Page 40 - Insurance Times April 2024

vessel out to Kumba, was critical to
determining the ownership of the
bunkers. Charterers under a time
charter normally are obliged to supply
and therefore usually own the
bunkers, whereas charterers under a
voyage charter do not (bunkers being
owned by the "owner" under their
charter party.)

As to the veracity of there ever being
an oral agreement, as alleged by the
Prima witness, the court found:

To suggest that a contract as
"The Pompey/Prima charterparty, as a document that was important as a charter party (the very life blood of such an
sent out into the world as evidence of a written agreement enterprise) is concluded orally and is only reduced to writing
having been concluded and signed on 21 September 2009 when called for by lawyers in a distant jurisdiction, was a
[after the arrest] is nothing but a fraud. It is a fraud into fraud in itself.
which Prima's local attorneys, no doubt unwittingly, were
inveigled when they were instructed by Mr. Gare to put up Thus, we understand that a charterparty agreement serves
the document as a genuine instrument in the founding as the foundation for a successful shipping venture. It
affidavit in the set aside application." outlines the rights, responsibilities, and obligations of the
shipowner and the charterer. A poorly drafted charterparty
On the probabilities, the judge rejected Prima's version of agreement can lead to ambiguities, misunderstandings, and
events and upheld the arrest. expensive disputes. Hence, it’s crucial to invest time and
effort into drafting a clear and comprehensive document.
The Alina II judgment handed down by the Western Cape A well-drafted charterparty agreement is a vital ingredient
High Court under case number AC47/2010 in January 2013 is for successful shipping operations.
important as it highlights the robust approach taken by our
courts with regard to evidence of ownership when it comes By understanding the importance of clarity, including
to arrests. essential clauses, and following best practices, one can
minimize potential disputes and protect the interests of all
Notably, the judgment extensively explored the conclusions parties involved. One should always seek professional legal
that can be drawn from a charterer describing itself as advice when necessary to ensure compliance with applicable
disponent owner. Kumba Shipping Kong Hong ("Kumba") laws, regulations, and industry standards. In summary,
arrested the bunkers of Prima Shipping Company Limited charter parties play a vital role in international trade,
("Prima") on board the Alina II for security for a London shaping our interconnected global economy. They establish
arbitration. In Prima's application to set aside the arrest, it responsibilities, protect interests, and enable the seamless
was alleged that Prima had voyage chartered the vessel and movement of cargo by sea.
the bunkers were accordingly owned by Pompey Shipping
("Pompey"). The judge, Gamble J, at the outset, noted that *I am thankful to Dr.S.Mukherjee, an Expert and
the Prima/Kumba charter party did not contain an express International Investigator for Maritime Fraud for his advice
term that Prima was liable to pay for the bunkers on board
the vessel, furthermore, that the type of charter party
(voyage/time/bareboat) was not apparent ex facie the Dr.Soumi Mukherjee completed her Graduation in Mass
document and, lastly, that Prima was described therein as Media and Masters in Mass Media from University of
"disponent owner". Mumbai, later completed her Ph.d. She is interested in
Investigative Journalism related with History, Geography,
Zoology etc. She is currently serving in Media Officer
The type of charter party under which Prima had chartered
in the vessel from Pompey, prior to then chartering the with International Police Organization.

The Insurance Times April 2024 37