10/10/2022

The Miracle Hope

Trafigura Maritime Logistics Pte Ltd v Clearlake Shipping Pte Ltd

(1) Clearlake Chartering USA Inc (2) Clearlake Shipping Pte Ltd v Petroleo Brasileiro SA (“The Miracle Hope (No 5)”)

On 3 October 2022 His Honour Judge Pelling KC handed down judgment in The Miracle Hope, resolving two concurrent claims under maritime indemnities. In the region of US$80 million was at stake in the Commercial Court in which claims seeking indemnification along the charterparty chain were finally upheld (after the earlier grant of mandatory interim injunctions). The proceedings involved the chartering arms of the major commodities traders, Trafigura and Gunvor, and the Brazilian state owned multinational oil company, Petrobras, and followed the fall-out from the insolvency of a major trading company resulting in the arrest of the M/T “Miracle Hope” in Singapore by a trade finance bank for alleged mis-delivery of a large crude oil cargo. The Commercial Court cases were fought in parallel with the ongoing litigation in Singapore.

The decision addresses points of importance for the shipping market and wider commercial sphere concerning the effect of “deemed” contractual indemnities, hybrid indemnities on combined charterparty and International Group of P&I Clubs standard wording (the “IG Wording”), the distinction between discharge and delivery, the scope of losses recoverable under the indemnity, and contracts inferred from intention and implied by conduct.

The court held that on the true construction of the materially back-to-back voyage charters, deemed indemnities were given comprised of a combination of charterparty terms and the IG Wording. There was no requirement for separate signed letters of indemnity, or alternatively any such requirement was waived or charterers were estopped from relying on it in the circumstances found by the Judge. The Judge accepted that in principle a distinction can be drawn in shipping between “discharge” (removing cargo from the ship) and “delivery” (transferring possession to a receiver), but that depended on the context in which the words were used. In the written orders given in respect of the cargo “discharge” had the same meaning as “delivery”. The court further held that as a matter of construction of the IG Wording only loss that was within the reasonable contemplation of the parties was recoverable (as would be the case in a claim for damages).

Michael Ashcroft KC and Daniel Bovensiepen appeared for Trafigura, instructed by Schjødt LLP.

Henry Byam-Cook KC appeared for Petrobras, instructed by White & Case LLP.

Read the judgment.