In this arbitration, the dispute turned on a narrow issue: whether laytime ran during some periods of fog when the vessel was waiting at the roads in Constantza, and the port was reported as closed. This, in turn, determined when demurrage began as claimed by the owners and denied by the charterers. Consequently, the parties referred their dispute to a sole arbitrator in London, and both parties were legally represented. The parties disagreed on the situation at the port during some periods. Owners said that other ships loaded their cargo during these periods. Charterers disagreed on the said cargo operations’ relevance, including the charter party’s terms on this issue. Therefore, the main points of difference were related to the meaning and effect of “weather working days”- whether the ship would be able to load had she been at berth during the relevant disputed periods, and the effect of the words “ laytime shall be interrupted during periods of adverse weather” as found in a separately printed clause. For the latter, charterers argued that it provided an answer to the dispute, as these words widened the scope of “ weather working day”. Next, the parties disagreed on whether the ship could load had she been at berth, how she would load her cargo and for how long. The owners relied on official records of the Constantza port authority, showing that other vessels were loading during said periods. Charterers disputed the data and provided evidence from the Naval Authority to support that the port had suspended navigation during the disputed periods under fog. For the latter, owners asserted it dealt with navigation, not cargo operations. On the evidence, there was no doubt that fog and poor visibility prevailed at the port during the disputed periods. This was reported by the master in the SOF, including the statement from the Naval authorities as signed by the harbourmaster and the navigation department. In addition, the charterers’ agent’s email to the parties referred to cargo operations being suspended. One of the other vessels stopped loading and waited for weather improvement, which the changes in the declared departure time (ETD) proved. Also, barges were likely not allowed to manoeuvre around the vessel under fog and poor visibility and carry out cargo operations. In essence, the evidence was not satisfactory to calculate the exact periods that the vessel could load during these disputed periods. Thus, the tribunal could not award the full demurrage claimed by the owners under the “weather working days” regime. Then, the tribunal considered the effect of the separate clause referred to “adverse weather”. The charterers argued that since there was “adverse weather”, it did not matter if cargo operations were carried out. Adverse weather certainly includes weather that affects navigation in the port. The owners said the clause did not apply as fog did not affect navigation inside the port because other ships proceeded to the berth. So the burden was on the charterers to show an exception to laytime, and they failed to do so. The tribunal was satisfied that prima facie, the certificate from the Naval authority established that the fog suspended the movement of vessels in and out of port. Regarding the interpretation of the “adverse weather”, the tribunal stated that neither party referred to any precedents and assumed there were no precedents or reported arbitration decisions. The charterers referred to an earlier version of the contract to interpret the new version. However, the tribunal did not find it decisive or permissible to look at an earlier version of a contract to interpret the current one and felt bound to treat the recent clause on its wording. Also, the tribunal said that bad weather is not enough to trigger the clause as the charterers had argued. If adverse meant bad, it would be difficult to draw a line between bad and good weather. ”Adverse” imports a relative concept: the test was whether the weather stopped vessels proceeding to their berths after a valid NOR was tendered. Thus, the tribunal had to consider if other ships could move to the berth at the relevant times. Of importance, the owners submitted no clear evidence of when the other ships left their anchorages and went alongside at their berths, despite that the tribunal asked the parties to make further submissions on this point. The data only showed when the vessels were alongside. Without any other evidence, the tribunal found it likely that the vessels proceeded to their berths during periods when there was no suspension of the movement. According to its findings, there was evidence that the other vessel’s movements (as referred to by the owners) were suspended and no evidence of such movements during those periods. Since “adverse weather” interrupts laytime running during the claim periods, the owners’ claim failed. Award accordingly. Comment: In London Arbitration 10/02, the tribunal decided a similar issue in the owners’ favour as the evidence indicated that fog did not interrupt the loading operations. However, this case is different: due to the unsatisfactory nature of the evidence and the applicable terms (the “adverse weather”). In some other settled cases, the agent put a clear remark in the SOF to avoid ambiguity ” Navigation was suspended, but the operation continued at berth, or the operation was not continued at berth (if that is the case)”. Note: this website removes the names of the parties, the tribunal and their representatives. No other information can be provided for this award. #BadWeather #Laytime #SOF

The vessel was chartered on an amended GENCON 1994 form to carry coal from Norfolk, USA to Gdansk or Swinoujscie, Poland. Disputes arose between the Claimant and the First and Second Respondents in respect of delays at the loadport and failure to load a cargo. Consequently, the disputes came before two LMAA Arbitrators that applied to this reference the LMAA Terms 2017. The parties were represented by solicitors. The second respondents raised a jurisdictional challenge but since the first respondent withdrew its claim against the second Respondents, the tribunal did not consider the parties’ position on their Jurisdiction over the Second Respondent. Factual background The Vessel was fixed on 4 November 2021 with a laycan of 5-15 December. After that, the parties agreed to the Vessel [X] with a laycan 30 December -6 January, making it clear that the ship should be in port by the 7th. The Vessel tendered NOR at 2035 LT on 3 January on arrival at Cape Henry sea pilot station, picked up a pilot there and subsequently anchored at Cape Charles anchorage, where NOR was re-tendered at 2240 the same day. The SOF recorded that the Vessel remained at Cape Charles anchorage from 3 January, “awaiting cargo availability and terminal berthing instructions”. It was common ground that the cargo was not in the port or available to load on the Vessel’s arrival, despite the previously anticipated urgency by the First Respondent for the Vessel to arrive without delay. Instead, the cargo was at a third-party location, where it needed to be loaded onto trains to be brought to the port for loading. Despite assurances received through various channels, the cargo never arrived at the port. In the meantime, because of the length of time the Vessel had remained idle at port, the USCG notified the Claimant on 29 January that the Vessel must leave port by 12 February. On 11 February , the First Respondent sent a message to the Claimant (“the Cancellation Message”), which stated, “we officially release[s] you today from the charter vessel of our cargo”.  Then, the Vessel departed the load port without loading the intended coal or any other cargo. The Vessel was subsequently fixed for the carriage of another coal cargo from Norfolk, USA, to Rotterdam, Netherlands, with a laycan of 9-18 March. Meantime, on 5 March, the Claimant accepted the Cancellation Message as a wrongful repudiation of the Charter. The claimant’s claims Given the alleged repudiation of the Charter, the Claimant claimed (i) demurrage for the time lost between the date of the Vessel’s arrival under the Charterparty on 3 January until its alleged termination of the Charter on 5 March , alternatively until the date of the Vessel’s delivery into the Substitute Fixture on 9 March , (ii) damages for wrongful termination and (iii) recovery of related expenses. Issues to be Determined (i) What was the legal effect of the Cancellation Message? (ii) When did the Charter come to an end? (iii) Is the Claimant entitled to demurrage ? If yes, over what period and in what amount? (iv)What was the legal effect of the demurrage invoices issued and the nature of the demurrage payments made to the Claimant? (v)Is the Claimant entitled to damages for wrongful termination? If yes, how are damages to be calculated and to what amount is the Claimant entitled? (vi)Is the Claimant entitled to recover its related expenses incurred at the loadport? For this post, the questions (i), (ii),(iv),(v), and (vi) are answered shortly. Point (iii) is mainly considered. Held, (i) What was the legal effect of the Cancellation Message? The First Respondent’s message evinced an intention not to perform its obligations under the Charterparty terms, in repudiatory breach, entitling the Claimant to accept that breach and terminate the Charter. (ii) When did the Charter come to an end? The Charter was terminated at 0723 on 5 March, when the claimant accepted the Cancellation Message as a repudiatory breach of charter and brought the Charter to an end. (iii) Is the Claimant entitled to demurrage? If yes, over what period and in what amount? It was the claimant’s case that, the Vessel having tendered NOR at 2035 on 3 January , laytime commenced at 0835 the following day and that, taking into account the allowed laytime of 2.4 days, the Vessel came on demurrage at 1811 on 6 January . Terminating the Charter at 0723 on 5 March resulted in a total period of demurrage of 57.55 days which the Claimant claimed in the total amount of USD 920,800. Alternatively, the Claimant claimed demurrage from tendering NOR on 3 January until delivery of the Vessel into the Substitute Charter on 9 March , which it calculated resulted in damages of USD 1,026,288.80. After allowance was made for the received payments of USD 199,980, the Claimant’s total claim for demurrage for USD 720,820, alternatively, damages of USD 826,308.80. The Respondent denied that the Claimant terminated the charterparty on 5 March or that it was liable for demurrage beyond 11 February. Determination Clause 31 of the Rider set out the provisions agreed in relation to tender of NOR, commencement and allowed laytime as follows : “. .. Vessel to be loaded at the rate of 20,000 Metric Tons per weather working day of 24 consecutive hours, Saturdays, Sundays and holidays included, Charterers option to load at 25,000 Metric Tons….. Laytime shall commence 12 hours after the vessel tenders notice…..If the berth is not available on the Vessel’s arrival, the Master may tender said notice from a lay berth or anchorage within the port limits.” The load port SOF recorded that the Vessel first tendered NOR at 2035 on 3 January. However, the SOF also recorded that the Vessel only stopped to pick up a pilot and ended it sea passage at this point, weighing anchor shortly afterwards at 2240, at which point NOR was re-tendered. It is trite law that tender of NOR at the end of sea passage, before a vessel anchors or berths, is premature and invalid. Accordingly, the NOR tendered at 2035 on 3 January was invalid and that the first validly tendered NOR at the load port was that tendered at 2240 the same day. After allowance of the contractually agreed 12 hours turn time, the laytime at the load port started to run at 1040 on 4 January and, in the absence of any applicable interruptions or exceptions to laytime, time ran continuously thereafter as laytime and then demurrage for the First Respondent’s account. In circumstances where the reduced cargo quantity of 60,000mt arose from the First Respondent’s instructions, this should be the cargo quantity on which allowed laytime is calculated. As to the contractual load rate on which allowed laytime should be calculated, in circumstances where the First Respondent did not elect to load at the faster rate of 25,000mt pwwd, the allowed laytime at the loadport should be calculated on the basis of the load rate of 20,000mt pwwd. On the cargo quantity of 60,000mt, this equates to allowed laytime of 3 days. Allowed laytime therefore expired at 1040 on 7 January, at which point time on demurrage began to run. As to when time on demurrage stopped running, on the evidence, the Vessel left the loadport on the instructions of the USCG and returned on 9 March to enter into the Substitute Charter. Since the Charter had been terminated on 5 March , the demurrage continued to accrue until 0723 on 5 March . The Respondent is liable for demurrage for 54.86 days (57.86 days laytime minus 3 days allowed laytime). At the rate of USD 16,000 PDPR agreed on nomination, this equates to loadport demurrage of USD 877,760. (iv) What was the legal effect of the demurrage invoices issued and the nature of the demurrage payments made to the Claimant? The tribunal rejected the Respondent’s arguments for “negotiated demurrage” (due to lack of evidence) and waiver. Concerning the nature of the demurrage invoices issued, from their face, they constituted interim invoices in respect of demurrage falling due day by day. In circumstances where there was no discharge or final freight invoice issued, paragraph 13 of the Recap and Clause 35 of the Rider meant that demurrage became payable within 30 days of the termination of the Charter, provided that supporting documents had been provided. (v) Is the Claimant entitled to damages for wrongful termination? If yes, how are damages to be calculated and to what amount is the Claimant entitled? As to how the quantum of its damages claim should be calculated, relying on The Concordia C [1985] 2 Lloyd’s Rep 55, The Noel Bay [1989] 1 Lloyd’s Rep 361 Odfifell Seachem v Continentale Des Petroles [2005] 1 Lloyd’s Rep 275, and Louis Dreyfus Commodities v MT Maritime Management [2015] 2 CLC 508, the Claimant calculated its entitlement to damages for wrongful termination on the basis of the difference between the net earnings it expected to achieve under the Charterparty, less those achieved under the Substitute Charter for the period the two overlapped. The tribunal considered the authorities and accepted the basis in which damages were to be calculated in principle, namely by assuming the breached fixture would have been performed immediately upon termination of the Charterparty, entitling the innocent party to recovery of its expected net earnings under the terminated charter, less any net earnings achieved under a substitute charter for any period of overlap, comparative calculations being achieved by the net earnings under each fixture being converted into TCE daily rates. There was no suggestion that the Vessel was employed between 11 February and 9 March. So the overlap was related to the period 5 March up to 24 March, being the expected termination date of the initial voyage. (vi) Is the Claimant entitled to recover its related expenses incurred at the loadport? The claimant claimed reimbursement of wasted port disbursement account costs and underwater cleaning costs incurred due to the extended waiting period. For the underwater cleaning costs, the claimant submitted two invoices. Since no freight ultimately fell due as a result of the First Respondent’s breach of Charter, the Claimant was out of pocket in relation to the port DA incurred as a result of the First Respondent’s breach of Charter. Therefore, the claimant was entitled to recover as damages these costs. There was no contractual provision for the allocation of risk of hull fouling as between the Parties. Rather, the Charter contained demurrage provisions to compensate the Claimant for delay at port by means of liquidated damages. Therefore, the Claimant’s claim for related expenses arising out of delay should be limited to demurrage. The second invoiced hull cleaning costs related to delay under substitute charter and that was unrelated to the First Respondent’s breach. Award in the claimant’s favour of USD 1,062,295.93, with an interest of 5% compounded at three monthly intervals and costs, following the usual rule that costs follow the event. Final Award issued 20 Sept. 2022 Note: This website removes the names of the parties involved in this or other awards. The reader can find more details on Jus Mundi https://jusmundi.com/en/ . These awards mostly come into the public domain through enforcement under the NYC 1958 .

The vessel was chartered on an amended NORGRAIN Form to carry soya beans in bulk from Paranagua to Rizhao. Disputes arose between the parties and were referred for determination to a sole arbitrator under the LMAA Terms. Owners served their Claim Submissions that included an email from the Charterers confirming the Owners’ laytime calculations. However, Charterers had not served their Defence Submissions within 28 days or requested any extension of time. Therefore, on 10 October, following the Owners’ request for an order to serve their Defence, the arbitrator asked the Charterers to respond within two days, explaining why they had not served their Defence and how soon they could do so. On the same day, the Charterers asked for an extension of seven days to serve their Defence. Meantime, the Charterers admitted the Owners’ claimed amount and said that this delay was due to “great losses in crops, economic recession, so businesses meant to be very difficult”. Also, the Charterers said that they did not see the non-payment of the balance as a dispute so the parties to resolve it in Arbitration, and this matter could be resolved amicably and proposed payment of this balance in “3 equal parcels” or earlier via freight rate adjustment if the parties fixed another voyage. Subsequently, on 7th November, the Charterers served their Defence and acknowledged the balance due to the Owners. They said they never refused to pay and repeated their offer for payment in “3 equal parcels”. This prompted a response from the Owners’ London solicitors on 11th November, requesting that the arbitrator proceeds to an award given the admission of the sums claimed. On 3Oth November, the arbitrator confirmed his intention to proceed to an award. On 16th December, the Owners’ solicitors advised the arbitrator that the Owners received a payment on account from the Charterers and requested the arbitrator not proceed to an award pending receipt of the balance as promised by February. On 15th March, the Owners’ solicitors requested the arbitrator to proceed to an award, and the arbitrator asked for clarifications from the Owners regarding the applicable interest for the paid sum (on account) and their costs. Then, the arbitrator asked the Charterers to make any comments on the sums now claimed by the Owners. The arbitrator held that the Charterers were very open in admitting the sum claimed as being due. They wished, though, to find a way of paying this by installments was not an answer to the Owners’ claim. The payment of USD 200,000 obviously reduced the balance due but left an undisputed amount of USD 99,847.34 outstanding. Consequently, the Owners were entitled to an Award for that sum plus interest and costs and interest on the late payment of USD 200,000. Award accordingly. Issued 27 March 2017 This website removes the names of the parties involved in this or other awards. The reader can find more details on Jus Mundi https://jusmundi.com/en/ . These awards mostly come into the public domain through enforcement under the NYC 1958 .

I am pleased to present the third guidebook published for free as part of a series of “Snapshot Guides” on charter disputes that I write. Given my daily involvement with charter disputes and the parties’ extensive reference to LMAA Awards during settlement negotiations, I started in 2015 to prepare for convenience a list of the summaries that I update annually with new decisions and a brief description or keywords for quick reference material. To prepare this list, the short observations and statistics, I read all the published summaries from 1979, refreshing my knowledge and learning more as few summaries went unnoticed or involved uncommon issues. After publishing the guidebook “Snapshot Guide to Laytime & Demurrage”, I aimed to publish another guidebook with more categories of charter disputes, i.e. “A Snapshot Guide to Charterparties”. However, the published awards considered disputes under several types of contracts. Therefore I decided to prepare and share this “Snapshot Guide to LMAA Awards” as a list, with awards in chronological order. But, of necessity, I could not include more information about the summaries apart from some keywords, statistics and brief observations. Therefore, the keywords had to be extremely short, and some aspects were not covered. Notably, as a conscientious reader of the Lloyd’s Maritime Law Newsletter https://www.lmln.com/ , it would not be right for me to lose this opportunity to pay tribute to Michael Daiches, who edited the LMLN and prepared award summaries for 40 years, from 1981-2021. This guidebook includes statistics and brief observations. As observed, approximately 20-25% of the cases referred to arbitration proceed to an award. Regarding the rest, the parties usually settle the case during the various stages of the reference. Most of the published awards considered disputes that arose under charter parties or bills of lading contracts, and fewer considered disputes under contracts for ship sales, shipbuilding and repair. Roughly 70% of the disputes that came before arbitrators involved issues of construction or interpretation: by way of remarks, some tribunals commented on the relatively relaxed draftsmanship adopted over the years when it came to construing the contract. For the reader’s easy reference, the chart below shows that commonly disputed issues fall into these categories: laytime and demurrage, hire payment, off-hire, cargo claims, arbitration practice, freight and dead freight, speed and performance, and maintenance (mostly the holds condition and cranes) or unseaworthiness, e.g. mainly due to engine damages or other matters, e.g. cracks in the hull or side shell plating, tail shaft damaged, or for crew matters, including consideration of the Hague Rules defences, competing causes of delay- chain of causation, etc. And fewer issues about disbursements, unsafe ports (hull & mooring ropes damaged, actions of pilots and tugs), bunkers, extra insurance, and sales of ship or shipbuilding contracts LMAA Published Awards 1979 – 2022 Note: this book may be freely distributed online and in print, provided it is in complete form without any amendments and contains all credits as referred to in the guidebook (see copyrights section). Credit to Lloyd’s Maritime Law Newsletter https://www.lmln.com/ and I-law https://www.i-law.com/ilaw/index.htm

The vessel was chartered on an amended NYPE 1946 form for a trip to Hodeidah- an area exposed to war risks. A dispute arose concerning the amount of the extra war risk insurance premium payable by the charterers. Consequently, the parties referred the dispute to arbitration in London. The owners presented the invoices from their London brokers that calculated the extra premium as 1.5% of the vessel’s value less a 35% discount. The owners said this amount was paid and did not exceed what Lloyd’s of London Underwriters quoted. In addition, the owners referred to another fixture with the charterers concerning another vessel for which the charterers had paid a similar amount. Thus, the owners said that the charterers knew the premiums to pay for this fixture. The charterers’ case was that the calculation based on 1.5% of the vessel’s insured value was not representative of the vessel’s time in port and was excessive. The owners should have presented a quote (based on the wording “as quoted”) before entering this area, allowing the charterers to challenge the sum quoted by the owners’ insurers. The charterers denied any reliance on the other fixture caused a waiver or acceptance. Lastly, the charterers applied 0.5% less 35% discount and paid that sum to the owners. That was based on the charterer’s brokers’ enquiries for other Yemeni calls. Held, The owners have failed to submit documentation or quotations before entering the war zone. If the owners could not comply with the requirements of the clause because they could only offer the documents after the event, the relevant clause required necessary amendments. However, the owner’s failure to follow this process was not enough for the charterers to avoid payment of EWRI. But, importantly, the extra insurance payment should be a London Market rate or a rate not exceeding what was quoted by the London Market at the time. On the evidence, the rate obtained was at the high end of the range, but it fell within the charter party provisions. Therefore, the charterers had to pay the amount claimed by the owners. Award accordingly. For a similar issue, see London Arbitration 9/02 . Note: no other information can be provided for this award. The website removes the names of the parties involved in any award.

After the vessel’s redelivery, the owners claimed unpaid hire. The charterers denied liability and made a counterclaim concerning the vessel’s underperformance. Consequently, the dispute was referred to arbitration in London and determined by a sole arbitrator. The charterers relied on various reports issued by their weather routing company (WRC) to support their claim. Two main issues arose: the meaning of “no swell” in the performance clause and which evidence of the weather conditions to be used to assess the vessel’s performance. As a starting point, the arbitrator had to determine- as a matter of construction- the owners’ warranty in respect of the vessel’s speed and consumption, including the weather conditions in which to assess the vessel’s performance. These were dealt with by reading together the vessel’s description clause and the weather routing clause. The arbitrator held that evidence of the weather conditions had to be taken from the vessel’s logs, as stated in the clause. If the charterers wished their WRC’s data to be used for the analysis, this should have been made clear in the clause. Relying on the deck logs or the HYCOM (used by the WRC), both identified the same good weather periods that the owners challenged due to swell (but the owners made no comments about the adverse currents). Concerning the words “no swell”, the arbitrator adopted a pragmatic view to give meaning to these words and held that the parties must have intended them to mean that periods with adverse swell should be excluded from the assessment. The WRC adopted a methodology that limited the significant wave height to 1.25 meters under the wording “Douglas Sea state and no swell”. The WRC expressed the view that, typically, swell waves in excess of 2 meters would have any noticeable adverse effect upon a handysize vessel. Regarding the evidence, the WRC said that their report relied on the deck logs and their own analysis of the weather conditions. The arbitrator held that the charterers bear the burden of proving the owners have breached the performance clause. That required careful consideration of the performance report that charterers relied upon to support their claim. The tribunal had difficulty in accepting the WRC’s conclusions because the swell analysis was not an exact science. Also, the noon reports recorded strong adverse currents in the good weather periods, when the reported swell was similar to that analysed in the report. Lastly, the arbitrator felt uncomfortable with the evidence because the WRC used the deck logs and their analysis of the conditions encountered, contrary to the charter party terms. Therefore, the charterers had failed to discharge their burden of proving that the vessel breached the performance warranties. Accordingly, the charterers’ counterclaim failed, and costs followed the event under the normal rule. Note: no further information can be provided for this award. This website removes the names of the parties involved in any award.

The vessel was chartered on an amended NYPE form for a voyage from a port in Thailand to a port in China. One of the disputes concerned the charterers’ deduction from hire due to the masters’ decision not to follow the shorter and direct route recommenced by their appointed weather routing company, resulting in extra time loss on the voyage. Consequently, the dispute was referred to arbitration in London. The owners’ case was that the masters’ decision to move further offshore in one part of the voyage was due to safety reasons, given the presence of fishing vessels in the area. Additionally, in another part of the voyage, the master decided to alter course to avoid the effect of heavy rolling and pitching. The charterers’ case was that the owners had failed to comply with clause 8 of the charter party that required the vessel to proceed with utmost despatch to her destination. Further, the charterers rejected the owners’ submission that the charterers consented to this decision because they made no complaint when the master reported the course change to the weather routing company. In terms of evidence, the owners have offered nothing to support the masters’ decision for safe navigation- as alleged. The tribunal dismissed the charterers’ claim and felt reluctant to challenge the masters’ navigational decisions in the absence of any evidence produced by the charterers to support that no reasonable master would make this decision. The tribunal expressed the view that a witness statement from the master with reasons to justify his decision would assist. Still, even without the same, this did not affect the owners’ case because of the sufficient information supporting his decision. In a similar settled case, the parties’ arguments centred on the Hill Harmony case and tried to distinguish it since the facts of that case were too extreme and did not bear a striking resemblance to the present case. Charterers contended that the proposed route was not unsafe; the presence of fishing vessels did not render a route unsafe, as this was a standard route for ships of a similar size that navigated successfully without similar safety issues arising. In another arbitration award, a similar view expressed that a risk of collision did not mean that fishing vessels really imposed a threat to merchant shipping. All required was for the crew to exercise vigilance when navigating the area. Note: no additional information can be provided for this Award. This website removes the names of the parties involved or referred to the Award.

Owners sought a Partial Final Award for outstanding demurrage of $694,443.58 plus interest, fees and costs, under an ASBATANKVOY charter party for one voyage from Uruguay to Chile. The issue in this arbitration, under the SMA Rules, was whether the owner was entitled to a Partial Final Award for outstanding demurrage incurred during two periods 2 and 3, without first hearing evidence and determining whether the alleged unseaworthiness or fault of the vessel or owner caused or contributed to her collision with the supply vessel and resulting delays incurred during Period 1 at La Paloma. This was essentially a burden of proof dispute. As found, the owner carried its burden for its demurrage claims, whereas the charterer did not. The background The vessel tendered NOR on March 11, 2014, at 0130 at La Paloma, Uruguay, two days beyond her cancelling date, which the charterer accepted at 0642. She was to load in a ship-to-ship operation, but at about 0630, a supply vessel collided with her. Charterers reported this incident to the receivers, who stated that it is essential for the vessel to arrive and receive the cargo within the loading window to maintain their commercial commitments. The vessel underwent permanent repairs at a local shipyard and re-tendered NOR on March 21 at 0230, which the charterers accepted. On the same date, the receivers wrote to charterers that the cargo would arrive considerably late and the vessel’s arrival at the discharge port would be treated as outside the delivery window. Upon completion of loading on March 26 at 0654, the Master protested for delays between March 21 at 0230 and the commencement of loading due to the low average rate of 5,373.23 compared to the vessel’s maximum requested loading rate which was up to 9,480 cubic meters per hour. On April 5 at 1510, the vessel arrived at Quintera and tendered NOR, which was not accepted until May 3 at 1255. The Master protested and noted that only two hoses of 10 inches bore were connected while the vessel’s manifolds were 3 x 16 inches and the maximum requested pressure 6 kgr/cm2 at the ship’s rail. Discharging began on May 3, 1606 and was completed on May 4, 1930 hours. The parties’ contentions Owners The owners’ demurrage claims related to three periods: Period 1 —From March 11, 2014, at 0130 that NOR tendered until NOR re-tendered on March 21 at 0230. Period 2 — From March 21 at 0230 until completion of loading on March 26 at 0654. Period 3 — From arrival and tendering NOR at Quintera, Chile on April 5 at 1510 until completion of discharging on May 4, 2014, at 1918. Owners dispute that the collision with the supply vessel was due to unseaworthiness or the masters’ negligence or fault. Given that the charterer would dispute the first period, the owners sought a partial final award only for periods 2 and 3, which were said to be unrelated and unaffected by any delays due to the collision. Further, the charterer utterly unexplained period 2 delay at La Paloma. Concerning the delays during period 3, from April 5 due to “documentation issues of cargo receivers”, these were resolved on April 16, and the vessel moved to the anchorage. However, delays occurred from April 14 while awaiting the arrival of the other STS Vessel until she arrived at Quintera on April 30. The owners’ case was that the charterers, receivers, or agents provided no evidence to explain these delays, and the charterers failed to carry their burden of proof with respect to explaining the delays during periods 2 and 3. Therefore, it is appropriate to have a Partial Final Award in its favour. Charterers Charterers contend that owners’ request for a Partial Final Award should be denied because the demurrage claims for periods 2 and 3 are related to facts and issues arising from the collision. First, the collision delays prevented the vessel from loading during the loading window, and the owners’ claims were premature and not ripe for determination. Second, the collision was caused by the vessel’s unseaworthiness and/or the Master’s negligence resulting in delays at loading and discharging ports. Third, the collision was the proximate cause of the vessel missing her delivery window at Quintera, resulting in delays beyond the charterers’ control. Lastly, the owners’ demurrage calculations were inaccurate, and the owners’ claim for attorney’s fees should be denied as the SMA Rules are inapplicable to this proceeding. Discussion and decision The law is well-established concerning the issues of an owner’s obligation to present its vessel within her laycan, a charterer’s reciprocal right to cancel should the vessel be presented beyond her laycan, and the parties’ respective burdens of proof in demurrage disputes. The owner was obligated to proceed to the loading port with all “convenient dispatch”, and if the vessel was not ready to load on the cancelling date, the charterer had the option of either cancelling by giving timely and unequivocal notice or accepting the vessel. Without an effective notice of cancellation, the Charter remained in effect. The charterer may also have a right to damages if the owner breached its obligations to proceed with dispatch or, in relatively rare cases, its conduct was unreasonable and/or deceptive. The owner has the initial burden of proving its prima facie claim for demurrage by establishing through notices of readiness, port logs, vessel logs and laytime calculations that time consumed in loading and discharging the cargo exceeded the agreed laytime. The charterer is liable to pay demurrage for excess laydays except 1) where a specific provision of a charter party exonerates the charterer from liability; 2) where the delay is the fault of the owner or those for whom it is responsible; and 3) where the delay is caused by vis major . The owners and charterers were experienced and sophisticated players, and a “time is of the essence” provision for the loading/discharging windows at La Paloma and Quintera could have been easily inserted into their Charter. However, it was not, and it was undisputed that this “timeliness” was never brought to the owner’s attention and remained strictly between the charterer and its receiver. The only “timeliness” provision in the Charter was the laycan dates of March 8-9. The vessel was presented at La Paloma beyond these dates on March 11 (two days into the loading window discussed only between charterer and receiver) and was unconditionally accepted. The charterer could have exercised its cancellation rights under Clause 5 of the Charter, but freely chose not to do so and thereby waived its rights in this respect. The charterer had not explained that the collision on March 11 proximately caused all delays or rebutted the owners’ submissions. Accordingly, the majority awarded the owners their demurrage claims of $694,443.58 plus interest $13,839.96. In addition, the owners were entitled to a reasonable allowance for attorney’s fees and costs based on Clause 24, which would be addressed in the Final Award. Partial Final Award, 27 March 2015. This website removes the names of the parties involved in this or other awards. The reader can find more details on Jus Mundi https://jusmundi.com/en/ . These awards mostly come into the public domain through enforcement under the NYC 1958 .

In this consolidated arbitration, demurrage disputes arose under six charter parties, evidenced by a fixture recap incorporating amended versions of the ASBATANKVOY form with additional charterers’ clauses. Each vessel was chartered for the carriage of fuel oil from Fujairah to Karachi and other discharge ports. Charterers denied liability and counterclaimed of US$212,520.16 in respect of cargo shortage under five bills of lading issued in three of the charter parties. The matter came before two Arbitrators that accepted appointment under the LMAA Terms 2006 and dealt with all issues in a single Final Arbitration Award, following the request of the different owning companies in this arbitration. The parties’ contentions Charterers’ primary case was that delays had occurred in getting the vessel to the berth over which they had no control, and therefore laytime should not start until the vessel was all fast at the load port. If these periods of delay were excluded (clause 6 of the ASBATANKVOY), there was no demurrage due. The charterers alleged these delays: tidal restrictions in four charter parties, delay in obtaining free pratique in one charter party, and no reason of the cause of the delay was offered in one charter party. In the owners’ case, insofar as the vessels could not berth on arrival, there was a prima facie breach of the charterers’ obligation under clause 9 that the berth should be “reachable on arrival”. Then, it was for the charterers to demonstrate that the berth was reachable on arrival and that it became unreachable due to a supervening delay beyond their control, for which no evidence was adduced. Therefore, the charterers could not rely on clause 6 of the ASBATANKVOY since it does not apply unless the charterers procure a berth “reachable on arrival”( The Laura Prima [1982] 1 LI. Rep. 1 ), and so should the demurrage exceptions in clause 8. Owners provided evidence that the cause of delay was congestion. Owners’ alternative case was that the additional charterers’ clauses 12 and 14 provided a complete code and overrode the provisions in the ASBATANKVOY. In defending the charterers’ counterclaim, the owners pointed out that the short shipments were governed by clause 15 of the charterers’ incorporated clauses, which dealt with in Transit Loss and Cargo Retention. Therefore, there was no claim. Held, Clauses 12 and 14 did not override but were complementary to the provisions of the ASBATANKVOY form. The charterers’ primary obligations were to comply with clauses 6 and 9. On the evidence, the actual cause of delay was congestion, and charterers were in breach of clause 9 for either of the grounds alleged to cause delay. Since clause 15 was amended in the fixture recap of the three relevant charter parties, it nullified all but 1.5% of the charterers’ counterclaim. Owners conceded the 1.5%, and the tribunal awarded US$3,188.55. Accordingly, the owners were awarded the demurrage claimed in each of the six charter parties, together with interest and costs. Charterers were also awarded US$3,188.5, plus interest. Interest Owners were entitled to interest of 5%per annum and pro rata compounded at 3-monthly rests to run in each case from 14 days after the demurrage claims were first presented to the charterers. Similarly, the same rate was applied for the charterers’ counterclaim but used for simplicity to the entire sum from 14 days after the presentation of the first cargo claim. Costs Under the normal rule, costs follow the event. Charterers should bear the owners’ recoverable costs together with the costs of the Award. As a single Award was made for all claims, the tribunal expected the owners to allocate the costs of each claim among themselves. If not, the tribunal would say that costs should be equally divided between the six references. Final Award, 19 September 2011 This website removes the names of the parties involved in this or other awards. The reader can find more details on Jus Mundi https://jusmundi.com/en/ . These awards mostly come into the public domain through enforcement under the NYC 1958 .

In this arbitration, the owners claimed demurrage and damages in the amount of $1,470,052.78 arising out of an amended C.(Ore) 7 form for the carriage of iron ore concentrate from Topolobambo, Mexico, to China. The dispute came before a panel of three arbitrators under the SMA Rules 2018. Charterers failed to serve their defence, and the panel made its final award on the documents submitted. The factual background a. The vessel arrived and tendered NOR at Topolobambo on March 3, 2020, and retendered on March 6, 2020; b. On May 11, 2020, the owners requested that charterers urgently advise when a cargo would be supplied, observing that the vessel had been waiting since March 3, and reserving the right to declare charterers in repudiatory breach. c. Charterers failed to provide any satisfactory response to owners’ request; d. Accordingly, on May 18, 2020, the owners notified the charterers that it terminated the Charter immediately based on the charterers’ breach and repudiation. e. On June 30, 2020, owners submitted to charterers through its broker a demand, together with supporting documents, for $1,450,052.78 in compensation, including: • demurrage of $1,111,977.78 for 74.27361 days from the vessel’s arrival on March 3, 2020, to the date it sailed on May 19, 2020; • alleged loss of earnings of $318,200 on a substitute fixture; and, • underwater cleaning costs of $39,875 allegedly incurred because of fouling of the vessel’s hull as a result of the long wait at Topolobambo. f. Owners demanded payment by July 10, 2020, but no payment was received. Discussion and decision The panel requested the owners to submit copies of correspondence received from the charterers concerning the reasons for the charterers’ failure to provide cargo. Charterers described as force majeure these alleged situations: (a) delayed issuance of export permits due to previous hacking of the server of the Department of Commerce; and (b) COVID-19, which allegedly led the government to issue a declaration that, from March 30, 2020, onward, limited or stopped mining and also limited production at a concentration plant. Held, If charterers had participated in the arbitration and asserted a force majeure defence, it would, under New York law, have had a heavy burden of proof. It would have had to prove by a preponderance of the evidence that the alleged force majeure events actually occurred and that their failure to perform arose or resulted from those events. In fact, charterers chose not to participate and did not submit any evidence regarding these matters. In the circumstances, the attribution of charterers’ breach to events of force majeure would be mere speculation and guesswork in which it would be inappropriate for the panel to engage. On the documents the owners submitted, they have established their claim. Accordingly, charterers materially breached their obligation under the Charter to provide cargo for the vessel, and after waiting more than two months at the load port, the owners were fully justified in terminating the Charter based on that breach. The panel accepted the owners’ calculation of the damages for the loss of anticipated profit. The owners applied $8,759 per day on the next fixture, less $16,150 per day, which would have been realized under the 43-day Charter. Finally, the panel accepted the owners’ claim for the vessel’s hull fouling due to the prolonged stay that required an underwater hull cleaning at the invoiced amount of $39,875. Award accordingly. Final Award, 11 November 2020. This website removes the names of the parties involved in this or other awards. The reader can find more details on Jus Mundi https://jusmundi.com/en/ . These awards mostly come into the public domain through enforcement under the NYC 1958 .

The subject vessel was chartered on an ASBATANKVOY charter party for carrying gasoil 0.5% and MOGAS 93 RON from Mailiao, Taiwan to Singapore. Procedural background Clause 8 of the rider clauses provided any dispute up to USD 50,000.00 shall be referred to a sole arbitrator in London under the LMAA SCP. Any disputes over the above amount shall be subject to the jurisdiction of the English High Court. The owner’s claim was for USD 76,472.50 but took a commercial decision to reduce it to USD 50,000.00, thereby bringing themselves within the fiscal limits of the LMAA SCP. Since the parties could not agree on an arbitrator, their solicitors made an application to the President of the LMAA, who appointed [X] as sole arbitrator. On 20 August, the arbitrator informed the charterers of his appointment and advised them to serve defence and counterclaim (if any) submissions by 17 September. Charterers did not respond. On 18 September, upon an application from the owners’ solicitors, the arbitrator made a final and peremptory order for charterers to serve their defence together with any counterclaim by 25 September, failing which he would proceed to an Award on the documents and submissions presently before him. Again, the charterers did not respond. Notwithstanding the charterer’s failure to respond and participate in the proceedings, the arbitrator’s duty was to consider the documents and calculations accompanying the owners’ submissions before issuing any Award. laytime and demurrage calculations The charter party terms relevant to the issue in the arbitration were clauses 6 “Notice of Readiness”, 7. “HOURS FOR LOADING AND DISCHARGING”, 8. DEMURRAGE” and 11. “HOSES: MOORING AT SEA TERMINALS”. Loading port Notice of Readiness tendered at 10.24 on 5 November. Vessel made ‘all fast’ at 1136 on 7 November. The delay in berthing was caused by reasons for which the vessel was not responsible. Loading of the parcel of MOGAS 93 RON commenced later that day at 15.00, with hoses being disconnected after the completion of loading at 15.48 on 8 November. Loading of the other parcel of Gasoil commenced at 17.06 on 7 November, with hoses being disconnected at 06.24 on 9 November. Owners submitted that laytime commenced at 16.24 on 5 November and, having made some allowances for bad weather at 50%, the used laytime amounted to 63 hours 48 minutes. Discharging port Notice of Readiness tendered at 09.30 on 14 November. She made ‘all fast’ at 14.48 on 17 November, discharge commenced at 16.42 and hoses were disconnected after the completion of discharge at 13.42 on 18 November. Owners submitted that laytime calculation showed a time used in Singapore of 92 hours 36 minutes having allowed for shifting time from anchorage to berth to be excluded. Held, The owners’ demurrage claim was fully supported, and, on the evidence, the facts as alleged by the owners were correct. Therefore, they had a clear entitlement to demurrage. Since the owners took a commercial decision to reduce their claim to US$50,000.00, the tribunal awarded that sum in full. Owners were awarded interest with commencement date 18 December, being 30 days after the completion of discharge. As the owners were successful, they were awarded their costs together with the costs of this Award. Final Award, 30 September 2008. This website removes the names of the parties involved in this or other awards. The reader can find more details on Jus Mundi https://jusmundi.com/en/ . These awards mostly come into the public domain through enforcement under the NYC 1958 .

Owners’ claim in this arbitration related to a balance payment of USD763,427.26 based on a final freight invoice itemised: freight, demurrage, despatch and detention under a voyage charter party for the carriage of Iron ore from Puerto Cortes in Honduras to a main port in China. After completion of loading and while the freight remained unpaid, the parties entered into a contract for the sale of the cargo between buyers, sellers (as charterers) and the owner (as the carrier). The charterers provided the owners with a Letter of Guarantee (see below) that recorded the various payments to be made. The Recap and additional clauses 46 and 49 of the charter party stated: “- G/A ARBITRATION IN LONDON, ENGLISH LAW TO APPLY. ARBITRATION IF ANY, THE OWNERS’ AND CHARTERERS WILL TRY TO SETTLE DISPUTES INAMICABLE WAY. IN CASE CHARTERS’ AND OWNERS DID NOT SETTLE IN AMICABLE WAY, THEN EITHER PARTY MAYSERVE NOTICE ON THE OTHER REQUIRING ANY DISPUTE TO BE SETLED WITHIN THIRTY (30) DAYSAFTER SUCH NOTICE. CLAUSE 46 – ARBITRATION IN THE EVENT OF ANY DISPUTE NOT SETTLED BETWEEN THE TWO PARTIES MUTUALLY, THEMATTER TO BE REFERRED TO ARBITRATION IN LONDON UNDER ENGLISH LAW, WITH EACH PARTYAPPOINTING AN ARBITRATOR. IN CASE THE ARBITRATORS FAIL TO REACH A UNANIMOUSDECISION, THEY SHALL APPOINT AN UMPIRE, WHOSE DECISION SHALL BE FINAL AND BINDINGON BOTH PARTIES. CLAUSE 49 – GOVERNING LAW GENERAL AVERAGE AND ARBITRATION IN LONDON AND THIS CHARTER SHALL BE CONSTRUCTEDUNDER AND GOVERNED BY ENGLISH LAW.”. The procedural background On 14th November 2014, the [X] arbitrator accepted the appointment on the LMAA Terms 2012 as owners’ appointed arbitrator. On 17th November 2014, by post and e-mail, owners’ attorneys notified the charterers of the above appointment and called upon them to either appoint its arbitrator or agree to the appointment of [X] as sole arbitrator. On 5th December 2014 by e-mail and pre-paid post, as no reply was received, owners’ attorneys sent a second notice that gave the charterers a further 7 clear days to appoint an arbitrator. They also notified the charterers that the owners would appoint [X] as sole arbitrator if they did not appoint an arbitrator. On 23rd December 2014, the owners’ P&I Club asked [X] to act as sole arbitrator since the charterers had made no appointment. On 5th February 2015, by e-mail and in hard copy by pre-paid post via the owner’s attorneys, the owners’ P&I Club served claim submissions. On 6th February 2015, the arbitrator informed the charterers by e-mail that defence submissions (and counterclaim, if any) should be served on the owners’ P&I Club (with a copy to him) no later than 28 days after service upon the charterers of the claim submissions and, allowing a reasonable time for the claim submissions to be served on the charterers, defence submissions (and counterclaim, if any) must be served no later than 12th March 2015. On 19th March 2015, the arbitrator made an order for service of defence no later than 24th March, and on 25th March, a peremptory order followed for service no later than 27th March 2015. Charterers did not serve a defence, and on 17th April, the arbitrator informed the parties that he would proceed to an award based on the materials before him. Challenging the arbitrator’s jurisdiction On 26th April 2015, the arbitrator requested the parties to make further submissions on a specific topic since the letter of guarantee that accompanied the claim submissions stated: “…that the exclusive forum and venue for the resolution of all disputes arising out of or under this Letterof Guarantee and the Voyage Charter shall be in the United States District Court for the SouthernDistrict of Florida to the exclusion of any and all other fora and venues and…to the exclusive personaljurisdiction of said court for the resolution of any and all disputes under this letter of Guarantee and the Voyage Charter to the exclusion of any and all other jurisdictions” (emphases added). The arbitrator added that the above references to the charter party could give rise to arguments as to the validity of the present proceedings. Neither party made any comments, but in the interests of fairness, the arbitrator considered before dealing with the merits of the claim each party should be given the opportunity to make submissions about the Letter of Guarantee on these arbitration proceedings. On 18th May 2015, the owners’ P&I Club made submissions, and on 3rd June, the charterers’ instructed Solicitors informed the arbitrator that they would make submissions. On 6th July, after a peremptory order, the charterers’ served their submissions challenging the jurisdiction of the arbitrator. Then, the owners’ P&I Club replied on 12th August. The arbitration claim On or before 25th August 2015, the parties agreed that the arbitrator’s decision should be contained in a separate preliminary award as to jurisdiction as envisaged by section 31(4)(a) of the Arbitration Act1996. By a final award dated 5th October 2015 (the Jurisdiction Award), the tribunal decided that the charterer’s challenge to jurisdiction failed and dismissed it. On or about 2nd November 2015, the charterers made a section 67 application to the Commercial Court to challenge the “Jurisdiction Award” and sought to have it set aside or varied so as the arbitrator had no jurisdiction over the disputes between the parties under the charter party. On 16th November 2016, owners’ P&I Club informed the arbitrator that the charterers’ solicitors were removed from the record as acting for the charterers in the arbitration claim. By e-mail on 24th July 2017, the owners’ P&I Club informed the arbitrator that by an order of Mr Justice [X] on 2nd March 2017, the charterers were ordered to provide the owners with security for its costs in the arbitration claim and the charterers had not complied with that order. By an order sealed in the High Court on 9th June, Mr Justice [Y] ordered the charterers’ arbitration claim to be stayed pending compliance with the order of 2nd March, and unless within 28 days of the service of the order by email to [….], the charterers complied with the order of 2nd March, the arbitration claim is to be struck out. The charterers failed to comply, and the arbitration claim is therefore struck out. Arbitration proceedings On 24th July 2017, the owners’ P&I Club pointed out to the parties and the tribunal that (i) the tribunal decided that it possessed jurisdiction and (ii) the charterers’ application to the High Court came to an end. Thus, the owners requested the arbitrator continue the arbitration on the merits and based on the materials before him, as the arbitrator has previously indicated, given the absence of any submissions by the charterers. In circumstances where the charterers have chosen not to participate in the arbitration, the arbitrator considered carefully the proper approach to be adopted. However, it did not involve doing the charterers’ job in defending the claim. The arbitrators’ approach was that: (a) prima facie , it remained for the owner to satisfy the arbitrator as to the validity of the claim advanced; (b) the arbitrator remained entitled to reject, disallow, etc., any parts of the claim or its amount in respect of which he was not so satisfied; but (c) it was not his role to adopt the mantle of the charterer or, subject to the points above, to advance on its behalf or rely on or adopt arguments that the charterer might have included in submissions had it chosen to serve any. Award accordingly. Final Award, 30 August 2017 This website removes the names of the parties involved in this or other awards. The reader can find more details on Jus Mundi https://jusmundi.com/en/ . These awards mostly come into the public domain through enforcement under the NYC 1958 .