Context and Diver’s Inspection
A significant point of contention was the impact of a brief shifting period between two loading ports on activating the hull fouling clause. The diver’s inspection of the underwater area, including the propeller, hull, and rudder, highlighted the challenges faced in assessing such conditions, particularly in the demanding environments of West Africa.
Dispute Overview
The core issue was whether this shifting period interrupted or reset the 20-day timeframe required to trigger the hull fouling clause. This clause would mandate that the charterers be responsible for cleaning the vessel before it departed from the loading port. The diver’s inspection was crucial in determining the state of the vessel’s underwater components, which directly influenced the dispute’s outcome. Entangled ropes at the propeller added another layer of complexity, potentially impacting the vessel’s performance.
Legal and Operational Considerations
The underperformance claim had to be evaluated against other charter party provisions regarding hull fouling liabilities due to prolonged stays at the port. The key considerations included:
Interpretation of the Hull Fouling Clause:
Whether the clause was clear regarding the uninterrupted 20-day period required to trigger cleaning responsibilities.
The potential for ambiguity in the clause, which could influence the charterers’ obligations.
The clause was not the standard Bimco Hull fouling Clause (https://www.bimco.org/contracts-and-clauses/bimco-clauses/current/hull_fouling_clause_for_time_charter_parties_2019), but an amended version.
Impact of the Shifting Period:
Determining if the brief movement between ports constituted a significant interruption that reset the hull fouling period.
Assessing the extent of hull fouling based on the vessel’s prolonged stay at these ports, with high sea water temperature.
Assessing its implications on the vessel’s performance and charterers’/ Owners’ responsibilities.
Evidence from Diver’s Inspection:
The diver’s findings on the condition of the propeller, hull, and rudder provided evidence for the dispute. However, there were some conflicting and unclear points about the condition of the hull and the extent of fouling. Another issue was whether the diver’s report was to be considered as conclusive evidence binding the parties. It was not. The report was challenged on various grounds.
Conclusion
The dispute required a detailed analysis of the hull fouling clause’s wording and the diver’s inspection report. Ultimately, the decision hinged on whether the brief shifting period was considered an interruption significant enough to reset the 20-day period, thereby affecting the charterers’ liability for cleaning the vessel before departure from the loading port.
In some instances, the diver’s report may not sufficiently establish the extent of fouling (for different reasons). In such cases, additional evidence can be crucial in determining the extent and nature of the fouling. Closely examining the engine parameters from the vessel’s logs and independent performance reports on the voyage can be helpful.