Author: Haugen Consulting
ASBATANKVOY -- FORCE MAJEURE -- HURRICANE -- WRONGFUL CANCELLATION -- DUE DILIGENCE -- Seller Award
The CFR Buyer declared force majeure after its Pasadena, TX facility was struck by Hurricane Ike and cancelled one of two CFR contracts with the Seller. The dispute concerns whether the event constituted force majeure within the context of the sales contract, whether the sales contract allowed Buyer to cancel the contract and whether Buyer's steps to restore operations at its facility constituted the due diligence required.
ASBATANKVOY -- WHETHER DEMURRAGE IS PAYABLE AFTER LOADING -- REVERSIBLE LAYTIME -- LATE ARRIVAL AT DISPORT -- DAMAGES -- Partial Charterer Award
With the Vessel arriving at the disport approximately 72 days later than projected for a customary 14-day voyage, the Charterer incurred $103K demurrage on two barges that were on standby to receive the cargo. After the Vessel arrived, Owner subsequently refused to discharge the cargo until Charterer remitted loadport demurrage. The issues decided by the Panel include liability of consequential barge demurrage and whether the Owner is entitled to collect demurrage prior to discharging when the fixture stipulates "reversible laytime".
GENCON -- FORCE MAJEURE – DEMURRAGE -- HURRICANE -- BUNKERING -- "ARRIVED SHIP" NOR -- WIPON -- NOR ACCEPTED WITHIN OFFICE HOURS -- Owner Award
The Vessel arrived EOSP to discharge 179 miles up the Mississippi River shortly after the passage of Hurricane Gustav through the area which resulted in the closure of the river and Charterer’s terminal. Shortly thereafter, an upriver section of the river re-opened to traffic, but a draft restriction at the mouth of the river and berth congestion prevented the Vessel from proceeding to the discharge berth. Owner started laytime once the discharge berth re-opened following the hurricane. Conversely, Charterer rejected all waiting time basis the Agent’s SOF remark that the River was closed to navigation during presumably much or all of the waiting time; and, Charterer held that the Vessel was not an arrived ship when NOR was tendered because she later stopped her upriver transit to take on bunkers. Whilst bunkering, Charterer’s berth was unavailable.
ASBATANKVOY -- CARGO CONTAMINATION -- COGSA -- BURDEN OF PROOF -- Owner Award
After discovering that one of its cargo was contaminated by another following a simultaneous discharge, Charterer alleged the contamination occurred during discharge due to leakage or a faulty valve lineup onbard the Vessel. In this award, the Panel reconstructs the course of events, sampling procedures and piping systems onboard and ashore to determine if Charterer has met their burden of proof that contamination was the fault of the Vessel.
ASBATANKVOY -- WRONGFUL CANCELLATION -- ANTICIPATORY BREACH -- Owner Award
On the first day of laydays, without expressly saying so, Charterer is alleged to have cancelled the fixture after the Buyer pulled out of the deal. At issue was whether Owner acted properly in terminating the charter party and claiming damages.
NYPE 1993 -- TIME CHARTER -- EARLY REDELIVERY -- WRONGFUL CANCELLATION -- CALCULATION OF DAMAGES -- Charterer Award
After Charterer prematurely cancelled a time charter, Owner secured a lucrative replacement contract. In determining Owner's damages, Charterer argued that the profits from the replacement contract should be weighed as a whole against the lost revenue from the early redelivery.
NYPE -- FAILED PORT STATE INSPECTION -- MISSED LAYDAY WINDOW -- FORESEEABILITY OF DAMAGES -- REMOTENESS OF DAMAGES -- Charterer Award
Because the Vessel failed a Port State Inspection due to structural deficiencies and was detained until Owner could affect repairs, Charterer missed a layday window with a sub-charterer. Charterer sought to recover lost profits in arbitration and won. Owner appealed and the Judge considered whether the Charterer’s damages were unforeseeable, too remote, or erroneously derived.
BERTH OR PORT CHARTER -- WAITING TIME -- CHARTERPARTY CONSTRUCTION -- ONE SAFE BERTH -- Charterer Award
With no incorporation of a proforma charter party form, at issue was whether the fixture constituted a berth charter or port charter. The key terms considered include "one good and safe Charterer’s berth" in conjunction with other clauses addressing a safe port warranty and shifting time. In overturning the arbitration award, the Court examined the fixture terms and explained contract construction.
SHELLVOY 5 -- NOTICE OF READINESS -- FAILURE TO OBTAIN FREE PRATIQUE WITHIN 6 HOURS -- Owner Award
With the charter party fixed on an amended Shellvoy 5 form inclusive of "Shell Additional Clauses – February 1999", this dispute hinged on whether the Vessel’s NOR was valid in light of the fact that Free Pratique was not granted within six hours as specified within Shell Additional Clause 22.
CHARTERPARTY LANGUAGE "SHINC" -- SUPER HOLIDAYS -- ADDITIONAL CLAUSE SUPERCEDING PRO-FORMA – DESPATCH – DEMURRAGE -- Charterer Award
This laytime dispute hinged on the interpretation of a fixture recap term, SHINC (Sundays and Holidays included), in conjunction with the terms of the underlying charter party form. The underlying charter party Clause 63 stipulated "Sundays and Holidays included", followed by the phrase, “…excluding Super Holidays”. At issue is how the contract should be interpreted specifically relating to the terminal shutdown during the Christmas holiday period.
