London Arbitration 14/22 recently considered issues related to economic duress & quantum meruit under a voyage charter party about laytime, additional premiums, and others. This practice area only cites general observations from settled cases, not the above award. General comments- observations Economic duress cases are extremely fact-heavy and sensitive and will likely not succeed. Therefore, parties should be cautious when raising a plea of economic duress. Even if they succeed on other issues, they risk having a split costs award because they run a problematic and costly case and lose. It is normal commercial practice for the parties to discuss a potential variation of the charter-party terms and reach a ‘special agreement’ during the performance of the charter party. However, it is not uncommon for the parties to disagree later on the ‘special agreement’ terms. Past cases reflect some of the common issues on laytime & demurrage due to special agreements reached: See London Arbitration 3/92; Arb 6/12; 12/15; 22/03 ; 24/95; 1/10; 18/17; 7/17; 20/82; 10/99; 12/90; 21/00, etc. The previous London arbitration decisions, 11/08 and 18/17, discussed and considered issues of contract variation. The ‘quantum meruit’ was argued as well in the below decisions: London arbitration 7/17 – call at the intermediate port; London arbitration 18/17- waiting off port pending instruction to call another port; London arbitration 12/90-drop anchor pending disport declaration ; London Arbitration 19/98-owners to be compensated for all waiting time allowed; and More recently, in London Arbitration 14/21 -delays before berthing to be compensated by way of quantum meruit; the argument failed. Economic duress in general Duress in the law of contract focuses on an illegitimate threat (or illegitimate pressure) which induces a party to enter into a contract. If duress is established, the remedy for the threatened party is rescission of the contract (sometimes referred to as the avoidance, or setting aside, of the contract). In this case, we are concerned with that form of duress that has been labelled “economic duress”. Economic duress was first recognised in English law in first instance cases in the 1970s… -Lord Burrows , 2021 A contract that is entered into under duress is voidable. The third type of duress, and the most difficult one to stabilize, is economic duress. In line with the authorities, the present decision shows that a party would not easily seek to set aside an agreement on the grounds of duress. It may also be exposed to costs if one tries to argue it unsuccessfully. It should be remembered that while courts have recognized a doctrine of economic duress, it is still applied cautiously by the courts (See Pakistan International v Times Travel [2021] UKSC 40). The previous mechanism to prevent such promises from being enforceable was the doctrine of consideration, but it is likely to be diminished. The courts will be more willing to find consideration and leave it to duress to regulate the fairness of the renegotiation. Turning to London arbitration decisions, there are limited published decisions dealing with arguments on economic duress: London Arbitration 5/93, 18/93 & 20/03. Lastly, previous decisions support that a party that unsuccessfully argues economic duress will be likely exposed to costs. In some cases that settled commercially, the duress defence was unsuccessful. In particular, some issues related to tug expenses( re-float a ship), the payment of shore cranes ( alleged defective crane) and alleged fines due to purported stevedore equipment damage. In addition, there was a threat to delay the ship’s departure in all three cases, but this is insufficient to raise a potential defence on duress and set aside the agreement. #BunkerCosts #Duress #Premiums #Shifting

In London Arbitration 13/22, the tribunal decided on two issues about quantification of loss due to:(i) excess redelivery bunker quantities; and (ii) insufficient redelivery notices tendered by Charterers to head Owners. This practice area cites practical observations on similar cases settled in practice. This is not a commentary on the published summary. General comments- observations It is common for the parties to disagree on issues related to the bunker quantities on redelivery (and prices) and the proper way to quantify the loss. Some charter parties address this matter, but again disputes may arise. In a previous case that was resolved commercially, it was argued that Owners could sell the excess bunkers at better prices to the next charterers and suffer no loss. But, even if this approach is adopted, the Charterers benefit from their wrongdoing (breach of contract) because they sell the excess bunkers at higher than CP prices to Owners. So, the issue centred on the damages’ principles to apply. Further, an argument advanced was ‘The Alghussein’ overrides ‘The Good Helmsman’ because the principle is a long-established rule of construction under English law and “The Alghussein” is a House of Lord’s case and thus a higher authority. But, to my knowledge, ‘The Alghussein’ has never been tested in the context of a bunker redelivery claim. Simply applying the market prices is an easy reference point to calculate damages; otherwise, the whole exercise becomes artificial, and damages may be too remote. The author’s previous article on MRI and I-Law includes some of the common arguments presented by the parties when the matter arises (operationally- wise) to defend their position before the case escalates. London Arbitration 13/22 supports some of the arguments stated in the article that was published before the award (See: Redelivery bunker quantities remain a topic of heated debate – Maritime Risk International (maritime-risk-intl.com)

A guest lecture was held at International Maritime Business Academy (IMBA ) Some of the topics discussed are: The terms of the contract The nature of the contract Arbitration clause: ‘is there a dispute’? Why do disputes occur? Common disputes under a time Charter party, emphasizing a COVID 19 case, speed and consumption claims, bunker disputes (quality & quantity, Maritime lien), and a deviation claim. The laytime & demurrage claim process, considering some issues on SOF and disputes based on real examples.

Glad to share a unique and practical presentation on laytime & dispute settlement on “bad weather” background music in some parts. However, after a storm comes a calm. This short video presentation includes: The general background (observations from Lord Diplock, Lord Reid, Sir John Donaldson, Sir David Foxton). The Maritime Adventure. The process of Laytime & Demurrage- Detention claim, based on the stages included in my short guidebook: A snapshot guide to Laytime & Demurrage. A practical example based on common debate issues: shifting, draft survey, open hatch, interpretation issues, NOR, when laytime ends, SOF, etc. The commercial settlement; the parties’ negotiation and arguments on the various issues. Not all points could be addressed in this short video presentation. The A-Z laytime calculations using Benefit laytime software, and All the above under “bad weather” background music in some parts, since ‘bad weather’ is very relevant to laytime. If necessary, you can pause the video to read the content of the slide; that might be necessary on the commercial settlement stage. Thanks to Benefit software for permitting me to share the laytime calculations prepared in their laytime software and to my IT for his outstanding efforts. Thanks for watching! And do not forget to turn your audio on…

The parties commonly disagree on a vessel’s position to tender NOR before discharging her cargo to Chinese Ports. Therefore, the parties have shaped their “NOR clauses” to deal with common issues. China Maritime Arbitration Commission decided the below on 14 November 2012, but it was published again in 2021. The Mv RIZHAO EXPRESS was chartered on an amended GENCON94 form to load part cargo from Kosichang(Thailand) and discharge it to Taizhou, Jiangsu. The ship loaded different charterers’ cargoes on this voyage. The Owners claimed demurrage, and the Charterers disputed it on various grounds: The claimants were not the cargo carrier and had no right to apply for demurrage. Further, the respondents were not the consignee of the cargo, thus not liable for demurrage. The NOR was not delivered adequately at the Yangtze River Estuary. Only a copy of the NOR was provided, which should not be the basis for identifying the facts. The Owners applied the wrong unloading time calculation. The parties’ arguments The NOR issue The Owners argued that the NOR could be delivered at the Yangtze River Estuary under clause 8 of the charter. Clause 8 stated that the NOR could be provided by telegraph or fax, etc., at any time, WWWW. The Charterers said that only a copy of the NOR was sent and did not identify the facts. According to Chinese laws, the claimant, a company outside the mainland, which provided evidence on the action in the mainland, should certify it by notarization. Thus, this evidence was illegal in its form. Further, the evidence was just a copy, which other evidence could not prove and therefore did not have the probative effect. With the evidence provided by the claimant, the ship was at the Yangtze River Estuary, not at the Taizhou Port regulated by the charter. It takes about two or three days to reach Taizhou port. So, the ship was not ready to discharge the cargo when the NOR was initially sent on 6 March; instead, the NOR was just an ETA. The claimant said it was the carriers’ right to decide when the NOR was sent. The claimant also alleged it was a practice to tender NOR at Yangtze river and approved by the relevant cases. However, these cases might be different since “the unloading port was the main port of China”, not a named port as here. The Calculation The claimant had not excluded the unloading time from demurrage. The claimant said that since the cargo was stored in hold 1, the unloading time was 2.58 days, with a 2500t/day unloading rate, which the claimant deducted. The respondent disagreed: the full cargo was more than 33000 mts stored in many holds. By applying 2500t/day, the agreed unloading time of all four spaces was 13.2 days. Thus, the vessel was on demurrage for 4.8 days. As the cargo in No1 was 6400 mts (1/5 of total weight), the demurrage time was less than 0.9 days. The claimant applied the discharging rate for each cargo space. Thus, he could claim demurrage from all charters. The decision On the first issue not addressed in detail here, the tribunal disagreed with the Charterers’ view and held that the parties’ roles were clear, and the claimant was the shipowner, while the respondent was the charterer. The NOR After the hearing, the tribunal decided that: The claimant got all the pieces of evidence. Albeit these were copies, the respondent could not deny the authenticity. Instead, the respondent should provide counter-evidence to reverse the truth of the evidence. As for the point of notarization, the tribunal held that the evidence offered by the claimant was legal and valid. The parties have chosen the GENCON94 as the legal basis and deleted/ changed part clauses for their benefit. In addition, the parties agreed on the delivery time and place of NOR. The English laws adore the freedom of contract, which is prominent on the voyage charter party. Therefore, the present wording is relevant and the parties’ common intention. The claimant could not provide evidence to prove the NOR tendering at Yangtze River Estuary was valid or complied with the shipping practice. The NOR clause allowed the ship to tender NOR on the vessel’s arrival WWWW. However, the parties disagreed on interpreting the ‘vessel’s arrival” as appearing in the clause. In the absence of evidence from the claimant, the tribunal could not confirm whether the delivery of NOR at Yangtze River Estuary conformed to the word of “arrival” or not. The ship must arrive in ‘port or not’ shall be interpreted as the appropriate distance, not far away from the loading port. The respondents said that 2-3 days of sailing time was not the proper distance from the port. The claimant did not rebut it or offer evidence to prove the agreed point to tender NOR. The tribunal construed the wording of the GENCON 94 and, in particular, the words ‘arrival’ and ‘off’ port. So, the vessel should arrive in a certain range even if the word ‘off’ the port was added in the clause. The tribunal held that the NOR sent on the first time was premature and the 2nd NOR tendered when the ship arrived at the Port of Taizhou was valid. The Calculation The tribunal adopted the below calculation. Laytime runs from 19 March 0800 hrs till 04 April 0300 when the discharging is completed. Therefore, Laytime shall be 15 days and 19 hours altogether, i.e. 15 days + 0.79167= 15.79167 days. Then, it deducted 2.58745 days to find the demurrage time 13.20422 days x 4000 USD per day = 52,816.88 USD. The tribunal held that the respondents’ argument that the 4 spaces were unloaded equably so the unloading time should be counted according to the total weight of 4 spaces cargo but not each space’s quantity had no contractual basis. #Laytime

Taking the opportunity to share some past issues related to the NOR tendering & laytime due to Christmas Day (Holiday) or adjacent days. The terms of the recap state: “Scale load/xxx MT SHINC”, otherwise as per proforma, logically amended to reflect the main terms agreed. The proforma CP state: “Discharging Rate: xxx metric tons Sundays and Holidays included, excluding Super Holidays.” The vessel was discharged during the period 24-27 December. W as the time to count during Christmas Day under the ‘SHINC’- provisions in the recap? Calculation of notional laytime consequent upon delay caused by Owners’ breach; whether the notional analysis that considers Christmas Holidays and New year Holiday produces damages reasonably foreseeable or on the cards or not unlikely to occur. Upon arrival, the vessel tendered NOR on Saturday, 26 December, to load the cargo and remained anchored due to congestion. The port shipping activities were operational on that date- not one of the four gazette holidays in the year. Monday was a public holiday. Clause X stated, “load rate xxx Sundays and Holidays included- see also clause Y. Clause Y provided the turn time upon tendering NOR business hours. Another clause provided the dates/ hours that the vessel could tender NOR, including the cancelling dates. The issue related to when the NOR was considered valid and the laytime clock started ticking. The word Saturday was struct out from the original printed text of the charter party that provided the NOR to be tendered on Saturday 0001-2400 hours. The Charterers argued that the parties intended that NOR would not be tendered on Saturday by striking’ Saturday’. The Charterers said that the 26 December was a de facto holiday. Was the reference to ‘business’ hours precluded the service of a notice on Saturday, as was struct out from the original printed text of the charter party? W as Saturday a normal working day ( business day) for NOR tendering/ validity and laytime counting? Whether Monday 27 December was a holiday for laytime purposes and time did not count. The parties relied on conflicting evidence provided by different sources to support their case. The Charterers relied on an invoice from the port authorities that included extra service for public holidays performed on 27 December and a notice from the port authorities that 27 December is officially declared as a public holiday for Christmas. The SOF was silent on the point. The Owners adduced a message from an international shipping association stating that 27 December was not officially declared as a public holiday, according to their sources. They also relied on a statement from local lawyers who said that the date in question was not a public holiday. S o, on the balance of evidence, was the day in question a holiday? #Mustread

This guidebook on Speed and Consumption Claims consists of three parts: Part I briefly introduces speed and consumption disputes and provides twenty common debate issues between the parties before or when the case escalates. Part II illustrates the bulk of the published London Maritime Arbitration awards from 1980 to 2020. The decisions are categorized basis the issues involved. A one-page ‘map’ was added to reflect the decisions in the relevant categories for easy reference. The already published parts I & II have now been slightly amended. For example, part II now includes some of the Owners’ main arguments to reject the implication of positive sea currents; the long-standing debate. Part III outlines intense debate issues, either in the parties’ charter negotiations or settlement discussions. It relies on the analysis of 400 charter parties, 800 circulated vessel’s ‘position list’ in the market, chartering brokers’ input, and the authors’ practical experience in proposing or amending such clauses during charter negotiations. Thanks to Dr. Arun Kasi (Barrister & Arbitrator) for reading a previous draft of this guidebook, SCMA for including it in the November Knowledge Sharing, and LMAA for circulating among the members.

It summarizes the parties’ usual points of a dispute regarding the redelivery bunker quantities, namely: The meaning of ‘about’ – issues of interpretation, i.e., whether to put a gloss on the word ‘about’ basis the parties’ conduct; the parties’ arguments on the purpose of the words ‘min/max’ in the bunker clause; analysis of sophisticated bargains, using some examples, etc. The applicable prices for a damages claim or compensation claim, using some examples. The parties’ main arguments to defend or pursue a claim, as the case may be. The bunker survey findings, i.e., whether the masters’ or the surveyors’ conflicting figures, should prevail by adopting a ‘back calculation,’ including some of the complexities of using this method to resolve the case (consideration of an unpublished award). The recent London Arbitration 19/21 discusses some of the above issues. Aside from the parties’ submissions in arbitration, the article includes some of the common arguments presented by the parties when the matter arises (operationally- wise) to defend their position prior the case escalates. Some of these arguments found favor in the arbitration decisions, while others did not. The full article was published in Maritime Risk International (MRI) on 26.10.2021 Thanks to Dr. Arun Kasi ( Barrister & Arbitrator) for reviewing a previous draft.

This post has been slightly amended in the subsequent guidebook: “Speed and Consumption Claims: A practical perspective and statistics”- Please refer there. “Speed and Consumptions were, generally speaking, pretty routine and were matters with which arbitrators had considerable familiarity”. (London Arbitration, 1997) Speed and Consumption claims are usually of relatively low value and most of these cases are resolved either amicably or by arbitration. Only a few cases reach the Courts by way of appeal or application from the arbitration. Therefore, the parties rely on the numerous awards that have been published in the past years: when drafting or negotiating a performance clause before finalizing the fixture; when attempting to reach an amicable settlement of their dispute; when submitting their claim to arbitration or following an alternative dispute resolution process. The below graph or ‘map’ provides a quick view of most of the awards issued by London Tribunals and published in LMLN for the period 1980 to 2020. Further, it illustrates that ‘speed and consumption claims’ regularly involve a plethora of factual and legal issues; as briefly stated in the previous article Speed and Consumption Claims (Part I): A practical perspective. For easy reference, the awards have been categorized on the basis of issues discussed or determined by the tribunal; and on how often the issue is raised in practice. In particular, the ‘map’ includes the below categories: The dispute (the starting point) No ‘good weather’ and the ‘near good weather’ conditions were considered to establish breach or loss; whether the warranty was a continuing warranty e.g. “throughout the duration of this charter” or “during the currency of this charter”; whether the loss is ‘de minimis’ and merits no consideration; and whether the qualified words without guarantee ‘WOG’ in the speed and consumption figures negate any contractual warranty- this bars a contractual claim for breach of warranty. Interpretation or Construction A high proportion of speed and consumption disputes involve issues of interpretation. Where this is the issue, views may differ about the interpretation of contractual terms. It appears that however hard those who negotiate the relevant terms may try, for different reasons understood by different parties, there will be cases that the parties used vague or inconsistent terms to express their agreement or poor drafting (words or syntax, etc.). The below decisions from London Tribunals, randomly grouped in three parts, illustrate some key issues involved during the last decades: Interpretation or Construction Part A- Arb 6/19 (typographical error, contradicting terms in clause, surplusage); Arb 12/14(advance current was a misprint of ‘adverse’); Arb 9/18 (use of disjunctive “or” in the clause was considered); Arb 17/99 (reconcile main body with riders, deletions and amendments were discussed); Arb 15/05 (proforma and recap terms were read together to define the benchmark conditions); Arb 4/11(the language used was not ideal to support that the deficiency applies only to certain periods- words appearing else in the clause were considered). Interpretation or Construction Part B- Arb 16/13 (whether good weather qualifications in the proforma were expressly incorporated, implication of ‘good weather’ qualification was considered); Arb 21/18 (whether the words ‘A tolerance’ import or not a ‘double about’, interpretation of words used in the clause); Arb 13/92 (the contra proferentem rule of construction applied against the Charterers, terms in the main body were read together with terms in the proforma, whether ‘about’ implied by viewing the other charter terms, whether the Charterers’ ordered speed of 14 knots was warranted, implication of terms was considered); Arb 26/19 ( implication of ‘ no adverse swell’ instead of ‘ no swell’ was considered); Arb 15/07 (the implication of ‘positive currents’ as part of the warranty was rejected) Interpretation or Construction Part C- Arb 21/18 (the implication of ‘positive current’ factor to apply was rejected, contra proferentem rule considered); Arb 15/06 (rectification, the words ‘fully laden’ were ignored); Arb 9/07(questionnaire considered, contra proferentem rule applied); Arb 17/80 (meaning of ‘or’/ ‘and’ in clause, implication was rejected); Arb 5/06 (description provision was not carefully drafted, inconsistent use of terms and syntax); Arb 8/86 (meaning of about max daily consumption- i.e. is it about or max?); Arb 13/97 (clauses 71 & 79 were considered together- whether ‘continuous warranty’ applies, average speed does not include ‘about’), etc. Whether to imply a positive current factor: endless debate? In many cases, the tribunals rejected that a ‘positive current factor’ was part of the performance warranty by implication (See Arb 15/07; Arb 21/18 as followed in Arb 27/19, etc.). While some tribunals accepted the implication since the express warranty was one of capability (See Arb 4/94; and Arb 4/12- the latter not followed in Arb 21/18). And other tribunals rejected the application of currents, due to: (i) the imprecise calculation of it (See Arb 20/07, etc.); (ii) the express wording of the clause ‘Owners to have the benefit of positive currents’ (See Arb 22/18); and (iii) the calculated loss was not an ‘actual loss’ or ‘net loss’ to award damages when the ship actually performed. However, it is often the case that the Owners, the Charterers and the weather routing companies disagree on the adopted methodology that takes into account a positive current factor in evaluating the vessel’s performance. Some maintain that, absent binding precedent, positive currents can be considered in subsequent arbitration decisions. Since there is no binding precedent on this issue, the parties’ dispute often centers on the settled principles by which contracts are to be construed; or emphasizing different aspects of those principles –sometimes referring to the concepts of reasonableness and fairness, or invoking commercial common sense, to justify the implication; thus conflating the distinct principles. This matter will be analyzed no further in this article. Set -off against hire & Net loss Among the issues considered were: whether there is a right of deduction from hire (express right or otherwise) or the clause provided a bar to any deduction-deductions on reasonable grounds and in good faith considered; whether to set-off the time loss claim against the bunker under-consumption (or vice versa) in a damages claim; and time bar & Hague Rules defences. Evidence The issues were identified as: whether the weather routing company( ‘WRC’) is ‘independent’; disclosure of relevant documents to the claim; contrasted reports on methodology or data; whether the logs or the WRC reports to prevail (the usual debate); and whether the WRC reports are binding or ruling (methodology vs analyzed data considered). The arbitration decision 21/18 considers the issue of establishing a claim basis a report from a non-agreed WRC – a point earlier stated in Part I ‘Speed and Consumption Claims: A practical perspective’. Weather criteria The issues were as follows: the meaning and application of the ‘good weather criteria’; whether a weather factor to apply in the performance assessment; and the meaning and application of DSS3 – sometimes contractually expressed in relation to the significant wave height or the combined sea and swell wave, or any other similar wording. The Arb 6/19 discusses the matter of reconciling DSS3 and the significant wave height. Current factor The issues were: whether implied the positive currents to be considered as to establish breach or loss; the meaning and effect of the adverse currents or ‘negative influence of currents’ considered; and whether the calculation of currents remains an imprecise science or not. Whether the currents are part of the ‘weather conditions’ as warranted in the charter party. Methodology The issues were as follows: the proper assessment of liability and loss (The two- stages approach basis The Didymi , The Gas Enterprise as referred recently in The Ocean Virgo ); the meaning of ‘about’ (or no double about or one about or no about – absolute figures, application of de minimis- how strictly to comply?) in the speed and consumption clause; meaning and application of average speed; proper distance steamed basis the masters’ reports or the WRC’ analyzed positions; and steaming in restricted areas (is it always excluded?). Weather routing companies Some awards discuss whether or not the weather routing companies adopt a methodology that is compliant with the English authorities or the parties’ agreement; or apply a methodology being not supported by authority, e.g. The London Arbitration 26/19 stresses that: Closer attention needed to be paid to warranty conditions if weather routing organisations’ reports were to be accepted at face value in London arbitration … There was no doubt that the weather bureau paid lip service to the English authorities in assessing vessel performance … Sample of time The issues were: the proper sample of good weather periods to establish a claim: a) between consecutive noon positions; and b) for entire voyage. See also The Ocean Virgo (2015). In practice, sometimes, the wording of the clause is different from that considered in The Ocean Virgo, which again raises issues of contract interpretation. Alternative remedies -separate breaches of contract The common issues considered (indirectly in some cases) and decided were: maintenance obligations- engine or technical issues affecting the vessel’s performance; whether the master complied with his obligation to perform the voyage with utmost despatch; whether deviation (including minor diversion) caused extra time lost and extra bunkers consumed (these decisions were considered in my previous article: How do you calculate loss following a ‘triangle form’ deviation? Maritime Risk International, August 2021); hull fouling –factual and legal burden to prove liability and loss- even under concurrent causes; and whether there is contractual basis to bring an off- hire claim- the evidence considered and, in most cases, the Charterers had failed to discharge their burden of proof. This post has been slightly amended in the subsequent guidebook: “Speed and Consumption Claims: A practical perspective and statistics”

“..it was trite law that where a charter provided a performance warranty the first step was for the tribunal to establish how the vessel performed in good weather conditions as defined in the charter. If a vessel underperformed by one knot in good weather, it would probably continue to underperform by the same margin in bad weather and charterers should be compensated for that bad weather underperformance as well as the good weather underperformance..” ( London Arbitration 24/19) This post has been slightly amended in the subsequent guidebook: “Speed and Consumption Claims: A practical perspective and statistics”- Please refer there. Speed and Consumption claims continue to be a much-extended area of dispute between owners and charterers, with most cases being resolved amicably or by arbitration as per the charter party terms. Based on extensive experience in handling speed and consumption claims for Owners or Charterers, some of the issues that arise are: Whether the Charterers are allowed to make a deduction from hire either as an express right or as an equitable right: At the end of the charter; During the performance of the charter: Having produced only an interim report; Having produced a non-compliant report with the CP terms. Waiting the final report from the weather routing company; Having not particularized their claim i.e. based on mere assertions. Whether the meaning of the language is open to question. Should a literal or a purposive approach to contractual interpretation be adopted and the threshold required implying terms into the contract. The line between the distinct principles of interpretation and construction discussed. Whether to force the provisions of the charter party into the straitjacket of the concepts of reasonableness and fairness. The touchstone and the limits of commercial common sense considered Whether the terms contain ambiguities, wrong words or syntax – poor quality of drafting; thus raising issues of textual or contextual interpretation, construction or rectification. Deletion of words, Contra Proferentem , and pre-contractual negotiations considered. The admissibility of extrinsic evidence is discussed. Whether the terms of the recap can be reconciled with the terms of the proforma or other documents being incorporated by reference; and the terms that prevail in case of inconsistencies. The maxim “ specialibus generalia non derogant ” considered. Whether the arbitration decisions set a precedent for matters that the Courts have not decided in the efforts to maintain commercial certainty and continuity. Absent precedent, whether the parties can rely on articles published by legal authors or arbitrators in the UK or other countries discussed. Whether the vessel’s performance is warranted: If it is not, i.e.” WOG”, then other potential remedies available are discussed. Authorities, arbitration awards, and principles considered. If it is warranted, then when the warranty applies. Case law was discussed and evidence sought to prove her previous performance. Whether the loss is too trivial and merits no consideration ( De minimis ). Whether proof of actual weather conditions should be taken from the deck logs or the weather routing reports. Whether (i) the findings of the weather routing company are binding the parties; (ii) the weather routing clause provides a complete code to resolve the dispute or oust the arbitration clause; (iii) the arbitration instigated prematurely (damages as a remedy); (iv) there is no ‘dispute’ to be referred under the arbitration clause; and (v) the ingredients of waiver or estoppel established after the nomination of a non-agreed weather routing company, i.e. excluded by the express terms of the CP. Whether the parties should agree to certain instructions to be given to another routing company (when the clause is construed as an expert determination provision) to evaluate performance and the same to be binding. Distinction between binding data and methodology discussed along with authorities of general application. Whether the performance report applied the contractual yardstick by which the vessel’s performance is to be measured. Common issues are: Weather factor; positive and adverse currents; Meaning of adverse influence of swell or currents or weather; Wave height, swell, DSS3 or significant wave height; No Impediments, even keel, deep water, water temperature, bunker quality; Sufficient sample of good weather between noon reports or sample for the whole voyage. Whether the Charterers can bring a claim when the ship encountered only ‘bad weather’ or ‘near good weather’. Other potential remedies discussed. Mixed points of principle and authority considered. Whether the Charterers are allowed to bring a claim for underperformance when the vessel’s hull became fouled. Principles of contract interpretation discussed to determine liability. Legal and evidential burden discussed – expert opinion sought. Whether the master failed to follow Charterers’ orders in relation to the speed & consumption or to prosecute the voyage with utmost despatch. Case law and evidence considered- expert opinion sought. Whether the vessel was unseaworthy; engine or technical issues affecting her performance. Evidential and legal burden considered. Discussion on ‘superficial inspection’, disclosure of documents and onboard surveys. The distinct availed remedies of damages and off-hire considered. Whether the ship is allowed to reduce speed when transiting through high risk areas or passing canals or complying with orders or directions of local authorities. Evidence sought to be adduced and relied on by the parties. Whether the vessel’s underperformance caused by Charterers’ breach to supply the vessel with bunkers of improper quality (off spec). Evidence considered. Whether the ‘minimum performance rule’ in a damages claim applies when Charterers bring their claim under separate breaches of contract. Authorities discussed; evidential and legal burden considered. Whether the Charterers are entitled to request- and the Owners to deny- further disclosure of documents. Application for disclosure before serving submissions. Whether the tribunal can allow this application under the rules. Note: The above list is not exhaustive.

Because this is a perennial problem that results to financial exposure[ii]; one ca n refer to the arbitration awards published betw een 1984-2017 and to the leading law textbooks. Pulling the arb itration decisions and the commentaries together, it requires technical ; op erational; and legal knowledge in order to efficiently handle such claims. The technical & operational experience assists the parties to act pro-actively and to minimize disputes. In particular, Owners satisfy their due diligence or absolute- subject to the de minimis rule- obligations: proper maintenance of pumps- as per PMS & makers’ guidelines- as to sustain a plea of latent defect or possible defence under exception or limitation liability claus es or shif t the evidential burden in the proceedings or to avoid breaching the ISM clause (if incorporated) etc.; and proper operational use of cargo pumps i.e., act with reasonable care and skill to prevent defects or breakdowns that will prolong the discharging operation (accrued demurrage claims). Owners cannot succeed if their actions break the chain of causation and result to loss or delay. Because a party cannot take advantage of its own wrongdoing[iii] While Charterers act in such a manner as not to concurrently produce loss or delay. Doing so, it will complicate their defence & counterclaim submissions on issues of burden – liability and quan tum. Unless there is a clear-cut liability issue (i.e., damaged pumps- patent defects), then the facts will be balanced- in the efforts of doing justice on limited evidence; leaving also Charterers exposed to costs. Therefore, this experience assists a party to increase the prospects of successfully defending its position by shifting the evidential burden in the arbitration proceedings -without ignoring where the distinct legal (or persuasive) burden primarily lies; or increase its bargaining power during the settlement negotiations; therefore reaching to a digestible amount[iv] of settlement. Whereas from a legal perspective, it is important to: Apply the separate rules of ‘two logically distinct exercises’ of contractual construction or interpretation to establish a br each of the express or the implied pumping warranty (time or pressure element or both) and quanti fy the loss or delay (demurrage) ; and Consider the nature of the dispute. Slow pumping disputes continue to be a topic of constant debate because of their fact-sensitive nature. This makes each case readily distinguishable and results to lack of precedent[v]. In a slow pumping claim, owners allege terminal restrictions, and Charterers allege defective pumps or improper use. Any success of the dispute will depend on the quality of evidence. Accord ing ly, it requires (i) expert opinion to establish a causal nexus between breach and loss inflicted by concurrent causes that effectively operate to produce the same- at the risk of becoming highly theoretical or technical; and (ii) factual evidence or expert opinion to discharge the legal burden or shift the evidential burden & rebut any presumptions. But if the scales are evenly balanced, the burden cannot be easily discharged. And some cases –depending on the procedural rules- will be pleaded with conspicuous lack of success given the restricted expert evidence and opinion or admissibility, i.e. what if the opinion is highly speculative or imprecise?- This affects the outcome of the case: it will either encourage the parties to compromise or discourage them from commencing proceedings because of (i) the disproportionate costs to the claim; (ii) the uncertainty on the findings of facts on limited evidence or improbable explanations; or (iii) the prevailing source between conflicting evidence or explanations submitted by the parties–the crux of all factual cases. Further, Owners face another high hurdle, which may potentially encourage settlement before commencing proceedings. This is whether a complex factual issue -or dressed up as a question of law or a mixed question of fact and law- can be: properly pleaded to establish a proper defence (Owners’ reply and Defence to Counterclaim submissions) to an alleged breach of the pumping warranty (Charterers’ Defence & Counterclaim), especially when other issues included in the reference; and properly determined-when it falls under the SCP rules- since the submissions must be kept short and with minimum expert evidence or opinion available. However, it is worth bearing in mind that experienced arbitrators can 1) determine factual points even with limited evidence put before them without requiring “to be spoon-fed with detailed arguments”; or 2) decide the issue “based on the balance of probabilities without having regard to the somewhat technical questions that arose when the burden of p roof had to be considered”. Besides, in t he last century, there has been an abundance of maritime cases proving that Judges support arbitrators’ sound commercial sense and experience to determine questions of fact and law; this has also been codified in Arbitration Act 1996. Conclusion Although there are no published London Arbitration awards dealing with breach of pumping warranties after 2017, this is insufficient to establish a proper benchmark or mark the beginning of a new era absent such disputes. Slow pumping claims will undoubtedly continue to provoke concern in the shipping industry because of their complex factual nature. However, given the risk and costs involved compared to the claimed amount, this may encourage settlement and result in fewer awards in the future; depending on the freight market conditions. This refers to the pumping clause agreed in the tanker charter-parties; which usually provides that the ship will either discharge the cargo in certain time i.e. 24 hours or maintain a certa in pressure i.e. 100 psi or 7.0 kg/cm2. Pumping warranty clauses have changed over the years as evidenced from the various forms of charter-parties or published arbitration awards. Either hard negotiation- compromise or commence arbitration in order to recover accrued demurrage amount. Alghussein v Eton College [1988] 1 WLR 587; as a general principle of construc tion with wider application. Or even possibly making a reasonable WPSATC offer that will determine later o n iss u es of costs, if the case proceeds to arbitration. However, if the amount in dispute is moderate, then a re ason able compromise may be desirable. But, at this stage, the published arbitral decisions form the legal background against which the parties are contracting and same will be helpful to a next tribunal to decide similar points of law (construction of pumping warranties), but probably will be unhelpful to decide pure questions of facts- when raised in slow pumping disputes(evidential burden). Arising out mostly under amended standard forms time charter-parties. #Mustread

40 years published London Maritime Arbitration Awrds (1980-2020)- A Tribute to Maritime Arbitrators Laytime and Demurrage disputes have been the subject of litigation or arbitration for decades. So, legal literature is abundant, along with case law and arbitration awards on this complex topic. From 1980 to 2020, interesting cases have come before London Maritime Tribunals, and their decisions offer helpful guidance on many points that regularly provoke heated debate in the shipping industry. Undoubtedly, the Maritime Arbitrators’ expertise and support remain invaluable to the shipping industry, including their essential function to participate in the rule of law. In less than 55 pages, this snapshot guide cites about 270 awards for bulkers, tankers and sale contracts; it refers to about 840 issues discussed in these decisions. Therefore, the user can easily find whether a case has been already determined by a London Tribunal and consider this award (if needed) when a similar dispute arises. However, any decision should be read together with other decisions on equal points, case law and commentaries in law textbooks. For your reference, most of these decisions refer to disputes that arose under the below amended or standard form of contracts: Bulkers: GENCON, SYNACOMEX,NORGRAIN, etc. Tankers: ASBATANK, SHELLVOY, BPVOY, VEGOIL, EXXONVOY,etc. Sale Contracts: FOB, CIF, etc. I hope that you find this snapshot guide practical and valuable. The awards are published in Lloyd’s Maritime Law Newsletter , Informa Group Ltd