The MV Mookda Naree arrived at Conakry, Guinea, in December 2018, to discharge 10,700 mt of milling wheat carried from Novorossiysk, Russia. The vessel was arrested at Conakry on 15 December 2018 and remained under arrest until 12 January 2019 at the instance of a Guinean company, Societe Moulin d'Or Guinea (SMG). The arrest was procured to secure a claim that SMG asserted against Cerealis, a French wheat trading company. SMG's claim alleged short delivery of a cargo of milling wheat at Conakry in June/July 2018 against the bill of lading quantity. The carrying vessel on that occasion, of which Cerealis had been a sub-charterer, was the MV Supertramp, a ship unrelated to the Mookda Naree.

The Mookda Naree cargo was destined for a different Cerealis buyer, Moulin Moderne du Mali Segou (MMMS). The December 2018 call at Conakry was pursuant to a head charter between Precious Pearls Ltd (the owner) and Navision Shipping A/S (Navision), a sub-charter between Navision as disponent owner and Conti Lines Shipping NV (Conti), and a sub-sub-charter between Conti as disponent owner and Cerealis. The head charter and the sub-charter were time charters on the Asbatime form with additional clauses. In both cases, additional cl 47 put the ship off hire upon being detained or arrested by any legal process until the time of its release 'unless such … detention or arrest [was] occasioned by any act, omission or default of the Charterers and/or sub-Charterers and/or their servants or their Agents.' The arbitrators held that the cl 47 proviso applied, so that the Mookda Naree was not off hire after 12h00 on 17 December 2018, because its detention under arrest thereafter was caused by Cerealis' failure promptly to deal with or secure SMG's claim to procure its release.

Additional cl 86 of the head charter, not included in the sub-charter, provided as follows:

Trading Exclusions ... When trading to West African ports Charterers to provide adequate security guards during port stays in these countries to protect the vessel her crew and cargo. When trading to West African ports Charterers to accept responsibility for cargo claims from third parties in these countries (except those arising from unseaworthiness of vessel) including putting up security, if necessary, to prevent arrest / detention of the vessel or to release the vessel from arrest or detention and vessel to remain on hire.

The arbitrators held that the second part of cl 86 applied, being in their view not limited to claims concerning cargo carried under the head charter. For that reason also under that charter, the Mookda Naree was not off hire. Indeed, it was on hire for the entire period under arrest.

Conti and Navision appealed against the resulting awards in favour of Navision and the owner respectively.

Held: There is no error of law in the arbitrators' conclusion that the detention of the Mookda Naree after 12h00 hrs on 17 December 2018 was occasioned by Cerealis' failure to act as it ought reasonably to have acted to deal promptly with the claim being made against it by SMG, that being an 'act or omission or default of ... sub-Charterers' within the meaning of the proviso to cl 47 of both charters. Conti's appeal against the award in the sub-charter reference is therefore dismissed, and Navision's appeal against the award in the head charter reference is confined to the impact of the arbitrators' conclusion on cl 86, ie the award of hire from the time at which the Mookda Naree was arrested until 12h00 on 17 December 2018 and the award of damages to be assessed for breach of cl 86. Except for that extent, Navision's appeal also fails.

The arbitrators did not introduce, as Conti's counsel argued, 'a two-tiered definition of "act or omission"'. The arbitrators' interpretation of 'omission' in this context does not offend the dictionary definition relied on by Conti's counsel, namely 'the non-performance or neglect of action or duty', since their definition is, in essence, that of failing to take action that it was reasonably to be expected would be taken. Conti's counsel also reminded the Court that 'act or omission' appears in art 4.2.i of the Hague-Visby Rules, and that there is no authority holding it there to mean something wider than breach of contract (or other actionable wrong). While it is not necessary for the Court to make a decision on art 4.2.i, the Court envisages that if counsel is right about the lack of authority, that is because it has never been supposed arguable that art 4.2.i might be confined to breaches of contract (or other actionable wrongs). Article 4.2.i excepts the shipowner from liability for loss or damage arising or resulting from an '[a]ct or omission of the shipper or owner of the goods, his agent or representative', and the Court is not aware that it has ever been suggested that in order to bring itself within that exception the shipowner must locate and prove breach of some contract to which the shipper or owner of the goods was privy (or actionable wrong other than a breach of contract).