Statement of Facts
Delays in berthing could not be excused from laytime under Clause 6, because charterer failed to prove that the circumstances over which it had no control actually prevented the vessel from berthing; charterer could not satisfy its burden of proof simply with the statement of facts, signed by the master, showing berthing delays due to bad weather and the need to await daylight hours, because the master was in no position to observe and verify the weather at the berth. The evidence indicated that the bad weather did not delay berthing. The weather in the loading area was actually better than normal during the period of delay, and had deteriorated by the time the vessel actually berthed.
SMA 1917
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Where the charter provided for commencement of laytime after notice of readiness was “tendered and received”, and the Statement of Facts stated that notice of readiness was accepted exactly six hours after it was received, since the Statement of Facts was signed by the master without protest, laytime commenced six hours after the notice of readiness was received as shown on the Statement of Facts.
SMA 2597
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Where charter party required owner's demurrage invoice to be accompanied by the loading and discharge port statements of facts, other documents which provided sufficient information to support owner's claim substantially complied with that provision and triggered charterer's liability for the demurrage.
SMA 1671
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Charterer was entitled to a deduction from hire for a delay allegedly caused by malfunctioning of the vessel's radar, where the sole evidence of malfunctioning radar was an entry in the Statement of Facts, and owner did not prove the entry to have been added to the Statement of Facts after the master had signed.
SMA 2005
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Although the documentation submitted by the parties is contradictory in many respects, the various time sheets upon which their respective calculations are based reveal that each treated periods of light and heavy rain, experienced prior to berthing and during discharging operations as excludable from used laytime. The statement of facts which all parties signed was the basis for calculating demurrage; not the receivers laytime statement which was part of a different bargain.
SMA 2980
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Where charterer failed to prove that shell found in cargo had been placed there by unknown persons after loading, and that Master was negligent within the terms of the charter party in signing the Statement of Facts containing exception relating to discovery of live shell without comment, or in caring for the cargo within the provisios of COGSA, or in not conducting an investigation surrounding the discovery of the shell, owner was awarded all withheld demurrage plus costs.
SMA 1194
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There has been much dialogue before the Panel as respects the different versions of the Statements of Facts, who prepared which ones and in what order. The weight of the evidence suggests that the Persian notations concerning the alleged shortage were placed on the documents sometime after the Owners' representative signed it. Therefore, we do not accept the Statements of Facts as evidence of any agreement by the parties that a short-delivered quantity was noted and agreed to by all.It is charterer's burden to establish by a preponderance of the evidence the existence of alleged short-landing of cargo. Where there is no evidence of tallies of cargo discharged, or of where and how alleged shortage was determined, or where notations concerning shortage were placed on fact statement after owners had signed it, charterer's claim fails.
SMA 1320
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Because the Statement of Facts was signed by the master and the vessel's agents without exception, it was accepted over the vessel's weather log as the best available evidence as to the weather conditions at the discharge port; accordingly, laytime did not run during a period when the Statement of Facts indicated that berthing was delayed due to bad weather. Since statement of facts was signed by the master and ship's agents, owners were bound by the description of bad weather as the best available evidence.
SMA 2630
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At Inchon, the Panel finds that the time while the vessel awaited a berth counts as laytime for the following reasons: First of all, the Statement of Facts is silent as to the reason for the delay in berthing the AZIJA at Inchon. It would seem to us that if the delay was caused by fog, it would have been included in the Statement of Facts by the agents and receivers as was the notation of bad weather when the vessel was delayed in leaving the port. At Daesan, although the remark by Charterer's Agent in the Statement of Facts states unilaterally that the berthing of the vessel was delayed because of bad weather, it is clear from the evidence presented in this arbitration that Charterer was having problems with its receivers and that it had ordered the vessel to wait at anchor and not to discharge its cargo. Furthermore, it is not clear that bad weather delayed the vessel's berthing. Charterer's own evidence of the Daily Meteorological Data compiled by the Korean Meteorological Administration show that the weather was not bad and corroborates the weather shown in the vessel's log book
SMA 2845
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The contract provides for first opening and last closing of vessel hatches to be for Owners' time and expense. Owners have the burden of proof to show that contractually excepted time should count as laytime. In the absence of a signed statement of facts, the panel allowed a 1-1/2 hour delay in the commencement of laytime for opening hatches, which was for owners' account under the Charter. The particular down times for cargo gear failure are noted in the records, accepted by Owners and accordingly deducted on a pro-rata manner from used laytime. A question did arise concerning the actual down time experienced in Seattle. Owners' calculation, predicated on the contemporaneous countersigned Statement of Facts, prevail in respect of cargo gear down time.
SMA 2924
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The Owner then notes that the countersigned Statement of Facts lists the times of the Vessel's movements without comment, exception, or reference to the Port Authority Certificate. The latter, prepared during the currency of events, is the authoritative document absent conclusive proof gainsaying it. In addition, nothing was produced which supported any evidence that the Master or Owner knew such certificate was to be produced or that the Vessel's tender was dependent thereon. The Notice of Readiness which was given in evidence and which referred to the certificate was not signed by the Master. The Panel noted the complete absence from the Charter Party of any mention of the Port Authority Certificate or any reference thereto in respect of commencement of laytime. Absent evidence to the contrary, the statement of facts is the authoritative document concerning the times of the vessel's movements.
SMA 1755
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Delays awaiting cargo documents counted where they were substantiated by the Statement of Facts or other evidence independent of owner's laytime statement.
SMA 2597
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Any exceptions to owner's calculation of laytime must be based on concrete evidence provided by charterer, otherwise the panel will be guided by the statement of facts and the log books. The Panel must, therefore, look to the only definitive evidence it has at its disposal, the statement of facts and the vessel's log. The Panel has relied on the vessel's log to guide it regarding the rain time which occurred while the vessel was waiting for berth in Fangcheng and which would have prevented the discharge of the cargo. In order to establish a correlation between the two documents, the Panel has painstakingly studied the log and compared it with the statement of facts for periods after discharge
commenced.
SMA 2732
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Because there were no contemporaneous protests or notations on the Statement of Facts about laytime exceptions, owner's claim was granted in full.
SMA 2608
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Where the vessel was arrested, after having come into contact with terminal equipment during berthing, although the report of charterer's surveyor indicated that the vessel's approach to the berth was improper, owner was nevertheless entitled to full demurrage for discharging delays caused by equipment breakdowns at the terminal since the statement of facts, which all parties countersigned, made no mention of damage to the terminal.
SMA 2492
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The threshold issue for determination is whether demurrage claim was extinguished because of the Master's failure to issue a Letter of Protest once he became aware that the Terminal Representative refused to sign the Statement of Facts. The Master could have simply protested this refusal as he did for several other matters. He failed to do so in a timely manner and demurrage claim was extinguished in accordance with the express terms of the Charter and Rider.
SMA 4165
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Although charterer was required to employ machinery and labor because of crew’s refusal to cooperate with the discharge operations, owner was not liable for extra expense because charterer failed to give a note of protest or make an entry in the statement of facts.
SMA 3592
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A description in a statement of facts signed by the master, about the reason for delay in berthing, was rebuttable by either party.
London Arbitration 9/11
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Although the statement of facts signed by the Master recorded that after anchoring the ship was “awaiting tide to berth”, since the ship waited 35 hours covering 3 high tides, the arbitrator inferred that in fact no berth was available. The Master, however, was criticized for failing to inquire why the ship was not called into berth after the first high tide had passed, and for neglecting to issue a protest at that time
SMA 4101
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Self serving remarks of the Master on the Statement of Facts, blaming the characteristics of the cargo for delays in offloading, were rebutted by evidence that the delays were caused by the deplorable condition and breakdowns in the ship’s cranes
SMA 4004
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Demurrage claim was rejected based on a rider clause in the charter requiring specific documentation in support of demurrage claims, including that Statements of Facts are signed by the Suppliers/Receivers/terminal or, if such signature is not obtainable, the Master or vessel’s agent should issue a Letter of Protest. In this case, the Statement of Facts was not signed but carried a notation “Refuse to Sign” and no Letter of Protest was issued.
SMA 4165
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Panel examined the documents submitted by Owner and was satisfied that the amount it claimed was correct and adequately supported. The agent's Port Log/Statement of Facts was missing daily data from 1645 hours July 7, 1998, when discharging commenced, through the completion of discharge on July 11. The document bears the notation “additional times to be added when Bayou Steel time sheets received”, and the final page is signed by the agent. However, despite the missing information, neither the barge nor the tugboat logs for that period evidence any weather delays or other stoppages for Owner's account that would have suspended laytime from running.
SMA 3626
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The statement of facts was accepted as satisfactory evidence that the vessel lost time after disconnection of hoses waiting for cargo documents; such time was for charterer's account.
SMA 2027