Borvigilant, owners of the Ship v Romina G, owners of the Ship

Borvigilant, owners of the Ship v Romina G, owners of the Ship

The court held that NIOC contracted as agent for Borkan (tug owners) with actual authority, or alternatively, Borkan ratified the contract in time. Therefore, Borkan is entitled to rely on the Tug Requisition Form's terms, including exclusion and indemnity clauses, unless the loss was caused by want of reasonable care to make the tug seaworthy. The exclusion and indemnity clauses are both subject to the seaworthiness proviso. There was no unfair prejudice to Monsoon in permitting ratification after the casualty, and the commercial context and course of dealing supported the finding of agency.

Parties
Claimant/respondent: The Owners of the Ship 'BORVIGILANT' (Borkan General Trading); Defendant/appellant: The Owners of the Ship 'ROMINA G' (Monsoon Shipping Limited)
Jurisdiction
England and Wales
Judgment Date
08 July 2003
Procedural Posture
Civil Appeal (admiralty/maritime) / Appeal From High Court (queen’s Bench Division, Admiralty Court) on Preliminary Issues
Outcome
Appeal dismissed; cross-appeal dismissed (with minor variation to answer to preliminary issue two)
Legal Topics
Towage Contracts, Agency by Ratification, Limitation of Liability, Indemnity Clauses, Unseaworthiness, Third Party Rights
Admiralty Law Contract Law Agency Law Tort Law Towage Contracts Agency by Ratification Limitation of Liability Indemnity Clauses +2 more

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Parties

The Owners of the Ship 'BORVIGILANT' (Borkan General Trading)

Claimant/respondent

The Owners of the Ship 'ROMINA G' (Monsoon Shipping Limited)

Defendant/appellant

Procedural Posture

Civil Appeal (admiralty/maritime) / Appeal From High Court (queen’s Bench Division, Admiralty Court) on Preliminary Issues

Legal Issues

  1. 1 Whether Borkan (tug owners) can rely on and take the benefit of the conditions in the Tug Requisition Form signed by the master of ROMINA G.
  2. 2 Whether Borkan is exempt from liability for losses claimed by Monsoon if the collision was caused by Borkan's negligence, and whether Monsoon is liable for Borkan's losses.
  3. 3 Whether NIOC had authority to contract on behalf of Borkan, or whether Borkan ratified the contract.

Ratio Decidendi

The court held that NIOC contracted as agent for Borkan (tug owners) with actual authority, or alternatively, Borkan ratified the contract in time. Therefore, Borkan is entitled to rely on the Tug Requisition Form's terms, including exclusion and indemnity clauses, unless the loss was caused by want of reasonable care to make the tug seaworthy. The exclusion and indemnity clauses are both subject to the seaworthiness proviso. There was no unfair prejudice to Monsoon in permitting ratification after the casualty, and the commercial context and course of dealing supported the finding of agency.

Court Disposition

Appeal dismissed; cross-appeal dismissed (with minor variation to answer to preliminary issue two)

Orders

  • Borkan entitled to rely on the Tug Requisition Form terms unless loss caused by want of reasonable care to make the tug seaworthy.
  • Both exclusion of liability and indemnity clauses are subject to the seaworthiness proviso.