Author: Haugen Consulting
ASBATANKVOY -- GENERAL EXCEPTIONS CLAUSE -- RESTRAINT OF PRINCES -- DETENTION -- IMPLIED INDEMNITY -- Partial Owner and Charterer Award
The Vessel was detained for over 30 days by the Indonesian Navy for an apparently erroneous reason and upon release directed to deviate to Singapore for an additional 24 days whilst commercial considerations, themselves resulting from the aforementioned delay, were handled. The Panel ruled the arrest constituted Restraint of Princes with Charterer subsequently not being responsible for the lost time. However, the Panel ruled that the detention in Singapore was to count as demurrage with the deviation costs likewise for Charterer's account.
NYPE -- SEAWORTHINESS -- CAUSATION -- OFF-HIRE -- Owner Award
Due to defects in the hatch covers, 0.1% of a cargo of grain was water damaged en-route to the discharge port leading to a 24-day delay when the authorities refused to allow any of the grain to be discharged even though the wet grain could have been segregated. The Panel ruled that although the Vessel was unseaworthy, the root cause of the delay lay not with the Shipowner but rather with the conduct and actions of the authorities with the authorities’ actions and resultant delay being deemed unforeseeable.
ASBATANKVOY -- CARGO CONTAMINATION -- BURDEN OF PROOF -- DEMURRAGE CLAIM WITH RESPECT TO DELAYS -- Owner Award
The first, second, and third foot samples of ULSD cargo were off-spec with respect to flashpoint (a key commercial criterion for this cargo) resulting in offloading and further Vessel cleaning. Although there was a dedicated line from the shore tank to the terminal manifold, an additive was injected at the terminal manifold (from bulk containers and drums) which could have affected the ULSD flashpoint. Thus, Charterer failed in proving by a preponderance of credible evidence that the Vessel’s tanks were the cause of the cargo damage. Furthermore, the burden is on the Charterer to prove that the Vessel did not exercise due diligence in tank preparation which he failed to do.
SALES CONTRACT -- FORCE MAJEURE -- EXPLOSION -- CUSTODY TRANSFER -- DEMURRAGE -- Partial Final Seller Award
During discharge, an apparent shoretank leak at Buyer's facility caused an explosion which destroyed storage tanks inclusive of cargo being discharged and cargo discharged during previous deliveries not yet paid for by Buyer. The Buyer declared force majeure and contends that it is excused from paying for all cargo destroyed in the shoretanks, cargo remaining onboard the Cape Bruny yet to be discharged and the resultant demurrage.
NYPE -- SAILING ORDERS -- OFF-HIRE -- Owner Award
Charterer's choice of language in giving a Vessel orders to sail must be clear.
GENCON -- LAYTIME DURING PERIODS OF HEAVY SWELL -- WEATHER WORKING DAYS -- RESULTING SHIFTING EXPENSES -- SAFE BERTH -- Charterer Award
Basis a charter party stipulating cargo to be discharged at an average rate "per weather working day" the Panel determined laytime was not to count during a period of port closure due to Ressac swells. The Owner was responsible for the cost of unberthing and reberthing during the port closure as Charterer had not breached their safe berth warranty as the port closure was at the direction of the harbormaster and the Vessel was able to unberth and reberth safely.
TIME CHARTER -- TIME CHARTER PREMATURELY ENDED -- WHETHER TERMINATION JUSTIFIED -- Owner Award
The Panel ruled that Charterer had prematurely ended a time charter when Charterer relied upon a dispute regarding another vessel in the same management.
NYPE 1946 -- VESSEL REJECTED DUE TO LACK OF COFR (CERTIFICATE OF FINANCIAL RESPONSIBILITY) -- CALCULATION OF DAMAGES -- Owner and Disponent Owner Award
When Owner failed to provide the COFR, Sub-Charterer and subsequently Charterer cancelled the Time Charter (hereinafter, "Charter"). Given that the applicable clause in the Charter and Sub-Charter provides a remedy for delay due to not having the COFR and said remedy does not include cancelling the Charter (or Sub-Charter as the case may be), Panel rules in favor of Owner and subsequently Charterer (also referred as “Disponent Owner”) with the party wronged to be put into the position they would have been in had the Charter and Sub-Charter been fulfilled. The damages to be awarded are basis the market rate versus the Charter and Sub-Charter rates, respectively.
NYPE -- TIME CHARTER -- HOLDS REJECTED UPON DELIVERY -- COST OF CLEANING -- CAUSATION OF WAITING TIME -- Part Owner Award, Part Charterer Award
Upon delivery the Vessel’s holds were rejected which subsequently took 6 days for cleaning and approval, followed by 4 days spent waiting to berth. The Panel ruled that Charterer was to be reimbursed by Owner for the cost of the cleaning and that only the delay specifically related to the holds failing inspection was to be for Owner’s account. Charterer was responsible for the berth occupancy upon the Vessel’s arrival and the berth occupancy once the Vessel’s holds were approved yet another vessel was brought in.
SHELLVOY 5 -- NOTICE OF READINESS -- FAILURE TO OBTAIN FREE PRATIQUE WITHIN 6 HOURS -- TIME-BAR -- Charterer Award
In overturning the High Court judgment, the Court of Appeal ruled that the Vessel’s original NOR was invalid since free pratique was not granted within 6 hours as stipulated in the amended Shellvoy 5. The Vessel’s subsequent NOR tendered via email (after receipt of free pratique) was deemed valid, however, Owner’s alternative demurrage was barred since the valid NOR document, considered "an essential document of every demurrage claim", was not submitted timely with the claim.
