ENE 1 Kos Ltd v Petroleo Brasileiro SA (Rev 1)

ENE 1 Kos Ltd v Petroleo Brasileiro SA (Rev 1)

The shipowners are not entitled to remuneration at market or contract rates for the period after withdrawal and before discharge of cargo, as there was no express or implied contractual right, no accident, emergency, or necessity, and no quantum meruit or restitutionary basis. However, owners may recover the expenses of bunkers consumed during actual cargo discharge operations. The costs of providing a guarantee to avoid arrest are recoverable as costs of the action, subject to assessment by the Costs Judge.

Parties
Appellant/charterers: E. N. E. 1 KOS Limited; Respondent/owners: Petroleo Brasileiro S. A.
Jurisdiction
England and Wales
Judgment Date
06 July 2010
Procedural Posture
Civil Appeal / Court of Appeal Judgment
Outcome
Appeal allowed in part; cross-appeal dismissed in part.
Legal Topics
Charterparty Withdrawal, Remuneration for Storage of Cargo, Bailment, Agency of Necessity, Quantum Meruit, Costs of Guarantee
Shipping Law Contract Law Restitution Costs Charterparty Withdrawal Remuneration for Storage of Cargo Bailment Agency of Necessity +2 more

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Parties

E. N. E. 1 KOS Limited

Appellant/charterers

Petroleo Brasileiro S. A.

Respondent/owners

Procedural Posture

Civil Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Is a shipowner entitled to remuneration or expenses outside the contract after withdrawing a vessel for non-payment of hire while cargo remains on board?
  2. 2 Does the employment and indemnity clause or any implied term entitle the owner to remuneration?
  3. 3 Can the owner recover on a quantum meruit or restitutionary basis?

Ratio Decidendi

The shipowners are not entitled to remuneration at market or contract rates for the period after withdrawal and before discharge of cargo, as there was no express or implied contractual right, no accident, emergency, or necessity, and no quantum meruit or restitutionary basis. However, owners may recover the expenses of bunkers consumed during actual cargo discharge operations. The costs of providing a guarantee to avoid arrest are recoverable as costs of the action, subject to assessment by the Costs Judge.

Court Disposition

Appeal allowed in part; cross-appeal dismissed in part.

Orders

  • Owners not entitled to remuneration at market or contract rates for 2.64 days after withdrawal.
  • Owners entitled to recover $28,756 for bunkers consumed during cargo discharge only.