Case by Case

In this case, the Solicitor General seeks permission from the High Court to bring contempt proceedings against Ms. Trudi Ann Warner. The allegations stem from Ms. Warner’s actions outside the Inner London Crown Court on March 27, 2023, where she displayed a placard targeting jurors involved in the trial of individuals affiliated with the environmental group Insulate Britain.

The placard bore the handwritten words: “JURORS YOU HAVE AN ABSOLUTE RIGHT TO ACQUIT A DEFENDANT ACCORDING TO YOUR CONSCIENCE.” The Solicitor General contends that Ms. Warner deliberately targeted jurors, potentially influencing them to acquit defendants associated with climate activism, irrespective of legal directions from the trial judge. The Solicitor General asserts that such actions constitute interference with the administration of justice, impacting the jurors’ rights and the court proceedings.

The High Court must determine whether there is a reasonable basis for committal and whether pursuing the contempt application is in the public interest. While the legal principles are clear, the central debate revolves around characterizing Ms. Warner’s conduct and assessing its implications.

The case involves weighing the rights of Ms. Warner, particularly her Article 10(1) rights under the European Convention on Human Rights (ECHR), against the need to uphold the integrity of the justice system. Detailed submissions and oral arguments were presented, emphasizing the complexity and significance of the issues at hand.

Ultimately, the High Court’s decision will have far-reaching implications for the balance between freedom of expression and the administration of justice, making it a crucial case to follow and analyse.

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The "subject" of today's episode is The Aquafreedom [2024] EWHC 255 (Comm) and whether agreements on "subjects" or "subs" give rise to binding contracts.

This week’s episode "Ever Given - Salvaging a Contract, Part II" looks at the Court of Appeal’s decision in the Ever Given case.

No doubt our followers will remember when the Ever Given became ‘stuck’ in the Suez Canal. This case has been to determine whether or not a contract existed between the salvors and the shipowners in relation to the salvage work performed to release the ship.

If you want to read more about the case you can access the judgment here:  https://media.licdn.com/dms/document/media/D561FAQGgU7VmoTcAnA/feedshare-document-pdf-analyzed/0/1711035368798?e=1712188800&v=beta&t=VXHFJQPxCoOaBQqkqAKsM7S7WIsC9WQYwgomOypGARM

If you would like to listen to the full episode you can find it on:

You can watch the episode on Youtube - https://www.youtube.com/@casebycasepodcast4707

We hope you enjoyed the break.

As promised, we're kicking off 2024 with a Practitioners Clip featuring highlights from our inaugural episode. Join us on a brief journey back to Episode 1, titled 'That's got to SMART - The story of the M/V SMART and Owners' right to demand freight under a bill of lading.' In this episode, Calum and Luke will provide you with some insight into the decision of Alpha Marine Corp. v. Minmetals Logistics Zhejiang Co. Ltd., [2021] EWHC 1157 (Comm).

Should you wish to read the full judgement, it can be located at: https://www.bailii.org/ew/cases/EWHC/Comm/2021/1157.html

Remember to subscribe for more updates and stay tuned for our regular episodes and further Practitioners Tips.

This week, we're reflecting on our previous episodes. As we delve into our extensive catalogue, it's evident how much valuable information we've condensed into a brief timeframe. In light of this, we've made the decision to introduce concise Practitioners Tips, scheduled for release in 2024. But to give you a sneak peek, let’s rewind to September 2021 when the exceptionally talented Philip Vagin joined us for a discussion on Maritime Liens.

If you would like to listen to the full episode you can find it on:

Youtube - (1) #12 Maritime Liens - Incorporating maritime liens by contract in the US and UK - YouTube

Spotify - https://open.spotify.com/episode/4JhwuLrbWpNGeiB66BGEE2?si=OBAgOk7BSqKBlkna_pKgPg

Google - Case by Case - #12 Maritime Liens - Incorporating maritime liens by contract in the US and UK (google.com)

Apple - https://podcasts.apple.com/gb/podcast/12-maritime-liens-incorporating-maritime-liens-by-contract/id1569154701?i=1000537125850

Remember to subscribe for more updates, and stay tuned for our regular episodes and the upcoming Practitioners Tips in the coming year.

Wishing you a fantastic Christmas and a joyful 2024 from our family to yours!  

Today it is all about Chocolate, and not in the way you are thinking. Luke and Calum are delving into the legal implications of the decision made on 16 November 2023, by the Honourable Mr Justice Foxton in  Chocolate City Ltd v WEA International Inc [2023] EWHC 2874 (Comm).

Chocolate City is a case that highlights what happens when a lawyer is let lose in the wild to establish a successful record label. In this case a pre-eminent record label in Nigeria. However, where lawyers tread, litigation is never far behind.

Join Luke and Calum as they take the wrapper off the Chocolate and shed some light on what transpired when WEA (part of the Warner Group) and Chocolate City executed a convertible term loan facility agreement. WEA served as the lender and Chocolate City as the borrower. However, when Chocolate City expressed its intention to prepay the loan WEA contested Chocolate City's right to prepay. 

If you want to read more about the case you can access the judgment here:   Chocolate City Ltd v WEA International Inc [2023] EWHC 2874 (Comm) (16 November 2023) (bailii.org).

Thank you for listening.

Luke and Calum are back in the swing of things and straight into hot topic of litigation funding as they review Therium Litigation Funding A IC and Bugsby Property LLC [2023] EWHC 2627 (Comm)

Its section 44, but with a different take on it. This decision is one of the first cases after the Paccar Case and it’s all about litigation funding. The litigation world was turned upside with the Supreme Paccar Case decision, and this is one of the first cases to follow it.

The old common rule law said, if you are not interested in the litigation you shouldn’t be funding it. Litigation funding is the opposite of this position and is unravelled in this episode as Calum and Luke explain what happens when litigation funders are not paid following a successful claim.

If you want to read more about the case you can access the judgment here here: https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Comm/2023/2627.html&query=(therium)+AND+(litigation)+AND+(funding)+AND+(A)+AND+(IC)

Thank you for listening!

Luke and Calum are back discussing the case of JWL v JPM and s.44 Applications under the Arbitration Act.

Thank you for listening!

Luke and Calum are back with an episode discussing London Arbitration 14/23.

We hope you enjoy!

Luke and Calum are joined by Ed to discuss a RICO (Racketeer Influenced and Corrupt Organizations Act) Statute involving international parties from Russia.

Thanks for listening!

With Luke deep in hearing prep this week, Calum was joined by Miguel to look at a (slightly speculative...) attempt to use the wording of the LMAA Small Claims procedure to bar a claim.
A quick fire one this week - but a snapshot into an interesting maritime law point, London Arbitration 9/23.

With Luke on the move this week, Calum drafted in his compatriot Leo Rees-Murphy to discuss the recent Supreme Court decision in Philipp v Barclays. A really instructive decision on the duties owed by a bank to their customers with respect to fraudulent transfers.It seems inevitable that we are in for a wave of banking fraud - an inevitable outcome of AI that can replicate a person's speech to an unerring degree of accuracy. The question in this one is whether the bank has a duty (in the face of a customer insisting that the payment is made) to look into whether the payment would be the result of a fraud...

Case by Case 71 - Refining the law on Foreign Experts

"This is not a paid commercial... but ... TimTams!"After the yummy detour, this pod is about a serious arbitration topic.

The scope of an arbitration agreement. We know it well under English law. Here the question is subject to Iranian law. Before an English arbitral panel (and challenged then appealed in the English courts up to the Court of Appeal). What legal principles from the incorporated foreign law should the English arbitral panel be guided by ?

It is a trap for the unwary.

As we say in this episode, if you have any cases where you need to present foreign legal expert evidence before an English arbitral tribunal or court, then highly recommend you have a listen. This case offers an excellent guide.

We also discuss an interesting English arbitration procedure under sections 67 and 73 of the Arbitration Act 1996.

Hope this is useful for you. Let us know if so. And please do join in the fun by subscribing or following us on our channels.

Cheers!

Luke and Calum

Luke and Calum are back this week to talk about case CL-2022-000595.

Thanks for listening !

Luke and Calum are back this week to talk about London Arbitration 7/23.

Enjoy!

This week Luke and Calum discuss US Court of Appeals case Bunge, S.A. v. ADM Int'l Sarl, No. 22-1276 (3d Cir. Jun. 2, 2023).

Enjoy!

This week we have a special one in store - Luke and Calum recorded an episode of Case by Case at our New York Lunch & Seminars event with a live audience of clients and colleagues. In this episode, the two recap the most important and interesting cases of 2023 so far.

Enjoy!

This week Luke and Calum discuss English Court of Appeal case FIMBank PLC v KCH Shipping Co Ltd (“The Giant Ace”) [2023] EWCA Civ 569.

This is a good one. All about whether a claim for misdelivery arising after discharge of the goods from the vessel is time barred or not. Hague Rules versus Hague Visby Rules... Is there a big difference between the two versions of the Convention on the application of the one year time bar to post-discharge misdelivery claims? The court states that it found the "bull's eye" in the travaux préparatoires reaching its decision... We ask, with respect, did it really?

This week Luke and Calum discuss the English Court of Appeal case of Unicredit Bank AG v Euronav NV [2023] EWCA Civ 471.
This is a fascinating case that gets into the heart of the status of paper bills of lading. It highlights the dangers for banks in relying on paper bills, where the charterparty allows for novation of the charterparty and delivery against a letter of indemnity from charterers. This sets up a convincing argument for the adoption of e-bills of lading for banks. We explore the limits of the principle that the bill of lading in the hands of a charterer/cargo interest is a mere receipt.
There is also a practical dimension to this case. That relates to causation and whether the bank could make out that it would have insisted upon delivery upon presentation of an original bill of lading. The findings here are instructive. Banks should take note. It's a critical decision, highlighting inherent risks in tacitly allowing delivery without presentation of original bills of lading.

We hope you enjoy this episode. Please do subscribe/follow on any of our channels.

Case by Case - episode 64: In the Bunker(s)
What are bunkers? Fuel on ships. You know when you hire a rental car and it comes with a full tank... and you need to choose whether to give the car back with a full tank (having filled up yourself) or you pay the top up amount at the rental company's price? Well, we are talking about something similar here. Ships don't usually get delivered, or redelivered, on time charters with full tanks. But how do you deal with the bunkers? Here we look at what formula should apply to work out how much the charterers (ie. the renters) need to pay the owners (ie. the rental company) for the fuel on redelivery. It's a neat one that deals with when charterers redeliver too much ! Remember the price of fuel fluctuates regularly and we're not talking about the mere cost of filling up a car...
Citation is LMLN London Arbitration 3/23.

We hope you enjoy. We've seen a great uptick on our subscriber base for each podcast channel. Thank you sincerely ! And for those who have not yet, we'd be grateful if you could subscribe on Spotify, YouTube, Apple Podcasts or Google Podcasts.

Luke & Calum

This week Luke Zadkovich is joined by ZFZ pro bono leader Romina Santos Reyftmann to chat about a very publicly covered trademark dispute, featuring pop singer Katy Perry and an Australian clothing designer under the name of Katie Perry. Tune in for all the details on Australian Federal Court decision of Taylor v Killer Queen, LLC (No 5) [2023] FCA 364. Enjoy!

This week Calum is joined once again by ZFZ senior associate Philip Vagin for a discussion about United States Court of Appeals, Eleventh Circuit case Corporacion AIC, SA, Plaintiff-Appellant, v. Hidroelectrica Santa Rita S.A., a Guatemalan company, Defendant-Appellee, No. 20-13039 (11th Cir. 2023).

Enjoy!

This week Luke and Calum are back with a chat about England & Wales Court of Appeal case DHL Project & Chartering Ltd v Gemini Ocean Shipping Co Ltd [2022] EWCA Civ 1555.

Enjoy!

We go back to the moment when everyone knew what shipping lawyers dealt with. The Ever Given blocked the Suez Canal in March 2021. Luke and Calum remember it like yesterday.

This case is all about the alleged contract between the salvors and the shipowners to refloat the vessel. Was there one or not?

How do you know when two parties have demonstrated an ‘intention to be bound’ to a contract?

Trickier than it first seems and we think there may be a bit of controversy in this one. Well at least a little more unpacking to do on the law.

Does it matter if either party thinks they have a contract?

For example, do internal WhatsApp messages sent at the time saying “Agreement on Main Terms!” make any difference to the analysis?

What is “crossing the fence” in this context?

In Luke and Calum's discussion of Smit Salvage BV v Luster Maritime SA (The 'Ever Given') [2023] EWHC 697 (Admlty) this week, there’s an important lesson on how to plead an alternative claim and the consequences of not doing so. Also on how to present witness evidence in these types of contract formation cases.

We’ve been getting some wonderful feedback from our listeners. Thank you heartily. Means a lot and glad you’re getting value. If you do enjoy, please subscribe on your preferred platforms!

In this episode, Luke is joined by Eva-Maria Mayer, senior associate with ZFZ based in New York. Eva and Luke discuss Smarter Tools Inc. v. Chongqing SENCI Import & Export Trade Co. Ltd. et al., No. 21-724, (2d Cir. Jan. 17, 2023).

We hope you enjoy!

This week Luke and Calum welcome a special guest! Matthew McGhee, barrister with Twenty Essex Chambers to discuss Hong Kong Final Court of Appeal case PT Asuransi Tugu Pratama Indonesia TBK v Citibank NA [2023] HKCFA 3.

We hope you enjoy!

This week Luke and Calum are joined by ZFZ Senior Associate Philip Vagin to discuss London Arbitration 2/23.

Enjoy!

Case by Case - episode 56 - Process of Deduction.

This week Luke and Calum discuss the English High Court case Fastfreight Pte Ltd v Bulk Trident Shipping Ltd (Re Arbitration Act 1996) [2023] EWHC 105 (Comm) (24 January 2023).
Off-hire. An essential concept in time charters.
What if parties make the payment of hire absolute, in the sense that charterers are unable to deduct off-hire claims from hire payments during the charter (with off-hire claims to be handled later)? That's possible, right? Did the parties do that here?
Can one word - "deduction" - change the meaning of a clause from what seems pretty clear was the intention of the parties?
Isn't this all just a question of security? As in, who is in the money while a dispute plays out...
Interestingly, the context is a changing market dynamic in negotiating charterparties between owners and charterers.
It's always good to go back to first principles. This is a great case to do just that.
Hope you enjoy ! Cheers, Calum and Luke.

In this week's episode, Luke and Calum discuss English Commercial Court case Anron Bunkering DMCC v Glencore Energy UK Ltd [2023] EWHC 295 (Comm). Commodity sales contract dispute between buyer and seller. Seller paid significant sums but not the full price. Buyer received those sums and discharged much, but not all, of the cargo.

The claimant seller got themselves into a procedural pickle. They brought the claim late. The limitation period was in play if the unjust enrichment claim arose more than six years ago.
The claimant stopped paying its solicitors (can I say, not a good idea?!). Solicitors pulled out.

The defendant applied to strike out the claim summarily. A few interesting questions arose:
1. What happens when a party tries to adjourn a summary judgment hearing at the last moment?
2. What's the nature of a court's assessment at a summary judgment hearing?
3. Is it necessary for an actual termination of the contract to occur for time to start running on an unjust enrichment case? Or is it sufficient for certain circumstances to arise, without termination?

This allowed us to revisit the BP v Vega case of 2021. And it was interesting to see how defendant's counsel handled the arguments in the absence of the claimant.

Calum and Luke hope you enjoy in this procedurally messy, legally fascinating case. You can find the links to this pod below in the comments. Please do subscribe on your preferred channels if you are liking these !

Case by Case - episode 54 - Achilleas' Heel

Here we have an audio pod on a recent shipping arbitration award. Did this one on the fly without vid. Still got into a juicy topic.

Late redelivery of a vessel at the end of time charter. What damages are recoverable? Surely that is settled - following the Achilleas principles... Second limb of Hadley... Special circumstances known prior to fixing, and all that.

Well, ... what if the parties make an attempt to allocate the risk differently to that case law?

Secondly, is that really what the parties did here?

Thirdly, what do we think about the secondary finding that this follow-on fixture would fall within the second limb?

Hope you enjoy.

If you like our podcast, we'd be super grateful to have you as a subscriber on your preferred channels. It means these episodes drop into your feeds automatically and makes a big difference for us in building up the pod's profile.

Cheers
Luke & Calum

Case by Case 53 - do bitcoin developers owe fiduciary duties to users? We think this is one of the most fascinating and interesting pods we've done.

Essentially, we are discussing a legal issue here that could re-cast the entire understanding and premise of bitcoin and blockchain based systems.

What I love about this discussion is the intersection of new technology and the law. How does the law overlay and cope with a fast developing area of societal life?

How should the law regulate the internet?

These are questions for our time. And questions that will impact the future significantly.

Digital currency owners (ie. users) place tremendous amounts of trust in those running the platforms - far beyond any experience, knowledge or skills that they could typically acquire themselves. Is that not the hallmark of a fiduciary duty ?

Absolutely fascinating seeing the English Court of Appeal grapple with these issues on case Tulip Trading Limited (A Seychelles Company) v Bitcoin Association For BSV & Ors [2023] EWCA Civ 83 (03 February 2023) - even if this is only Part 1 in the saga.

We really hope you enjoy listening to this one as much as Luke and Calum enjoyed the discussion. Calum and Luke come at this from different angles too!

We're very grateful for all our listeners!

Case by Case podcast - no. 52 - Leaking through an insurance loophole...

We're over to insurance law today with a discussion on discuss the English Court of Appeal case Brian Leighton (Garages) Ltd v Allianz Insurance Plc [2023] EWCA Civ 8 (11 January 2023). 

Vehicle repair and refuelling garage claimed insurance cover under an all risks policy for property damage.

A rock seemingly punctured a pipe. Fuel leaked. It spread across the property. Contamination followed. Business shut down, for good.

The policy appears to exclude damage caused by pollution or contamination. Or does it?!

Sometimes things aren't what they seem...

This question split the English Court of Appeal - 2:1. Any time that happens we know there are going to be some talking points.

And there are a healthy mix of construction and causation.

Listen in - this is a good one.

Case by Case episode 51 - Liens and Losses. 

Back for another year after a winter break with another studio episode. 

This time, Luke and Calum discuss English Commercial Court case Trafigura v TKK Shipping [2023] EWHC 26 (Comm)!  

Great to be in the saddle 🏇 again, with Partner Cheyne riding alongside...  

Parties in London arbitration sent a legal question by consent to the English court for decision.  

That question was all about what "goods lost or damaged" means in the Article IV, rule 5(a) of the Hague-Visby Rules.  

Does 'damage' mean physical damage ONLY? Or does it include damage through the operation of a lien over the cargo - ie. financial type damage? 

Where this gets even more interesting is that there is a prior case (the Limnos) on point, which decided "damaged" meant physically damaged goods only. 

Legal commentators (and Luke & Calum) have not been convinced by the Limnos for many years. And the claimant here was directly challenging whether the Limnos was correct... 

Listen in to find out if they succeeded.  So this also nicely sets up a discussion on how the concept of precedent works in English case law.  

We hope you enjoy!

Episode 50! What an exciting milestone. This episode, we not only celebrate our golden jubilee, but also share a special announcement:

Congratulations to Calum on his promotion to Partner at our law firm, Zeiler Floyd Zadkovich!

We hope you, our valued listeners, enjoy this third case in our trilogy of lookback cases. We’ve been analysing a few old cases to coincide with Luke's launch of the inaugural International Commodities and Shipping Law at UoW.  This week looks back at Compagnie Commerciale Sucres et Denrees v C Czarnikow Ltd [1990] UKHL J1011-2.

Luke and Calum will be back with recent cases in the new year.

Meanwhile, check out our ⁠YouTube channel.

In this second of their trilogy of 'look-back' cases, Luke and Calum explore the salient case of Bunge Corporation (New York) v Tradax Export SA (Panama) [1981] APP.L.R. 02/25.

As Luke is preparing to launch the inaugural course on International Shipping and Commodities Law at the University of Wollongong, he reviews key older cases in the process.

Ever wondered why time-based delivery clauses in a commodities sale and purchase contract are (typically) considered to be conditions?

Ever wondered what is an innominate term?

Ever wondered how to tell the difference between a condition and an innominate term?

Ever wondered what is a 'will-o'-the-wisp'?

Listen in for answers and check out our ⁠YouTube channel.

As Luke prepares to launch the International Shipping and Commodities intensive law course at the University of Wollongong in a couple of weeks, he's had cause to look back at some leading cases.

Here's one of them: Back to the 1960s. The Beatles, Civil Rights activism, flares, and... Mash & Murrell Ltd. v Joseph I. Emmanuel, Ltd. [1961].

A commodities legal dispute over potatoes.

As between international buyers and sellers, is there an implied term as to quality that the goods will be capable of sustaining the contemplated sea carriage?

A great case to refresh our thinking on commodities quality claims.

Some law doesn't stand the test of time (much like poorly ventilated potatoes crossing an ocean). Some law does, as we discuss in this pod.

For more, check out our ⁠YouTube channel.

This is a big case.  Scottish Independence Referendum 2 - the sequel?  

As you will have seen from the news, the UK Supreme Court handed down its decision yesterday.  

No vote allowed by Scotland without UK parliament consent. 

That’s the headline.  

But what was the actual legal case about?  What issues were considered?  Why did the court rule in the way it did?  Does the decision leave Scotland with a second bite at the cherry? 

We certainly learned much more about this issue, beyond what we read in the news.  

Glad to have you along for the ride and hope this provides value.

For more, check out our ⁠YouTube channel.

In this episode, Luke Zadkovich and Calum Cheyne discuss the English Court of Appeal case Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd & Ors [2022] EWCA Civ 1484 (10 November 2022).

An issue on privilege decided for the first time in centuries…

Is the identity of individuals providing instructions for a client inherently privileged ?

Is there a Canadian style “zone of privacy” in English law privilege?

Don’t forget the proportionality test in RFI requests! 

The Lord Justice Males Fan Club rollicks on.

Listen in to discover this surprising case.

For more, check out our ⁠YouTube channel.

This week Luke and Calum discuss demurrage claims and time bars in a recent SMA case Stolt Tankers BV v. Stryker Fuels LLC (MT “MONAX”) – SMA No. 4449, 4 August 2022. 

How many times are we going to say that the specific words chosen in a contractual clause are important?!

Yet another example - where the words used may not align with original intentions.

"covered by this Charterparty" - what does that mean?

Does it mean the total cargo referred to in the charter or does it mean each parcel of cargo referred to in the charter?

Subtle difference perhaps but big consequences in how this time bar worked.

Also, is there room for equitable considerations in whether a time bar clause should be enforced strictly? Calum and Luke address this at the end of the show.

For more, check out our ⁠YouTube channel.

One of the most intriguing shows we've recorded. In this episode, Luke and Calum discuss the English Court of Appeal decision MUR Shipping BV v RTI Ltd [2022] EWCA Civ 1406 (27 October 2022) handed down by Lord Justice Males.

From Venezuela’s collapse to global pandemic and then onto horrific war in Ukraine - force majeure clauses and sanctions have been under the spotlight. 

Indeed it’s fair to say that we’ve lived and breathed these very issues assisting clients for the last few years.  We now have a case to discuss squarely on point.

It is a SPLIT English Court of Appeal decision. It could go higher. The decision is very important in understanding, or reaffirming, how to approach force majeure clauses.

Will it be confined to its own facts or is there a floodgates possibility? Luke and Calum debate that.

Is there now a practical way of dealing with banks cautious of sanctions risk and making international money transfers in other currencies? Calum and Luke want to know - do YOU agree with the majority?

Big takeaways for drafting FM clauses moving forward.

Check out our YouTube channel for the podcast video: Case by Case Podcast - YouTube

(Better if you sing that title to hear the rhyme. Get it?)

Indeed Luke asked Leo Rees-Murphy and Calum Cheyne to sing us in, but alas. Jokes aside, this is one for you cargo liability lovers at P&I Clubs, commercial cargo insurers, shipowners or commodity traders/cargo interests.

A dive into the interplay between Australian COGSA and English maritime arbitration clauses. Much more to this than meets the eye. And highlights how local COGSA regimes around the world can throw up curly issues. 

There are some really interesting inconsistencies and lacunas in Australian COGSA. This Federal Court of Australia decision makes for an excellent platform to explore them. 

Leo recently joined the London office of Zeiler Floyd Zadkovich after completing a MSc in Law and Finance at the University of Oxford. Prior to that, Leo worked for a top tier Australian/Asia Pacific law firm and as a judge’s associate with the Federal Court of Australia. He has a keen interest in maritime law, among other areas, demonstrated here by his dissection of these issues.

Thank you for coming on us a guest, Leo, and giving us your time and insights. Welcome back anytime!

Check out our YouTube channel for the podcast video: Case by Case Podcast - YouTube

A bumper episode on one of Luke's favourite topics: misdelivery claims. Why? Without wishing to sound too nostalgic - it was over such a claim that he met co-founding partner, Edward Floyd.

The bond formed in handling that massive UK/US claim together, about 10 years ago, subsequently became the foundation of the firm.

Beyond the romanticism, misdelivery claims are arguably THE quintessential maritime claim: the very recent English High Court case of Trafigura Maritime Logistics PTE Ltd v Clearlake Shipping PTE Ltd [2022] EWHC 2234 (Comm) (03 October 2022). Surely delivering the goods to the right party is pretty 'mission-critical'?!

The legal issues are complex, interesting, developing, and hugely important for maritime/commodities clients and the industry broadly. We are not overstating things.

Shipowners are not insured for misdelivery. It is an open exposure. And typically the letters of indemnity they receive to take the misdelivery risk are not secured by a bank or insurer. They tend to be corporate indemnities only. A paper claim only as good as the financial status of the party issuing it.

Commodities traders, cargo interests and their financiers have an obvious, fundamental interest in ensuring their goods are not delivered to someone else wrongfully.

Calum and Luke really get into it here. An hour's worth of detailed analysis. Context, dynamics and specific issues are all explored.

For more, check out our YouTube channel.

In this episode, Luke Zadkovich and Calum Cheyne are back for a 1 on 1 episode after having a series of exciting guests on the podcast. They discuss London Arbitration 30/22, where the validity of a notice of readiness (NOR) submission via email is put into question. 

This is a short but sweet one. The contract provided for certain forms of notice to be given. On its face, a notice outside that list was issued. There is pre-existing legal authority suggesting such notice is defective.

But this arbitral panel thought otherwise. Quite an interesting one. Probably a sensible, practical decision and reflects modern practice. Yet runs up against previous legal authority.

Definitely some good take aways from this case. We share our drafting tips.

Check out our YouTube channel for the podcast video: Case by Case Podcast - YouTube

We are delighted to celebrate our 40th podcast episode of Case by Case with leading lawyer, James d'Apice of Chamberlains Law Firm from the PPL (completely made-up, Podcast Premier League)!

Joining us from a land downunder, we are thrilled that James jumped on to share his thoughts, insight and above all, humour with our listeners.

What is more fascinating than an old fashioned family feud of the multimillion dollar kind... In all seriousness, we get into the depths of trust law on this one New South Wales, Australia Supreme Court case Gillespie v Gillespies Cranes Nominees Pty Ltd [2022] NSWSC 1184.

We examine whether a derivative action in respect of a trust is different than that with respect to a company. Spoiler alert... it is... But how and why? Requires a long look back at history.

It may show just a little too much that James, Calumand Luke love getting into this type of stuff. We hope you do too!

Check out our YouTube channel for the podcast video: Case by Case Podcast - YouTube

Moving up in the world! This time Luke and Calum stopped by a London recording studio, and for a guest well worth the upgrade. Jim Leighton of the North of England P&I Club has been a regular listener to the podcast since the early days, and we were thrilled to have him join us on this one. 

A great case to cover some serious territory - London Arbitration 29/22 featured in LMLN. A smorgasbord of shipping cases indeed... speed and performance, redelivery not in good condition, hull fouling, bimco piracy clause, vessel damage, redelivery without full bunkers and charges for tug assistance in the Mississippi River.

Jim's experience with handling these FD&D cases is market leading. It shows through in how he cuts through the heart of the issues in dispute. We hope you very much enjoy the episode!

Check out our YouTube channel for the podcast video: Case by Case Podcast - YouTube

In this episode of Case by Case, Luke Zadkovich and Calum Cheyne welcome ZFZ London associate Lucy Noble.

 Lucy has been a real star in our team since joining on qualification a couple of years ago. This interesting case about compliance with Charterers' orders was right in her sweet spot.

The three discuss the English Commercial Court case of CM P-Max III Ltd v Petroleos Del Norte SA (Re MT Stena Primorsk Voyage Charter) [2022] EWHC 2147 (Comm) (12 August 2022). The case turned on whether or not the Master reasonably decided not to follow Charterers' instructions to berth, citing safety grounds. As ever, we get into it and it prompts a lot of interesting discussion.

Don't forget to check out our new YouTube channel for the video recording of this episode! 

In this episode of Case by Case, Luke Zadkovich and Calum Cheyne are delighted to welcome maritime arbitrator and shipbroker, Tim Hartland, to discuss a recent English Commercial Court case DHL Project & Chartering Ltd v Gemini Ocean Shipping Co Ltd [2022] EWHC 181 (Comm).

The curly area of "subjects" always makes for a good discussion.

Subjects are all about whether a contract is formed with something that must happen in the future OR whether something must first happen before a contract is formed.

We got into here. Surprise and debate about whether the right decision was arrived at.

Asking big questions like does the law meet industry practice? Does the industry understand the law?

A combination of education, better drafting and clearer law would help the cause here.

Tim, thank you immensely for reaching out and joining us on the pod. It was a pleasure having you on.

Calum, your knowledge in this area is market leading. Great to hear your insights, as always.

Case by Case goes video this time! Check out our YouTube channel for the podcast video: Case by Case Podcast - YouTube

This week, Luke and Calum discuss the English Commercial Court case of Lenkor Energy Trading DMCC v Irfan Iqbal Puri [2022] EWHC 2113 (Comm).

World-wide freezing orders draw a lot of attention. When obtained, they can have a drastic impact on a defendant. A freezer does what it says. It maintains the status quo over a defendant's assets and prevents dissipation, while an underlying substantive claim is resolved and ultimately paid.

However, there are typically exceptions in the order. One exception is that the defendant can continue to pay legal costs from its assets notwithstanding the freezer (something Luke knows well from another case he handled).

Another exception - the Angel Bell exception - allows the defendant to continue to use its assets in the usual course of business.

The question here is whether the Angel Bell exception should continue to be part of a freezing order (in the circumstances of this case), after the underlying claim has crystallised into a judgment against the defendant and before the debt has been paid.

Does obtaining a judgment change the dynamic? Listen in for a healthy exploration of the topic, along with a few tangents on freezing orders more broadly.

Thank you to our regular listener, Jim Leighton, for this suggested London arbitration case. You were right about the Yuta controversy, Jim! We always welcome feedback and suggestions.

To do the topic justice we brought in a big hitter. Philip Vagin knows this territory like the back of his hand. And he is coming on the podcast in top form, having had his published article in the Tulane Maritime Law Journal (ed. 45, pg 509) on the recovery of economic losses in collisions cited on Monday in the US federal judgment of Shallow Water Equipment v. Pontchartrian 2022 WL 3755041. A major scholarly achievement to be quoted by a court.

In this episode, they delve into whether maritime liens are substantive or procedural in nature, whether bunker suppliers should be able to contractually carve out a US statutory lien from substantive English law, and what is the scope of the agency between bareboat charterer and time charterer in respect of purchasing bunkers on credit.

Really interesting topics. Luke has had a keen interest in agency principles running through the charter chain for some time now. There is much, much more to explore in this area.

Follow on Spotify or Apple Podcasts to get notified when our weekly episodes drop.

For those of you new to our podcast series, Calum and Luke have been regularly publishing episodes since May 2021. A new one drops each Thursday.

The concept is to take a legal case of interest, we each read the decision separately, we don't prepare together, jump on the mic, hit record and chat about it - one take, that's it. Sharing experiences, thoughts and hopefully, occasionally, insights. You could say, podcasting on a "case by case" basis.

We are excited to be showcasing guests on the podcast and more will be coming on soon.

Cases vary from shipping, commodities, energy, commercial matters through to high profile - Djokovic v Australia for example - or Wagatha Christie or a fight over an antique Ferrari, and we are going to look at some pro bono cases in the near future. We're open to suggestions, and keenly welcome feedback and new guests warmly.

So on this episode - we have the return of the Divinegate... listeners may remember we looked at a jurisdictional preliminary issue regarding arrest on this case a while back. Now the High Court Judgment is with us.

There was not a lot of quantum in dispute, but we're glad this case was run, because it has given us a really interesting judgment on two distinct points:

1 - Speed and Performance - particularly the application of a current factor. Some 'new law' on that in this Judgment.

2 - Wrongful arrest - The arresting party got the arrest 'wrong'. There was no question of that. But how 'wrong' do you have to be to be 'wrongful'? A very interesting question, and one that might cause a bit of debate.

We're very interested to hear thoughts from any of our listeners on this one!

Follow Case by Case to get notified when our episodes drop.

We are seeing legal decisions on Covid cases regularly come through the courts and arbitral panels now. And this is an interesting one.

Turns on wording in an influenza clause, and how that interacts with the usual clause 15 NYPE off-hire clause and a pestilence and illness clause. There's also a curly causation question in there for good measure.

Calum and Luke worked very closely together at the height of the pandemic in 2020 on various of these legal cases on responsibility for delays caused by Covid-19. They've been dealing with them ever since.

Follow Case by Case on Spotify to get notified when our next episode drops.

In this episode of Case by Case, Luke and Calum discuss the recent ship finance decision of OCM Maritime Nile LLC & Anor v. Courage Shipping Co Ltd & Others (Courage and Amethyst) [2022] EWHC 452 (Comm) from the English Court of Appeal coming from the Commercial Court.

With the imposition of recent US/UK/EU sanctions regimes, we’ve been advising extensively on the consequences. They can be drastic. 

This case highlights the dramatic impact of the US government’s listing of an UBO as a “specially designated global terrorist”. Here it resulted in the loss of ships. Largely due to contractual wording in a bareboat charter. 

That’s the rub of these cases. How to reconcile the sanctioning status with the contractual matrix. 

The borrower/charterers' misconduct in and around the proceedings also did not help them - under equity principles.

Well worth a listen for anyone potentially exposed to counterparty sanction risk or seeking to mitigate such risk in drafting their contracts. A must-know case for anyone in ship or asset finance, where borrowers or their owners could be designated on govt sanctions lists. 


Listen through for the details on this interesting one and make sure to follow on Spotify to get notified when our next episode drops.

Yes, we have strayed away from commercial litigation and arbitration in the world of PR, celebrity, football, gossip mags, leaks, lies and truth.  This case is a surreal insight into the media industry and what goes on around the world of professional football.

It is amazing that this case went through to hearing. That we have a High Court judgment detailing the ins and outs of text messages between ‘wags’ of the English football team and between celebrity and agent. The English football national former captain in the witness box.

Was Ms Rooney’s great reveal Instagram Post that Ms Vardy was leaking personal information about her life a true statement or a lie?

Huge reputations on the line.  Some have been smashed by this decision - in no uncertain terms. In football, it was also risky going toe to toe with Mr Rooney. Seems as though, in celebrity PR maneuvering, going toe to toe with Ms Rooney is just as risky...

Us being us, we couldn’t only focus on the personality of the decision. We talk about some quite serious takeaways on legal case strategy, evidence gathering, evidence presentation and how to win a high-stakes case.

If you’ve enjoyed this podcast episode, please do share it in your networks, and like and subscribe to our Case by Case podcast on Spotify. More topical or interesting cases dropping each Thursday.

A little over two years ago, Covid swept across the world for the first time, swiftly followed by law firm bulletins addressing the question of "What is Force Majeure?". Two years on, one of the earliest examples of alleged Force Majeure caused by Covid is subject to a High Court Judgment.

The parties had agreed a contract for the sale of a ship. Due to Covid restrictions, the sellers could not get the ship into the port at which delivery was anticipated to take place. The buyer alleged force majeure, and sought a return of the deposit. The sellers denied that force majeure applied, and claimed that they were entitled to maintain the deposit (plus other sums).

Luke and Calum discuss the principles of "Force Majeure" and the construction points that the Judge considered in reaching a Judgment.

Thank you for listening, and please like/share/subscribe.

Case citation: NKD Maritime Ltd v Bart Maritime (No. 2) Inc[2022] EWHC 1615 (Comm)

In this episode, Joe Gosden, ZFZ partner, joins Luke to discuss a fascinating topic in shipping law.

A bill of lading in the hands of a charterer is a mere receipt of goods. It is not yet a contract of carriage between bill holder and carrier. When that bill is endorsed, it becomes a contract of carriage in the hands of the non-charterer endorsee.

But what happens if the shipper/charterer holding the bill as a receipt novates away the charterparty. Is the bill operable in the hands of that shipper (and no longer the charterer)?

We study the status of the bill - is it only "suspended" when in the hands of the charterer, or does it "spring to life" on endorsement? A birth, so to speak.

There is also an interesting causation argument on whether the bank would have insisted upon presentation of original bills in any event. If not, then did the failure to present OBLs cause any loss?

Joe and Luke also discuss some of the complications for trade finance banks/companies in protecting their position with adequate security and a few war stories they've experienced along the way.

What is litigation privilege?  When does it apply?  When doesn’t it?

There is a fine line between a probable prospect of litigation and a mere possibility of it.  Where to draw that line is the challenge.  We explore this in detail.

This episode also serves as a user guide on litigation privilege, highlighting the key principles and how to navigate them.

The dreaded ‘waiver of privilege’ is often on a lawyer’s mind when referring to legal advice in open communications or as in this case, a witness statement.  And if it isn't, then it should be...

This is one for arbitration enthusiasts.

“We’ve always done it that way,” is said to be one of the most dangerous phrases in business.

Sometimes a case comes along that questions a process you’ve been doing for years.  Appointing arbitrators - easy enough, right?!  Well…

In this episode, Calum and Luke discuss what is required for an effective arbitrator appointment.  

Is it a contract, is it status or is it a stand-alone three-part test…?  Listen in to find out.

One of aspects Luke enjoys most about practising international trade and shipping law is its multi-faceted nature. Some of those facets include:

➡️ substantive law - who is right and wrong on the arguments in the underlying dispute?
➡️ jurisdiction - where in the world should the dispute be heard?
➡️ arguably most importantly, security and enforcement - how do you secure that there are assets to enforce against your arbitral award or court judgment at the end of the day?

This case primarily focuses on the second of those, but is also relevant for the third point.

Mr Justice Foxton of the English Commercial Court explains in very clear terms what is the test for whether a foreign proceeding brought outside the agreed forum is truly one for security or whether it goes beyond seeking security and infringes on seeking substantive relief. Luke and Calum explore this test in the podcast.

These seem like ancillary, sideline battles in the grand scheme of things. But no. For those active in this area of law, these decisions can have a massive effect on the ultimate success of parties to the dispute.

If you’ve enjoyed this podcast episode, please do share it in your networks, and like and subscribe to our Case by Case podcast on Spotify. More topical or interesting cases dropping each Thursday.

We're back from a brief break with a fresh episode of Case by Case. This time Luke and Calum review London Arbitration 16/22.

No - the analogy is not about the lights being turned off and on our podcast series. We are looking at vessel blackouts causing off-hire under a charterparty. A topic we know well from other cases we've handled recently. In addition to off-hire, our chat also touches on redelivery, notice under early termination clause and repudiatory breach.

Listen in over the coming weeks and months, as we work our way through a fascinating bunch of cases and catch up with new guests.

If you have a special case you'd like us to discuss, let us know - happy to receive suggestions and feedback anytime.

Calum and Luke have been wanting to share this episode for a while now. It was great to catch up with Ben Hobden of Forbes Hare - a leading and highly regarded restructuring and insolvency lawyer in the Cayman Islands. Here it is:

Administration and insolvency proceedings are on the rise. This was before the horrific events in Eastern Europe of the past week, which have caused major turmoil on global markets and remain front of mind for us all. Of course, the pandemic had a significant impact on a variety of businesses, and not uniformly so. Some businesses have benefitted and many have not. This plays into the rising prominence of administration and insolvency law, globally.

Ben takes us through the recent decisions in the Silver Base matter. This shines a spotlight on administrative proceedings in the Cayman Islands, the interaction with the Hong Kong jurisdiction, questions of comity, and how the Cayman Islands is viewed as a serious jurisdiction of choice for incorporation, with a robust legal system. The nuance involved in the judgment, which we discuss, is evidence of this.

These decisions also provide an excellent platform to look at new upcoming legislative changes in the Cayman Islands. Those changes should provide greater certainty to parties, creditors and other stakeholders looking to this jurisdiction.

Ben - thank you very much for your time and getting involved in Case by Case. Really enjoyed catching up with you!

Read more about Ben here: https://forbeshare.com/team/ben-hobden-partner-litigation-and-insolvency-forbes-hare-cayman-islands/

Yes, that’s right - we recorded our first live podcast episode to an audience! And what an exceptional audience it was. The luncheon was put on by the Society of Maritime Arbitrators, New York, and we were very fortunate to speak with approximately 40 leading US maritime arbitrators and counsel at the event.

We took the recent English Court of Appeal decision in the Eternal Bliss to the US. Literally and theoretically.

The episode explores whether demurrage covers all kinds of losses arising from a breach of laytime. It’s a one breach / two losses case. Not as simple as it sounds. Indeed, Calum and Luke saw this one somewhat differently.

We rounded off by examining how this type of case may rest within the demurrage landscape of US maritime law. There are notable distinctions and similarities in the comparison.

Thank you very much to the SMA for the invitation, and in particular to Molly McCafferty, member of the SMA Board of Governors, and LeRoy Lambert, President of the SMA for their kind introductions and words.

I suppose all that is left to say is that Case by Case is now formally accepting invitations for live speaking slots!

For the first time, we welcome an external colleague onto the show. Among many accolades and prestigious awards, Ade is a highly-respected Nigerian lawyer, with an expertise in maritime disputes.

Ade joins Luke and Calum on today's episode to discuss a recent decision in the Nigerian Courts, the effect of which appears to constrain the ability of the Nigerian Courts to give an order for a vessel arrest in respect of unpaid crew wages. Good news for Owners - but a decision that would make the Nigerian Court system a real outlier.

This conversation discusses issues of constitutional law and the problems that can arise where a codified constitution comes into conflict with a historical right of arrest.

Ade's profile can be found here: https://www.bloomfield-law.com/our-people/adedoyin-afun

Luke and Calum review London Arbitration 5/22 - A decision which looks at issues involving mitigation, remoteness and correctly particularising a damages claim.

During the podcast, Calum references Court of Appeal obiter comments, which deal with a potentially large claim for failure to re-deliver a vessel on time. The case is The Achilleas, and the citation is: Transfield Shipping v. Mercator Shipping (The Achilleas) [2007] 2 Lloyd’s Rep. 555 (C.A.). The relevant passage is Rix LJ's comments at Para 122 and is set out below:

As for illegitimate voyages, it seems to me that special considerations may arise here, but they have not been the subject of any debate before us, and I would be cautious about expressing any opinion. I would merely mention the possibility that an illegitimate voyage, being outside the contract and, if insisted upon, an anticipatory breach in repudiation of it (The Gregos), may amount in effect to a form of new offer: so that, if an owner in response says "No, but I warn you that I have fixed the vessel for a new charter, and if you insist on the voyage and I perform it, not waiving my right to damages, and I lose my new fixture, I will look to you for compensation", it is not impossible that, albeit late in the day, the charterer will be fixed with knowledge of the new charter (see Mr Gross QC arguendo in The Gregos in the Court of Appeal at [1993] 2 Lloyd’s Rep. 335 at page 345, albeit cf Scrutton’s comment at page 349 at footnote 11). That is not very different from what the parties agreed in The Gregos.

The leading sports news story of 2022 has been a legal one. Novak Djokovic has run the full gamut of the Australian immigration system. First he had a visa, then he was put into detention, then he was released, before finally the Australian Government revoked the visa and sent him home.

In this episode of case by case, Luke and Calum look at the final decision of the Federal Court, by which Djokovic was unceremoniously booted out of the country.

A fair result for someone who clearly didn't want to play by the rules?

A misapplication of the law?

Or a legal system designed to constrain the judiciary on matters of immigration and put all possible power in the hands of the Government?

This episode makes for an interesting look at the law behind the news.

At the risk of interrupting the Eternal Bliss buzz from the English Court of Appeal today (more on that next episode), we are very pleased to share our latest CxC, featuring special guest, Aiden Lerc.

Aiden is one of our star associates, based in London. Aiden is completing a PhD at University of Oxford on a Clarendon Scholarship, and working part time with Zeiler Floyd Zadkovich. Aiden and Luke are both proud alumni of University of Wollongong.

Now, who doesn't like a technicality?! Isn't that what all lawyers for look? And especially in tax cases... Well we've got a beauty for you today - a recent UK Supreme Court case: Tinkler v HMRC [2021] UKSC 39.

The legal principles centre around estoppel by convention. That is should a party be prevented from arguing a point due to how they have acted. Factually, the alleged 'technicality' involves proper service of the HMRC's trigger for a tax enquiry and conduct in response.

Thanks for listening! Share the podcast with those who you think would be interested and follow to be notified of all new episodes.

Judgment in the CMA CGM Libra has been handed down yesterday by the Supreme Court. The result is that negligent passage planning can render a vessel “unseaworthy”, and liability for that unseaworthiness is not covered by the Article IV Rule 2 exception for errors in navigation.

The Court carried out a detailed and comprehensive review of a number of established precedents. In doing so, the Court also rejected Owners’ arguments that there was a need for an “Attribute Threshold” (where there must be an identifiable “attribute” that is defective to cause the unseaworthiness).

Finally, the Court agreed that the “prudent owner” test was not the sole test for unseaworthiness. While that test remains very important, the Court noted that the unseaworthiness must also go to the vessel’s ability safely to carry out the contracted voyage. That is in line with authorities including The Aquacharm, where an issue that a prudent owner would clearly seek to rectify was not sufficient to amount to unseaworthiness (in the case of The Aquacharm, overstowage preventing a vessel passing through the Panama Canal).

Luke and Calum discuss this significant Supreme Court judgment on a critical area of maritime law.

Luke and Calum welcome special guest, Lucy Noble, one of ZFZ’s London based Associates, to recap a battle of the forms judgment. Handed down only last week by the English Court of Appeal.

Lucy has made an excellent start with Zeiler Floyd Zadkovich, handling an array of commodities/shipping/commercial matters, and is currently on a short term secondment at an energy trading company.

We also touched on a - or THE key classic ‘battle of the forms’ case, involving delivery of whiskey and a caveated stamp.

These cases throw up all sorts of warfare analogies - rightly or wrongly. Makes for an interesting discussion.

Substantively this new case of TRW v Panasonic [2021] EWCA Civ 1558 confirms an important exception to the last shot principle.

We also compare the English approach to battle of the forms cases with the US approach.

Thanks for listening!

...when an option taken gets written in.

Sometimes episodes take unexpected turns. That's the fun of it. The format is simple. Calum and Luke pick a legal case, read it separately, turn on record, and talk. No pre-planning or even chat about what we are going to discuss. Where it goes is anyone's guess.

What started as an examination of nominations in London Arbitration 20/21 led into a wider discussion of options and elections. We even got onto redelivery notices.

When does a nomination become written into a contract once made? When does it not? What parallels are there with other similar circumstances?

If you’ve enjoyed this podcast episode, please do share it in your networks, and like and subscribe to our Case by Case podcast on Spotify. More topical or interesting cases dropping each Thursday.

Eva in the red corner, Calum in blue...

Featuring special guest, Eva-Maria Mayer. This is a different episode. We don't tackle one recent case. We address two leading cases on a key point of difference between English and US law.

The scenario: when you have a time barred claim, can you still use that claim as a defence/defense to an incoming non-time barred claim? England - no. US - yes. We get into it here.

It was great to have you on board, Eva! Really appreciated your insights and time. Now what does next Thursday bring...?!

If you’ve enjoyed this podcast episode, please do share it in your networks, and like and subscribe to our Case by Case podcast on Spotify. More topical or interesting cases dropping each Thursday.

So in this week's episode we get serious on damages. Particularly where you should give credit for costs saved. It provides an interesting application of the recent Supreme Court decision in the New Flamenco: Space Shipping Ltd v ST Shipping and Transport PTE Ltd [2021] EWHC 2288 (Comm)

We dissect the cause of saved costs and its connection with the cause of the damages.

There’s a comparison of indemnity claims and damages claims – would the outcome have been different with a slightly broader indemnity clause?

Also, some insights on arbitration procedure, drafting arbitration appeal rights, and how to handle an ongoing, active claim, ie. commencing arbitration when only some damages have crystallised and keeping the arbitration open while other damages are continuing to run.

Featuring special guest, Edward Floyd!

Ed is a co-founder of Zeiler Floyd Zadkovich and leading attorney in the US. He is based in our New York office. Recently English qualified too. Luke and him have been on this entrepreneurial journey together for over four years now. Still enjoying the challenge. Still getting on.

Avoiding an esoteric philosophical debate on the meaning of time, as tempting as that was, we focused on what is the correct time zone to apply for calculations in a charter.

A surprisingly complex question. The judgment acknowledged as much. This was a good chat, in amongst the events of our firm's recent global retreat in Norfolk, England.

I always enjoy seeing how an attorney schooled in the US traditions of case law approaches an English judgment.

If you’ve enjoyed this podcast episode, please do share it in your networks, and like and subscribe to our Case by Case podcast on Spotify. More topical or interesting cases dropping each Thursday.

Luke and Calum are back! Series 2 of Case by Case. Kicking off with a special guest, Philip Vagin, and with a special topic: Maritime (Leans, no...) Liens.

Our focus is the incorporation of lien clauses under US and English law. We use the London Arbitration 9/21 as our stepping off point into the topic.

A key question we come onto is whether parties should be able to create US statutory maritime liens by simply incorporating US law, in the absence of any other underlying connections with the US (ie. other than the governing law clause).

Philip is one of our super bright associates, soon-to-be NY qualified (achieved an amazing top ranking in the NY bar exam), already Russian qualified and now based in our London office (English qual next!).

Enjoy your listen !

"On demand" or "See to it" - those are the two main types of guarantee. But what do those terms actually mean? Is it always clear if a guarantee is one, rather than the other, type? And, if not, what are the tell tale signs of each of these categories of guarantee?

All of this was discussed in the recent Shanghai Shipyard's case - Judgment handed down on 23 July 2021.

Luke and Calum discuss the case in detail in this podcast.

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When faced with a breach of contract an innocent party will often want to know if they have a right to terminate and walk away from the agreement, or whether they must continue with the contract and limit themselves to a recovery in damages.

This is a tightrope for the parties and their lawyers. Does a breach of that specific term give a right to terminate? Alternatively, is this breach sufficiently significant to give that party a right to terminate?

The Galtrade decision looks at both questions, and Luke and Calum consider it in today's podcast.

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Costs are a hugely important factor in nearly all legal cases. Interestingly, there is a big distinction between English Court and US Court treatment of costs, which was an issue in the recent SMA decision of the MV BETTY KIX.

The decision also looks at issues of arbitrator bias. That is currently a big talking point on the English side of the pond following the Halliburton v Chubb decision. This decision is an interesting counterpoint from the US perspective.

Luke and Calum look at the decision in detail, exploring all of the interesting issues that arise from it.

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In the recent case of the DIVINEGATE, the English court was faced with a difficult jurisdictional question. The Claimant arrested a vessel in Gibraltar thought to belong to the Defendant. The Defendant argued that the arrest was wrongful, and that the Defendant was in fact the time charterer of the arrested vessel.

The Defendant brought a counter-claim against the Claimant, for losses arising as a result of the wrongful arrest. The Claimant argued that the wrongful arrest claim was subject to Gibraltarian jurisdiction.

Luke and Calum discuss the decision, looking in detail at the multi-jurisdictional nature of the world of international trade.

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This episode responds to our first request. Inspired by recent events in the Suez, we are taking a look at the law of General Average.

The case is a fascinating one. In January 2009, Pirates boarded the LONGCHAMP in the Gulf of Aden. They demanded a ransom of USD6m. That was negotiated down to USD1.85 over a period of 51 days. The ransom and the negotiator's fees fell squarely within General Average. But what about the Vessel's operating expenses for the 51 day period of negotiations?

Luke and Calum discuss the result (with a little disagreement between themselves!) but additionally look to the wider application on the law of General Average, and what parties can do when facing a General Average claim.

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In a wonderfully wide-ranging judgment, the Court of Appeal recently looked at the rights and obligations between two parties relating to the sale of a Ferrari 250 GTO.

By looking at this judgment, Luke and Calum discuss the Sale of Goods Act, signing contracts "as agent", and how the Court can penalise a party in costs where that party fails to take steps to resolve a dispute at an early stage.

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This podcast brought out Luk's long-lost, inner rev-head. Harking back to his late teens. Not that he was driving a Ferrari 250 GTO! More like a second-hand Holden Commodore VL.

This wonderfully wide-ranging judgment, the Court of Appeal recently looked at the rights and obligations between two parties relating to the sale of a Ferrari 250 GTO could be a day 1 law school case. You know the ones with:

- far-out fact patterns (including buying a gearbox-less car for $44m and a $0.5m finder’s fee for locating the gearbox)
- litigants pursuing arguments into appellate courts over relatively little money
- multi-jurisdictional cases
- interesting points on contract formation and sale of goods
- a shipping law principle on the importance of signatures
- an appellant seemingly winning, yet losing
- how changing one’s case midway is not a great idea
- a clearly annoyed court over the parties’ failures to heed its warnings
- harsh indemnity costs consequences

Oh and excuse the driving puns. They couldn't help themselves.

Parties routinely exclude "consequential losses" in their contractual agreements. But what is a consequential loss? And what is actually covered by a consequential loss exclusion?

With his partner in CxC crime, Calum, Luke discusses a recent Arbitration decision (London Arb 13/21) and explore the law on consequential losses.

This is a great place to start for a refresher on consequential damages. We skip from the famous second limb of the damages test in that old chestnut, Hadley v Baxendale [1854!], through to some of the recent court decisions and see how comfortably this arbitration decision nestles among them. Or not so comfortably...

Anyone familiar with the world of shipping, commodities and international trade will be familiar with agreements where the key commercial terms are agreed in a "recap", with full conditions to be incorporated by reference to a separate document (the "printed terms").

But what happens when the terms in the Recap would give a different result - if read in isolation - to the terms in the printed terms? Should the parties try to read both together, to find a way of giving effect to both provisions - or should one set of terms prevail, at the expense of the other?

This was exactly the question before the Court in Septo Trading Inc v Tintrade Ltd [2021] EWCA Civ 718, which Luke and Calum discuss in this podcast.

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In this week's episode, Luke and Calum look to the US Courts and a recent decision on the law regarding "alter ego" attachments.

An "alter-ego" attachment is where a claimant attaches a vessel, or some other asset, owned by a person or corporation that is not, strictly speaking, the respondent to the proceedings on the basis that the person who owns the attached asset is an "alter ego" of the person who is the respondent in the underlying proceedings.

The position under US law is not straight-forward and while there is generally a right to 'pierce the corporate veil' in certain circumstances, different US Circuits apply different tests. Luke and Calum look at the tests, the indicating factors for an "alter ego" attachment, and discuss some real-life examples.

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Luke Zadkovich and Calum Cheyne discuss CVLC v Arab Maritime Petroleum Transport Company [2021] EWHC 551 (Comm).

In this week’s case, Luke and Calum look at Cockerill J’s confirmation that once the Court has given permission to appeal under Section 69 Arbitration Act 1996 at a permission hearing, the question of whether or not leave to appeal ought to have been granted cannot then be re-opened as a defence in the substantive trial on the appealed issues.

The Judge’s reasoning was that the question of permission is a standalone issue, dealt with at the permission stage, which does not require re-visiting at the substantive hearing of the appeal. In this case, the Defendant sought to argue that the question on appeal was not a question that the Tribunal had answered in the arbitration – if that had been correct, it would not have satisfied Section 69(3)(b) Arbitration Act 1996, and the appeal should not have been allowed.

In this case, even though the Judge held that the question could not be re-opened, the Judge also found that even if it was re-considered, permission was in any event rightly granted.

The case also looks at the question of maritime security, and the question of whether there is an implied term in a guarantee that the guarantee itself is sufficient security and no further security can be sought by the beneficiary.

The conversation looks at maritime security instruments, Section 69 appeals and urgent maritime applications. In the conversation, Calum mentions an article by Clare Ambrose, Michael Collet QC and Karen Maxwell on emergency relief in maritime arbitrations. That article is available here: https://twentyessex.com/interim-and-emergency-relief-in-support-of-maritime-arbitration-under-english-law/

In this episode, Calum and Luke look at the recent decision of Alpha Marine Corp. v. Minmetals Logistics Zhejiang Co. Ltd., [2021] EWHC 1157 (Comm).

Owners claimed against charterers for a series of losses arising under a time charterparty. Owners demanded payment of freight directly from shippers, in order to satisfy the alleged debt. Shippers didn’t know who to pay: Owners under the bill, or charterers under the voyage charterparty? Ultimately, Shippers made partial payment into escrow before going insolvent.

Owners’ claims against Charterers largely failed. Charterers claimed that owners’ demands for the freight (against Shippers) were unlawful and were the cause of the delayed/reduced payment.

Owners said they were entitled to take the freight. Charterers argued that a time charterparty contains an implied term that owners could only exercise this right where they were owed money by charterers.

The High Court found no such implied term – reinforcing an owners’ right to demand freight directly.

Judgment available here: https://www.bailii.org/ew/cases/EWHC/Comm/2021/1157.pdf

Listen in for the analysis.

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