The Tanker Pumping Performance Working Group has completed its research into the technical aspects of pumping, charter party clause interpretation and documentation for cargo discharge. The Group's recommendations will be presented at our Tanker Demurrage Conference at the end of May by Mark Aspinall, a partner in the law firm of Shaw & Croft.
We referred in the last newsletter to a London arbitration award that was eagerly awaited on a fundamental point of principle in a pumping dispute. We have now learnt with disappointment that the award may not be published. Unfortunately, a London arbitrations award, unlike an SMA award in New York, can be kept confidential unless both parties agree to its publication. In our experience, the commonest reason for not agreeing to allow publication is that one side does not like the commercial implications of the award. We would, however, issue a warning to charterers concerning their pumping clauses to the effect that such clauses have to be worded extremely clearly. If they are not, maritime arbitrators will tend to find in favour of the ship owner whenever they perceive any ambiguity.
In our last newsletter we raised the question of when laytime commences under Shellvoy5 if, when a vessel arrives at a port and tenders NOR, it has to anchor because the berth, though unoccupied, is inaccessible. The berth is deemed "inaccessible" if the vessel is prevented from reaching it by bad weather, awaiting daylight or other conditions as set out in Shellvoy5 cl.13(1)(a). As soon as the berth becomes accessible the vessel weighs anchor and proceeds directly to it. The dispute concerns whether the 6 hour NOR allowance runs from the moment that the berth becomes accessible, i.e. while the vessel is still at anchor, or only from the time the vessel is all fast at the berth. Having set out many of the arguments for both viewpoints in the last news update, we asked for further input from our readers. We have subsequently discussed this problem extensively with two of the original drafters of Shellvoy5, with representatives of Stasco, with demurrage experts in other companies that routinely use this charter party and with independent experts.
Our conclusion is that there is most definitely a conflict between the original intention of the drafters of Shellvoy5 and the way that many companies now interpret cl.13(1)(a). The drafters intended Shellvoy5 to be a berth charter with the ship owners being responsible for all navigational risks. In normal circumstances the 6 hour NOR allowance would only start to run after the vessel was allfast. However, if the berth was accessible, laytime would begin six hours after the vessel anchored when ordered to do so by the charterers because, for example, the berth was occupied or no cargo was available.
Nevertheless, the current view of Stasco and many other companies is that Cl.13(1)(a) defines the berth as inaccessible “only for so long as the vessel is or would be prevented from proceeding to it by bad weather…..”. Therefore, the running of the 6 hours is triggered at the moment the berth becomes accessible because the three conditions in cl.13(1)(a) will have been met.
We believe that if this dispute came before a judge in the English High Court, he could be expected to base his judgement on a reasonable interpretation of the wording of the c/p clauses rather than the original intention of the drafters of Shellvoy5. However, as a court case on a question that can never be worth more than 6 hours demurrage is most unlikely, we would urge charterers to avoid unnecessary arguments by making clear their intended interpretation of this point in their charter parties.
We recently had the task of trying to establish exactly what is meant by "open seaberth." This phrase had been added to the exclusions in a Conoco weather clause along with sea buoys, sea lines and platforms, i.e. demurrage incurred by delays to loading/discharge at these berths due to bad weather would be paid at the full charter party rate. We put the question to several experts in oil and shipping companies and also to Intertanko. The general consensus was that an "open seaberth" describes a berth that is not protected from the open sea, either by geographical features such as a natural harbour or by man-made defences such as a breakwater.