Monday, July 15, 2024

Detention

Detention
  1. Demurrage counts until the charter is terminated

Held, Owners were entitled to demurrage until the Charter was terminated. Once the Charter was terminated the right to contractual demurrage ended. It made no difference whether a loss was claimed as demurrage or damages for repudiatory breach. These are quite separate remedies even though the daily rate at which they would accrue might be similar or identical. Losses for delay accruing after the Charter terminated were not recoverable as demurrage.

(LMAA, three arbitrators 2019- JM)

  1. Demurrage ends when the contract terminated

Held, demurrage ends when Charter came to an end; the claimant accepted the Cancellation Message as a wrongful repudiation of the charter.

(LMAA, Two arbitrators 2022-JM)

  1. Delay due to failure to provide cargo

Held, the Vessel was detained at the Loadport during its second call, as a result of the Charterers’ failure to provide cargo, giving rise to demurrage.

(LMAA, Sole arbitrator 2017-JM)

  1. Delay due to waiting for final disport declaration

The freight remained unpaid, and the ship spent a period drifting pending final disport declaration. The voyage continued after charterers provided a letter of guarantee. Damages for detention were agreed upon for the time spent drifting.

(LMAA, Sole arbitrator 2017-JM)

  1. Owners exercised lien for freight, demurrage and damages

Held,whilst Owners’ right to lien the cargo for demurrage was not operative, they undoubtedly possessed an accrued right to lien the cargo for both freight and also for their “claims for damages” according to the “Lien Clause: The Owners shall have a lien on the cargo and on all sub-freights payable in respect of the cargo, for freight, deadfreight, demurrage, claims for damages and for all other amounts due under this Charter Party including costs of recovering same”.

(LMAA, Sole arbitrator 2012-JM)

  1. Delay due to Lien over the cargo for unpaid freight

When the vessel arrived at the discharging port, neither the freight nor the loading port demurrage had been paid. Consequently, the Owners gave notice and exercised a lien over the cargo on board pursuant to their rights under the Charterparty.  Held that any delay that occurred during discharge was entirely due to the Charterers’ failure to pay the freight in accordance with the terms of the Charter Party, and thus, the Charterers were liable for any such delay.

(LMAA, Sole arbitrator 2011- JM)

  1. Delay in sailing due to insufficient draft

Draft restrictions prevented the Vessel from sailing on completion of discharging. An extract from the Vessel’s deck log entry, records the Vessel’s draft as being 6.05m (FWD) and 6.30m (AFT). The Kolkata Port Trust’s draft forecast for February 2017 was also presented to me. It showed that the estimated fresh water depth between 18th and 26th February 2017 would be 6.2 m or less, which was insufficient clearance for the Vessel to sail.

Held, Clause 16 of the Charter Party provided that time lost due to impediments beyond the Owner’s control preventing the Vessel from departing from the discharging berth/port, would count as laytime or was charged as time for which damages for detention were due at the rate agreed. The delay in sailing due to insufficient depth of water was an impediment beyond the Owner’s control and damages for detention were payable from completion of discharging until the Vessel was able to depart.

(LMAA, Sole arbitrator 2018- JM)

8. No cargo was loaded and the vessel eventually sailed empty

Owners claimed demurrage or damages for detention-$918,843.75

The only defences raised by Charterers against this claim were firstly that some delay was caused by the owners’ failure to replace the agents when asked to do so, and secondly because under the charter, demurrage was due and payable 5 business days from completion of second port discharge, and discharging never took place, there could be no liability.

Held, the first point failed as the agents were acting wholly appropriately, and the true cause of the delay was the absence of a Customs permit/a contractual cargo. As to the second point, as the owners argued, demurrage accrued day by day: The Lips [1987] 2 Lloyd’s Rep. 311 at 315, and the charterparty provision as to payment of demurrage after completion of second port discharge amounts to no more than a formula for ascertaining the date of payment, but was not a condition precedent to the right to claim demurrage or to demurrage accruing due/becoming earned: The Karin Vatis[1988]2Lloyd’s Rep.330 at 332-3 and 336.In any event, charterers having caused the repudiation/renunciation of the charterparty and thus prevented completion of second port discharging could not rely on the prohibition in question even if it had some effect other than that which we hold it has.

The owners claimed $25,377.89 being the excess over $120,000 of port disbursements, being the maximum amount they were to bear under the provisions of the charterparty. Charterers argued that the owners’ exclusive remedy was the payment of demurrage but that was plainly wrong: this claim was one in debt, and in any event as a claim for damages it was different in kind from one for delay flowing from a failure to load within the laytime, for which demurrage was the agreed form of liquidated damages.

(LMAA, Three arbitrators 2016)