The Tanker Pumping Performance Working Group met in December to review progress following the presentation of their recommendations at the 4th International Conference on Tanker Demurrage last May. It was particularly satisfying to note that the "pumping performance formula" was now being widely used to settle pumping disputes where vessels had failed to achieve the back pressure warranted in the charter party. The formula provides an accurate correlation between back pressure and flow rates. There still remains much room for improvement to the documentation, particularly pumping logs which frequently do not provide enough information to help resolve demurrage claims.
The Working Group was asked to look at a number of disputes concerning the time taken to complete a full crude oil wash (COW), in particular when tankers had to interrupt pumping ashore. This type of problem arises on older VLCC's and ULCC's that do not have a dedicated pump for crude oil washing. It was often exacerbated when several grades were loaded and discharge was required at two or more ports.
There would always be conflict when the charter party terms failed to make a proper allowance for the physical ability of the tanker. However, it was agreed that it would be preferable to have some basic rules to cover COW problems, rather than relying on subjective judgements of whether a vessel had been inefficient in its discharge operations. The Working Group has formulated some guidelines, but it would be useful to receive more feedback from charterers and owners before publishing them.
The principal question to be decided was the scope of the words "attributable to". Cl.14(c)(ii) of Shellvoy5 states that time shall not count (as laytime or demurrage) when lost as a result of any cause attributable to the vessel, including breakdown or inefficiency of the vessel. When called to the berth, the vessel had suffered a temporary mechanical failure. As a result, she missed the last time for berthing within daylight and had to wait until the next morning. The owners argued that the loss of time was a consequential delay which was not covered by Cl.14(c)(ii) and that they were liable only for the period of the actual breakdown. Having consulted widely with several major charterers who use Shellvoy5, with other tanker owners and some experienced lawyers, we concluded that we could not agree with the owners on this occasion. The overall view was that this clause was not drafted with the intention that only time lost for the duration of a vessel's breakdown would be excluded from time to count. Furthermore, the phrase "attributable to" has been examined by the courts and they have given the phrase a wide interpretation. In Walsh v Rother District Council [1978] 3 AER 881, in the leading judgment in The Court of Appeal, Megaw L.J. said "The Judge at first instance did not purport to define the words "attributable to" but he did make it clear that he accepted that "attributable to" was a wider concept than "directly caused by" or than "caused by" or "resulting from". The judge at first instance said < The words "attributable to" are plain English words involving some cause or connection between the loss of employment and that to which the loss is said to be attributable. However, this connection need not be that of a sole dominant, direct or proximate cause and effect. A contributory cause or connection is quite sufficient.>" Although this was a case relating to the interpretation of statutory employment legislation, the view of the courts in this and other similar cases is clear. In this instance the Master was aware that he had to reach the pilot station by 15.00 hrs. Missing the last arrival time for daylight berthing was a direct and foreseeable consequence of such a breakdown. The waiting time overnight was therefore the responsibility of the ship owner.
In our last newsletter we discussed the problems under Asbatankvoy when charterers claimed that the NOR was valid only from anchoring and not when the notice was tendered. We have recently encountered a difference of opinion over the interpretation of when the NOR is valid under BPVOY3 when the vessel proceeds directly to the berth on arrival. As far as we can establish, nearly all the charterers who use this charter by preference consider that the NOR is valid when tendered within the port area, provided the vessel is in all respects ready to load/discharge. Cl.19(a) of BPVOY3 does not stipulate where the vessel has to be. The dissenting view relies on the wording of the judgement in The Johanna Oldendorff [1973] 2LR 285 (HL) and concludes that the vessel should come to a halt, either at the anchorage or by berthing before the NOR could be considered valid. However, this judgement is long and complex and it is possible to find support for various points of view in it. We choose to take the practical solution to the problem and follow the majority of companies who use BPVOY3. Our recommendation to charterers who want the NOR tendered on arrival to count only from all fast (or gangway down), is that they should use BPVOY4 - see clause 6.3.1. - where this is now the position.