Exceptions- Interruptions
Under a charter party for a named port, a navigational restriction to daylight hours is not a cause beyond the charterer's control so as to suspend the running of laytime.
SMA 2620
_______________________
Charterer liable for demurrage where Charterer failed to carry burden to prove that loading delays and interruptions caused by the interruption in the supply of rail cars and by the interference of governmental authorities caused delays beyond Charterer’s control.
SMA 3236
_______________________
Port authorities discovered an infestation of the grain cargo and all discharging operations ceased until the infested hold was fumigated. The fumigation provisions of the charter provided fumigation was to be carried out at “Charterer’s time”. Owner’s argument, that in calculating despatch the time used for fumigation should not be counted as laytime but rather as a setoff of detention at the demurrage rate, was rejected.
SMA 4112
_______________________
Charterer liable for unpaid demurrage incurred where delays were the direct result of employing an insufficient number of stevedores working from 16-20 hours a day, not 24 hour shifts. Additional time lost waiting for tug and crews to shift loading barges away from vessel is for Charterer’s account.
SMA 3139
_______________________
The Master deliberately misrepresented that the ship was unable to vacate her berth. He acted solely in order to meet Owner’s needs for the ship to remain at berth. As a result Charterer was delayed in re-berthing another ship which caused several of her cargoes to be shutout or cancelled. Charterer would have been entitled to damages for its lost profits on the cancelled cargoes, and extra costs to forward the shut out cargo. But Charterer failed to prove its damages
SMA 3898
_______________________
Owner entitled to count time during shifting between first and second loadport.
SMA 3213
_______________________
Absent any provisions in the charter specifically excepting warping and deballasting time from demurrage, any time used for warping and deballasting is properly included as time on demurrage under the well-settled principle of “once on demurrage, always on demurrage”.
SMA 3498
_______________________
Owner failed to exercise due diligence to care for cargo of crude oil where many tanks were found to be below the required charter temperature on arrival at the discharge port, and owner failed to supply a daily heating log during voyage notwithstanding charterer’s request for same
SMA 3660
_______________________
Owner warranted that it would maintain the cargo’s loaded temperature provided it was loaded up to 135 degrees Fahrenheit, and recovered demurrage, bunker consumption and other expenses arising from Charterer’s failure to load cargo at 135 degrees or 30 degrees above its pour point, whichever was higher.
SMA 3491
_______________________
Laytime ran during a period when the ship grounded while waiting for berth and then had to be surveyed, since the events did not cause further delay in berthing which was caused solely by congestion.
SMA 3990
_______________________
Charterer held to have failed to carry its bur den of proving that “holiday” includes “local holiday” by custom.
SMA 3540
_______________________
Although not perfect, the BIMCO Holiday Calendar is the best guide available for holidays around the world and is accepted as an authority in the shipping community unless it can be convincingly contradicted by official information from local authorities
SMA 3190
_______________________
Charterer’s liability for demurrage is subject to three exceptions: (a) specific exonerating clauses in the charter party; (b) delay attributable to Owner’s fault; and (c) vis major or “a sudden or unforeseen interruption or prevention of the act of loading not occurring through the connivance or fault of the Charterers.”
SMA 3739
_______________________
Delayed loading of barge convoy and difficulties maneuvering upriver because of size, held not exceptions to laytime/demurrage under force majeure clause
SMA 3525
_______________________
The timely storm warning from the Harbor Master and the failure of the vessel’s Master to follow the instructions to leave the port immediately cannot be excused by a claim of force majeure. Master’s negligence led to the damage suffered and the resultant repair delays
SMA 3461
_______________________
A Force Majeure defense is only appropriate in those instances where, through no fault of its own, a party finds it impossible to perform
SMA 3114
_______________________
Mere allegation without supporting documen tation and proof of notice is insufficient to establish defense of force majeure
SMA 3406
_______________________
Charterer liable for demurrage under an ASBATANKVOY charter where laytime allowed was exceeded because of failure to deliver cargo at the temperature required in the charter. Charterer’s claim rejected that vessel was not a suitable substitute after Char terer accepted the vessel as a substitute and consciously accepted vessel’s NOR with full knowledge of the vessel’s capabilities.
SMA 3123
_______________________
At the discharge port, laytime began to run at 1400 on 4 November. A strike, of which Charterers had prior notice, started at 0800 on 6 November and ended at 0800 on 8 November. According to Owners' calculations laytime was only claimed at 50% whilst the strike continued. The Vessel came on demurrage at 0130 on 7 November. Although the strike ended at 0800 on 8 November, rain did not permit discharge. Owners' statement correctly shows demurrage as running during the rain period. Charterers, on the other hand, did not allow any time for the strike and they disallowed the period of the rain stop on 8 November. According to Clause 16 (b), The General Strike Clause, time counts until expiration of the stipulated time allowed for discharge and thereafter at half demurrage until the strike terminates. Notwithstanding Owners' entitlement to claim in full during the laytime period, they only claimed at 50%. Once again, as we can nd no obvious errors in Owners' calculation we have allowed demurrage as claimed
LMAA 2011 ( Jus Mundi)
_______________________
Whether or not unavailability of cargo, or unavailability and/or insufficiency of feeder barges, and/or a Government prohibition, amount to a force majeure event within the meaning of clause 45 on which the Respondents rely to disclaim liability for the total balance of the demurrage claimed.
- CLAUSE 45 (FORCE MAJEURE) Charterers shall not be liable, if force majeure including acts of god, war, hostilities revolution, insurrection, acts of public enemy, sabotage, fires, floods, earth quakes, storms, landslides, bore tides, explosions, strikes, embargoes, blockage, direct and proven cause and delay in loading or discharging including unavailability of cargo, whether in whole or part.
Held that the Respondents have failed to discharge the burden of proof of the allegations made against the demurrage claim in both the main and in their alternative case. The unavailability of cargo was not intended to be an additional force majeure event and there was no proof. It would only be an exception to laytime running and demurrage accruing if it was the result of a force majeure event, as listed in clause 45. Moreover, the alleged Government prohibition, even if proved- which is not- is not one of the force majeure events listed
LMAA 2011 ( Jus Mundi)
_______________________
The Charterers' relied, namely an embargo imposed by a local government which brought the COA to an end. Held that the Charterers' reliance on force majeure to bring the COA to an end appears to fail at the first hurdle since there is no applicable provision in the COA. The final paragraph of clause 20 of the COA provides as follows: In case any acts of God, riots, civil commotions, fire or any other causes comprehend in the Force Majeure terms which may delay or prevent or provide the cargo at the port of load/discharging of the cargo, such time lost is not to count as laytime as neither Charterers nor Shipper nor Supplier nor Receivers shall be liable for any loss of demurrage unless Vessel already on demurrage. Once on demurrage always on demurrage.
Turning then to the general principles of force majeure.The definition of force majeure is that it is superior force which affects the performance of the contract. Therefore, subject to the provisions of a particular contract, it could be argued that a government ban might constitute a force majeure event which would render the contract at an end. However, the party wishing to rely on the force majeure defence bears the burden of showing that the event upon which they rely, which in this case would be the embargo imposed by the local government, actually came into force and that it prevented them from performing the contract. However, as with the defence of frustration, the Charterers have failed to provide any evidence to show that the local government imposed an embargo on the sale and/or export of bauxite from the state of Gujurat which prevented them from performing the COA”
LMAA 2009 ( Jus Mundi)
_______________________
There is absolutely no evidence .. as to what precisely they rely upon to support a frustration/force majeure argument. There are no statements, no documents emanating from the Government of Gujarat evidencing a general ban on the export of bauxite, nothing. Inquiries subsequently made through the broking channels for a vessel to lift a cargo of bauxite from the West Court of India for discharge in China suggested otherwise. If, as rumors would apparently have it, the problem lay at the Charterers’ door by reason of their failure to pay necessary royalties, that would wholly negate any argument based on hesitation in concluding that the case for frustration or force majeure has not been made out and therefore fails.
LMAA 2010 ( Jus Mundi)
_______________________
Clause 52- shifting
Shifting from quarantine/place of waiting or pilot anchorage area to loading or discharging berth to be for Owners’ account and time not to count. However, costs and time used for unusual shifting hauling alongside dock and or re-shifting requested by Charterers after the Vessel has berthed to be for Charterers (sic) account..
Held that whilst the shifting between anchorages continues to count as demurrage, the time spent shifting from the anchorage to the berth does not count. There was no indication in that clause that time not to count only applied to laytime and it must therefore also suspend time on demurrage. However, the shifting time between anchorages was "unusual" shifting and should count as time on demurrage.
LMAA 2011 ( Jus Mundi)
_______________________
Bunker consumption during deviation- the Panel has accepted Owner's contention that the Vessel's speed and consumption for purposes of these deliberations is 13 knots on 28 tons of 1500 second fuel plus 1 1/2 tons of diesel. The Panel requested argument and documentation to support these figures. Charterers were provided with log books but no conclusive arguments were presented. The Panel accepts these figures as reasonable and allows bunker based on them.
SMA 1978
_______________________
The charter provided in Rider Cl 5: "Owners warrant that the Vessel can discharge her entire cargo within 24 running hours or maintain a pressure at the Shipsrail of minimum 100 lbs. per square inch." In the claims (noted A) Charterers have denied or reduced Owners' demurrage claims for time used in excess of 24 hours for pumping, arguing that the Vessel did not prove that it had maintained 100 lbs. at the ships rail. Owners argued and in some instances documented the fact that the delays were due, or partly due, to restrictions caused by the terminal such as providing only one 8-inch hose, pumping long distances and topping of tanks which were almost full. The Vessel had no gauge at the ships rail and no record of pumping pressure. Neither did the shore discharging facility. There is no evidence of complaints regarding performance by receivers or Charterers over the course of the Charter. In the absence of documentation, the Panel has used certain assumptions from experience and known to the trade. Where there is no specific evidence of shore restrictions, the Panel has strictly considered any actual pumping time over 24 hours as excess time and deducted this from adjusted demurrage. Where clear evidence shows that the Vessel was limited to one 8 inch hose, we have allowed the Vessel 30 hours to discharge. This is 80% of full capacity. (Average cargo 20,800 tons / 24 hours = 867 tons per hours X 80% = 694 tons) (20,800 tons / 694 TPH = 30 hours)
SMA 1226
_______________________
The question for the tribunal was “In relation to the shifting of the cargo from 2B & 2C, were the Owners at fault so as to excuse the Charterers from liability to pay some or all the demurrage claimed?
The Owners arranged for the ship's personnel to shift the cargo from its original place of stowage in hold number 2 to hold number 1. That was for the purposes of (i) removing the cargo from proximity to the suspected source of the contamination and (ii) separating the sound from the damaged cargo. The Charterers' case was that this shifting of the cargo was the cause of the delays in discharge.
Held, there was no evidence that the Owners' decision to shift the cargo was preceded by notification of any kind to the Charterers, the Receivers or the Veterinary Service of their intention to do so. Although parties such as the cargo underwriters and indeed the Owners themselves had at various times expressed their largely consistent views as to what they thought ought to be done, there was no prior consultation, no attempt to reach agreement and no attempt to obtain permission (from the Veterinary Service, bearing in mind its authoritative role). The Owners' chosen modus operandi of acting unilaterally was ill-thought out; it did not incorporate supervision by competent disinterested surveyors or the presence of surveyors representing the interested parties to observe. In fact it was the ship's officers and crew who performed the exercise. Consequently, it was never likely to produce to the satisfaction of the interested parties and the Veterinary Service objective evidence of the extent of the contamination and/or the soundness of any cargo thought to be unaffected. But while the Owners' decision was ill-advised and in the event ineffective, the tribunal doubted that those characteristics either alone or in combination with the other consequences listed above, were causative of the delay that continued beyond the 27th May 2008.
Accordingly, to question (1)- did the shifting cause the delay as the Charterers alleged- the answer was 'no'. The tribunal held that the delay in discharging the cargo after 27th May 2008 was not caused by the shifting of the cargo. As for question (2)- if the shifting did cause the delay as the Charterers alleged, did it constitute 'fault' on the part of the Owners such as to interrupt the accrual of demurrage- as they had decided question (1) in the negative, it was not necessary for the tribunal to deal with it.
LMAA 2012 ( Jus Mundi)
_______________________
Charterers asserted the slow steaming on the voyage caused delays at the discharge port. Held, nor we consider that the Charterers would fare any better if they sought (which in their submissions they did not) and succeeded in revering damages for the alleged breach in the vessel not prosecuting the voyage with reasonable dispatch. The "fundamental point of principle in the law of contractual damages" was recently reviewed by the House of Lords (as it then was) in The "Achilleas" [2008] UKHL 48 where Lord Homan said that it was wrong to begin as the starting point that damages were designed to put the innocent party, so far as possible, in the position as if the contract had been performed. This, he said, was the wrong place to begin. Rather, "one must first decide whether the loss for which compensation is sought is a "kind" or "type" for which the contract breaker ought fairly to be taken to have accepted responsibility." Similarly here, if the point be relevant, we do not consider that the Owners could fairly be taken to have assumed responsibility for the Charterers’ alleged loss of a berthing slot when the contract was entered into any delay thereby caused would, to use Lord Homann’s words, be "completely unquantifiable" as the result of any such breach.
LMAA 2009 ( Jus Mundi)
_______________________
The Charterers argued that the vessel took more than 24 hours to discharge at both the Terminal and by way of STS transfer, and Owners had breached the Pumping warranty.
Held, the Owners reduced their initial demurrage claim to take account of this factor, and the Charterers in their final submissions did not take issue with this approach, concentrating instead upon the STS aspect. Accordingly the tribunal dismissed this submission of the Charterers.
LMAA 2009 ( Jus Mundi)
_______________________
The Charterers submitted that the vessel took an extraordinarily long time to discharge by way of STS transfer
Held, We start from the well established principle that:
"...if the charterer has agreed to load or unload within a fixed period of time (as is the case here, for certum est quod certum reddi potest), he is answerable for the non-performance of that engagement, whatever the nature of the impediments, unless they are covered by exceptions in the charterparty or arise through the fault of the shipowner or those for whom he is responsible." [see Alexander v Aktieselskabet Hansa [1920] AC 88 per Lord Finlay at p94]
Although the Charterers alleged an "operational fault" by the vessel by inference from the comparative length of time the STS operation took as against the terminal discharge, they were unable to support this by any specific proof.
LMAA 2009 ( Jus Mundi)
_______________________
The Charter provided in Rider Clause 7, entitled "Pumping Clause", as follows: Owners warrant vessel is able to discharge her full capacity for cargo in twenty-four (24) hours or maintain 100 PSI at the ship's rail, provided shore facilities permit, which ever is less, or prorata for part cargo. Petrojam has based its claim on the differences between the times taken to discharge cargoes on eight voyages and certain calculated "expected" times. While the "expected" times used by Petrojam are more generous to Dilmun than the Charter warranty would require, we will not enlarge upon the claim which is made. We also note that Dilmun conceded that $ 4,958.80 of the amount claimed was properly due and owning. Based upon our review of the Vessel's port log abstracts, and disallowing the claims stated for Voyages No. 19 and 31 as not substantiated by the evidence, we find that Petrojam is entitled to recovery of hire for 45 hours, which, at the two hire rates applicable to the respective voyages, amounts to $ 7,232.08
SMA 1888
_______________________
Charterer asserts that the delay of the vessel in Immingham was solely attributable to inability of the vessel to heat its cargo as was warranted in the charter. The panel does not disagree that this was the reason for the delay in discharge in the initial call at that port. However, although the discharge was slow, it was not stopped by inability of the vessel to pump the cargo out. The decision of the Terminal, as agent for Charterer, to oust the vessel from the discharge berth was a commercial judgment. Had the vessel been permitted to remain at the berth, it obviously would have completed discharge of the Immingham portion, albeit somewhat later than had the cargo been heated to its required temperature. Had the Charterer suffered expenses directly attributable to the slow discharge because of insufficient heat, the Charterer would have had the right to seek recovery of such costs. No such claim for recovery is before this panel in this arbitration.
SMA 1888
_______________________
Where the charter party warranted that the vessel would complete discharge within 24 hours or maintain 100 psi at the ship's rail, the discharge consumed more than 24 hours, and owner submitted no proof that the vessel maintained the required psi, laytime ceased to count 24 hours after commencement of discharge.
SMA 1845
_______________________
Slow pumping did not occur since the vessel was restricted to a hose size which prevented a lightering discharge rate commensurate with the pumping warranty of the charter party, and the pumping reports reflect that the PSI requirements at the ship's rail were met.
SMA 2745
_______________________
Discharge time was not limited to 24 hrs., even though the vessel failed to complete discharge within that time as required by the pumping warranty, where the vessel's failure to do so was caused by the requirements of charterer's cargo and shore facilities
SMA 2027
_______________________
Force majeure did not exempt Charterer from paying demurrage because both Hurricane Gustav and Hurricane Ike had dissipated much before the vessel’s arrival at Southwest Pass on September 21, 2008 and the commencement of discharge was not delayed.
SMA 4164
_______________________
Charterer not liable for detention damages where Owner failed to prove that Charterer deliberately delayed the vessel for its own benefit.
SMA 3510
_______________________
Discharging preparations after berthing counted as time on demurrage because they were normal functions performed by the receiving terminal rather than delays caused by the vessel. Time spent shifting from anchorage to berth does not count even if the vessel is already on demurrage.
SMA 2281
_______________________
In the absence of gross incompetence, malicious intent or fraud, the master had discretion to determine the extent of dunnaging, lashing and securing required fors the cargo; the time spent in those operations were therefore for charterer's account, and owner was entitled to reimbursement for crew overtime charges as well as demurrage.
SMA 2563
_______________________
Although a government directive reduced working hours in the port from 24 hours to 18 hours during Ramadan, laytime continued to run at the rate of 24 hours per day during Ramadan, because it was not shown that the month of Ramdan was a general holiday when no work was performed at all.
SMA 2678
_______________________
Owner awarded demurrage for time lost when vessel arrived with air draft that prevented it from berthing. Panel interpreted air draft provision of vessel specification clause to apply to arrival at the first discharge port only, absent clear and specific language that the air draft requirement also applied to the second discharge port.
SMA 3126
_______________________
Where Charterer failed to provide any credible evidence that delays were caused by crew strike, Panel refused to allow exception to laytime. However, if evidence did show that crew of vessel had gone on strike, refused to move the vessel or otherwise prevented or delayed the loading operation, Owner would have been responsible for laytime.
SMA 3249
_______________________
Collapse of an inadequate shore crane furnished by charterer was not an “accident” interrupting laytime.
SMA 3102
_______________________
Owner's laytime calculations rejected where delays were incurred because vessel's cranes were not in good working order. Unrebutted evidence demonstrated that delays were due to crane breakdowns, twisted electrical cables or hoist wires, and hydraulic fluid leaks.
SMA 3463
_______________________
Where the berth was controlled by charterers' affiliate, whose contractor neglected to have all the requisite buoys in place for the ship, laytime ran during the delay before all the buoys were in place. General exception clauses or general exculpatory language in a charter party will not apply to laytime or demurrage unless a clear intent to the contrary is manifested.
SMA 2787