The "Reunion"

• Jurisdiction: Singapore
• Judge: Chua F A J
• Judgment Date: 02 August 1983
• Neutral Citation: [1983] SGHC 12
• Date: 02 August 1983
• Subject Matter: Voyage charterparties,Admiralty and Shipping,Right to cancel before cancellation date,Burden on charterer to prove that at date of cancellation vessel was in such a condition that it could not load cargo,Carriage of goods by sea,Readiness of vessel to load cargo,Repudiation of charterparty by charterer
• Docket Number: Suit No 335 of 1980
• Published date: 19 September 2003
• Defendant Counsel: SB Shah and G Murugaiyan (G Murugaiyan)
• Court: High Court (Singapore)
• Plaintiff Counsel: Haridass Ajaib (Netto Low & Pnrs)

The plaintiffs` claim against the defendant is for loss and damage suffered by the plaintiffs as a result of the defendant cancelling the charterparty executed in Singapore on the 16 January 1980 by the defendant (the charterparty), whereby the plaintiffs agreed to carry 5000 metric tons Minmax bitumen in drums for the defendant on the plaintiffs` motor vessel the Reunion for a voyage from Singapore to Chalna, Bangladesh.

The plaintiffs are the dispondent owners of the Reunion. The defendant carries on business in Calcutta, India. The charterparty was dated 10 January 1980, but was executed in Singapore on 16 January 1980, by the defendant`s local representative, Jim Ellis.

On 10 January 1980, the Reunion was in Bangkok and was expected to be in Singapore on 16 January for discharging. It was an express term of the charterparty that the Reunion would be expected to load between 10 and 25 January 1980.

The Reunion arrived in Singapore from Bangkok on 18 January and commenced discharging her cargo on the same day. The discharge of the general cargo was completed on 22 January and the Reunion was preparing to move to Jurong Port. However, there was no berth available though she had reserved a berth for 1100 hrs for the same day. At 1540 hrs the same day the Reunion was arrested. She was released a day later at 1645 hrs.

By telex dated 22 January 1980, at 1130 hrs (AB 21) the defendant alleged that the plaintiffs were in breach of the charterparty and in particular cl 21. The plaintiffs immediately replied on the same day by telex at 1139 hrs expressing surprise and stating that the defendant`s local agent Jim Ellis was not only informed by telex of 12 and 21 January but also by telephone that the vessel would be in loading port by 25 January and rejecting the defendant`s allegation that the plaintiffs were in breach of the charterparty. By telex dated 22 January (AD 22), the defendant cancelled the charterparty and thereby repudiated the contract. The plaintiffs accepted the repudiation. Legal proceedings commenced thereafter.

The defendant`s contention is this. The plaintiffs had failed to give the required notice under cl 21 of the charterparty; that as the Reunion was under arrest from 22 January to 23 January it was anticipated by the defendant`s representative in Singapore that the Reunion would not be able to load cargo by the 25 January as required by the charterparty; that the failure of the plaintiffs to give the required notice under cl 21 evinced their intention not to be bound by the charterparty and/or evinced their inability to perform the same; that the plaintiffs` said failure and conduct coupled with the arrest of the Reunion justified the defendant`s cancellation of the charterparty on 22 January at 1648 hrs and that the defendant thereafter obtained an alternative vessel to load the defendant`s cargo, in discharge of her duty to mitigate her damage. The defendant further contends that her aforesaid justification in cancelling the charterparty is supported by the events that happened after the cancellation of the charterparty and which events clearly show that even if the defendant had not cancelled the charterparty the plaintiffs would not have been able to load the defendant`s cargo by 25 January at Port Merlimau.

The defendant submits that for these reasons she was entitled to cancel the charterparty in anticipation of the plaintiffs` breach of cl 1 of the charterparty.

Clause 21 requires that:

Owners or Master to telex ten days before arrival to charterer`s attention at telex RS 23125 Singapore also telex same 72, 48, 24 hours prior loading to shipper and charterer at Singapore.

The charterparty though dated the 10 January 1980 was in fact signed by the defendant`s representative on 16 January. Since the loading date of the charterparty was to be on 25 January then the ten days` notice ought to be 15 January which in effect was not possible as the charterparty was not executed by the defendant then. The plaintiffs, however, were in daily contact with the defendant`s local agent in Singapore and they had in fact in all their telexes to the defendant`s local agent informed the defendant`s local agent that the loading date for the defendant`s goods would be 25 January as was stated in the charterparty.

As regards the 72 hours` notice to be given to the defendant, the plaintiffs had served the necessary notice to the defendant a day earlier (see AB19). A further notice was served by the plaintiffs on 22 January in their reply to the defendant`s telex of the same date one minute after the defendant had alleged that the plaintiffs were in breach of the charterparty particularly cl 21 (see AB21).

Having regard to these matters it is clear that the plaintiffs were not in breach of cl 21.

Clause 11 provides:

Should the vessel not be ready to load (whether in berth or not) on or before the date indicated in Box 19 charterers have the option of cancelling this contract ...

A charterer is not entitled to cancel under the cancelling date even though it is clear that the owner will be unable to tender the vessel in time: Christie & Vesey v Helvetia [1960] 1 Lloyd`s Rep 540, The...