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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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Monday, 22 September 14
CFR SOUTH CHINA COAL SWAPS LOST ON DAY, WEEK AND MONTH
COALspot.com: API 8 CFR South China Coal swap for delivery in October 2014 decreased US$ 3.10 (-4.50%) month over month and $ 0.95 PT MT week over ...
Monday, 22 September 14
INDONESIAN COAL SWAPS LOST WEEK ON WEEK AND MONTH OVER MONTH
COALspot.com: Indonesian coal swaps for average October 2014 increased US$ 0.35 (+0.69%) day on day and lost US$ 0.30 (-0.58%) per mt week on week. ...
Sunday, 21 September 14
CAPE INDEX LOST 17% W-O-W ; BALTIC DRY PLUNGES 106 POINTS
COALspot.com: This week the freight market softened a bit compared to last week.
BDI fell 8.97% week on week and closed BDI at 1075 points on ...
Friday, 19 September 14
U.S. WEEKLY COAL PRODUCTION RELATIVELY FLAT AT +0.1% - EIA
COALspot.com – United States the world's second largest coal producer, produced approximately 19.20 million short tons (mmst) of coal in ...
Friday, 19 September 14
PRICES FOR DRY BULK CARRIERS HAVEN'T CORRECTED ENOUGH, DESPITE LOWER THAN EXPECTED FREIGHT RATES - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING
A lot has been said and written about the looming dry bulk market recovery over the past few months. However, even if this hasn’t been materi ...
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