Gard Marine and Energy Limited v China National Chartering Company Limited and another

Facts

The OCEAN VICTORY, a Capesize bulk carrier built in China in 2005, was owned by Ocean Victory Maritime Inc ("OVM") and demise chartered to Ocean Line Holdings Ltd ("OLH"), a related company, on the Barecon 89 form by a charterparty dated 8 June 2005. On 2 August 2006 OLH time chartered her to China National Chartering Co Ltd ("Sinochart"), which on 13 September 2006 sub-chartered her to Daiichi Chuo Kisen Kaisha for a time charter trip. Each charter contained a materially identical undertaking to trade only between safe ports. The vessel was ordered to load iron ore at Saldanha Bay and discharge at Kashima in Japan. On 24 October 2006, while attempting to leave Kashima during a storm, she allided with the South Breakwater, grounded and eventually broke in two; a lengthy wreck removal followed. Gard Marine & Energy Ltd, one of the hull insurers, took assignments of the rights of OLH and OVM on 15 October 2008 and claimed damages for breach of the safe port undertaking. Teare J held the port unsafe and awarded some US$137.7m. The Court of Appeal allowed the charterers' appeal, holding the conditions an abnormal occurrence and that the joint insurance provisions barred recovery. Gard appealed to the Supreme Court.