CL-2024-000292 - [2025] EWHC 1990 (Comm)

The express terms of the Charterparty made detailed provision concerning which cargoes and ports were outside the bounds of the charterparty. They did not preclude the cargo and destination involved in this voyage. That was an indication that Owners accepted the risks arising from such carriage. Charterers also contended (in an argument elaborated in oral and post-hearing submissions) that the ICA provided a complete code for the allocation of responsibility for cargo claims, such that the implied indemnity should not operate, alternatively should operate only to the extent that the ICA would have operated i.e. a 50% apportionment.

A proper interpretation of The Island Archon and other authorities suggest that a risk such as that in the present case is not covered by the implied indemnity. In particular, where a risk has not changed between the time of chartering and the time when it causes loss, and where liability arises under bills of lading with terms no more onerous than those envisaged by the charterparty, the implied indemnity should not operate.

Commercial considerations support the allocation of risk for which Charterers contend.

There should be no difference in principle between situations where the cargo has suffered from inherent vice, or where it has not. In either case the owner has accepted the risk of cargo claims consequent on carrying lawful, permitted, harmless cargo to a port within the bounds of the charterparty.

Charterers are seeking to appeal a finding of fact.

The Tribunal’s analysis of The Island Archon and other relevant case law was correct.

The risk which gave rise to Owners’ loss was not an ordinary trading risk that Owners had agreed to bear.

The express terms of the Charterparty point towards the allocation of risk for which Owners contend.

The incorporation of the ICA did not preclude an implied indemnity in cases to which the ICA did not apply.