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Summary prepared by Prokopios Krikris, FCIArb, Arbitrator Disputes concerning pilotage fees have been the subject of determinations in both London and New York arbitrations. A number of these cases are referenced below: 1.    Cost for North Sea Pilotage Charterers deducted USD 2,878.08 from the hire for North Sea Pilotage fees, asserting that Charterers were only required to pay for “compulsory” pilotage. However, the charter party plainly and without qualification allocated the cost of pilotage to the Charterer. No restrictive or qualifying language lessens Charterers’ responsibility to pay for all pilotage that the Master considered necessary or advisable. The Panel awarded $2,787.08.   The Clause cited was “ 2. That whilst on hire the Charterers shall provide and pay for all of the fuel except as otherwise agreed, Port Charges, boatage on Charterers' business, Pilotages, ...”   SMA 2043   2.    Cost for Several pilotage and related expenses in Northern Europe     The Master requested and obtained pilots on several occasions for trips in the North Sea and Baltic. The amounts in question were not disputed. The Charterer argued that these charges were not customary for vessels of this type and supported its position with letters from agents and the Danish Government, showing that only a small minority of such vessels utilised this type of pilotage. Therefore, such expenses should be for the Owner's account under Clause 2.  Moreover, the Owner had failed to furnish convincing evidence to support its contention that such pilotage was customary and therefore properly chargeable to the Charterer.   The Panel found that these pilotages and related expenses were of a non-customary nature and, therefore, were for the Owner's account. The Vessel should have obtained Charterer's approval before employing pilots that the Owner intended to be for Charterer's account.   The difference of this case from the above SMA 2043 was that Clause 2 included qualifying words: Charterers shall pay for “Customary” pilotages.   SMA 2189   3.    Pilotage costs with Atlantic Pilotage Authority and Laurentian Pilotage Authority   The Pilotage invoices, which the Owner was obligated to pay when the Charterer defaulted, were properly reimbursable, and the Panel awarded $7,740.68 for payment by Owner to the Atlantic Pilotage Authority and $11,144.71 for payment to the Laurentian Pilotage Authority.   SMA 2039     4.    Dardanelles Pilotage fees “compulsory”     Clause 2 of the NYPE 1946 was amended to include “compulsory” pilotage. Owners stated that although not compulsory, any prudent master would use a pilot in the straits, citing a Guide to Port Entry as a recommendation, which stated that pilotage was advisable for this area. They also cited other reasons to take pilotage in this area, to make a case that the word” compulsory” should not be given a narrow meaning. The tribunal rejected the Owners’ position and held that the addition of the word “compulsory” under clause 2 was to cut down the charterers’ obligations; this was also the effect of giving the word its natural meaning. The Owners were liable for these fees.   London Arbitration 10/86   Editor’s comment: The recurring disputes concerning the cost of pilotage services gave rise to the development of Clause 2 of the NYPE 1946, which has since undergone several amendments to incorporate specific qualifications. BIMCO has, in the past, issued a circular advising its members to refrain from using clauses that refer to “customary” pilotage. In a reported case summary, the umpire ruled that the charterer was liable for the cost of the North Sea Pilot under the unamended Clause 2 of the NYPE. Both parties sought to rely on the implied qualification of the term “reasonable”; however, the umpire dismissed this line of argument as an unproductive controversy, noting that the express wording of Clause 2 was determinative. It is not uncommon to exercise caution in implying terms, unless the proposed implication satisfies the established legal tests, for which there is now ample guidance from higher courts.

Summary prepared by Prokopios Krikris, FCIArb, Arbitrator The vessel failed three inspections conducted by X Surveyors at the loading port. The Owners, however, produced their own inspection report, which stated that following the initial rejection of the cargo holds, they were cleaned overnight and rendered fit and ready for loading. The Charterers’ primary position was that the vessel was not delivered until the holds passed inspection. In the alternative, they contended that the vessel remained off hire from the time of the first rejection until the holds were subsequently accepted, several days later by several surveyors. The dispute was referred to a sole arbitrator under the LMAA Small Claims Procedure, appointed by agreement between the parties. In light of the conflicting evidence presented, the arbitrator was required to determine both the status of the survey company and the evidential weight of the inspection reports. The Charterparty stipulated that the shippers’ officially appointed surveyors were to inspect the holds. The Owners argued that X Surveyors were not the shippers’ formally appointed representatives. They further maintained that the inspection which ultimately led to acceptance of the holds had been carried out by multiple surveyors, each acting on behalf of different shippers under separate Bills of Lading. The arbitrator adopted a broad interpretation of the term “shipper,” noting that there were multiple shippers involved and that a party could qualify as a shipper of cargo even if it was not expressly named on a Bill of Lading. Despite the Charterers’ various attempts to clarify the position, the arbitrator remained uncertain as to on whose behalf the surveyors had attended the vessel. In addition, the arbitrator found that the surveyors’ reports were deficient in content, failing to identify the instructing party and recording only that the holds had been rejected due to the presence of cargo residues, without specifying the precise areas of concern. Ultimately, the Charterers were unable to persuade the arbitrator that, under the terms of the Charterparty, the vessel’s holds were not clean during the period between the Notice of Readiness and the third inspection. Editor’s note: The arbitrator undertook a careful examination of the evidence. The outcome was highly fact-specific. No further information can be provided for this award.

Summary Prepared by Prokopios Krikris, FCIArb, Arbitrator One of the issues in this arbitration concerned the quantity of bunkers remaining on board at the time of the Vessel's delivery to the Charterers' service.   As per Clause 46: “An official independent surveyor will be appointed by Charterers at first loading port and last discharging port to ascertain the quantities of fuel oil and diesel oil remaining on board at delivery respectively redelivery…..”   Owners asserted that there was an error in the fuel quantities found by the surveyor by some 150 mts, which must be credited to the Owner, as otherwise the result would be unjust enrichment for the Charterer.   Charterers said that one party cannot unilaterally disavow the findings of a surveyor, adding that the Master of the ship accepted the survey figures.   Dealing shortly with this point, the panel held that clause 46 must be given full value, particularly as the ship's personnel accepted the figures shown on the survey report.   SMA 2992   Editors’ comment: Disputes concerning bunker quantities at the time of delivery and redelivery are frequently encountered in my practice. In an unreported arbitration, the vessel’s master disputed the surveyor’s figures at redelivery. The tribunal undertook a back-calculation—on the basis that the bunker survey conducted at Singapore was accurate (as accepted by both parties)—and, by reference to the noon reports, assessed whether the vessel’s fuel consumption during the short voyage to a Chinese port was consistent with the charterparty’s warranted speed. This method of back-calculation has also been applied in relation to contested bunker survey results at delivery, as reflected in certain published LMAA awards.

Summary prepared by Prokopios Krikris, FCIArb, Arbitrator The dispute arose under an amended NYPE form for a voyage of granite blocks from India to Europe. On the first part of the voyage from Mangalore to Suez Canal, the ship performed. From Port Said to Santander, the vessel encountered heavy weather and delays, which form the basis of the Charterer's claims for loss of time and underperformance.   Charterer, without any warning to Owner or Master, near completion of discharge of cargo at Antwerp, claimed substantial under-performance and obtained a Court order to detain the vessel and have a Court-appointed Nautical Surveyor investigate and peruse the vessel's records to determine and report the causes of the alleged excessive delays encountered during the voyage.   The Court appointed investigator examined and perused all the vessel's records including deck and engine log books, charter party, official documents of the vessel, repair records, weather reports for the voyage in question, interrogated the Master and Chief Officer and took their statements and finally issued his report which was submitted to the Panel in its entirety not as binding on the Panel but as informative.   The Nautical Commission surveyor found that the vessel was in good physical condition with no evidence of any malfunction or unseaworthiness. He further determined that during the 1st. leg of the voyage - Mangalore/Port Said, the vessel had met the warranted speed in the charter. He further considered the heavy weather encountered during the 2nd. leg of the voyage – Port Said/Santander with a view to determining whether the vessel performed the voyage with the utmost dispatch and/ or met the warranted speed despite heavy weather conditions.   The Nautical Engineer concluded that the vessel should have made at least about 75% of the warranted speed of about 11 knots as long as she was encountering heavy weather with wind force less than 7 on the Beaufort scale, which he considered normal for that area. For this period , he indicated the vessel did not meet about 75% of the warranted speed he deemed plausible; therefore, the Owner should be liable for a reduced delay of a total of 118 hours or 4 days and 22 hours.   Decision   Considering all the terms of the contract, it was evident that the parties intended to qualify the vessel's capability under good weather conditions.   Examination of the daily weather station reports, the many periodic reports of the Master as well as the daily entries in the vessel’s log book confirmed that the vessel during the entire period in question encountered heavy weather with wind force in excess of 3 and as much as 7-10 Beaufort Scale. Charterers as well as the Court Nautical Surveyor did not dispute or question the details of heavy weather encountered; instead, they argued that the vessel should have made at least 8 knots in weather with wind force not exceeding 7 otherwise it can be assumed that the Master did not prosecute the voyage with utmost dispatch.   The Panel, however, considered that the Master and officers on board the vessel deemed to be the best judges on the spot of actual weather conditions with heavy duty and responsibility for safety and appropriate actions. The fact that the weather conditions were of wind force 5-10 with adverse current and swell and the vessel being extremely stiff due to unlashed granite blocks of up to 25-28 M/T each, compelled the Master to act, at his judgment, and reduce speed justifiably, therefore, not only the period of heavy weather Port Said/Crete of wind force 7-10 should be excluded as the Court surveyor determined but the remaining period Crete/Santander with wind force always in excess of 3 and up to 7 must be excluded for not meeting the limited warranted performance.   There was no evidence whatsoever that the Master did not prosecute the voyage with the utmost dispatch.   The Panel further considered unacceptable the basis adopted by the Court investigator in Antwerp to exclude a period of heavy weather of wind force 7-10 and not exclude the period of wind force from 4 to 7, arbitrarily assume and decide that the vessel should have made at least 8 knots per hour during weather of wind force not exceeding 7.   Such a conclusion was arbitrary and apparently based on personal assumptions contrary to the terms of the Time Charter; therefore, it was inapplicable here because the Panel must abide by the agreed Charter Party terms.   The Court investigator's evaluation and arbitrary adjustment of Charterer's claim was improper and beyond his function to determine the condition of the vessel and causes of delay. He was not appointed to judge or make a quantitative determination of the Charterer's alleged claim. That function was one reserved for the arbitrators.   The Panel was unanimous in its decision that the prevailing weather conditions of wind force between 5-10 with adverse currents encountered during the entire passage of the voyage in question, Port Said/Santander, were serious enough to warrant the Captain's decision to seek shelter at Crete (along with 25 other vessels) and reduce the speed of the vessel for safety reasons, therefore, in conjunction with the terms of the Charter, the period of this part of the voyage on which the claim is made did not breach the performance warranty.   The Panel found no justified basis for Charterer's claims as presented to the Panel for determination. Therefore, all Charterer's claims were unanimously denied.   The Panel considered the arrest of the vessel wrongful and unjustified under the circumstances because Charterers could have started their investigation of alleged speed loss at the first 2 discharge ports instead of waiting till two hours before completion of discharge. Owners would then have had plenty of time to grant the Charterers a Letter of Undertaking without the vessel being delayed two days. Editors’ Note:  The opinions of court-appointed surveyors do not bind tribunals ( see, by analogy, cargo damage cases in English Courts). In this case, the finding that the vessel performed at only 75% of the warranted speed was unsupported (a ship sailing with beam/ head winds up to BF 7+ adverse swell may be affected even more than 25% speed reduction). The extension of the weather threshold up to Beaufort 7 was unnecessary, particularly given the vessel’s loaded condition. There was also no evidence of a defect in the ship’s hull or machinery in this case. This is for information purposes only. Readers should read the published award and form their own view.   SMA 2753

One issue in this arbitration concerned the costs incurred for inspection of the vessel’s hull and cleaning the propeller following an extended stay at Port Harcourt, Nigeria. The matter was determined by a sole arbitrator pursuant to the LMAA Small Claims Procedure (SCP).” The relevant clause was the Bimco Hull Fouling Clause for time charters. The Owners sought to recover the cost paid to the diving company for inspecting the vessel and for cleaning and polishing the propeller. The ship arrived and waited offshore due to congestion. The schedule was to pick up guards and escort boat at 3N/ 7E to bring the ship to a private terminal in Port Harcourt. On 2 nd  February, the gunboat escorted the ship to Bonny town. Due to congestion, the vessel berthed on about 16 February and completed discharge on about 23 February when she was escorted out of the HRA. The arbitrator found the evidence produced by the Owners in support of this claim rather slender. There was a debate between the parties as to whether, geographically speaking, the vessel remained within a single location for the required aggregate period of at least 15 days in order for the case to fall within the wording “(a) If, in accordance with Charterers' orders, the Vessel remains at or shifts within a place anchorage and/or berth for an aggregated period exceeding:…” The arbitrator found that the Owners’ view was correct, but this was not the critical factor in determining the dispute regarding the claimed costs. What the arbitrator said and considered was: 1.    It did not appear to be any discussion about the inspection or cleaning prior redelivery, so that paras (b) and (c) to engage; 2.    The Owners arranged an inspection and cleaning to take place at Takoradi after the vessel’s redelivery. The divers' report was quite detailed, but the photographs were of poor quality; 3.    The condition of the vessel’s hull was generally good with no more than intermittent light growth, and the propeller, while more generally affected, exhibited no more than limited growth; 4.    There was before the arbitrator no significant evidence of the vessel's performance either before, during, or after the vessel's voyage to Port Harcourt, and bearing in mind that there was some evidence – which the arbitrator was inclined to accept – that the vessel had lain idle for a substantial period of time at Itaqui, Brazil, prior to delivery under the charterparty.   Therefore, the arbitrator was not satisfied that the Owners had made good their claim under this head. This is an award issued by a Sole Arbitrator under the LMAA SCP, in April 2022, and is fully published in Jus Mundi. This case seems to align with the observations made before here: Reassessing Liability for Hull Cleaning

When the Vessel was redelivered, the head Time Charterers deducted USD 138,757.58 from the Owners. This amount corresponded to the sum that the sub-Charterers had previously deducted from the head Charterers, citing excess fuel consumption during two port stays at Hampton Roads.   There were no charter party warranties as to “in port” fuel consumption. Sub-Charterers conducted two surveys and studies of the Vessel during the period with two different surveyors. Reports based upon those surveys were presented to Owners complaining about the alleged port over-consumption.   Coast Guard regulations required vessels at anchor in this busy port area to keep their main engine at standby status because of the exposed weather conditions prevailing and crowded traffic lanes and anchoring grounds. Such standby status necessitates that the main engine be kept warm.   The Sub-Charterers complained that the Owners failed to operate the vessel in a prudent and cost-efficient manner during these anchorage periods. They also readily admitted that no contract clause exists that warrants or limits specific consumptions in these circumstances, nor provides any form of remedy for these occasions.   Sub-Charterers relied, therefore, upon the general premise (quite thoroughly supported by the panel) that parties to a contract owe a basic duty to each other of reasonable and economic performance, especially by Owners when they are using Charterer's fuel.   They claimed that, rather than operating the diesel generators, the Owners deliberately used the more costly boilers and steam-driven turbo generators for electrical supply and steam-operated freshwater generators in port to save money for themselves and saddle the Sub-Charterers with these costs.   Owners argued that the U.S. Coast Guard regulations required the Vessel to maintain the main engine on a standby status. According to the design and normal functioning of this vessel, which could only be accomplished by heating the main engine with its cooling water, which could only be done by steam heat.   As the panel held, the charter party does not contain any warranty prescribing limits on other than maneuvering and steaming fuel consumption, nor a remedy for excess in-port fuel consumption. Under similar cases, other arbitral panels have judged each case on its own merits and awarded what was reasonable in the circumstances.   While Sub-Charterers speculated that Owners chose to operate the Vessel in a manner to their own best interests, Owners cited regulatory and technical reasons for the particular operations.   Charterers take the vessel as it is within the parameters and specifications they negotiated. They do not have the right to require the vessel to be redesigned or re-built to meet some specs they would have preferred to see incorporated in the hull and machinery. In the event such an option was desirable for Sub-Charterers' purposes, the time to voice this was before the contract was consummated, not after some of the normal functions of the vessel are found to be somewhat different from some other vessel.   Having regard to all the factors in this matter, the panel Majority found the Sub- Charterers claim unreasonable and without merit.   Editor’s Note:   The panel reviewed the facts rather than dismissing the claim for lack of warranty. Excess bunker claims often arise at anchorages (see, e.g., Chittagong), where the main engine may be used, but such use and related consumption are not automatically justified. Off-hire bunker surveys have sometimes shown gaps between reported and actual standby consumption (Charterers asserting a breach of clause 11 of the NYPE). A similar issue can occur in transit when higher RPMs are maintained despite reported bad weather—would a tribunal reach the same view i.e. " other arbitral panels have judged each case on its own merits and awarded what was reasonable in the circumstances" ?   SMA 2331

The vessel charter for this voyage was under an EXXONVOY 90. The Master tendered NOR upon arriving and anchoring at the Southwest Pass pilot station being at the mouth of the Mississippi River. Due to dense fog the vessel was unable to obtain a pilot, and remained at Southwest Pass until 0814 hours on January 6, when the fog lifted and she got underway to pick up the pilot. At 2006 hours that evening, she anchored at the Belle Chase Anchorage for purposes of a U.S. Coast Guard Tank Vessel Exam (“TVE”). The inspection was completed, and the vessel resumed her passage up the river. At 0806 on January 8 the vessel anchored at White Castle Anchorage to await her berth at Baton Rouge. At 0712 hours on January 12 the vessel got underway again, and berthed at Exxon's Baton Rouge facility at 1442 hours that afternoon. The discharge operation was uneventful, and hoses were off at 0320 hours on January 15.   Based on its contention that the vessel was properly tendered at Southwest Pass, Owner invoiced Charterer for demurrage in the amount of $109,441.10. Owner's demurrage calculation took into account 2 days, 10 hours, 2 minutes at one-half the demurrage rate for bad weather (the fog) pursuant to Clause 14(a). Charterer disagreed that the vessel became an arrived ship when she anchored at Southwest Pass, contending that laytime should not commence until six hours after her arrival at the customary waiting place for Baton Rouge, and after the issuance of the Coast Guard TVE Letter. In addition, Charterer objected to Owner's failure to deduct time used to re-anchor the vessel due to strong river currents and time used to lower the gangway upon berthing, as detailed in the SOF.   Decision   Clause 11 stated that the NOR shall be tendered “upon arrival at a customary anchorage or waiting place”. Baton Rouge was only one of several ports on the Mississippi River, and there are many anchorages along the river where vessels customarily anchor, if necessary, to await a berth at ports such as Geismar, New Orleans, Plaquemine, etc., as well as Baton Rouge. White Castle and Belle Chase were two of about 18 such anchorages, White Castle being the closer of the two to Baton Rouge.  The panel was persuaded from the evidence that White Castle, not Southwest Pass, some 226 miles away, was the customary waiting place for Baton Rouge. The SOF indicated that Charterer's berth was occupied when the vessel arrived at Southwest Pass, but both the White Castle and Belle Chase anchorages were available. Moreover, had it not been for the dense fog, it is clear that the vessel could have proceeded to White Castle without delay. Fog, like other bad weather, remains a risk of navigation normally undertaken by shipowners. Therefore, for the purposes of tendering a valid NOR and commencing laytime, the vessel could not be considered an arrived ship when she anchored at Southwest Pass. Hence, the NOR tendered there was invalid.   Although the White Castle anchorage lay some 121 miles upstream of the Belle Chase anchorage, the Charterer apparently accepted tender of the vessel at Belle Chase. However, whether the vessel tendered at Belle Chase or White Castle was academic in this case, because Charterer's berth was occupied at the time, and Clause 14(b)(ii) of the charter provides that all transit time on an inward passage was to be excluded from laytime in any event. The panel found that the Charterer's calculation was correct based on tendering the ship at Belle Chase.   SMA 3582 Editor's note: this can be contrasted with SMA 4062, as cited in the arbitration list here: Notice of Readiness | CharterPartyDisputes For LMAA Awards, see page 26-28 of my guidebook on laytime Publications | Charter Party Disputes Arb 12/19: Miss River- NOR at SW pass instead Point Celeste; invalid NOR Arb 15/21: NOR tendered at Southwest Pass was given prematurely because that was not the closest available anchorage to the berth there(The Agamemnon). The tribunal distinguished this case and upheld the owners’ claim. NOR was valid when tendered at SW pass as the nearest available anchorage when she arrived In practice, some voyage CP's clearly state that NOR tendered at SW pass to be valid and shifting time up to loading port not to count.

This dispute arose under the Bills of Lading for the carriage of some 65,736.68 mt of Brazilian soya beans from Santos, Brazil to Nantong, China. This is an interesting case that addresses procedural issues, particularly regarding the tribunal's satisfaction that the Claimants’ application and the tribunal’s subsequent directions have been brought to the notice of the Respondents, so that they have a reasonable opportunity to deal with them. Two issues arose for determination, and these can conveniently be discussed under the following headings:- (a) Jurisdiction - Do the Bills of Lading incorporate the arbitration clause in the Head Voyage Charterparty ("the First Issue")? (b) Liability - Is the Owner liable for damage to the cargo ("the Second Issue")?   Jurisdiction This issue concerns the question of whether the Bills of Lading incorporate the arbitration clause in the Head Voyage Charterparty, and therefore whether the BL Holders were in breach of the arbitration agreement in that charterparty, which is incorporated into the Bills of Lading by pursuing its claim in the Wuhan Maritime Court. The Vessel was chartered out in a chain of contracts as: time charter, time charter, time charter, voyage charter and voyage charter. Where a bill of lading incorporates a charterparty but does not identify the relevant charterparty, the general rule is that the head charter to which the shipowner is party is incorporated: see The San Nicholas [1976] 1 Lloyd’s Rep 8. However, where (as here) the head charter is a time charter, the general rule does not apply where there is another more relevant charterparty on the basis of the presumed unlikelihood of the parties wishing to incorporate the terms of a time charter which are different in kind: see Aikens, Bills of Lading (2006) para 7.105. Thus, where there is a voyage charterparty, the terms of the voyage charter are usually the more appropriate candidate for incorporation: see e.g. The SLS Everest [1981] 2 Lloyd’s Rep 389, p 392 and Cooke, Voyage Charters (4th Ed), para 18.61. Where there is more than one voyage charter, the incorporated charterparty is the head voyage charter and not the sub-voyage charter: Cooke, Voyage Charters (4th Ed), para 18.62.   Held, The Head Voyage Charter was more appropriate for incorporation than the Head Time Charter. Many terms of the time charter will not be relevant in the context of the Bills of Lading contracts. Furthermore, even though there was at least one sub-voyage charter, in accordance with the principle set out in Cooke, Voyage Charters (4th Ed), para 18.62, the Head Voyage Charter is the charterparty which is incorporated into the Bills of Lading contracts. In any event, Clause 44 of the sub-voyage charter is in identical terms to Clause 44 of the Head Voyage Charter in any event. As a matter of English law, the Head Voyage Charter was the charterparty which was incorporated into the Bills of Lading, the Owners’ claim was properly brought in this arbitration, and the tribunal had jurisdiction to determine it.  By pursuing its claim under the Bills of Lading in the Wuhan Maritime Court in China, it was a breach of its obligation to pursue its claim in arbitration in London and is liable to Owners for any damages.   Cargo damage Owner has proceeded on the basis that the claim against them in the Chinese Courts relies upon CIQ Survey Report and is based on the premise that the cargo was loaded in good condition yet delivered in a damaged condition and therefore it is to be inferred that the cargo damage was caused during the voyage in breach of the contract of carriage contained in or evidenced by the Bills of Lading.   Owners contended that there was no evidence to cast even the slightest suspicion that the vessel was unseaworthy at any time or that Owners were negligent at all, let alone causatively negligent in the performance of their duties under Art III r.2, of the Hague Rules to properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried. The Respondents failed to participate in the proceedings, nevertheless it is the duty of the arbitrator to put the claimants to strict proof of their claims. In order to determine whether Owners were in breach the contract of carriage contained in or evidenced by the Bills of Lading, it was necessary first to determine what as a matter of law were their obligations in carrying the cargo under that contract and then to consider whether as a matter of fact they were  in breach of those obligations. Having considered the facts and expert evidence adduced by the Owners, the tribunal held that (a) If there was any loss or damage to the cargo during carriage:- (i) It was minimal; (ii) It arose as a result of the inherent instability and/or inherent vice of the cargo, in particular the loading of over moist parcels of cargo within the stow which led to the well-known phenomena of moisture migration, and the cycle of self-heating and microbiological activity which occurs as a consequence. (iii) It could not be prevented by the ship or her crew during transit. (b) The cargo was improperly stored and/or cared for after discharge and/or there was an inordinate delay in its processing, with the consequence that it was subjected to microbiological activity. (c) In any event, no evidence has been produced to show that the protein content of the soya beans was affected adversely and/or that its merchantable value was reduced.   This is an award from an LMAA Full Member, issued on 30 November 2016 under the LMAA Terms 2012, and can be found at Jus Mundi.

Loading Delays Due To Fog   The Charterers claimed that loading delays at the K-2 installation due to fog came under the exception for weather working days of 24 hours. The panel noted that during certain periods, the vessel did load cargo even though there was fog on the river, because there were barges with cargo brought alongside prior to the fog setting in. The fog did not prevent the Vessel from loading, but it did prevent the Charterers from bringing more cargo forward. It is the nature of this midstream operation that the fog can prevent loading to continue when no barges can be dispatched, contrary to a shore installation where this would be no problem. Since there were no provisions in this charter party to cover this situation, the panel held that time counted during loading delays due to fog.   Navigation Delays Due To Fog   The Charterers claimed that the vessel could not shift on December 30 because the K-2 berth was occupied by another vessel, which had completed loading but could not vacate the berth due to fog. Charterers maintained this was an excepted period under the same principle of weather working days of 24 hours. Both parties referred to another arbitration decision to support their position, but this was distinguished as it contained clause 6 of the ASBATANK VOY Charter:  “… However where delay is caused to vessel getting into berth after giving notice of readiness for any reason over which Charterer has no control, such delay shall not count as used laytime.”   The charter in this procedure did not contain such a clause, and the panel rejected the charterers’ argument. Editor’s Note:  While there are relatively few reported LMAA awards addressing interruptions caused by FOG ( about 2-3), a significant number of SMA awards have been published on this issue. In my experience handling laytime and demurrage disputes both under bulkers and tankers, such interruptions frequently arise and are often the subject of debate. It is not always the case that the presence of fog suspends laytime. In a recent case, the stevedores reported that fog affected their ability to discharge the cargo using the ship's cranes. Both parties presented conflicting evidence, as the SOF was unclear on this point. SMA NO 3451

These cases typically raise questions about the sufficiency or weight of the evidence. In this arbitration for disputes arising under a voyage charter party on the Mediterranean Iron Ore form , it was held that although some rain delays were not noted in the statement of facts, the fact that rain delays were noted in the statement of facts for other vessels in port at the same time allows these delays to be included in the laytime calculations. The Charterer introduced the SOF from another bulk carrier loading similar cargo at Constanza during the same period, and the Owners also provided an SOF from another ship loading at the same time, similar cargo. To reach its decision, the arbitrators considered the information contained in the three SOFs. As the two SOFs showed similar rain periods, the period was excluded from laytime as the ship was not on demurrage at that time. Note: there is a similar published London Arbitration award and commentary in Schofield's' laytime and demurrage' book. #laytime

Some of the disputes in this arbitration centred around the time used for ballasting and crude oil washing. The time used for ballasting was to count as used laytime and/or demurrage. From the exhibits submitted, it was apparent that ballasting was required because of the restrictions imposed by the nature of the shore facilities. Then, the Charterers have argued that the sequence of discharging was incorrect, thereby causing the ballasting delay. What appears to have happened was that the vessel discharged from all her tanks rather than in a tank-by-tank sequence. When ballasting became necessary because of the height (air draft) limitations, discharging had to be halted so that cargo could be transferred internally, permitting the vessel to then ballast empty tanks. In the normal course of vessel operation, and before cargo is discharged, the vessel usually submits its discharging plan, which is either accepted or modified by the receiving facility, depending on the circumstances. The evidence shows that Vessel was approved for discharge. The time used for crude oil washing- 6 hours and 30 minutes- was not to count as used laytime and/or demurrage. Whereas the second sentence of the crude oil washing clause 6 provided for some allowance of extra time for the operation, it also provided, in the first sentence, that the crude oil washing was to be done simultaneously with the discharging operations. The evidence showed that in some instances, the vessel interrupted the discharging operations to allow for crude oil washing to be carried out. It followed that these interruptions are not in accordance with the first sentence of this clause and hence the time used was not to count as laytime and/or demurrage.

Pumping time in excess of the warranted 24 hrs. was deducted from used laytime because owner failed to justify the excess time.   Charterer had deducted 4 hours 30 minutes from used laytime on account of slow pumping.   Charterers said that the vessel failed to discharge the cargo in 24 hours as warranted in Special Provision 5 for a contract of carriage under an STB VOY form.   Owners asserted that it fulfilled its warranty and that the discharge exceeded the 24 hours only because of terminal interruptions.   The evidence indicated that discharge took 29 hours 20 minutes , not including terminal interruptions. Owners offered no acceptable explanation of this pumping performance and, therefore, a deduction of 5 hours 20 minutes from used laytime was allowed. Note: this reflects the shift in the evidential burden, as mentioned in this article: Tankers: Slow pumping claims 1984 – (?) , Prokopios Krikris