The disputes originated under an ExxonMobil VOY2005 Charter Party for a single voyage. The vessel arrived at the designated loading port and remained at anchorage for approximately 18 days due to port congestion.
The primary issue in this dispute centered on whether the full demurrage rate or only half the rate should apply during the weather-related delays in berthing the vessel. The vessel arrived at the port on December 19 and berthed in early January.
·        From December 23- December 25, this was deducted in full
·        From December 25- December 26, this was deducted in full
The Owners contended that the conditions constituted merely "poor weather," which did not meet the threshold for the application of the "half-rate" demurrage standard. The Owners placed minimal emphasis on the terminal's decision to suspend berthing operations due to weather in accordance with its local regulations and instead relied primarily on their own evidence.
The Owners submitted various pieces of evidence, including the Master's statement, the vessel's deck logs, the vessel's weather fact sheets, the Master's protests, and photographs taken from the vessel's bridge while it was awaiting berth. The Owners also argued that there were movements by other vessels and ongoing cargo operations during the disputed periods.
Charterer contended that the legal authorities relied on by Owner were clearly distinguishable since they interpreted the weather-related half demurrage clauses in the Exxonvoy '69 (Clause 8) and Asbatankvoy (Clause 8). By contrast, Clause 14(b) of the ExxonMobil Voy2005 was similar to the Conoco Weather Clause that provided, in effect, that any weather-related delay in berthing a vessel entitles a charterer to the half-rate. "Severe weather" or "storm" was clearly not the exclusive trigger for the half-rate to apply.
The Panel unanimously concluded that Charterer was entitled to half-rate demurrage for the following reasons. Clause 14(b) of the ExxonMobil Voy2005 neither requires that severe weather must be experienced nor that "any weather" is sufficient to trigger the half-rate. Clause 14(b) provides: Weather and/or sea conditions shall include, but not be limited to lightning, restricted visibility (the term "restricted visibility" shall mean any condition in which visibility is restricted by fog, mist, falling snow, ice, heavy rainstorms, sandstorms any other similar causes), storm, wind, waves and/or swells."
The Panel interpreted the language of Clause 14(b) to require that the weather must rise to a level that is sufficiently significant to interfere with, impede, disrupt, delay and/or otherwise prevent vessel operations at the specific port, terminal or facility involved. In applying this standard to this specific case, the Panel carefully considered and weighed the actual weather conditions encountered during the times in dispute, the physical characteristics of the terminal and the vessel, and the terminal local rules that clearly alerted arriving vessels to the weather-related restrictions in effect at that time.
Furthermore, there was also a dispute over a delay after completion of loading as two tugs were unavailable to unberth the vessel due to tug breakdowns and weather-related reasons. The Panel found that the unavailability of unberthing tugs created a de facto port closure due to "weather and/or sea conditions" and "a breakdown of machinery or equipment in or about the facilities of Charterer, Supplier, Shipper *** of the cargo" as contemplated in Clause 14(b), and awarded Owner half-rate demurrage.
Moreover, there was a dispute over when time ends with cargo documents on board or when the documents are signed. Charterer required the cargo documents, particularly the bills of lading, to be reviewed by the Master and signed. Charterer ended its calculation at the point in time when unsigned cargo documents were brought on board but Owners counted time on demurrage up to signing of cargo documents was completed on board. The language of Clause 11 of the Asbatankvoy and Clause 13(c) of the Exxonmobil Voy form charters was strikingly similar and with similar effect. Notwithstanding that loading was completed and the loading arms disconnected, the disputed time used for signing cargo documents, was "solely for Charterer's purpose" and the Panel unanimously awarded Owner its claim.
SMA, issued in 2010Â
Editor's comment: In the event that the dispute concerned the application of the CWC, the evidence provided by the terminal would likely meet the requirement to establish that adverse weather prevailed during the period of delay. The resolution of such cases remains highly fact-sensitive.