Category: U.S. Maritime Cases
ASBATANKVOY -- SHORTAGE AND CONTAMINATION -- DAMAGES SET-OFF AGAINST DEMURRAGE -- Partial Final Award
When Vessel suffered a lengthy breakdown at Charterer’s supplier’s berth, Charterer withheld demurrage payment whilst claiming damages from Owner. Citing an earlier Court decision, the Panel ruled that "Unless there are explicit and clear provisions in the Charter Party permitting deductions from freight, Shipowner is entitled to freight regardless of Charterer’s claim for damage, shortage and contamination."
ASBATANKVOY -- CARGO CONTAMINATION -- COGSA -- DEMURRAGE -- Owner Award
Due to discrepancies in samples taken at the load port and tests done at the discharge port, Charterer was unable to prove that contamination of a cargo of diesel occurred onboard the ship despite a clean Bill of Lading (B/L) having been issued.
ASBATANKVOY -- DEADLINE MISSED FOR LIFTING SUBJECTS -- DAMAGES FOR HIGHER FREIGHT ON SUBSTITUTE CHARTER -- Owner Award
Incurred during a volatile and rising market, this dispute hinges on whether Charterer can prove subjects were lifted prior to the deadline. As Charterer had no written proof subjects had been lifted and with Charterer’s broker claiming subjects were lifted prior to the deadline and Owner’s broker claiming time had run out, the Panel weighed various testimony concluding that Charterer did not fulfill their burden.
ASBATANKVOY -- PRODUCTION PROBLEM -- INABILITY TO PROVIDE CARGO -- FORCE MAJEURE -- DEADFREIGHT -- Owner Award
When problems in the plant caused the supplier to fail to provide a cargo of CAN, Charterer notified Owner and attempted to locate an alternative supply. A week later when it was apparent additional cargo would not be located, Charterer formally declared force majeure. In awarding Owner deadfreight, the Panel majority held that Charterer had failed to promptly provide the force majeure notice, failed to alert Owner as to the extent or duration of the delay (as contractually required), and failed to prevent or minimize the effects of the force majeure event.
GENCON -- FAILURE TO PROVIDE CARGO -- REPUDIATION OF CHARTER -- DETENTION -- DAMAGES -- Owner Award
Having awaited cargo at the load port for 40 days without proper assurance that same was forthcoming, Owner repudiated the Charter Party and fixed a voyage with another Charterer to mitigate damages. The Panel awarded Owner the freight differential between the repudiated Charter and the mitigating Charter and 40 days of detention at the demurrage rate. Owner’s claims for bottom cleaning, time loss due to slow steaming and over consumption of bunkers on the mitigating voyage, all allegedly due to bottom fouling itself a result of the prolonged stay at load port, failed due to a general lack of documentation.
SALES CONTRACT -- FORCE MAJEURE -- TERMINAL EXPLOSION AND FIRE -- NEGLIGENCE -- Seller Award
In the earlier Partial Final Award, SMA No. 4073, the Panel determined Buyer was responsible for cargo in shoretanks destroyed by an explosion whilst Vessel was discharging. The Panel held off in determining whether Buyer’s force majeure defense applied to the cargo remaining onboard the Vessel until after the cause of the explosion was determined. In this Final Award, SMA No. 4083, the Panel concluded that the cause of the explosion was due to human negligence and, as such, is not within the scope of force majeure. Buyer is responsible for the extra expense in disposing of remaining product.
FOSFO -- HAZARDOUS CARGO -- REPUDIATION OF CHARTER PARTY -- DEADFREIGHT -- DETENTION -- Owner Award
Vessel’s inoperable smoke detection system caused Charterer to refuse to load cargo of bulk sulphur citing OSHA’s claiming the cargo to be hazardous (subsequently requiring a smoke detector system) despite IMO, SOLAS, USCG, Charterer’s supplier and LLOYD’s deeming the cargo to not be hazardous nor requiring the Vessel to have smoke detectors. Owner repudiated the charter and was awarded deadfreight (less savings from not performing the voyage). Owner was not awarded detention basis an express term stipulating damages for non-performance will be "proven damages not exceeding the estimated amount of freight." Panel had already awarded the value of the freight.
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.
BALTIMORE BERTH GRAIN CP -- DESPATCH -- COMMENCEMENT OF DETENTION -- EXPIRATION OF LAYTIME -- Charterer Award
After loading, Charterer gave the Vessel orders to wait at the loadport until ordered to sail. The Vessel waited 22 days. At the heart of the dispute was the time at which laytime expired and detention began. Charterer argued that it is entitled to the benefit of the total load laytime allowance (calculated basis the maximum cargo volume negotiated for the freight paid) prior to accruing detention.
