The Supreme Court has today handed down its much anticipated
judgment in NYK Bulkship (Atlantic) NV v Cargill International
SA. By a majority of four to one (Lord Clarke dissenting), the
Supreme Court has allowed Cargill's appeal and reversed the
decision of the Court of Appeal. It held that the vessel was
off-hire throughout the period of an arrest by a sub-contractor
aimed at securing a claim against its counterparty under a sale
contract because the "carve-out" favouring Owners in the
charter did not apply.
The judgment
The Supreme Court said that the arrest had not, in the
circumstances, been "occasioned by any personal act
or omission or default of the Charterers or their agents"
under the relevant clause because there was
no"sufficient nexus" between the arrest and the
function which the sub-contractor was performing as
"agent" of Cargill. The Court of Appeal had, in
the view of the Supreme Court, been wrong to approach the issue by
asking in whose "sphere
