Thursday, May 23, 2024

Weather routing companies challenge London Arbitration 32/22

Following the publication of this award, performance disputes continue on the meaning and effect of the word “day” in the context of performance warranties. A WRC consistently argues that the tribunal departed from established precedent, concerning the definition of day and the interpretation of no adverse currents. Due to multiple errors in the performance report and the application of “and/ or” ( a point made by the Charterers in their submissions) in the application of the benchmark conditions, the WRC asserts that these affected seriously the tribunal’s decision deviating from precedent and found against the Charterers.

However, the inclusion of “and/or” (as interpreting the warranted benchmark conditions) addressed a distinct issue from the interpretation of the term “good weather day.” It did not serve as the sole rationale for the arbitrator’s departure from precedent and the ruling against charterers. Rather, the tribunal grounded its decision on the natural and ordinary
meaning of the word “day” within the context, informed by the submissions
presented, with a particular focus on the Ocean Virgo case. It is important to note that the legal representatives of the parties, who possessed significant experience, presented thorough arguments regarding the Ocean Virgo and the interpretation of the warranted conditions. WRC’s argument contradicts these comprehensive submissions and the intended application of the Ocean Virgo [if properly read, the Ocean Virgo and LA 32/22 applied, as a matter of interpretation, the natural and ordinary meaning of words in their context. It is confusing to compare these decisions, aiming to advance a different point].

Another WRC expressed the view that LA 32/22 was wrongly decided and the wording “24 hours consecutive good weather” was missing from the performance warranty. In essence, WRC, or rather their external legal advisers, frequently argue: “Why not say it?” i.e. 24 hours of consecutive good weather. In another case that contained the words ” good weather day” in the performance clause, a Counsel addressed this point saying that that was a slender thread on which to hinge any serious counterargument. “A tribunal should reject such a contention”.

There may indeed be additional arguments to be presented by both parties,
but delving into them is a discussion for another post.

*These are simply brief observations gleaned from handling performance claims, not
indicative of the author’s perspective on whether the decision was correct or not.

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