This was an interlocutory proceeding that concerned applications by the defendants (Z Energy Ltd and Seafuels Ltd) for summary judgment in the three causes of action pleaded. Alternatively, the second defendant, Seafuels Ltd (Seafuels), applied for strike-out of all three causes of action; and as a further alternative, for a partial review of an earlier interlocutory decision by Associate Judge Gendall (CMI869).

The plaintiff, Svitzer Salvage BV (Svitzer)'s, claims arose out of a third party hire agreement between it as the salvor of the MV Rena (the Rena) and Seafuels for the urgent deployment of a purpose-built bunker tanker owned by Seafuels.

On the 5 October 2011, the Rena ran aground on the Astrolabe Reef off the Port of Tauranga in the Bay of Plenty, New Zealand. The grounding created a significant risk of pollution from discharge of heavy fuel oil and other oils and lubricants onboard and Maritime New Zealand’s Marine Pollution Response Service declared the grounding a Tier 3 Emergency.

On 6 October 2011 Svitzer was appointed salvor of the Rena under a Lloyds open form contract (with the SCOPIC clause invoked). The same day the Director of Maritime New Zealand declared Rena to be a hazardous vessel pursuant to s 248 of the Maritime Transport Act 1994.

It quickly became apparent Rena was unlikely to be refloated unless its bunkers and containers were first discharged. Removal of the 1,700 tonnes of heavy fuel oil and 200 tonnes of marine diesel oil onboard the stricken ship therefore became the immediate and critical priority, given the significant environmental risk posed.

In order to minimise the risk of oil leaking into the sea, Svitzer needed to hire a bunker tanker urgently. Seafuels owned a purpose-built bunker tanker, the Awanuia, which was identified as the only barge on the coast of New Zealand capable of safely undertaking the operation of off-loading the oil from the Rena. At the time, the Awanuia was on a long-term exclusive charter to Z Energy Ltd (Z Energy).

Z Energy agreed to release the Awanuia to Svitzer on the condition that Seafuels would meet the costs and expected losses that would inevitably arise from Z Energy’s loss of use of the barge. At the time that Seafuels and Z Energy finalised the release agreement, all parties envisaged that the charter to Svitzer would be around 3-4 days. In the end the charterparty was extended eleven times and the total period of hire was 43 days.

On 19 September 2012, Svitzer filed an amended statement of claim which contained three causes of action. The first sought to void the charterparty between Svitzer and Seafuels for duress. The second sought to have the charterparty set aside by the Court acting in its admiralty jurisdiction, and the third sought to have the charterparty set aside of modified in reliance upon art 7 of the Salvage Convention 1989.

Held: Svitzer’s first cause of action alleging the charterparty between it and Seafuels was void for duress was struck out. There was no express pleading of a causal nexus between the alleged threat by Seafuels on 9 October and Svitzer’s acceptance of the terms of the charterparty under protest later that same day. Captain Hunter’s refusal to come alongside the Rena when first requested was legitimate as a job safety and hazard plan had to be in place and approved before the transfer of fuel onto the Awanuia could begin. There was no basis on which to conclude that Seafuels was deliberately withholding the Awanuia’s services in order to pressure Svitzer into accepting unconscionable terms.

Seafuels' application for summary judgment on Svitzer’s second cause of action was declined, as was its application in the alternative for strike out. It was at least arguable that the Court’s power to reopen maritime contracts is not limited to salvage agreements and might be extended to the charterparty. The charterparty itself could be in the nature of a salvage agreement. This was a matter for trial and was not appropriate to enter summary judgment or strike out the cause of action.

Seafuels' application for summary judgment or strike out in respect of the third cause of action was declined. Article 7 of the Salvage Convention allows a contract or terms of a contract to be annulled or modified if the contract has been entered into under undue influence or the influence of danger; or the payment is in an excessive degree too large or too small for the services actually rendered. Article 6 restricts the scope of the Salvage Convention by providing that the Convention applies to any salvage operation save to the extent that a contract otherwise provides expressly or by implication. In order to have this cause of action struck out, Seafuels needed to establish either that the Convention did not apply to the charterparty because it was not a ‘salvage operation’ or that the Court’s jurisdiction under art 7 was limited to salvage contracts as opposed to any contract that relates to a salvage operation.

His Honour was persuaded that the law in this area was far from settled and it was not for the Court in the strike-out jurisdiction to attempt to provide a determination.