Unsafe Port and Berth Obligations

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1 LS LC THE LONDON SHIPPING LAW CENTRE Forum for Shipping, Insurance, Trade and Maritime Safety Unsafe Port and Berth Obligations Chairman: The Hon. Mr Justice Teare Panellists: Professor Howard Bennett University of Nottingham Robert Gay Hill Dickinson Thomas Raphael 20 Essex Street Stewart Buckingham Quadrant Chambers Wednesday 29 th April 2009 Hill Dickinson, Irongate House, 3 Duke s Place, London, EC3 FACULTY OF LAWS ~ UNIVERSITY COLLEGE LONDON 3 TAVITON STREET ~ LONDON ~ WC1H OBT OFFICE TEL/FAX: ~ Directors Tel/Fax: ~ Director s Web-site:

2 Issues to be discussed: Overview of recent developments Issues in the Archimidis Due diligence under Shelltime 4 Effect of a safe berth warranty where there is no safe port warranty and The Reborn Part A Safe Ports: An Overview of Some Recent Developments Professor Howard Bennett Part B The Archimidis Robert Gay Part C Political and Legal Unsafety in The Greek Fighter Thomas Raphael Part D Implication and content of implied safe berth warranties Stewart Buckingham Part E Curricula Vitae

3 THE LONDON SHIPPING LAW CENTRE Forum for Shipping, Insurance, Trade and Maritime Safety Part A Safe Ports: An Overview of Some Recent Developments Professor Howard Bennett

4 Safe Ports: An Overview of Some Recent Developments Howard Bennett University of Nottingham Delay and conditional safety Delay The Hermine The Count (2006) 1,2 or 3 safe ports East Africa Mombasa Beira range Misalignment of buoys marking access channel to Beira ISPS Code SARS 1

5 A question of judgement A threshold of likelihood of risk The Saga Cob Seaborne guerillas affecting Massawa Non-negligible negligible risk Sufficient for a reasonable owner or master to decline to send or sail his vessel there The Chemical Venture The Greek Fighter (2006) Objective observer with all info n relevant to safety could be expected to perceive the risk Prospective safety To what time does the promise of safety speak? Strict liability The Greek Fighter (2006) The Count (2006) The Marinicki (2003) Abnormal occurrence exception Subsequent events within the reasonable anticipation of the charterer? 2

6 THE LONDON SHIPPING LAW CENTRE Forum for Shipping, Insurance, Trade and Maritime Safety Part B The Archimidis Robert Gay

7 THE ARCHIMIDIS The Archimidis was decided by Mrs Justice Gloster on 17 May and by the Court of Appeal on 7 March In this paper, I wish to discuss three points arising from the judgment of the Court of Appeal, on two of which the Court of Appeal agreed with Mrs Justice Gloster, and on the other one the Court of Appeal reversed the Judge s decision. The basic facts were that Archimidis was a tanker which was chartered to carry a series of cargoes from Ventspils to ports in the UK / Northern Europe (Bordeaux / Hamburg range). The charterparty provided for a minimum quantity of 90,000 tonnes on each voyage. On the sixth voyage, the channel for entry / exit from Ventspils was silted up, and in order to pass out through the channel the vessel only loaded 67,058 tonnes. The judgments were on an appeal from an interim award by Messrs Gaisford, Moss and Farrington, in which the Arbitrators held:- (iii) that the owners are in principle entitled to claim deadfreight in respect of the difference between the minimum contractual quantity under the charterparty and addenda thereto and the quantity of cargo loaded on the sixth voyage; and (iv) that there is no objection in principle to the owners bringing a claim for damages for breach of a safe port / berth warranty in the alternative to their claim for deadfreight. 3 The three points decided by the Court of Appeal were (in the order in which they appear in the judgment):- That the owners were not prevented from claiming deadfreight by the moves which the parties made while the vessel was at Ventspils loading for the sixth voyage that is, that the owners were not prevented from claiming deadfreight either because the Master of the vessel had tendered a Notice of Readiness calling for a cargo of approximately 67,000 mt nor by the fact that, as the 1 [2007] EWHC 1182 (Comm), [2007] 2 Lloyd s Rep [2008] EWCA Civ 175; [2008] 1 Lloyd s Rep Set out in the judgment of the Court of Appeal at paragraph [2], [2008] 1 Lloyd s Rep 597 at pages 598 to 599.

8 arbitrators put it, the charterers formally tendered 4 a quantity of 93, tonnes for loading. That the wording of the fixture which provided for loading at one safe port Ventspils amounted to a safe port warranty by the charterers in respect of Ventspils, notwithstanding that Ventspils was named in the charterparty as the loading port, and there was no provision for the charterers to nominate any other loading port. That in principle where there is a safe port warranty, the owners can recover damages in respect of losses and expenses incurred in avoiding danger to the vessel by the exercise of ordinary good navigation and seamanship. (In this case, the danger posed by the silted-up exit channel was well-known, and in the exercise of good seamanship the Master avoided the danger by loading only about 67,000 tonnes. In this case, the point was that in principle the owners would be entitled to recover the freight which they had foregone on the 23,000 tonnes which the vessel had not loaded, as a loss incurred in avoiding danger by the exercise of good seamanship.) I propose to discuss these three points in reverse order, beginning with the point about losses / expenses incurred in avoiding danger, turning next to the point about the combination of a single named port and an express safe port warranty, and looking last at the effect of the moves made by the parties, including the charterers gesture of tendering a full cargo for loading. It may seem that this last point depends on the special facts of the case and is of no general interest, and in any event has no place in a seminar discussing safe ports / safe berth obligations. However, it certainly involves a point of general significance with regard to the definition of a (genuine) tender of performance. And I would suggest that it has its place in this seminar, because the question as to how an arbitration tribunal should view the moves which the parties make at the time, will certainly affect how shipowners and their masters should act in circumstances where there may be a claim about to arise in respect of expenses / losses incurred in avoiding danger by the exercise of ordinary good seamanship. 1 Expenses of avoiding obvious dangers 1.1 This point occupied Mrs Justice Gloster for only four paragraphs 5 and Sir Anthony Clarke for only another four paragraphs. 6 4 As Sir Anthony Clarke MR (who gave the only judgment in the Court of Appeal) remarked, the Arbitrators carefully wrapped the word tendered in inverted commas, so as to indicate that in their view this was not a genuine tender of performance, paragraph [12], [2008] 1 Lloyd s Rep 597 at page

9 1.2 I would respectfully suggest that the conclusion, that as part of a safe port warranty, the owners should be entitled to recover costs and expenses incurred in avoiding obvious dangers, is correct. Certainly in the book which, with great respect to its present authors, I will call Wilford on Time Charters 7 there is a series of cases relating not to situations where vessels ran into any actual danger, but to the expenses of avoiding known dangers. For example 8 :- Sagoland was ordered to discharge at Londonderry. Because of the narrow winding approach to the port she was unable to enter without tugs. There were no tugs at Londonderry and the ship was obliged to call for tugs from the Clyde. It was held that the cost of the tugs was recoverable from the charterers. 9 Peerless was ordered to discharge a cargo of maize at King s Lynn but her draft was too great to allow her to enter on any tide with her full cargo. It was held that the owners were entitled to recover the cost of lighters. 10 Vanduara could not reach Manchester (by way of the Manchester Ship Canal) without dismantling her masts in order to pass Runcorn Bridge, and therefore it was held that Manchester was an unsafe port for her. 11 Innisboffin reached Manchester by the Ship Canal without difficulty. However, after discharging she could not clear the canal bridges owing to her decreased draft. It was held that the owners were entitled to recover the costs of cutting her masts in order to clear the bridges and then replacing them Paragraphs [40] to [43], [2007] 2 Lloyd s Rep 101 at page Paragraphs [38] to [41], [2008] 1 Lloyd s Rep 597 at page Coghlin, Baker, Kenny & Kimball Time Charters (6 th edition, 2008) 8 I take these examples from Wilford, and have not myself read the judgments in question 9 Brostrom v- Dreyfus (1932) 44 Ll.L. Rep. 136, Wilford (6 th edition) paragraph 10.20, page Hall v- Paul (1914) 19 Com. Cas. 384, Wilford (6 th edition) paragraph 10.24, page Re Goodbody and Balfour, Williamson (1899) 5 Com. Cas. 59, Wilford (6 th edition) paragraph 10.23, page 202. I have not checked the judgment to find out whether what was in issue was a refusal by the owners to send the vessel to Manchester, or rather the recovery by owners of the costs of dismantling / reinstating the vessel s masts. 12 Limerick v- Stott (1920) 5 Ll. L Rep. 190, Wilford (6 th edition) paragraph 10.36, page

10 1.3 The immediate difficulty in way of this conclusion is created by the definition of an unsafe port given by Lord Justice Sellers in The Eastern City in 1958, and the subsequent adoption of this definition as a definitive statement of the meaning of safe port under English law. 1.4 Lord Justice Sellers said:- If it were said that a port will not be safe unless, in the relevant period of time, the particular ship can reach it, use it and return from it without, in the absence of some abnormal occurrence, being exposed to danger which cannot be avoided by good navigation and seamanship, it would probably meet all circumstances as a broad statement of the law Lord Justice Roskill said in The Hermine in 1979: it is now quite unnecessary, in these unsafe port or unsafe berth cases, to refer back to the multitude of earlier decisions, notwithstanding repeated attempts by Counsel so to do, which we have strongly discouraged in the present case. There is the law clearly stated. What has to be determined by the tribunal of fact in each case is whether, on the particular facts, the particular warranty of safety has or has not been broken The immediate difficulty is that the definition in The Eastern City is supposed to be definitive, and according to this definition Londonderry, King s Lynn, and Manchester were not unsafe ports for the vessels in question, nor was Ventspils an unsafe port for Archimidis. In each case, the only danger was apparent, and could be avoided by the exercise of ordinary good navigation and seamanship, for example by calling for lighters or tugs, or by loading less than the contractual quantity of cargo. 1.7 In The Archimidis, the Arbitrators simply stated the puzzle: we agreed with the Owners that whilst in the present case there was no question of unsafety in the ordinary usage of 13 Leeds Shipping Co. Ltd v- Societe Francaise Bunge, the Eastern City [1958] 2 Lloyd s Rep 127 at page 131, quoted by Lord Justice Roskill in The Hermine [1979] 1 Lloyd s Rep. 212, at page 214, and also quoted by Wilford (6 th edition), paragraph 10.3, page Unitramp v- Garnac Grain Co. Inc, the Hermine [1979] 1 Lloyd s Rep. 212, at pages

11 that word, there is authority for the view that a port can be unsafe because of a need for lightering to get into or out of it Mrs Justice Gloster 16 (followed by the Master of the Rolls) accepted an argument from Counsel for the Owners that Ventspils could be considered an unsafe port according to the Eastern City definition. I am not quite sure what the argument is, but it seems to have the consequence that ordinary good navigation and seamanship are to be redefined so as not to include, for example, calling for lighters before entering King s Lynn, or adjusting the quantity to be loaded so as to be able to leave a port safely. With respect, this seems to me an artificial and unappealing restriction on what is to count as ordinary good navigation and seamanship. I would suggest that this argument should not be accepted. 1.9 Nevertheless, the conclusion of the Court of Appeal should be accepted, both because it is reasonable that where there is a safe port warranty the owners should be entitled to recover the costs of avoiding obvious dangers, and because in any event this is the decision of the Court of Appeal and it is in the interest of certainty that it should be accepted and followed However, I would suggest that care is needed in formulating this conclusion. There seem to me to be at least three problems which will arise in stating and following through the conclusion of the Court of Appeal on this point, and in the remainder of this section I will set out these problems and offer (tentatively, and in outline only) answers to them First, there is a question about what expenses the owners may be entitled to recover. There may have been a time (perhaps, in the nineteenth century) when shipowners might expect their vessels to be able to enter ports and berth without having to hire pilots and without external assistance such as tugs. However, it would certainly now be accepted that a pilot (or, in the case of an upriver port, a succession of pilots) will be required, and that most vessels cannot be manoeuvred without tugs. A safe port warranty would not now be considered to entitle owners to recover such expenses What expenses the owners can recover, will clearly depend on the type of vessel involved and what sort of expenses are necessarily involved in bringing her into any (or, almost any) port which she ordinarily uses. Similarly, what type of expenses may be recovered will depend on what is usual for the port in 15 Quoted by Mrs Justice Gloster at paragraph [40], [2007] 2 Lloyd s Rep. 101 at page At paragraphs [41] [42], [2007] 2 Lloyd s Rep. 101 at page

12 question, and there may be the thought that by agreeing to go to this port, or by not excluding this port from a permitted range, the owners may have agreed to accept those expenses which are usual at this port. Also, what expenses the owners are considered to have agreed to bear may change over time The second problem is whether a port where the owners have to incur such expenses in avoiding obvious dangers by the exercise of ordinary good navigation, is to be called an unsafe port or not One way of expressing the conclusion of the Court of Appeal would be to say that a port is unsafe if the owners have to incur unusual expenses in avoiding obvious dangers. This would be to extend the definition of safety beyond that given in The Eastern City so that a port will also be unsafe if the owners have to incur such expenses However, it would equally be possible to deal with the point by keeping the definition of safety as it is, but extending the content of an unsafe port warranty, so that the charterers would be in breach of the primary obligation under the warranty if at the time when the charterers give the order to proceed to the port, circumstances are such that either the port will not be safe for the vessel or the owners will have to incur unusual expenses in avoiding some obvious danger I would respectfully suggest that the second course is better, both as a matter of authority and as a matter of principle As a matter of authority, the Arbitrators in The Archimidis rightly said there is authority for the view that a port can be unsafe because of the need for lightering to get into or out of it. [emphasis added]. The pre- Eastern City judgments which I set out in the bullet points above, all of them spoke in terms of the port in question being unsafe However, apart from The Eastern City, there is the careful discussion by Mr Justice Mustill (as he then was) in The Mary Lou :... it is necessary to draw a distinction between patent and latent sources of unsafety. Where the dangerous feature is patent, so that a prudent shipmaster would recognise it, and where the danger is of such a nature that the master can (having recognised it) circumvent it by the exercise of reasonable skill and care, the port is not, in a relevant sense, unsafe... But there are cases where the patent danger cannot be circumvented, so that the only prudent course is to abstain from entering or remaining at or leaving the port, as the case may be. 6

13 These are not cases of unsafety, stricto sensu, since if the prudent course is adopted, the ship will not be exposed to risk. The consequence of the patent danger is to make the port permanently or temporarily inaccessible. Although this is a real distinction, the reported cases have tended to treat inaccessibility as a special instance of a breach of the warranty of safety As a matter of principle, the consideration of whether a port is safe or not relates primarily to whether the vessel, crew and cargo will be endangered and so relates to the right of a Master to refuse to enter a port It is submitted that a port should not be considered unsafe for this purpose if the position is that the vessel is too deeply laden to enter without lightering, but lighters are readily available. I would suggest that it should be a serious matter for the Master to refuse to enter a port. If a cargo is destined by bills of lading for King s Lynn or as near thereto as she may safety get, and the vessel is too deeply laden to enter King s Lynn without lightening, but lighters are readily available, is the Master entitled not to call for lighters but instead turn round and insist on discharging the cargo at (say) Great Yarmouth? The third problem may arise in reconciling the conclusion of the Court of Appeal in The Archimidis with the decision of the Court of Appeal in The Hermine. The position appears to be that if the vessel is able to avoid a danger by the exercise of ordinary good navigation and seamanship, and the means adopted involve expense (such as tugs or lighters or temporarily removing parts of the vessel s superstructure) then the owners may be entitled to recover in respect of these expenses. Similarly, if the means adopted involve loss for the owners (for example, not loading a full contractual cargo) then the owners may be entitled to recover in respect of those losses. However, if the means of avoiding an obvious danger involve delay for the vessel, then a safe port warranty will not entitle the owners to recover damages in respect of this delay, 17 Transoceanic Petroleum Carriers v- Cook Industries Inc, the Mary Lou [1981] 2 Lloyd s Rep. 272, at page 279. I am well aware that this judgment must be handled with care, as it was condemned for heresy by Lord Diplock in The Evia Kodros Shipping Corporation v- Empresa Cubana De Fletes, the Evia ( No. 2) [1982] 2 Lloyd s Rep 307 at page 310. However, the heresy related to supposing that a safe port warranty amounted to a warranty that the port would be safe for the vessel (as distinct from the structure of primary obligation and secondary obligation which the House of Lords adopted in The Evia ). What Mr Justice Mustill said with regard to the meaning of safety may still be authoritative. 18 However, if there is no relevant safe port warranty, then the owners may have to bear the expense of lightening as part of the obligation to deliver the cargo to destination in exchange for which the owners receive freight, except in a situation where such expenses may be considered as General Average. 7

14 unless the delay is of an extent such as might give rise to frustration of the contract (In passing, it is striking that in The Hermine the vessel dealt with the problems in getting out through the Southwest Pass, by discharging a part of the cargo which she had loaded upriver in order to reduce her draft. In fact, the owners agreed that their claim in respect of this should be wrapped up together with their claim in respect of delay. 19 Presumably, if the owners had claimed separately in respect of the lightening, then they might have recovered in respect of this cost although the Court of Appeal denied them any recovery in respect of the detention of the vessel.) 1.23 This position is not exactly principled. It may also lead to difficulties in practice, if a master and his owners may be confronted with the choice between calling for lighters (the cost of which may be recoverable) and simply waiting until a temporary reduction in the depth of a channel is cleared (where the delay will not be recoverable) It would be more principled if we were able to say that on the one hand where there is an issue of safety in the strict sense and of the question whether a vessel is entitled to refuse to enter a port and instead go off and discharge her cargo somewhere else, then the extent of delay must be such as might give rise to a frustration of the contract of carriage, but where the question is about the recovery under a safe port warranty of expenses incurred in avoiding danger, then the owners should be entitled to recover for any delay which is unusual and not such that they would naturally be considered to have accepted. (It may perhaps also be said that the extent of delay which it would reasonably be considered that owners of a vessel would have accepted in the ordinary course of things may have been greater in the nineteenth century, where it was not unusual for vessels to be sent to ports which could not be entered or departed from at neap tides, and may now be substantially less.) 1.25 However, so long as we cannot depart from the authority of the Court of Appeal in The Hermine, the position under English law appears to be that if the means of avoiding danger is simply waiting, then the owners cannot recover in respect of such delay unless the delay is of an extent such that it might give rise to a frustration of the contract. 19 In the special case as stated by the Arbitrators (Messrs Selwyn & Kazantzis) as set out in the report of the first instance judgment, [1978] 2 Lloyd s Rep. 37 at page 43, at the foot of column 1. 8

15 2 1 Safe Port Ventspils 2.1 In The Archimidis the fixture was for loading at 1 safe port Ventspils. This raised the question whether effect should be given to the words 1 safe port in a context where there was also a single named port and no occasion for the charterers to nominate or choose between ports. 2.2 It is well-established that where a single port is named in a charterparty, and there is no express warranty of safety, then no warranty of safety will be implied. Where the charterparty leaves it to charterers to nominate load and discharge ports, or (as in a time charter) to decide more generally where to send the vessel, then the law will imply a safe port warranty. However, when charterers name the ports at the time when the fixture is made, then the owners are considered to have a sufficient opportunity of checking for themselves whether the ports will be safe for their vessel, and no warranty of safety will be implied. 2.3 Nevertheless, where a port is named but there is also an express warranty of safety, there is no reason why this should not be understood as meaning what it says. In effect, instead of making enquiries for themselves, the owners can rely on the charterers undertaking. 2.4 Logically, there is also a question which is not quite the same, as to whether the content of a safe port warranty (for example, the standard of safety to be applied) might be affected by the fact that it is to apply to a port which has been named in the charterparty. It is noticeable that this question is not discussed in the judgment of the Court of Appeal in The Archimidis. As it appears, Counsel on both sides were content to say simply that the meaning of the word safe was to be given by the definition in The Eastern City 20 and the Court did not raise of its own motion the question whether the content of the safe port warranty might be affected. The reasoning of the Master of the Rolls addresses the Yes or No question whether the words 1 safe port should be given some meaning or no meaning at all, and then says that if the words are to have some meaning, then the much more natural construction is that the charterers are giving a safe port warranty At paragraph [22], Lloyd s Rep 597 at page 603. Counsel for the Owners would have had no reason to argue that there should be any qualification on the content of the express safe port warranty, and Counsel for the Charterers may have had his own reason for wishing to adopt the definition from The Eastern City, so that he could raise the difficulty which we discussed in section (1) above. 21 Paragraphs [20] to [22], [2008] 1 Loyd s Rep. 597 at page

16 2.5 In one way, the content of an express safe port warranty must be affected, when ports are written into a charterparty without any alternatives. By giving a safe port warranty, the charterers will come under the primary obligation as defined in The Evia, which applies at the time when the charterers first give an order sending the vessel to a port (in this case, it will apply at the time when the fixture is made, that at this time the port should be such that it is prospectively safe for the vessel at the time when she is expected to be there). In cases where the charterers retain a right to send the vessel elsewhere, then they will also come under the secondary obligations as defined in The Evia. However, where the charterers do not retain any right to send the vessel elsewhere, then they can be under no obligation to cancel an order and send the vessel to a different port where there is no right, there can be no obligation. Therefore, in cases where an express safe port warranty is given in relation to a port which is written into a charterparty without any alternative, this must be understood as including the primary obligation only. 22 (Thus, on the facts of The Archimidis, if at the time when the fixture was made, or perhaps the time when the addendum covering the sixth voyage was agreed, there was no reason to expect that the entry / exit channel for Ventspils might be silted up, then at that time Ventspils was prospectively safe for Archimidis and the owners would not be entitled to recover in respect of their expenses / losses.) 2.6 However, it appears that this may be the only way in which the content of a safe port warranty may be affected by the remainder of the charterparty in which it appears. The judgment of the Master of the Rolls accepts the point agreed by the two Counsel before the Court of Appeal, that the meaning of the word safe is to be given simply by the definition in The Eastern City 23 and therefore he is holding that the Charterers of Archimidis were undertaking that Ventspils would be safe according to this definition, without any qualification. 22 Compare Ullises Shipping Corporation v- Fal Shipping Co Ltd, the Greek Fighter [2006] EWHC 1729 (Comm), [2006] Lloyd s Law Reports Plus 99, summarised (2006) 703 Lloyd s Maritime Law Newsletter 1. The Greek Fighter, also, was a case where it was held that there was an express safe port warranty, and the charterparty (as amended) was for the vessel to be used for storage at Khorfakkan without any alternative port or place. Mr Justice Colman said at [319]: It is argued on behalf of Fal [Charterers] that it is not established that at the time the vessel was sent to Khorfakkan there was a prospective risk of unjustifiable detention. That detention only occurred when the vessel had already been at Khorfakkan for some nine months. The existence of the prospective risk has to be tested at the time when the vessel was first directed to that port, that is to say at the time of Addendum No. 1 and not at the time of the detention. This submission is in principle correct, as Owners accept. 23 Paragraph [22], [2008] 1 Lloyd s Rep. 597 at page

17 2.7 That is, the effect of the decision of the Court of Appeal in The Archimidis appears to be that where there is a safe port warranty in respect of a named port, the charterers will come under a primary obligation which is not qualified in any way by the fact that the port is named in the charterparty. In particular, there will be no difference in the standard of safety to be applied. 2.8 This is in agreement not only with the decision of Mrs Justice Gloster but also with other recent first instance decisions. In The Greek Fighter 24 and The Livanita 25 the position was that the charterparty contained elsewhere provisions which amounted to a safe port warranty, but also (separately) sent the vessel to a single named port. In these two cases it was held that the safe port warranty was not displaced when the fixture named a single port, but rather the safe port warranty would apply to the named port. 26 In neither of these two cases did the Judge show any inclination to accept that the naming of a single port would affect the content of the safe port warranty. In particular, in The Livanita the reasons given by Mr Justice Tomlinson for granting permission to a appeal included: it is a permanent feature of St. Petersburg that ice is to be reasonably expected to be encountered on a voyage to and from that port which is expected to begin from Skaw between 28 December and 2 January. In my judgment it is arguable that in such circumstances the charterers were not in breach of a charter expressed as this was by reason alone of the fact that the conditions reasonably to be expected in fact obtained. 27 However, Mr Justice Langley dismissed this line of thought in less than twenty words But there was no evidence that... nor that it [St Petersburg] was unsafe as sought to be alleged in Ground It appears that Mr Justice Langley was so far out of sympathy with the line of thought expressed by Mr Justice Tomlinson that he did not even understand it. 24 [2006] EWHC 1729 (Comm), [2006] Lloyd s Law Reports Plus 99, summarised (2006) 703 LMLN STX Pan Ocean Co Ltd v- Ugland Bulk Transport AS, the Livanita [2007] EWHC 1317 (Comm), [2008] 1 Lloyd s Rep The Greek Fighter at paragraphs [311] to [315], The Livanita at paragraphs [17] to [22], [2008] 1 Lloyd s Rep. 86 at page Quoted in the judgment at paragraph [11], [2008] 1 Lloyd s Rep. 86 at page 90 (in paragraph (3) of Mr Justice Tomlinson s reasons). 28 At paragraph [23], [2008] 1 Lloyd s Rep. 86 at page

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