The issue:
On 22nd February 2009, the ship, Saldanha was en-route from Indonesia to Slovenia when she was seized by pirates in the Gulf of Aden and taken to a location close to Eyl, Somalia. She was finally released on 25th April 2009. The charterer claimed that the ship was off-hire during that period of time and so no hire should be paid. The charterer then appealed to the English High Court based on the clause 15 of the NYPE charter on the ground of the following points:
- the seizure by pirates amounted to a “default and / or deficiency of men”
- the seizure amounted to “detention by average accident”
- the taking of the ship fell within the definition of “any other cause” preventing the full working of the ship
The judgment:
The charterer’s appeal failed on the ground of the followings:
- seizure by pirates did not amount to “detention by average accident” which require some damage to the ship and an element of fortuity
- the words “any other cause” in the NYPE off-hire clause did not extend to unrelated causes affecting the ship
- wordings have to be specified if someone wants to treat seizure as an off-hire under a time charterparty
Implications:
- a ship chartered on an unamended NYPE terms will remain on-hire when seized by pirates unless there is clear wording as to the effect
- the BIMCO piracy clause specifically address the issue of hire upon the capture of a ship and every charterer should be checked for its specific terms
