In this special bonus episode of Case by Case, we’re doing something a little different. Rather than diving into a case as we usually do, we are taking the opportunity to introduce two new Partners to Floyd Zadkovich….
We are delighted to end the year by announcing that, from 1 January 2026, two of our Senior Associates, Eva-Maria Mayer in New York and Caroline Pennington de Rodríguez Sánchez in London — will be promoted to the firm’s partnership.
Luke Zadkovich and Calum Cheyne are joined by Caroline and Eva to talk about their respective journeys to partnership, their practices across commodities, shipping and international trade, and what their promotions mean for the firm as it continues to grow across the UK and US.
The conversation also explores how the firm has evolved in recent years, the importance of culture and collaboration in a transatlantic practice, and how Caroline and Eva have contributed to shaping Floyd Zadkovich as it is today. We also look ahead to 2026 and discuss what’s next for the firm, the partnership, and the work they’re excited to take on.
A great listen for anyone interested in a modern international firm, career progression, and the people behind the work at Floyd Zadkovich.
Case: Skyros Maritime Corporation and Anor v Hapag-Lloyd [2025] EWCA Civ 1529
Guests:
Emmanuel Michelakakis Howe, Barrister of Lamb Chambers
Andriy Shalennyy, Associate, Floyd Zadkovich
This week, Luke Zadkovich is joined by Andriy Shalennyy and Emmanuel Michelakakis-Howe (Lamb Chambers) to discuss the decision of the Court of Appeal in Skyros Maritime Corporation and Anor v Hapag-Lloyd [2025] EWCA Civ 1529.
The case concerned an all-too-common scenario, albeit with an unusual twist. It raised questions going to the heart of contractual damages, including what it means to compensate for breach, how loss is identified, and when a claimant’s own commercial arrangements must be ignored as collateral or res inter alios acta. While the factual background will be familiar to those working in shipping, these issues resonate far beyond shipping and commodities.
The dispute arose out of the late redelivery of two vessels by their time charterers. The owners claimed damages under the orthodox measure for such a breach, namely the difference between the agreed daily rate of hire and the market rate of hire prevailing at the time for the period of the overrun.
The key factual feature of the case was that it was common ground that even if the vessels had been redelivered on time, the owners would not and, under the terms of the sale contracts, could not have rechartered them or earned any further hire. Instead, the vessels would have been delivered directly to their buyers upon redelivery under the time charters. The issue was therefore whether a shipowner can recover substantial damages assessed by reference to the market rate for late redelivery where the breach has caused no actual loss of a chartering opportunity.
The arbitral tribunal answered that question in the affirmative, awarding damages by reference to the market rate. On appeal, Bright J disagreed, holding that the owners had suffered no compensable loss and were entitled only to nominal damages. The Court of Appeal, however, restored the award.
Giving the leading judgment, Lord Justice Males reaffirmed the orthodox measure of damages for late redelivery, namely the difference between the charter rate and the market rate during the overrun period. The owner’s arrangements for the vessel’s future employment, including a sale, were collateral matters which could properly be disregarded as res inter alios acta.
Luke, Andriy and Emmanuel examine the decision from both the owners’ and charterers’ perspectives, asking whether the outcome delivers an unwarranted windfall or instead reflects a principled preference for certainty over factual precision. The discussion considers the policy tension between compensation and predictability, and the commercial attraction of clear, easily applied measures of loss. The trio also grapple with the Supreme Court’s judgment in The Achilleas, and the long shadow which that decision continues to cast over debates on remoteness, assumption of responsibility, and the assessment of contractual damages.
Case: Eletson Gas LLC v A Limited & Ors [2025] EWHC1855 (Comm)
Guest: Alexander Wright KC, 4 Pump Court
Luke, Calum and Alexander discuss recognition of foreign arbitral awards in England & Wales, in the Commercial Court decision Eletson Gas LLC v A Limited & Ors.
This case concerns an application under s.32 of the 1996 Arbitration Act (“AA”) regarding which of the two rival boards of Eletson Gas (“EG”) had validly appointed an arbitrator on EG’s behalf.
The two competing boards were: D4-D8 (“SPs”) and D9-D10 (“KPs”). The significance of this judgment (1) determined which competing Board had validly appointed the arbitrator and (2) explained the importance of recognition of a foreign award for it to produce legal effect and to be capable of being relied upon in England & Wales (“E&W”).
The Court analysed issues under English law, US arbitration and bankruptcy law, Marshall Islands law, and Liberian law.
This case arose out of three bareboat charterparties (“BBCs”) under which three oil tankers, owned by the 1st to 3rd Defendants (“Owners”), were chartered to EG. The BBCs were subject to arbitration in London.
The BBCs provided EG with a purchase option to buy the tankers. Each of the two rival boards issued its own notice purporting to act on EG’s behalf. Owners argued they needed to know whose notice was valid. Owners referred the dispute concerning the rival notices to LMAA arbitration. Both rival boards, purporting to act for EG, appointed an arbitrator. The KPs then initiated proceedings under s.32 of the AA for the English Court to resolve.
In the s.32 proceedings, the Court had to consider the relevant background which involved bankruptcy proceedings and ongoing vacatur proceedings of an award in the US.
To resolve the dispute, the Court had to determine who controlled the shares of EG. EG had two types of shares: common and preferred.
The common shares were owned by Eletson Holdings Inc (“EH”), company that between 2023 and 2024 underwent reorganization proceedings in the US. The KPs controlled EH before the reorganization. Their position was that they maintained control of EH after the US bankruptcy proceedings. The SPs argued that the KPs no longer controlled EH and, to the contrary, D7-D8 and an additional individual became directors in EH following the reorganization. Here, the Court also had to analyse the impact of the US bankruptcy proceedings in EH’s place of incorporation, Liberia.
The dispute over the preferred shares concerned a JAMS Award of 2023 (“JAMS Award”) that decided such shares belonged to nominees of the KPs and no longer belonged to a company named Levona Holdings Ltd (“Levona”). However, the award was subject to vacatur proceedings in the US for fraud on the arbitrator and the US court had issued an anti-suit injunction forbidding an application to recognise the JAMS Award. On this point, the Court also had to consider the status of the JAMS Award in EG’s place of incorporation, Marshall Islands.
In deciding who had control of EG, the Commercial Court had to decide (i) who controlled EH and (ii) who controlled the preferred shares.
In respect of the first issue, HHJ Pelling KC decided that the US bankruptcy proceedings were effective over EH and that the KPs no longer controlled EH.
On the preferred shares, the Court had to decide whether the KPs’ nominees or Levona were the owners of the preferred shares. The KPs relied on the JAMS Award. The SPs argued that reliance was unwarranted because (i) no application had been made for recognition in E&W under s.101 of the AA and (ii) the JAMS Award had been suspended in the US.
Based on the Court’s reasons, Luke, Calum and Alex dissect the importance of (1) the recognition of foreign arbitral awards in the UK under the NY Convention pursuant to s.101 of the 1996 Arbitration Act and (2) why absent that recognition, a party will not be entitled to rely upon that award by using domestic principles of issue estoppel, res judicata.
Case: CAFI v. GTCS Trading DMCC [2025] EWHC 1350 (Comm)
Guest: Derek Yixin, Associate at Floyd Zadkovich
This week, Luke Zadkovich and Calum Cheyne explore overlapping arbitration agreements and thorny jurisdictional issues, as they are joined by Derek Yixin (Floyd Zadkovich LLP), to discuss the High Court decision in CAFI v. GTCS Trading DMCC [2025] EWHC 1350 (Comm).The background to this case arises out of a series of GAFTA arbitrations. The Claimant, CAFI (“Buyer”), and the Defendant, GTCS (“Seller”), entered into an agreement for the sale of 28,000 MT of Russian wheat to be delivered from Russia to Egypt (“First Contract”). As a result of sanctions-related issues, the Buyer refused to issue payment while the cargo was enroute. The Seller treated this as an anticipatory breach and terminated the First Contract.Following negotiations, the Parties entered into a second contract on materially similar terms, but at a lower price (“Second Contract”). The Second Contract contained a termination clause which stated that the First Contact was “terminated and void”. After delivery of the cargo, the Seller initiated claims under GAFTA arbitration seeking damages for the Buyer’s alleged breach of the First Contract. The Buyer argued that the termination clause in the Second Contract amounted to a waiver of the Seller’s right to claim damages under the First Contract.The First Tier Tribunal dismissed the Seller’s claims on the basis that by accepting the termination provision, the Seller indicated an intention to ‘waive’ its claim for damages. Importantly, the Tribunal held that it had no jurisdiction to consider the effect or validity of the Second Contract as it fell outside the scope of the arbitration agreement under the First Contract. The Seller successfully appealed to the Appeal Board which accepted the Seller’s claims and awarded USD 700,000 plus interest and costs. In doing so, the Appeal Board agreed with the First Tier Tribunal that it had no jurisdiction to interpret the terms of the Second Contract but that notwithstanding this, it remained ‘good evidence’ of what had happened post-termination.In the High Court, the Appeal Board’s award was challenged under sections 67, 68 and 69 of the Arbitration Act 1996. In what is reported to be the first judgment of its kind, Mr Justice Henshaw accepted all three grounds of challenge under the Arbitration Act and set aside the Appeal Board’s award.In this episode, Luke, Calum and Derek delve into the thorny question of what happens where there are overlapping arbitration agreements. In doing so, the trio consider the practical challenges that arise out of potentially competing (or inconsistent) arbitral awards.
Case: Logix Aero Ireland Ltd v Siam Aero Repair Company [2025] EWHC 1283 (KB)
Guest: Matt McGhee of Twenty Essex Chambers
This week, Luke Zadkovich and Calum Cheyne delve into the subjects of fraud and agency, as they are joined by Matt McGhee (Twenty Essex Chambers), to discuss the High Court decision Logix Aero Ireland Ltd v Siam Aero Repair Company [2025] EWHC 1283 (KB).
The background to this case is unfortunate, but not unfamiliar. The buyer, Logix Aero Ireland Ltd (“Logix”), and the seller, Siam Aero Repair Company (“Siam”) were negotiating via email for the sale and purchase of two aircraft engines. Unbeknownst to either party, a fraudster had inserted themselves into the parties’ correspondence. Both parties continued to correspond with the fraudster, all the while thinking that they were communicating with the other. A Letter of Intent, and a final fraudulent invoice was produced, and Logix transferred what it thought to be the purchase price into an account provided by the fraudster. Suffice to say, the money was never seen again, and nor were the engines.
Logix sought remedy in an action against Siam. In response to Logix’s Claim Form and Particulars of Claim, Siam applied for strike out, sought a reverse summary judgment, and applied for indemnity costs. Following this, Logix provided a draft Amended Particulars of Claim, substantially revising the structure of the claim. It was agreed that the strike out application would be decided on the basis of these draft Amended Particular of Claim.
Logix contended that: (i) a binding contract for the sale and purchase of the engines had been concluded; and (ii) Siam had breached their contractual confidentiality obligations, by (albeit unknowingly) providing information to the fraudster.
The argument that a binding contract had been formed was rejected by Willimas J. This issue ultimately turned upon whether the fraudster had apparent authority to act on behalf of Siam in negotiations. Her Honour held that no representation, by words or conduct, had been made by to convey authority of this kind.
The second argument, that Siam had breached its confidentiality obligations, was also rejected. Noting that the fraud ‘worked’ because both parties passed what might have been considered confidential information to the fraudster, Williams J decided that Logix’s loss was caused by the fraudster, and not Siam.
Guided by her Honour’s reasons, Luke, Calum and Matt dissect the principles of agency and authority, along with boilerplate confidentiality clauses. In doing the trio consider the very real issue of fraud in international commercial transactions with a practical eye, discussing various procedural points in relation to claim formation, and contractual drafting.
Case: MSC Mediterranean Shipping Company SA v Conti 11 Container Schiffahrts-GmbH & Co KG MS “MSCFlaminia” [2025] UKSC 14
Guest: David Walsh KC, Essex Court Chambers
Luke Zadkovich and Calum Cheyne return this week to discuss MSC Mediterranean Shipping Company SA v Conti 11 Container Schiffahrts-GmbH & Co KG MS “MSCFlaminia” [2025] UKSC 14 with Counsel for the Respondent, David Walsh KC.
This decision arose out of an incident involving the “MSC Flaminia”, a container ship that exploded while en route from South Carolina to Antwerp, back in 2012, resulting in the death of three crew members.
The Owners of the vessel (Conti), obtained an arbitration award against the Charterers (MSC) for the amount of USD200 million in damages. Following this, Charterers sought to limit to their liability under the Convention onLimitation of Liability for Maritime Claims 1976.
The Supreme Court considered whether the Charterers could do so, given that the limitation was sought with respect to claims brought by Owners, against the Charterers, for losses the Owners originally suffered themselves. In doing do, the Court also considered the scope of Article 2.1(a), (e) and (f) of the 1976 Convention.
Luke, Calum and David discuss the way in which the arguments evolved through the appeal process, and the ultimate rationale behind Lord Hamblen’s decision (withwhom Lord Hodge, Lord Briggs, Lord Leggatt and Lord Burrows agreed). Their discussion provides insightful guidance and clarity on what can be a complexarea of maritime law.
Guest: Jakob Reckhenrich of Quadrant Chambers
Case: The Stema Barge II [2025] EWHC 73 (Admiralty)
This week, Luke Zadkovich and Calum Cheyne sit down to discuss The Stema Barge II [2025] EWHC 73 (Admiralty) with Counsel for the successful Claimant/Second Appellant, Jakob Reckhenrich (Quadrant Chambers).
The dispute arose out of an incident with a dumb barge, the Stema Barge II. During a storm, she dragged her anchor across high voltage electrical cables between England and France, causing damage. As there were a variety of partiesinvolved, liability for the ensuing loss became the key issue.
After success as trial, the Respondent, Stema UK, failed to convince the Court of Appeal that they were entitled to limit their liability under Art 1(2) of the Convention on Limitation of Liability for Maritime Claims 1976 (The Stema Barge II [2021] EWCA 1880). When the Supreme Court refused to grant leaveto appeal , the Respondent attempted to re-frame their case, this time under Article 1(4) of the Convention. Interestingly, the submission was set out in skeleton arguments, but as the Court of Appeal expressed a number of concerns with the point as a line of argument, it was ultimately withdrawn.
The Claimant/Second Appellant argued that Stema UK’s Article 1(4) plea should be struck out on the basis that there was already a final Order on the issue, and that leave to appeal had been refused. In the alternative, cause of actionestoppel and/or the rule in Henderson v Henderson equally applied to prevent Stema UK from advancing the argument.
This discussion considers the principles of res judicata in the context of maritime law. Calum, Luke and Jakob provide an in-depth analysis of the helpfully informative decision of Cockerill J, who ultimately found the Claimant/Second Appellant’s arguments persuasive.
Case: Fimbank Plc v KCH Shippping Co Ltd [2024] UKSC 38
With further reference to:
Guest: Matthew Harvey KC of Owen Dixon Chambers (Melbourne, Australia).In this episode, Luke Zadkovich had the privilege of sitting down with Matthew Harvey KC to discuss Fimbank Plc v KCH Shippping Co Ltd [2024] UKSC 38, a recent case of the UK Supreme Court, dealing with the time bar under Article 3(6) of the Hague/Hague-Visby Rules.
Luke and Matthew dissect Lord Hamblen’s sole judgment, which gives finality to the question of whether the one-year time bar to bring a claim under the Hague/Hague-Visby Rules applies to claims for misdelivery of cargo, which occur after the completion of discharge.
Fimbank argued that that the Rules only created a period of responsibility between loading and discharge, from ship’s rail to ship’s rail, so that claims arising outside of this period, would not be subject to the time bar.
Interestingly, Lord Hamblen, in reaching his conclusion, considered two diverging Australian judgments, one from the New South Wales Court of Appeal (Gleeson CJ, Kirby P and Samuels JA, China Ocean Shipping Co Ltd v PS Chellaram and Co Ltd), and another from the Appeal Division of the Victorian Supreme Court (Fullagar, Marks and Ormiston JJ, Kamil Export (Aust) Pty Ltd v NPL). This episode’s discussion considers the rationale behind all of these decisions, the practical implications for carriers, shippers and consignees alike, as well as touching on the broader principles of the interpretation of international law.
An episode with a distinct Australian flavour, not to be skipped!
Case: Ultra Deep Picasso Pte. Ltd. v. Dynamic Industries Saudi Arabia Ltd., 119 F.4th 437 (5th Cir. 2024)
Guest: Philip Vagin, Senior Associate at Floyd Zadkovich.
In this episode of Case by Case Luke Zadkovich and Calum Cheyne are joined by Philip Vagin, a senior associate with the firm, to discuss a recent US decision on Rule B attachments of bank accounts called Ultra Deep Picasso Pte. Ltd. v. Dynamic Industries Saudi Arabia Ltd.
In this case the first instance federal court in Texas and then the Fifth Circuit Court of Appeals ruled against Ultra Deep’s motion to attach a bank account located outside of the US where the only connection of the bank with the country was that it had a foreign agency registered in Texas. As a fascinating technical twist, the underlying dispute arises out of a charterparty for a highly specialized diving support and construction vessel, which are used to assist diving operations during underwater repair projects.
Luke, Calum and Philip first discuss the background to the proceedings, which arose out of a hire payment dispute after Dynamic Industries failed to pay Ultra Deep for the services of M/V PICASSO used to repair underwater oil & gas projects in Saudi Arabia. Suing in Texas, Ultra Deep attempted to attach – or, technically speaking, garnish – any bank accounts that Dynamic had with Riyad Bank (based in Saudi Arabia) under Supplemental Rule B, as security for its claims in arbitration.
Like many non-US banks, Riyad did not have a full-service branch in the US but maintained a so-called “foreign bank agency” . This meant that Riyad could only provide limited banking services in the US, so that its US customers could not, for example, freely withdraw cash from Riyad’s agency location in Texas.
The discussion – and the US court opinions themselves – center around the requirements that a plaintiff must establish to successfully attach or garnish a bank account in the US. One of the key issues with which the courts grappled is whether it is enough for Rule B attachment that the US court may exercise some personal jurisdiction over the bank itself – or whether the plaintiff also needs to show that the bank account is actually located in the US court’s territory?
The decision in Ultra Deep will no doubt serve as great guidance for parties contemplating US security or enforcement proceedings against bank accounts of international banks.
Case: Euronav Shipping NV v Black Swan Petroleum DMCC [2024] EWHC 896 (Comm)
Guest: Oliver Caplin KC, Twenty Essex In this episode of Case by Case Luke Zadkovich and Calum Cheyne are joined by Oliver Caplin KC to discuss Euronav Shipping NV v Black Swan Petroleum DMCC [2024] EWHC 896 (Comm), a case of which Oliver Caplin was instructed on, acting on behalf of Black Swan Petroleum DMCC.
In this case the High Court of England ruled against Euronav's request for an unusual type of injunction known as an "anti-anti-arbitration injunction" (AAAI). The dispute arises out of a relationship of sub-bailment involving a cargo of crude oil stored aboard a vessel owned by Euronav.
The discussion is centred around Euronav’s attempt to seek an AAAI pursuing the discontinuation of an AAI from the High Court of Malaysia, which had prevented Euronav from continuing an arbitration in London. Black Swan Petroleum (BSP) had obtained the Malaysian order after Euronav (the court later held) voluntarily submitted to Malaysia’s jurisdiction in a related matter.
The court confirmed that to grant such an injunction, there must be a strong likelihood that both an arbitration agreement existed and that it was breached. While it found there was a high chance the parties had an arbitration agreement and that BSP may have breached it by obtaining the Malaysian order, the court ultimately chose not to grant the injunction. It cited several reasons - discussed in length during the podcast - including the importance of respecting the Malaysian court’s proceedings (comity), Euronav's delay in making the application, and the fact that Euronav had voluntarily submitted to the Malaysian court's jurisdiction.
The conversation highlights how party conduct, such as voluntary submission to another jurisdiction, can influence whether the court exercises its discretion to grant such remedies.
Case: Rhine Shipping DMCC v Vitol SA
Guest: Rufus Constable, Associate at Floyd Zadkovich
No Calum this week whilst he is away at Hong Kong Maritime week, however Luke is joined by Rufus Constable, Associate at Floyd Zadkovich.
This case addresses the impact of internal hedging practices used by commodities trading houses and their impact on the damages award in a related charterparty dispute.
Vitol, a major oil trader, voyage-chartered the MT DIJILAH from Rhine Shipping to transport 920,000 barrels of Brent Crude from West Africa to China. A six-day delay at the second loading port, Djeno (Congo), caused by Rhine, led to a rise in the Brent Dated index price. This increased the purchase price Vitol had to pay its seller, as the price was tied to dates linked to the bill of lading issuance.
The trial judge ruled that Vitol’s internal hedging (its practice of offsetting risks within its own trading system) did not reduce the damages due to it from Rhine, even where that internal hedging generated a notional gain in Vitol's books.
The issues on appeal were whether the judge was incorrect in excluding the effect of this internal hedging from the damages calculation, and whether Rhine was entitled to raise new arguments following the first instance ruling.
Case: UniCredit Bank vs. RusChemAlliance
Guest: Dr Paul Macmahon, Associate Professor of Law at the LSE Law School and the Director of the Executive LLM Programme
Episode Summary
In this episode of the podcast, hosts Luke Zadkovich and Calum Cheyne welcome Paul McMahon, an associate professor of law at LSE, to discuss the complexities of determining the governing law of arbitration agreements under English law following the UK Supreme Court decision in UniCredit Bank vs. RusChemAlliance. In this conversation, the speakers delve into this topic’s substantive and procedural complexities and practical effects. They focus on the Supreme Court considerations concerning the law of the main contract and the law of the arbitral seat. They also discuss the role of English law, forum non conveniens, and anti-suit injunctions concerning the nuanced topic of the applicable law to the arbitration agreement.
Guest's background:
Paul MacMahon is an Associate Professor of Law at the LSE Law School and the Director of the Executive LLM Programme. His primary interests are contracts, commercial law, and international arbitration. Before coming to the LSE, Paul taught at Harvard and Cambridge. He studied at Oxford (BA, BCL, DPhil) and Harvard (JD), and served as a law clerk in the United States for Judge Guido Calabresi and Judge John Gleeson. Paul also worked as a litigation lawyer at Skadden, Arps, Slate, Meagher & Flom LLP in New York City and remains a member of the New York Bar. In addition to teaching at LSE, Paul is a regular Visiting Professor at Católica Global School of Law in Lisbon. He has served as an expert on English law in foreign court proceedings.
Key Takeaways:
Chapters
00:00: Introduction to the Podcast and Guests
02:53The Impact of LinkedIn on Legal Discussions
05:52Paul McMahon's Background and Interests
08:50The Popularity of International Arbitration Among Students
12:03Competition Among Jurisdictions for Dispute Resolution
14:54The Governing Law of Arbitration Agreements
18:13Case Study: UniCredit Bank vs. RusChm Alliance
30:00The Implications of Sanctions on Arbitration
33:05Judicial Perspectives on International Arbitration
37:25Understanding Jurisdiction and Governing Law
40:16The Enka Decision and Its Implications
47:27The Role of English Law in Arbitration Agreements
57:58Assessing the Proper Place for Claims
01:09:27Future Implications for Anti-Suit Injunctions
Keywords arbitration, governing law, international law, dispute resolution, legal education, LinkedIn, sanctions, jurisdiction, commercial law, contracts, jurisdiction, governing law, arbitration, English law, Enka decision, anti-suit injunctions, international arbitration, legal implications, arbitration agreements, Supreme Court
RTI Ltd (Respondent) v MUR Shipping BV (Appellant) On this episode Luke and Calum are joined by Alexander Wright KC - A great debate, with varying views and perspectives looking at whether or not a party was required to accept non-contractual performance to overcome a force majeure issue. This a salient case - which will be a reference point for many Force Majeure cases moving forward, as it sets down matters of general principle. In the case of RTI Ltd v MUR Shipping BV, the central issue was whether a force majeure clause in a contract requires the affected party to accept non-contractual performance to mitigate the event's effects. The High Court ruled that it does not unless explicitly stated. However, the Court of Appeal, with a majority decision, held that in certain circumstances, the clause might require accepting such performance. The dissenting opinion agreed with the High Court. The case is now being appealed to the Supreme Court for a final decision.
This case involves an appeal and cross-appeal arising from two Grain and Feed Trade Association (GAFTA) appeal awards related to Cost & Freight free out (C&FFO) Mundra sales of pulses. The primary issues revolve around the jurisdiction of the court on appeals from arbitration awards under the Arbitration Act 1996.
Appeal by Viterra BV:
- Amending the question of law for which permission to appeal had been granted.
- Deciding a question of law that the GAFTA Appeal Board was not asked to determine and on which it did not make a decision.
- Making findings of fact on matters on which the GAFTA Appeal Board had made no findings.
Cross-Appeal by Sharp Corporation Ltd:
There are two main themes explored in this podcast:
How is it that the Supreme Court and the Court of Appeal can differ so significantly?
And yet, was there a better, appropriate way to get to the same answer?
How to frame a question for appeal without leaving it susceptible to attack?
And, on the flipside, how to attack an appeal on procedural grounds?
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In this case, Mr. and Mrs. Sherman booked a cruise to the Northwest Passage in Arctic Canada with Reader Offers Ltd (ROL), a travel company known for its advertisements in newspapers and magazines. However, the cruise did not meet the Shermans' expectations. Due to ice conditions, the ship could visit only a small part of the Northwest Passage, missing out on historically significant sites associated with the region's explorers. Instead, much of the cruise was spent exploring the west coast of Greenland.
The Shermans filed a claim in the County Court seeking a refund and compensation, arguing that they should have been informed of the changed itinerary and given the option to cancel. After a seven-day trial, spread over four months, their claim was dismissed by Mr. Recorder Bowes QC. On appeal to the High Court, Mrs. Justice Collins Rice held that ROL breached the contract in two ways and sent the case back to the County Court to determine remedies. ROL appealed this decision, seeking to uphold the Recorder's ruling.
A key point of contention was whether the contract included a specific itinerary, starting at Cambridge Bay and traveling through the Northwest Passage to Pond Inlet before crossing to Greenland for the return flight. The Recorder found that this itinerary was not contractually binding, whereas the Judge disagreed.
Ultimately, the appeal was dismissed, and the case was remitted to the County Court for further consideration of remedies. This case highlights the importance of clear contractual terms in travel arrangements and the significance of accurately representing the scope of services offered.
Click here to download the full case.
In this complex maritime case, the vessel MT POLAR was seized by Somali pirates in 2010 while traversing the Gulf of Aden with a cargo of fuel oil. After ten months in captivity, the vessel was released upon payment of a hefty ransom by the shipowner, totaling US$7,700,000. Subsequently, the shipowner declared a general average, claiming US$5,914,560.75 from the cargo interests.
The cargo interests disputed their liability, arguing that the shipowner's recourse for the ransom payment lay solely in additional insurance obtained under the voyage charterparty, with premiums covered by the charterer. The dispute centered on the interpretation of the war risk clauses and the additional Gulf of Aden clause in the charterparty, and whether these terms were incorporated into the bills of lading.
Arbitration ensued, resulting in a split decision. The arbitrators ruled in favor of the cargo interests, holding that they were not liable for general average. However, their decision was partially overturned on appeal. While Sir Nigel Teare agreed with the arbitrators on some issues, he disagreed on others, ultimately allowing the shipowner's appeal.
The Court of Appeal affirmed the decision, concluding that the cargo interests were indeed obligated to contribute to general average. Despite some differences in opinion on certain issues, the courts ultimately upheld the shipowner's claim, establishing precedent for similar disputes in maritime law.
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.
Click here to download the full judgement.
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Guest: Karen Tsang, Associate at Floyd Zadkovich
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.