The owners’ justified decisions for safety reasons would not amount to ‘fault’ for time to be suspended for demurrage purposes. “Free pratique” requirements will be examined before invalidating a notice of readiness (NOR).
The issues
The MT Stena Primorsk was chartered under an amended Shellvoy 6 for a single voyage. The owners claimed demurrage for USD 143,153.64, and the charterers defended the claim on these grounds:
(1) the NOR was invalid because the free pratique had not been granted, (2) two incidents allegedly suspended time; the owners’ decision to leave the terminal on 31 March and owners’ refusal to return to berth on 1 April upon the charterers’ request. For these, owners contended that it was due to safety reasons, i.e., to avoid a breach of the vessel’s UKC policy, causing safety concerns, (3) charterers counterclaimed lightering costs and (4) the applicable demurrage rate; full rate or half rate to apply.
Both parties relied on expert evidence.
The decision
In giving judgment for the claimant and dismissing the counterclaim, his honour concluded that:
(1) Charterer needs to establish some “fault” on the part of the owner or those the owner is responsible for time to be suspended for demurrage purposes (The Fontevivo [1975] 1 Lloyd’s Rep. 339). Where an owner acts in a way authorised by the charter, it can be no fault. The masters’ decision to leave the berth was an appropriate one which did not put the owner in breach of the charter [67]. The owner was entitled to reject the charterers’ request to re-berth on 1 April since the UKC policy was a clear and important term of the charter [68]. There was no fault on the part of the owners, the Master or NMM [70]. However, a capricious refusal might amount to “fault” as to prevent time running for demurrage purposes. Although he made no finding on this, the charterer would almost certainly have been in breach of clause 4 on 1 April if it had ordered the vessel to berth [71]. Based on the data available, the masters’ decision was justified [79].
(2) There are 2 ways to analyse the issue of free pratique: first, there is the formal question of whether it was customary to grant free pratique and second, there is the question of the mechanism of grant. On the evidence, the port authorities acted as if free pratique was granted [73]. There was no issue with the relevant notice of readiness [74].
(3) According to the relevant clause 25, the charterers would meet the costs of lightering. Clause 7 was general and had no application here [77].
(4) The half rate applies in certain limited circumstances, and these do not apply here [78].
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More than 30 LMAA published awards related to “fault” were briefly stated in the pages 34-36 of this free guidebook: https://www.charterpartydisputes.com/a-snapshot-guide-to-laytime-demurrage-a-tribute-to-maritime-arbitrators-prokopios-krikris
Source:https://www.bailii.org/