The recent judgment of the High Court in The Silver Constellation (29 July 2008) considers the extent to which time charterers may insist upon vessels obtaining approval from RightShip, the Australian ship vetting company established as a joint venture between BHP Billiton, Rio Tinto and Cargill.
Swissmarine Services SA chartered the vessel on an amended NYPE time charter form. Swissmarine argued that line 38 of the charter form, which required owners to "keep the vessel... with all certificates necessary to comply with current requirements at all ports of call", obliged owners to obtain and maintain RightShip approval for the vessel in circumstances where certain ports (particularly in the coal and iron ore trade) excluded vessels that were not approved by RightShip. Alternatively, Swissmarine argued that owners were obliged to allow Swissmarine themselves to have the vessel inspected by RightShip.
The High Court held that owners were not obliged to obtain RightShip approval for the vessel, because the obligation to obtain certificates and other approvals only related to laws and regulations of countries or ports at which a vessel was directed to load or discharge, and not to approvals given by private ship vetting companies such as RightShip. However, the Court held that Swissmarine were entitled to direct owners, as a valid employment order, to allow RightShip to carry out an inspection of the vessel with a view to approving it, and that owners were obliged to cooperate with such an inspection as they would with any employment order.
The High Court's decision may not be the last word in this case. Both Swissmarine and owners have been given permission to appeal to the Court of Appeal.
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