## Facts

- Andino Chemical Shipping Co. (Andino) and Aectra Refining & Marketing (Aectra) entered a charter arrangement for the carriage/delivery of petroleum products on a vessel owned by Aectra.
- The parties’ agreement contemplated the vessel’s arrival at the discharge port by June 30, a date that mattered to Andino because timely arrival would have allowed Andino to earn special credits from government authorities.
- Aectra’s vessel departed late, putting the June 30 arrival at risk.
- On June 25, after Andino concluded that arrival by June 30 might not occur, Andino and Aectra held additional discussions about timing.
- Andino contended that during those discussions Aectra orally gave a “guaranty” that the vessel would arrive by June 30.
- The parties’ communications did not include written documentation stating that a guaranty existed, and there was no indication that a guaranty was discussed as a condition of the original charter agreement.
- During the June 25 discussions, the parties used the terms “guaranty” and “best efforts” interchangeably, creating uncertainty about whether Aectra undertook an unconditional promise or only a diligence commitment.

## Issues

1. Did the parties form an enforceable agreement—either as part of the original charter or as a later modification—under which Aectra guaranteed the vessel’s arrival by June 30 (as opposed to agreeing only to use best efforts)?
2. If a guaranty was formed, did Aectra breach it by failing to achieve the June 30 arrival, and what damages (if any) could Andino recover for lost governmental credits?

## Decision

- The tribunal found that Andino did not prove the existence of a binding arrival guaranty requiring June 30 arrival.
- The tribunal treated the parties’ interchangeable use of “guaranty” and “best efforts,” together with the lack of written confirmation and the absence of any prior conditioning of the charter on a guaranty, as inconsistent with an unconditional promise.
- Because no enforceable guaranty was established, Andino could not recover damages premised on the alleged June 30 guaranty, including claimed losses tied to missed governmental credits.

## Legal Principles

- A claimed “guaranty” of timely arrival requires clear mutual assent to an unconditional undertaking; ambiguous talk of “guaranty” coupled with “best efforts” language may indicate no firm promise was made.
- Where a party asserts a later oral modification to a charter arrangement, the proponent must show definite terms and a shared intent to add a new contractual obligation, not merely continued discussions about performance.
- Damages for missed commercial opportunities (such as the loss of regulatory or governmental credits) depend on proof of a contractual duty that was breached and that the loss flowed from that breach.

## Conclusion

In Award No. 2254, the tribunal rejected Andino’s attempt to convert post-fixture timing discussions into a binding oral guaranty of June 30 arrival, concluding that the communications reflected at most a best-efforts understanding and lacked the definiteness and objective confirmation needed to impose guarantor-style liability for the missed date and related claimed losses.


Andino Chemical Shipping Co. v. Aectra Refining & Marketing, Award No. 2254 (1986)