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Asbatankvoy- whether berth was reachable on arrival

In this consolidated arbitration, demurrage disputes arose under six charter parties, evidenced by a fixture recap incorporating amended versions of the ASBATANKVOY form with additional charterers’ clauses. Each vessel was chartered for the carriage of fuel oil from Fujairah to Karachi and other discharge ports. Charterers denied liability and counterclaimed of US$212,520.16 in respect of cargo shortage under five bills of lading issued in three of the charter parties. The matter came before two Arbitrators that accepted appointment under the LMAA Terms 2006 and dealt with all issues in a single Final Arbitration Award, following the request of the different owning companies in this arbitration.

The parties’ contentions

Charterers’ primary case was that delays had occurred in getting the vessel to the berth over which they had no control, and therefore laytime should not start until the vessel was all fast at the load port. If these periods of delay were excluded (clause 6 of the ASBATANKVOY), there was no demurrage due. The charterers alleged these delays: tidal restrictions in four charter parties, delay in obtaining free pratique in one charter party, and no reason of the cause of the delay was offered in one charter party.

In the owners’ case, insofar as the vessels could not berth on arrival, there was a prima facie breach of the charterers’ obligation under clause 9 that the berth should be “reachable on arrival”. Then, it was for the charterers to demonstrate that the berth was reachable on arrival and that it became unreachable due to a supervening delay beyond their control, for which no evidence was adduced. Therefore, the charterers could not rely on clause 6 of the ASBATANKVOY since it does not apply unless the charterers procure a berth “reachable on arrival”(The Laura Prima [1982] 1 LI. Rep. 1), and so should the demurrage exceptions in clause 8. Owners provided evidence that the cause of delay was congestion. Owners’ alternative case was that the additional charterers’ clauses 12 and 14 provided a complete code and overrode the provisions in the ASBATANKVOY.

In defending the charterers’ counterclaim, the owners pointed out that the short shipments were governed by clause 15 of the charterers’ incorporated clauses, which dealt with in Transit Loss and Cargo Retention. Therefore, there was no claim.

Held,

Clauses 12 and 14 did not override but were complementary to the provisions of the ASBATANKVOY form. The charterers’ primary obligations were to comply with clauses 6 and 9.  On the evidence, the actual cause of delay was congestion, and charterers were in breach of clause 9 for either of the grounds alleged to cause delay.

Since clause 15 was amended in the fixture recap of the three relevant charter parties, it nullified all but 1.5% of the charterers’ counterclaim. Owners conceded the 1.5%, and the tribunal awarded US$3,188.55.

Accordingly, the owners were awarded the demurrage claimed in each of the six charter parties, together with interest and costs. Charterers were also awarded US$3,188.5, plus interest.

Interest

Owners were entitled to interest of 5%per annum and pro rata compounded at 3-monthly rests to run in each case from 14 days after the demurrage claims were first presented to the charterers. Similarly, the same rate was applied for the charterers’ counterclaim but used for simplicity to the entire sum from 14 days after the presentation of the first cargo claim.

Costs

Under the normal rule, costs follow the event. Charterers should bear the owners’ recoverable costs together with the costs of the Award. As a single Award was made for all claims, the tribunal expected the owners to allocate the costs of each claim among themselves. If not, the tribunal would say that costs should be equally divided between the six references.

Final Award, 19 September 2011

This website removes the names of the parties involved in this or other awards. The reader can find more details on Jus Mundihttps://jusmundi.com/en/.These awards mostly come into the public domain through enforcement under the NYC 1958.

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