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.