The vessel loaded her cargo in the Black sea, and the main dispute concerned a long period of 6 days which was said to be bad weather (gale warnings). Each party relied on a statement of facts produced by different agents, which showed other things.
The second dispute concerned when time on demurrage ended, i.e. upon completion of loading or when the cargo documents were delivered on board the Vessel at the outer anchorage. The latter was immediately agreed upon, so the focus turned on the bad weather periods.
Three Statement of Facts
The vessel arrived on [xx] August and dropped anchor at OPL, waiting her turn to load at the inner anchorage from barges.
Owners prepared their laytime calculations based on the SOF prepared by their agent, and the vessel was on demurrage before the long period of gale warnings in force that loading was suspended. The Charterers appointed a protective agent to check the SOF and weather stoppages a week after the vessel arrived. According to the Charterers’ agent SOF, there were periods of bad weather whilst the ship was waiting at OPL. Notably, the minor differences between the SOFs greatly impacted the demurrage amount since it determined whether the vessel entered on demurrage or not before the long period of bad weather.
The submitted SOFs were silent on whether the operation was suspended at the inner anchorage and only listed the weather conditions at OPL: speed (18-23 m/s) and sea swell (1.0-1.5m). A third-party SOF was submitted by the Owners from a vessel of similar type and cargo loaded and showed that in some of the disputed intervals, the operation continued at the inner anchorage. Accordingly, on the balance of probabilities, had the subject vessel been at the designated place, loading would have continued during the periods in question, and therefore laytime should count.
Lastly, the weather entries in the deck log, the Owners’ agent SOF and the 3rd party SOF were consistent. Significantly, in similar weather conditions, the Charterers SOF recorded some periods the operation was suspended due to gale warnings. Still, during the period the ship waited at OPL, it was not registered as a gale warning. No records of gale warning announcements were produced by the agent or the master or weather reports from a weather bureau to clarify this point.
The parties contentions
The Owners
Owners contended that as the Charter party provided for loading per “weather working day”, the critical question is whether the loading would have been possible if the vessel had been in the inner anchorage at the relevant time. The burden of proof rests with the Charterers to show, on the balance of probabilities, that loading would have been so prevented. So far, the Charterers have not adduced irrefutable evidence to discharge that burden as regards bad weather periods and, absent precise wording in the charter party, their SOF is not the main evidence to calculate demurrage. In contrast, Owners said that their evidence was strong enough to disprove a fact in issue to the requisite standard of proof. Besides, since insufficient direct proof of the facts in issue was available, the Charterers adduced no circumstantial evidence on which the facts in issue may be inferred; likely, from the weather bureau or other ships as this is not possible on every port there.
Owners’ alternative case was that, even if the vessel was not on demurrage during the long period of gale warnings, it is trite that if gale warnings had been issued, the time so covered did not amount to an interruption to laytime. This is just a threat and not itself bad weather. Also, the SOF provides some prima facie evidence of adverse weather, but it was doubtful if the weather prevented the operation; under similar weather conditions, the ship worked for some periods. Thus, the only inference drawn from the SOF is that other reasons prevented the loading.
The Charterers
The charterers said that various considerations militated against the proposition that the Charterers’ protective agent SOF should be ignored. The SOF produced by their agent was a contemporary document and the most persuasive evidence to calculate laytime or demurrage. Its evidential value is unquestionably strong, and, when signed by the master without notations, it is enough to discharge the Charterers’ burden of proof to the facts. Besides, it is not enough for Owners to say that the draft SOF was presented soon before the vessel’s departure and the master had no time to check it. Therefore, even if, as alleged, there were inconsistencies between the SOFs, these were within the masters’ knowledge, and as per standard practice, the master was expected to exercise reasonable care and skill before signing the SOF.
Concerning the weather delays, the Charterers argued that the words “weather working days” are descriptive rather than exceptive, thus importing no causative connection with the delay or placing the burden of proof on the Charterers. The Charterers need only to show that there was bad weather, and the weather conditions prevailing at the time discharge that burden. Turning to the submitted SOF from another vessel, it must also be remembered that what might constitute bad weather for one vessel will not necessarily be the same for another, even though both are in the same port simultaneously. So, this is insufficient counter-evidence to reverse the truth of the evidence (agent SOF). Again, the general rule is that the party who asserts must prove, and the burden of adducing evidence falls on the Owners. Lastly, the Charterers had argued in the alternative that the periods excepted from their laytime calculations were also excluded by the Force Majeure clause.
Settlement
The parties agreed to reduce the demurrage amount from about 300k to 200k.
Comment
The two main interrelated issues that led to the dispute are (a) SOF discrepancies and conflicting evidence and (b) weather interruption vs weather exception clauses (burden of proof). Likely, the outcome would be different with a weather exception clause or a modified provision of the “weather working day” (as inserted for top-off operation) or if the master had not signed inconsistent SOFs under time pressure for the vessel to sail.
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