Disputes emerged under an amended NYPE form charterparty, involving the vessel's voyage from China to Luanda carrying various cargoes. While at Luanda, the vessel suffered stevedore damage and was subjected to heavy swell, leading to repeated allisions with the berth. These incidents caused significant damage, necessitating repairs before the vessel could resume trading.
Stevedore damage to hold no 2 and to the Pilot Ladder
The undisputed evidence, supported by numerous photographs and expert-witness reports, clearly established that the berth at Luanda was anything but a safe berth for the vessel. The face of the berth consisted of bare rock and large concrete blocks, lacking any kind of fendering systems, with mooring bits missing and/or insufficiently spaced, and exposed to swell, causing the vessel alongside to range and heave, thus subjecting it to frequent contact with the berth. The vessel's classification society determined in its Preliminary Report that some of the damages affecting seaworthiness must be carried out prior to departure. It later decided that the damage to the frames in hold No. 2 and the pilot ladder, needed to be repaired before it would allow the vessel to load any further cargo. Other damage could be repaired at the next drydock.
Charterers argued that the repairs were not urgent and could have been done in Luanda or by the ship's crew for a minimal fee. The vessel did proceed to Santos where the repairs were satisfactorily completed. The repair invoices are well supported and unchallenged, as are the various surveyors' charges both at Luanda and Santos as well as the port[1]charges for the vessel's stay at Santos.
The Charterers’ main point was that Owners failed to mitigate its damages by diverting the vessel to Santos. Charterers relied on an expert report arguing that the repairs could have been substantially cheaper and more efficiently done in Argentina, to which the vessel, in any case, originally had been intended to proceed next and where indeed, she did load her next cargo.
The Panel found the Owners’ decision to repair the vessel at Santos a prudent and reasonable attempt to mitigate its damages. It held that where an innocent party was left to mitigate damages, "The injured claimant need not prove that its mitigation was the best and most effective, only that it was reasonable. At that point, the burden shifts to the defendant to prove that the effort to mitigate was palpably unreasonable."( SMA, 3935 followed)
Claim for unsafe berth
The written and photographic evidence submitted in this arbitration, including the concessions on cross-examination by Charterers’ expert witness that the bollards were improper and insufficient and fenderings were inadequate and unsafe, make it abundantly clear that the berth to which the vessel was assigned, was unsafe for this vessel under the prevailing circumstances.
In its subsequent arguments, some three years later in connection with this arbitration, Charterers suggested that the vessel had an insufficient number of lines available and/or that the available lines were worn and/or in unsatisfactory condition.
After carefully evaluating the evidence submitted and the arguments made by the parties, the Panel found that the weather and berth conditions, as contemporaneously stated by the Master, very persuasively speak to the events at Luanda at the time of the vessel's stay there and that indeed the vessel and her crew exerted every effort to keep the vessel safe. There was nothing in the record to suggest that the mooring lines used were either insufficient or of unqualified quality or condition. Eleven new mooring lines were eventually purchased and delivered to the vessel. In the Panel’s opinion, Owner was entitled to reimbursement for the broken lines and with taking into account an allowance of "new for old," it allowed the cost of the replacement lines and the expenses of putting them on board.
SMA, issued in 2013
Editor’s comment: Additionally, there were other matters in this arbitration concerning the vessel's performance and the charter duration on a "Without Guarantee" (WOG) basis, which have not been included in the discussion above. The Panel denied the Owners’ claim for excess voyage time for breach of the “ABT 60-70 DWOG” as there was no willful misrepresentation or deliberate deceit and, therefore, no action of bad faith. The Owners also brought a claim for underperformance that arose on the subsequent voyage, as a result of the previous prolonged stay at Luanda. The Panel denied the claim as the Owners should have either arranged for a bottom cleaning or should have prudently taken this situation into consideration when it described the vessel's speed and consumption in its agreement with the next charterers.
Interestingly, the circumstances bore a strong resemblance to a dispute involving the Nouakchott port, which was ultimately settled during arbitration under the LMAA Terms. Regrettably, this case did not progress to the stage of an award.
The featured picture is unrelated to this arbitration.