London Arbitration 12/22
The subject vessel was chartered for a voyage from Indonesia to the People’s Republic of China with a cargo of coal. The owner of the vessel claimed a balance of demurrage or alternatively damages of US$56,604.75. The charterer denied any balance was owed to the owner.
At the discharge port, the charterer’s local agents were initially informed that the vessel would have to wait to berth until January 18th due to a lack of space in their storage yard to discharge the vessel’s cargo. The local agents were later informed that the vessel would berth on January 15 when a pilot was scheduled for 13.00 and laytime commenced at 17.18. This was earlier than the initially given berth date because the receivers wanted the vessel to berth in case storage space at the yard became available over the weekend.
A notice of readiness was received by the terminal on January 15 at 05.18. However, the owner refused to berth the vessel until January 18 at 14.54. This was due to lack of space at the storage yard intended for discharge, even though the berth itself was available. Had the vessel been at berth, some discharge might have been possible on January 17.
A dispute arose over the period between January 15 at 13.00 when the berth became available and January 18 at 14.54 when the vessel finally proceeded to the berth. The main issue being whether the owner was entitled to refuse to berth the vessel when asked to do so by the charterer, or whether their refusal in the absence of agreement to pay berthing charges constituted fault on their part and would stop time counting against laytime and/or demurrage.
Relevant charterparty provisions:
Clause 5(a) “Loading/Discharging
(a) Costs/Risks – The cargo shall be brought into the holds, loaded, stowed and/or trimmed, tallied, lashed and/or secured and taken from the holds and discharged by the Charterers, free of any risk, liability and expense whatsoever to the Owners…”
The main issue was whether the owner was entitled to refuse to berth the vessel when asked to do so by the charterer, or whether the refusal (in the absence of agreement to pay berthing charges) constituted fault on their part and would stop time counting for laytime and/or demurrage.
Clause 13 “Taxes and Dues Clause
(a) On Vessel – The Owners shall pay all dues, charges and taxes customarily levied on the Vessel, howsoever the amount thereof may be assessed.
(b) On Cargo – The Charterers shall pay all dues, charges, duties and taxes customarily levied on the cargo, howsoever the amount thereof may be assessed.
(c) On Freight – Unless otherwise agreed in Box 23, taxes levied on the freight shall be for Charterer’s account.”
The tribunal decided that the issue of the berthing charges would fall under clause 13 and not clause 5(b) of the charterparty. They ruled that the owner was not entitled to insist the vessel not proceed to its discharging berth when ordered to do so by the charterer.
The law introduced by The Stolt Spur decision which states, “now any non-availability, whether it affected cargo operations or not, or even if none were planned, was sufficient to prevent laytime and or demurrage running.” was used as precedent to rule in favor of the charterer.
Another smaller issue that arose was whether the charterer was entitled to deduct $10,000 for alleged losses and costs. The SCP provided its own limit on what costs were payable and did not allow the charterer to make a deduction from the agreed demurrage. The charterer had to pay the owner the $10,000 that was wrongfully deducted.