The vessel arrived at Manzanillo on 1 October, and the charter was terminated on 5 November. Subsequently, the Owners arranged another voyage in mitigation of losses. Disputes arose following the termination of the charterparty, with the Owners bringing multiple claims against the Charterers. These claims included detention, freight differential (arising from mitigation), bottom cleaning costs, and compensation for lost time and over-consumption of fuel during the next voyage. The Charterers, however, denied liability for these claims.
This post particularly concerns two issues: the costs associated with bottom fouling and the performance-related dispute.
Bottom Cleaning
As a result of the prolonged stay at Manzanillo, Owners contend that the vessel's bottom became fouled with marine growth which not only adversely affected her speed and fuel consumption, but would require the bottom to be cleaned at some future date. Rather than paid invoices, Owners merely presented an unsupported estimate of $ 15,000 for such cleaning.
The panel held that absent persuasive evidence that Owners were required and did pay to have the ship's bottom cleaned and that such cleaning was made necessary by the vessel's prolonged stay in Manzanillo, the panel was obliged to deny this claim.
Time Loss and Over-Consumption
Owners claimed for time lost and over-consumption because of the bottom fouling. Here again, Owners had not presented persuasive evidence to support their time lost and excess consumption calculations. Both calculations were merely predicated on a comparison of the ship's actual performance against the speed and consumption warranties contained in the head time charter party. The panel had seen no evidence of the ship's performance prior to arriving Manzanillo nor what wind and sea conditions were experienced during the mitigation voyage. Absent such proof, the Owners' calculations did not rise to the level of proof required to justify an award. More importantly, if Owners thought the bottom had become fouled, the proper remedy was to have the ship cleaned prior to departing Manzanillo on the mitigation voyage. That did not take place and the panel, therefore, required to also deny this claim.
SMA, issued in 2009
Editor's Comment: This scenario commonly arises in practice. A ship departs, and a potential performance claim arises concerning the subsequent voyage. The question arises whether the Owners should clean the ship before departure to mitigate potential losses. Additionally, in situations where the Owners raise a claim for prospective bottom cleaning costs, can they withhold amounts (e.g., set off from overpaid hire) or claim sums that have not yet been expended for cleaning the vessel? The resulting loss must be specifically particularised, and the costs must also be reasonable. Furthermore, some contracts stipulate "hull cleaning" at the Charterers' cost without explicitly referencing "time" or "time, risk, and expense" (see The Globe Danae – "always at Charterers' time and expense"). In such instances, the dispute often revolves around whether only the cost of cleaning should be claimed, excluding any associated time. In some arbitration cases, both under time and voyage charter parties and under different contexts, the tribunals treated "cost" as distinct from "time."
The featured picture is indicative and not related to the above case.