Saturday, June 22, 2024

Speed and Consumption Claim: deck logs as evidence- swell means “no adverse swell”

After the vessel’s redelivery, the owners claimed unpaid hire. The charterers denied liability and made a counterclaim concerning the vessel’s underperformance. Consequently, the dispute was referred to arbitration in London and determined by a sole arbitrator.

The charterers relied on various reports issued by their weather routing company (WRC) to support their claim. Two main issues arose: the meaning of “no swell” in the performance clause and which evidence of the weather conditions to be used to assess the vessel’s performance.

As a starting point, the arbitrator had to determine- as a matter of construction- the owners’ warranty in respect of the vessel’s speed and consumption, including the weather conditions in which to assess the vessel’s performance. These were dealt with by reading together the vessel’s description clause and the weather routing clause.

The arbitrator held that evidence of the weather conditions had to be taken from the vessel’s logs, as stated in the clause. If the charterers wished their WRC’s data to be used for the analysis, this should have been made clear in the clause. Relying on the deck logs or the HYCOM (used by the WRC), both identified the same good weather periods that the owners challenged due to swell (but the owners made no comments about the adverse currents).

Concerning the words “no swell”, the arbitrator adopted a pragmatic view to give meaning to these words and held that the parties must have intended them to mean that periods with adverse swell should be excluded from the assessment.

The WRC adopted a methodology that limited the significant wave height to 1.25 meters under the wording “Douglas Sea state and no swell”. The WRC expressed the view that, typically, swell waves in excess of 2 meters would have any noticeable adverse effect upon a handysize vessel. Regarding the evidence, the WRC said that their report relied on the deck logs and their own analysis of the weather conditions.

The arbitrator held that the charterers bear the burden of proving the owners have breached the performance clause. That required careful consideration of the performance report that charterers relied upon to support their claim.

The tribunal had difficulty in accepting the WRC’s conclusions because the swell analysis was not an exact science. Also, the noon reports recorded strong adverse currents in the good weather periods, when the reported swell was similar to that analysed in the report. Lastly, the arbitrator felt uncomfortable with the evidence because the WRC used the deck logs and their analysis of the conditions encountered, contrary to the charter party terms. Therefore, the charterers had failed to discharge their burden of proving that the vessel breached the performance warranties.

Accordingly, the charterers’ counterclaim failed, and costs followed the event under the normal rule.

Note: no further information can be provided for this award. This website removes the names of the parties involved in any award.

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