The Saldanha [2010]: piracy is not off-hire under NYPE 1946
Gross J's 2010 decision that a Somali piracy seizure was not an average accident, not a default of men, and outside 'any other cause' in a NYPE 1946 form.
Cosco Bulk Carrier Co Ltd v Team-Up Owning Co Ltd (The Saldanha) [2010] EWHC 1340 (Comm) was decided by Gross J on 11 June 2010. The vessel was seized by Somali pirates in the Gulf of Aden on 22 February 2009 while on a time charter on an amended NYPE 1946 form, released on 25 April 2009, and reached the position equivalent to that at seizure on 2 May 2009.
Gross J held that the seizure was not ‘detention by average accidents to ship or cargo’, because an average accident requires an accident causing damage; that the crew’s conduct was not a ‘default of men’, which means a refusal to perform rather than negligent performance; and that piracy was outside ‘any other cause preventing the full working of the vessel’ because, without the word ‘whatsoever’, those words are read ejusdem generis following The Laconian Confidence. The vessel remained on hire throughout.
The full article will cover the facts, the three holdings, the contrast with The Captain Stefanos, and how NYPE 2015 Clause 39(f) now keeps the vessel on hire for the first 90 days of a seizure by express drafting.