process of Deduction | Case by Case (Ep. 56)

    Case by Case – episode 56 – Process of Deduction. 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).

  • Snooze, you Lose | Case by Case (Ep. 55)

    Snooze, you Lose | Case by Case (Ep. 55)

    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). Commodity sales contract dispute between buyer and seller. Seller paid significant sums but not the full price. Buyer received those sums and discharged much, but not all, of the cargo.

  • Achilleas’ Heel | Case by Case (Ep. 54)

    Achilleas’ Heel | Case by Case (Ep. 54)

    Late redelivery of a vessel at the end of time charter. What damages are recoverable? Surely that is settled – following the Achilleas principles… Second limb of Hadley… Special circumstances known prior to fixing, and all that…

  • Are Bitcoin Developers Fiduciaries? | Case by Case (Ep. 53)

    Are Bitcoin Developers Fiduciaries? | Case by Case (Ep. 53)

    Do bitcoin developers owe fiduciary duties to users?
    How does the law overlay and cope with a fast developing area of societal life? How should the law regulate the internet?
    These are questions for our time. And questions that will impact the future significantly.
    Absolutely fascinating seeing the English Court of Appeal grapple with these issues on case Tulip Trading Limited (A Seychelles Company) v Bitcoin Association For BSV & Ors [2023] EWCA Civ 83 (03 February 2023) – even if this is only Part 1 in the saga.
  • Leaking through an insurance loophole | Case by Case (Ep. 52)

    Leaking through an insurance loophole | Case by Case (Ep. 52)

    We’re over to insurance law today with a discussion on discuss the English Court of Appeal case Brian Leighton (Garages) Ltd v Allianz Insurance Plc [2023] EWCA Civ 8 (11 January 2023).
    This question split the English Court of Appeal – 2:1. Any time that happens we know there are going to be some talking points.
  • Liens and losses | Case by Case (Ep. 51)

    Liens and losses | Case by Case (Ep. 51)

    This time, Luke and Calum discuss English Commercial Court case Trafigura v TKK Shipping [2023] EWHC 26 (Comm)!
    The question is all about what “goods lost or damaged” means in the Article IV, rule 5(a) of the Hague-Visby Rules.
    Does ‘damage’ mean physical damage ONLY? Or does it include damage through the operation of a lien over the cargo – ie. financial type damage?
  • Shipping Bulletin | Fall Edition, December 2022
  • Sugar Rush | Case by Case (Ep. 50)

    Sugar Rush | Case by Case (Ep. 50)

    Episode 50! What an exciting milestone. We hope you, our valued listeners, enjoy this third case in our trilogy of lookback cases. We’ve been analysing a few old cases to coincide with Luke’s launch of the inaugural International Commodities and Shipping Law at UoW.
    This week looks back at Compagnie Commerciale Sucres et Denrees v C Czarnikow Ltd [1990] UKHL J1011-2.
  • Condition, innominate or will-o’-the wisp? | Case by Case (Ep. 49)

    Condition, innominate or will-o’-the wisp? | Case by Case (Ep. 49)

    In this second of their trilogy of ‘look-back’ cases, Luke and Calum explore the salient case of Bunge Corporation (New York) v Tradax Export SA (Panama) [1981] APP.L.R. 02/25.
    Ever wondered why time-based delivery clauses in a commodities sale and purchase contract are (typically) considered to be conditions?
    Ever wondered what is an innominate term?
    Ever wondered how to tell the difference between a condition and an innominate term?
    Ever wondered what is a ‘will-o’-the-wisp’?
    Listen in for answers and check out our ⁠YouTube channel.
  • Mash’s Potatoes | Case by Case (Ep. 48)

    Mash’s Potatoes | Case by Case (Ep. 48)

    As Luke prepares to launch the International Shipping and Commodities intensive law course at the University of Wollongong in a couple of weeks, he’s had cause to look back at some leading cases.
    Back to the 1960s. The Beatles, Civil Rights activism, flares, and… Mash & Murrell Ltd. v Joseph I. Emmanuel, Ltd. [1961].
    Some law doesn’t stand the test of time (much like poorly ventilated potatoes crossing an ocean). Some law does, as we discuss in this pod. For more, check out our ⁠YouTube channel.
  • Scottish IndyRef2 – The Supreme Court Decision Explained | Case by Case (Ep. 47)

    Scottish IndyRef2 – The Supreme Court Decision Explained | Case by Case (Ep. 47)

    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?

  • Guess Who? | Case by Case (Ep. 46)

    Guess Who? | Case by Case (Ep. 46)

    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). An issue on privilege decided for the first time in centuries…
    Is the identity of individuals providing instructions for a client inherently privileged ?
    Is there a Canadian style “zone of privacy” in English law privilege?
    Don’t forget the proportionality test in RFI requests!
    The Lord Justice Males Fan Club rollicks on. Listen in to discover this surprising case. For more, check out our ⁠YouTube channel.
  • Be careful what you word for | Case by Case (Ep. 45)

    Be careful what you word for | Case by Case (Ep. 45)

    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.
    How many times are we going to say that the specific words chosen in a contractual clause are important?!
  • Within the four corners of FM | Case by Case (Ep. 44)

    Within the four corners of FM | Case by Case (Ep. 44)

    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.
    Big takeaways for drafting FM clauses moving forward. Check out our YouTube channel for the podcast video: Case by Case Podcast – YouTube
  • COGSA in a land downunder | Case by Case (Ep. 43)

    COGSA in a land downunder | Case by Case (Ep. 43)

    (Better if you sing that title to hear the rhyme. Get it?)
    Indeed Luke asked Leo Rees-Murphy and Calum Cheyne to sing us in, but alas. Jokes aside, this is one for you cargo liability lovers at P&I Clubs, commercial cargo insurers, shipowners or commodity traders/cargo interests.
  • The Miracle Hope | Case by Case (Ep. 42)

    The Miracle Hope | Case by Case (Ep. 42)

    A bumper episode on one of Luke’s favourite topics: misdelivery claims. Why? Without wishing to sound too nostalgic – it was over such a claim that he met co-founding partner, Edward Floyd.
    An hour’s worth of detailed analysis. Context, dynamics and specific issues are all explored. For more, check out our YouTube channel.
  • Does wireless equal email? | Case by Case (Ep. 41)

    Does wireless equal email? | Case by Case (Ep. 41)

    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!

  • Trust us, we’re lawyers | Case by Case (Ep. 40)

    Trust us, we’re lawyers | Case by Case (Ep. 40)

    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.

  • A veritable smorgasbord of common FD&D disputes | Case by Case (Ep. 39)

    A veritable smorgasbord of common FD&D disputes | Case by Case (Ep. 39)

    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!

  • Ready or Not | Case by Case (Ep. 38)

    Ready or Not | Case by Case (Ep. 38)

    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!

  • Delicate Subjects – “Shipper / Receiver Approvals” | Case by Case (Ep. 37)

    Delicate Subjects – “Shipper / Receiver Approvals” | Case by Case (Ep. 37)

    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.

  • Bells Angels: an exception | Case by Case (Ep. 36)

    Bells Angels: an exception | Case by Case (Ep. 36)

    This week, Luke and Calum discuss the English Commercial Court case of Lenkor Energy Trading DMCC v Irfan Iqbal Puri [2022] EWHC 2113 (Comm).

    Follow Case by Case on Spotify, Apple Podcasts or Google Podcasts.

  • Lien on Me | Case by Case (Ep. 35)

    Lien on Me | Case by Case (Ep. 35)

    This week ZFZ associate Philip Vagin joins Luke and Calum to discuss London Arbitration 28/22.

    Follow on Spotify or Apple Podcasts to get notified when our weekly episodes drop.

  • Arrest gone wrong, or wrongful arrest? | Case by Case (Ep. 34)

    Arrest gone wrong, or wrongful arrest? | Case by Case (Ep. 34)

    This week, Luke and Calum discuss the recent English High Court case, Eastern Pacific Chartering Inc v Pola Maritime Ltd.

    Follow Case by Case on Spotify or Apple Podcasts to get notified when our episodes drop.

  • Covid Quarantine – An off-hire event? | Case by Case (Ep. 33)

    Covid Quarantine – An off-hire event? | Case by Case (Ep. 33)

    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.

    Follow Case by Case on Spotify or Apple Podcasts to get notified when our next episode drops.

  • Termination for Terrorism | Case by Case (Ep. 32)

    Termination for Terrorism | Case by Case (Ep. 32)

    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.

  • Wagatha Christie – Vardy vs Rooney. Leicester vs Man U. English player’s wife vs English player’s wife | Case by Case (Ep. 31)

    Wagatha Christie – Vardy vs Rooney. Leicester vs Man U. English player’s wife vs English player’s wife | Case by Case (Ep. 31)

    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.

  • Force Majeure – Covid in the Courtroom | Case by Case (Ep. 30)

    Force Majeure – Covid in the Courtroom | Case by Case (Ep. 30)

    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.

  • Full Disclosure – Exploring Litigation Privilege and Waiver of Privilege | Case by Case (Ep. 28)

    Full Disclosure – Exploring Litigation Privilege and Waiver of Privilege | Case by Case (Ep. 28)

    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…

  • Now you see me, now you don’t | Case by Case (Ep. 27)

    Now you see me, now you don’t | Case by Case (Ep. 27)

    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.

  • (Anti-)Suit Up! When does a ‘security action’ breach a jurisdiction agreement? | Case by Case (Ep. 26)

    (Anti-)Suit Up! When does a ‘security action’ breach a jurisdiction agreement? | Case by Case (Ep. 26)

    In this episode of Case by Case, Luke and Calum discuss the breach of a jurisdiction agreement by a ‘security action’.

  • Did someone turn the lights off? | Case by Case (Ep. 25)

    Did someone turn the lights off? | Case by Case (Ep. 25)

    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.

  • ZFZ Publish Article in the Society of Maritime Arbitrators Publication

    ZFZ Publish Article in the Society of Maritime Arbitrators Publication

    Zadkovich, Cheyne, Vagin & Winstanley (authors), “The Nature of Demurrage: Will U.S. Tribunals Join in The Eternal Bliss?“, The Arbitrator Newsletter published by the SMA, 01.03.2022.

  • Silver Base Jumping in the Cayman Islands | Case by Case (Ep. 24)

    Silver Base Jumping in the Cayman Islands | Case by Case (Ep. 24)

    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.

  • Case by Case: LIVE at the SMA! | Case by Case (Ep. 23)

    Case by Case: LIVE at the SMA! | Case by Case (Ep. 23)

    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!

  • Adedoyin Afun, on the Nigerian Jurisdiction for an Arrest over Unpaid Crew Wages | Case by Case (Ep. 22)

    Adedoyin Afun, on the Nigerian Jurisdiction for an Arrest over Unpaid Crew Wages | Case by Case (Ep. 22)

    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.

  • A Classic Case of “Who Dunnage? | Case by Case (Ep. 21)

    A Classic Case of “Who Dunnage? | Case by Case (Ep. 21)

    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 Curious Case of Novak Djokovic | Case by Case (Ep. 20)

    The Curious Case of Novak Djokovic | Case by Case (Ep. 20)

    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.

  • Tinkler, Tailors law on estoppel by convention | Case by Case (Ep. 19)

    Tinkler, Tailors law on estoppel by convention | Case by Case (Ep. 19)

    Aiden Lerch joins Luke and Calum on this week’s episode, to discuss a recent (and rare) Supreme Court decision on Estoppel by Convention.

  • Stop Press! Supreme Court hands down judgment in the CMA CGM LIBRA | Case by Case (Ep. 18)

    Stop Press! Supreme Court hands down judgment in the CMA CGM LIBRA | Case by Case (Ep. 18)

    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.

  • Who gets the last shot… of whiskey? | Case by Case (Ep. 17)

    Who gets the last shot… of whiskey? | Case by Case (Ep. 17)

    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.

  • “And the Nominations are…” – when an option taken gets written in | Case by Case (Ep. 16)

    “And the Nominations are…” – when an option taken gets written in | Case by Case (Ep. 16)

    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?

  • English law vs US law – Set off or Recoupment? Using a time barred claim as a defence | Case by Case (Ep. 15)

    English law vs US law – Set off or Recoupment? Using a time barred claim as a defence | Case by Case (Ep. 15)

    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).

  • Strictly Come Damages – A New-er Flamenco? Space Shipping v ST Shipping | Case by Case (Ep. 14)

    Strictly Come Damages – A New-er Flamenco? Space Shipping v ST Shipping | Case by Case (Ep. 14)

    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.

  • From Time to Time – How to count time for a demurrage time bar | Case by Case (Ep. 13)

    From Time to Time – How to count time for a demurrage time bar | Case by Case (Ep. 13)

    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.

  • Maritime Liens – Incorporating maritime liens by contract in the US and UK | Case by Case (Ep. 12)

    Maritime Liens – Incorporating maritime liens by contract in the US and UK | Case by Case (Ep. 12)

    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.

  • Shanghai Shipyards – Fight for your right for payment on demand | Case by Case (Ep. 11)

    Shanghai Shipyards – Fight for your right for payment on demand | Case by Case (Ep. 11)

    “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.

  • Galtrade v BP – When can a cargo buyer reject delivery? | Case by Case (Ep. 10)

    Galtrade v BP – When can a cargo buyer reject delivery? | Case by Case (Ep. 10)

    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.

  • Betty the devil you know? – The MV BETTY KIX: Arbitrator bias and costs awards in the US | Case by Case (Ep. 9)

    Betty the devil you know? – The MV BETTY KIX: Arbitrator bias and costs awards in the US | Case by Case (Ep. 9)

    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.

  • Unlocking the DIVINEGATE – getting into a jurisdiction clause | Case by Case (Ep. 8)

    Unlocking the DIVINEGATE – getting into a jurisdiction clause | Case by Case (Ep. 8)

    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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  • Everyone’s in the same boat – Pirates and the law of General Average | Case by Case (Ep. 7)

    Everyone’s in the same boat – Pirates and the law of General Average | Case by Case (Ep. 7)

    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.

  • The Tale of the Missing Gearbox – Gregor Fisken v Bernard Carl | Case by Case (Ep. 6)

    The Tale of the Missing Gearbox – Gregor Fisken v Bernard Carl | Case by Case (Ep. 6)

    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.

  • Shipping, Logistics & Transport Bulletin | Summer Edition, June 2021
  • Counting the Consequentials – London Arbitration 13/21 | Case by Case (Ep. 5)

    Counting the Consequentials – London Arbitration 13/21 | Case by Case (Ep. 5)

    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.

  • Recapping Recaps – Interpreting inconsistencies between the “printed terms” and the “recap” | Case by Case (Ep. 4)

    Recapping Recaps – Interpreting inconsistencies between the “printed terms” and the “recap” | Case by Case (Ep. 4)

    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.

  • Superman Security or Clark Kent Counterparty-risk? The law on Alter Ego Attachments | Case by Case (Ep. 3)

    Superman Security or Clark Kent Counterparty-risk? The law on Alter Ego Attachments | Case by Case (Ep. 3)

    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.

  • Permission to Appeal – No second bites at the cherry | Case by Case (Ep. 2)

    Permission to Appeal – No second bites at the cherry | Case by Case (Ep. 2)

    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/.

  • That’s got to SMART – The story of the M/V SMART and Owners’ right to demand freight under a bill of lading | Case by Case (Ep. 1)

    That’s got to SMART – The story of the M/V SMART and Owners’ right to demand freight under a bill of lading | Case by Case (Ep. 1)

    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.

  • Litigation Bulletin | Spring Edition, March 2021
  • Calum Cheyne Speaks at Consilio Webinar

    Calum Cheyne Speaks at Consilio Webinar

    Cheyne (speaker), “The Challenges and Opportunities of the Energy Sector in a Post-Brexit World”, Consilio Webinar, 25.02.2021.

  • Commodities & Energy Bulletin | Winter Edition, January 2021
  • What Actually Is Demurrage | Break It Down (Ep. 2)

    What Actually Is Demurrage | Break It Down (Ep. 2)

    Attention all shipping fans and contracts enthusiasts! The second episode of our (newly rebranded) podcast series “Break It Down” is live. In this episode, London-based ZFZ associate solicitor Calum Cheyne introduces the concept of demurrage to Rachel Tenenbaum, ZFZ marketing officer (and interested non-lawyer). We discuss the ins, the outs, and where things get complicated.

  • Shipping, Logistics & Transport Bulletin | Fall Edition, October 2020
  • In Writing Requirement
  • Alpha Harmony

    Alpha Harmony

    Cheyne & Zadkovich, “Two Minute Case-Law: The “Alpha Harmony” – Why it pays to double check your cancelling clauses” FZ Update, 09.04.2020

  • Defending Vessel Arrests

    Defending Vessel Arrests

    Watch Luke Zadkovich and Calum Cheyne on the defense of vessel arrests.

  • Bunker Arrests – Post Res Cogitans
  • Defending Vessel Arrests Early Contract and Charterparty Review (Part 10 of Economic Crisis Series)

    Defending Vessel Arrests Early Contract and Charterparty Review (Part 10 of Economic Crisis Series)

    Defending vessel arrests   Part 10 of our series on how to deal with an economic crisis – a guide for international businesses.   Luke Zadkovich, Partner, and Calum Cheyne, Associate of international law firm ZFZ share their experiences on defending vessel arrests.   Our team of lawyers have extensive experience acting for shipowners and their P&I Clubs in managing vessel arrests, just as we have in acting for charterers/cargo interests, and other parties, in bringing arrests against vessels.  Luke discussed what is involved in bringing a ship arrest in Part 9 of this series.   In this talk, on defending arrests, Luke and Calum explain a number of factors which shipowners should have in mind, including pre-arrest steps, strategies and challenges to consider immediately upon service of arrest, how to handle security demands for release of the vessel and a few counter-claim ideas that shipowners may wish to bring against the arresting party.     Importantly, wherever the arrest may be in the world, any of these steps should be undertaken in consultation with lawyers that will handle the underlying claim (typically English or US lawyers, such as ourselves).  This is to ensure that no local action prejudices the shipowners’ position on the underlying claim, both substantively and jurisdictionally.   We would be pleased to hear whether you found this conversational style of presentation useful and engaging.  Please do not hesitate to contact Luke or Calum for further information.
  • Bunker Arrest – post Res Cogitans Early Contract and Charterparty Review (Part 7 of Economic Crisis Series)

    Bunker Arrest – post Res Cogitans Early Contract and Charterparty Review (Part 7 of Economic Crisis Series)

    Bunker arrests   This is Part 7 of our series on how to deal with an economic crisis – a guide for international businesses.   In 2016, the Supreme Court handed down its judgment in the Res Cogitans, the leading case arising out of the OW Bunkers insolvency. That case had a profound effect on the shipping market, with many ship operators left with debts to the physical suppliers of the bunkers, and to OW Bunkers’ liquidators.    We are now entering the most serious economic downturn since that judgment. In that economic climate, it is fair to expect parties seeking security by ever more creative means, including an uptick in bunker arrests against time charterers. In the spirit of being prepared, we take a look at what the Res Cogitans means for bunker arrests.    In particular, in the Res Cogitans the Supreme Court held that where bunker supply agreements are made on credit terms, with a retention of title clause pending payment, title to the bunkers remained in the bunker supplier. We look at whether charterers can rely on that judgment to defeat the attachment – after all, if charterers don’t actually own the bunkers, how can the arrest succeed? Contact Calum, or your normal ZFZ, for more.

  • LNG News

    LNG News

    Cheyne & Thomspon (lecturers), “The LNG Industry and Evolution of LNG Charters from Tanker Charters”, FZ Presentation, 27.02.2020