Wikborg Rein

London

Wikborg Rein is a full service international law firm with over 230 lawyers.  Headquartered in Oslo, the firm is particularly strong in shipping and offshore matters, dispute resolution, energy and natural resources, corporate, and banking and finance.  Wikborg Rein is notable for its unique global network, with offices in Norway (Oslo and Bergen), London, Singapore and Shanghai.  Extensive cooperation between these offices provides international clients with high quality advice in a series of key strategic jurisdictions.

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Updates

Shipping & Transport

The bunker balance – owners consider liquefied natural gas in advance of 2020
International | 17 July 2019

Using liquefied natural gas (LNG) rather than fuel oil is one of a range of options available to owners seeking to comply with the International Maritime Organisation's 2020 regulations. Given that shipbrokers have long predicted the emergence of a two-tier shipping market with 'greener' ships commanding a premium over older, less eco-friendly vessels, what is the future for LNG bunkering and what challenges does it present?

Worldwide freezing orders upheld in multinational shipping fraud case
United Kingdom | 12 June 2019

The High Court recently upheld two worldwide freezing orders in a multinational shipping fraud case were upheld, rejecting the defendant's allegations of breaches of full and frank disclosure. Among other things, the judgment is a useful confirmation and strengthening of the standing of intermediary charterers to sue for the full value of the hire in circumstances where the claimant's ultimate loss may be substantially lower.

Class dismissed – charter terminated for want of class
United Kingdom | 27 February 2019

A recent High Court decision will provide comfort for vessel owners and serve as a reminder to charterers of the importance of documentary obligations within a bareboat charter. The court held that where a vessel is on bareboat charter, the obligation on charterers to keep the vessel with unexpired class certificates at all times is an absolute obligation and a condition of the contract.

Ship and rig recycling: frequently asked questions
International | 20 February 2019

International conventions and local regulations combine to create a complex legal regime, which is often overlooked. The sale of a ship or rig to an intermediate buyer, which then sells the asset on to a shipbreaking facility, will not necessarily insulate the original owner from future liability or reputational damage. This article addresses a number of frequently asked questions which owners and other parties involved in transboundary movements of marine assets for recycling may find helpful.

When are owners obliged to commence approach voyage to loading port?
United Kingdom | 16 January 2019

In charterparties where no expected time of arrival or readiness to load at the loading port is stated, the question will be whether an equivalent can be identified which can be used as the basis for an absolute obligation requiring the owners to proceed to the loading port by a particular time. The Court of Appeal recently held that the itinerary for an intermediate voyage was such an equivalent.

Clarity on barratry – exceptions in Hague-Visby Rules under scrutiny in Commercial Court
United Kingdom | 19 December 2018

A 2017 Commercial Court judgment clarifies the concept of barratry and confirms that there is no qualification to fire when seeking to rely on the fire defence under the Hague or Hague-Visby Rules (assuming that the vessel is seaworthy and that the fire was not caused by the actual fault or privity of the owner). It also confirms that, absent fire, an owner cannot escape liability for deliberate wrongful acts of the crew under the Hague or Hague-Visby Rules even if there is no actual fault or privity on its part.

Guidance on contractual sanctions clauses in commercial maritime agreements
United Kingdom | 12 December 2018

The High Court recently considered the wording "exposure to sanctions" and ruled that the underwriters of a marine insurance policy could not rely on that wording to avoid a claim on the basis of a "risk of exposure" to the US-Iran sanctions. Rather, for underwriters to do so, there would need to be an actual prohibition on paying the claim in question. This latest judgment deals with a number of key points for drafting effective sanctions exclusion clauses in commercial maritime agreements.

Court of Appeal decision confirms that Article IV(5) of Hague Rules does not apply to bulk and liquid cargoes
United Kingdom | 05 December 2018

A recent Court of Appeal decision concerned a claim by charterers against disponent owners in respect of contaminated fish oil in bulk carried on board a tanker. The owners accepted liability for the damaged cargo, but argued that they were entitled to limit their liability under Article IV(5) of the Hague Rules. However, the court confirmed that Article IV(5) does not apply to bulk and liquid cargoes; therefore, a carrier cannot limit liability for such cargoes under the Hague Rules.

Enumeration breakdown – Court of Appeal examines what constitutes a 'unit' under Hague-Visby Rules
United Kingdom | 17 October 2018

In a recent case concerning the enumeration of units for the limitation of containerised cargo, the Court of Appeal was asked to determine whether the Hague-Visby Rules are compulsorily applicable if a bill of lading is not issued, what constitutes a 'unit' under the rules and what enumeration of cargo is required under Article IV.5(c) of the rules. The claim arose following damage to a cargo of frozen bluefin tuna packed into three refrigerated containers, which had occurred during carriage from Cartagena to Japan.

Aconcagua Bay – when is a berth 'always accessible'?
United Kingdom | 08 August 2018

The Aconcagua Bay was voyage chartered for the carriage of cargo from the US Gulf. While the vessel was loading, a bridge and lock were damaged and the vessel could not leave the berth for 14 days. The owners claimed damages for detention from the charterers for the period of delay. The main issue was whether a warranty in a voyage charter that the berth is 'always accessible' means that the vessel can always enter and leave the berth.

Inter-club Agreement – no-fault regime?
United Kingdom | 01 August 2018

The Court of Appeal recently provided important clarification in relation to the apportionment of liability for cargo claims as between shipowners and charterers under the Inter-club Agreement. The issue before the Court of Appeal was whether the word 'act' in the phrase 'act or neglect' in Clause 8(d) of the Inter-club Agreement means a culpable act in the sense of fault or whether it means any act, culpable or not.

Letters of indemnity for delivery of cargo without production of bill of lading
United Kingdom | 25 July 2018

In Songa Winds, the London High Court found that letters of indemnity requesting delivery without the production of bills of lading to an intermediate trader of cargo are triggered even if delivery is to the trader's buyer. The use of letters of indemnity to allow the delivery of cargo to a named party without the production of a bill of lading is relatively common, but infrequently called upon.

Owners' lien on cargo
United Kingdom | 10 January 2018

The English High Court recently confirmed when it will order the sale of liened cargo which is the subject of arbitration proceedings. This decision may be of interest to shipowners that are faced with a situation in which cargo belonging to a charterer remains on board a vessel for a long period without the owners receiving hire, while still incurring operating costs.

New Flamenco – Supreme Court dances in different direction
United Kingdom | 03 January 2018

A recent Court of Appeal decision overturned the High Court judgment against the time charterers of a ship, reinstating the arbitration award in their favour. The decision has added another reason for delaying a final assessment of the loss of profit on a repudiated long-term charter by waiting to see whether the owners will sell the vessel.

New realities for LNG time charters
International | 02 August 2017

Keeping pace with the changing nature of the liquefied natural gas (LNG) sector, the traditional long-term LNG time charter market is evolving and charter periods are becoming shorter. The fixing of LNG carriers on shorter-term and more flexible contracts is a sign that the LNG industry is becoming much less rigid. It has resulted in owners and banks having to adjust their traditional approach to LNG ship financing and agreeing to more market exposure.

Supreme Court provides guidance on damages and mitigation in New Flamenco
United Kingdom | 26 July 2017

The Supreme Court recently handed down its judgment in New Flamenco (Globalia Business Travel SAU of Spain v Fulton Shipping Inc). In this long-awaited decision, the court considered whether a benefit obtained by the owners relating to the sale of the vessel following the charterers' repudiatory breach of a charter should be taken into account in assessing the damages that the owners were entitled to recover.

Risks of deliberately delaying discharge
United Kingdom | 19 July 2017

A recent Commercial Court decision held that a charterer is 100% responsible under the Inter-Club Agreement for damage to cargo arising from an order to the vessel to delay discharge until the receivers are able to pay for the cargo. Given that it is common for shipments to be delayed, more disputes relating to deliberately delaying discharge can be expected in the future.

Supreme Court defines parameters of safe port undertakings
United Kingdom | 12 July 2017

The Supreme Court recently handed down a judgment addressing three issues of importance to shipowners, charterers and insurers alike, defining the parameters of the safe port undertakings, the rights of subrogation of insurers where vessels are operated under bareboat charter and the right of charterers to limit their liability under the Convention on the Limitation of Liability of Shipowners.

When charterers fail to pay hire: dilemma for owners finally resolved, but proceed with caution
United Kingdom | 15 February 2017

In a recent case, the Court of Appeal decided unequivocally that missing a single instalment of hire under a time charter is not a breach of condition. In other words, there is no right to terminate for one missed instalment and claim damages for loss of bargain – usually the difference between the charter and market rate for the remainder of the charter period. The court also set out useful guidance on what constitutes 'renunciation' (anticipatory repudiatory breach) of a time charter.

How not to start an arbitration
United Kingdom | 08 February 2017

Two recent London decisions involving shipping companies have highlighted problems that can be encountered when starting an arbitration. The first decision concerned an issue with identifying whether a non-signing counterparty is bound by the agreement containing the arbitration clause. The second decision concerned the question of which parties are authorised to accept service of arbitration notices.

The New Flamenco: keeping in step with damages and mitigation
United Kingdom | 19 October 2016

A recent Court of Appeal decision acknowledges the difficulties of laying down general principles of law in connection with an innocent party's obligation to mitigate its loss following a repudiatory breach of contract. The case arose in the context of assessing damages for early redelivery where there was no available market at the time of the breach against which to measure the loss.

Laying up the lay-up agreement
United Kingdom | 20 July 2016

A recent arbitration decision raises a number of interesting points in connection with lay-up agreements and how much can be claimed for continuing to provide services after the original contract has been terminated. It will be of interest to parties that see their unpaid charges increasing, as well as to other involuntary bailees, such as vessel owners left holding cargo with no bills of lading binding them after their charterers have ceased operations.

Force majeure clauses under English law
United Kingdom | 06 January 2016

Unlike many civil law countries, there is no implied application of the doctrine of force majeure under English law. Rather, the treatment of an event of force majeure comes from the contract. It is usual for English courts to apply contracts strictly, according to their wording and respecting the parties' freedom to contract on terms they see fit.

Court of Appeal: bunker supply contract not for sale of goods
United Kingdom | 23 December 2015

In a potentially problematic decision, the Court of Appeal recently upheld a High Court judgment that a contract to supply bunkers on credit terms, with a retention of title clause in favour of the sellers until full payment but with permission to consume the bunkers (or some of them) before payment was due, was not a contract for the sale of goods under the Sale of Goods Act.

Liening cargo – which lien clause applies to the bill of lading?
United Kingdom | 09 December 2015

In a dry bulk market where a charterer is not paying freight or hire, its counterparty is often left to consider whether it can lien the cargo on board the chartered vessel to obtain payment. When it comes to liening cargo under a Congenbill, English law will look first to the head voyage charterparty as the source of relevant terms to be incorporated into the Congenbill, unless another charter is expressly identified. This can lead to a less-than-obvious outcome.

When charterers fail to pay hire: dilemma for owners
United Kingdom | 09 September 2015

Owners continue to face uncertainty when charterers fail to pay hire under a time charterparty, particularly in respect of when they can withdraw the vessel or terminate and claim damages for future loss of hire. However, these uncertainties can be managed by including appropriate terms in the charterparty and by a careful and well-advised approach when charterers do fail to pay.

Bunker supply contract not contract for sale of goods
United Kingdom | 19 August 2015

A shipowner's bid to avoid the risk of paying twice for bunkers supplied has been thwarted by a recent High Court decision, which held that a contract for the supply of bunkers is not a sale contract falling within the Sale of Goods Act 1979. The decision is important since, as the court recognised, the contract terms in this case are "typical of hundreds or even thousands of such transactions carried out every year".

Options for owners in case of early redelivery
United Kingdom | 22 July 2015

If a time charterer redelivers a vessel before the end of the agreed charter period, the owner is faced with the choice of either accepting redelivery and claiming damages or maintaining the charterparty and continuing to claim hire. This decision has both commercial and legal implications. The owner's dilemma remains the same under a bareboat charterparty as under a time charterparty.

Channel Ranger: reference to arbitration can mean High Court jurisdiction
United Kingdom | 13 May 2015

In a recent Court of Appeal decision a reference in a bill of lading to an arbitration clause in the underlying voyage charterparty was understood to incorporate the dispute resolution clause in the charterparty which provided for high court jurisdiction. The decision demonstrates that all parties to bill of lading contracts must be conscious of the fact that the words printed on the bill may not provide the whole story.

Early redelivery – what is the damage?
United Kingdom | 25 February 2015

In a volatile market, many owners face the difficult challenge of having a vessel redelivered early under a profitable charter. Early redelivery may arise where a charterer is no longer willing or able to perform the charter or where, faced with non-payment of hire, the owner decides that it has no choice but to withdraw the vessel and terminate the charter.

Griffon: another case of buyer beware?
United Kingdom | 04 February 2015

There has been uncertainty in terms of the interpretation of Clause 13 of the Norwegian Saleform and, in particular, as to the extent of amounts recoverable where a buyer has failed to pay the deposit in accordance with Clause 2. In Griffon Shipping LLC v Firodi Shipping Ltd the Court of Appeal provided guidance on this point, holding that Clause 13 does not exclude a seller's right to claim the deposit as a debt.

Subrogation rights against co-assureds
United Kingdom | 04 December 2013

The Commercial Court has handed down its judgment in Ocean Victory. The case concerned a safe port warranty and total loss, but it also addressed whether the insurer – as the assignee of the co-assured demise charterer – was entitled to claim indemnity from time charterers for the demise charterer's liability towards the co-assured head owners in respect of their breach of the safe port warranty.

Legal life for shipowners
United Kingdom | 10 July 2013

Life as a shipowner is seldom easy. In addition to the commercial challenges that owners face on a daily basis, time must be given to reading law reports to ensure that benefits are gained and warnings heeded from the misfortunes of those who find themselves embroiled in the legal system - particularly when economic conditions demand strict enforcement of legal rights. Three recent decisions may be of particular interest.

1993 Norwegian sale form: sellers beware!
United Kingdom | 17 April 2013

Whether the 1993 Norwegian sale form excludes terms as to satisfactory quality and fitness for purpose, which are implied in contracts of sale by the Sale of Goods Act, has always been the subject of speculation. A recent decision has put this debate to rest, holding that such terms are to be implied unless expressly excluded. This ruling has implications for the terms agreed for the sale and purchase of second-hand vessels.

Making time of the essence before terminating
United Kingdom | 27 March 2013

When a party commits a breach of contract entitling the other party to terminate, the innocent party should not delay in exercising its rights. To do so may raise difficult questions as to whether the right has been waived and whether the late exercise of a right to terminate itself amounts to a repudiatory breach. A recent decision in a case involving a shipbuilding contract highlights that time may be an important consideration before the right to terminate arises.

Guarantees: further guidance on cutting a Gordian knot
United Kingdom | 20 March 2013

The English courts have delivered a decision on guarantees and the all-important distinction under English law between guarantees and indemnities or on-demand bonds. The courts have repeatedly attempted to explain the distinction between these two forms of security. In a recent decision the Court of Appeal attempted a more simple solution by seeking to cut – or perhaps unravel – this Gordian knot.

How secure is a guarantee?
United Kingdom | 18 April 2012

A guarantee designed to provide security for the performance of the obligations of a debtor sometimes turns out to be far from secure. Where the nature and extent of a guarantee is ambiguous, courts are often called on to determine the scope and validity of the security. What seems simple and straightforward when these guarantees are negotiated can become less so when it comes to enforcement against a resistant guarantor.

Sunshine breaks through for Rainy Sky
United Kingdom | 23 November 2011

The Supreme Court recently ruled in favour of the buyers of six Korean newbuildings, Rainy Sky SA and five other entities, reversing the Court of Appeal's decision which rejected their claim under refund guarantees. The decision represents a victory for commercial common sense over the strict legal interpretation of the language used in guarantees.

Enforcing ship mortgages under English law
United Kingdom | 19 October 2011

The procedure for enforcement of a ship mortgage under English law is based on a contractual right. Thus, the rights of a mortgagee are derived from specific terms agreed with the mortgagor. Typically, the loan documentation will identify those events of default by the mortgagor which give rise to the right on the part of the mortgagee to take enforcement action.

Can damages be awarded where no loss has been suffered?
United Kingdom | 13 July 2011

In a recent case the charterers argued that a London Maritime Arbitrators Association tribunal had erred as a matter of law in awarding damages to the shipowners despite the fact that they had suffered no loss, and so had ignored a fundamental principle in English law that damages are intended to be compensatory. The decision both simplifies and makes clear the basis on which losses are to be recovered