Arbitration- Owners’ Failed Costs Claim under BIMCO Hull Fouling Clause

One issue in this arbitration concerned the costs incurred for inspection of the vessel’s hull and cleaning the propeller following an extended stay at Port Harcourt, Nigeria. The matter was determined by a sole arbitrator pursuant to the LMAA Small Claims Procedure (SCP).”

The relevant clause was the Bimco Hull Fouling Clause for time charters. The Owners sought to recover the cost paid to the diving company for inspecting the vessel and for cleaning and polishing the propeller.

The ship arrived and waited offshore due to congestion. The schedule was to pick up guards and escort boat at 3N/ 7E to bring the ship to a private terminal in Port Harcourt. On 2^nd February, the gunboat escorted the ship to Bonny town. Due to congestion, the vessel berthed on about 16 February and completed discharge on about 23 February when she was escorted out of the HRA.

The arbitrator found the evidence produced by the Owners in support of this claim rather slender. There was a debate between the parties as to whether, geographically speaking, the vessel remained within a single location for the required aggregate period of at least 15 days in order for the case to fall within the wording “(a) If, in accordance with Charterers' orders, the Vessel remains at or shifts within a place anchorage and/or berth for an aggregated period exceeding:…”

The arbitrator found that the Owners’ view was correct, but this was not the critical factor in determining the dispute regarding the claimed costs.

What the arbitrator said and considered was:

1.    It did not appear to be any discussion about the inspection or cleaning prior redelivery, so that paras (b) and (c) to engage;

2.    The Owners arranged an inspection and cleaning to take place at Takoradi after the vessel’s redelivery. The divers' report was quite detailed, but the photographs were of poor quality;

3.    The condition of the vessel’s hull was generally good with no more than intermittent light growth, and the propeller, while more generally affected, exhibited no more than limited growth;

4.    There was before the arbitrator no significant evidence of the vessel's performance either before, during, or after the vessel's voyage to Port Harcourt, and bearing in mind that there was some evidence – which the arbitrator was inclined to accept – that the vessel had lain idle for a substantial period of time at Itaqui, Brazil, prior to delivery under the charterparty.

Therefore, the arbitrator was not satisfied that the Owners had made good their claim under this head.

This is an award issued by a Sole Arbitrator under the LMAA SCP, in April 2022, and is fully published in Jus Mundi.

This case seems to align with the observations made before here: Reassessing Liability for Hull Cleaning