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Tuesday, 25 November 14
UK: TRIBUNAL RULES ON SPEED AND PERFORMANCE CLAIMS UNDER TWO CONSECUTIVE TIME CHARTERPARTIES - REED SMITH
 KNOWLEDGE TO ELEVATE
“Owners not to be responsible if the vessel under the currency of this charter party stays at port or anchorage or any other place for more than 28 days and therefore vessel’s speed, due to bottom fouling which may have formed to the ship’s hull as a direct result of such prolonged stay, is reduced and/or consumption increased. In case of need for underwater cleaning same to be for Charterer’s account in terms of time and expenses.”
Under the first charter, Owners contended that as a result of the high temperature of the sea water at the loadport, where the vessel had stayed for 48 days, the hull, propeller and rudder were fouled. An underwater inspection at the discharge port confirmed this. Owners informed Charterers that the fouling was due to the vessel’s prolonged stay at the loadport, for which Charterers should be held responsible.
Subsequently, the second charter was concluded in substantially the same terms as the first. No underwater cleaning was carried out between redelivery under the first charter and simultaneous redelivery into the second charter.
Owners claimed a balance of hire under both charters, plus sums in lieu of hold cleaning on redelivery under each charter and stevedore damage incurred during discharge under the second charter. Charterers argued that they were entitled to make deductions under both charters for under-performance and overconsumption.
The Tribunal found that bottom fouling did occur during the prolonged stay at the loadport under the first charter, and that this affected the vessel’s speed and consumption. This was supported by the fact that the vessel performed in accordance with the charter warranties on her voyage to that loadport. Under clause 128(1), Owners had no responsibility for the vessel’s failure to make her speed and consumption warranties, and so Charterers’ underperformance claim in respect of the first voyage failed.
As regards the second charter, Owners argued that Charterers had taken the vessel in direct continuation of the first charter, and thereby did not allow the hull to be cleaned after the vessel’s prolonged stay at the first loadport. Owners submitted that Charterers were estopped by their actions from claiming under-performance in respect of the second voyage.
The Tribunal rejected this argument. Owners were aware of the likelihood of hull fouling when the second charter was concluded, and had already written to Charterers in protest. Despite this, they fixed the vessel on identical terms. Owners therefore took the risk that the vessel may not be able to make her speed and performance warranties due to the hull fouling which occurred under the first charter. There was nothing in Charterers’ conduct to found an estoppel. They agreed the fixture on terms acceptable to Owners and took delivery of the vessel. Owners had to stand by the warranties they had given, and pay damages for any proven breach.
Charterers’ claim for under-performance under the second charter therefore succeeded, although the Tribunal reduced the amount to be deducted to take into account commission. Only part of the deduction for overconsumption was allowed, as some of the deductions made by Charterers in respect of the second voyage in fact related to underperformance and overconsumption the first voyage. Those claims failed for the same reason as the claims under the first charter.
Source: Reed Smith
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Wednesday, 03 December 14
PROGRESSING SMELTER PROJECTS IN INDONESIA
Press Release: Indonesia’s ban on ‘raw mineral export’ that was designed to encouraging downstream investment in mineral processi ...
Wednesday, 03 December 14
SHIPPING MARKET INSIGHT - KONSTANTINOS KONTOMICHIS
The dry bulk market seems unable to turn sentiment round and is still looking for direction. The BCI's 887-point free fall last week had an obv ...
Wednesday, 03 December 14
CAPESIZE DRY BULK CARRIERS ENTER 2015 WITH MIXED FORTUNES, WITH A POSITIVE AND A NEGATIVE SCENARIO BOTH EMERGING - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
The future of the Capesize dry bulk market appears to be engulfed from mixed “feelings” among analysts and market participants, despite ...
Tuesday, 02 December 14
KEY PLAYERS SHED NEW PERSPECTIVES ON COAL MARKETS
Press Release: Singapore’s ONLY and longest established Coal Trade event. Whilst Coal prices remain challenging, there is widespread consensu ...
Tuesday, 02 December 14
KOMIPO INVITES BIDS FOR 585,000 METRIC TONS OF COAL FOR Q1'15
COALspot.com - Korea Midland Power Co. Ltd. (KOMIPO) is inviting bids for the supply of 585,000 Metric Tons of coal. According to invitation, 5700 ...
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