We understand that Intertanko's Documentary Committee has endorsed the "pumping performance formula" and that they will now recommend it to their members as a fair method for settling pumping disputes when vessels are responsible for not achieving the back pressure warranted in the charter party.
As mentioned in the last newsletter, the Working Group on the Fair Interpretation of Pumping Clauses was asked to look at a number of disputes concerning the time taken to carry out a full crude oil wash (COW) and complete tank draining. These disputes often arise when tankers have to interrupt pumping ashore and charterers propose deducting such time from laytime. We have just received a copy of the opinion of a leading maritime arbitrator who was asked to rule on this question by a major charterer and a leading ship owner, both sides agreeing to be bound by his decision. The relevant charter party clauses allowed the usual 24 hrs for discharge or 100 psi average back pressure at the ship's manifold excluding stripping or COW. The COW clause gave the charterer the right to request COW, in which case the applicable time for discharge was to be increased by 12 hrs. The 12 hr allowance was to include any time used for stripping the cargo tanks. The arbitrator has produced a detailed and carefully considered analysis of the various possible scenarios. It is clear that the arbitrator did not accept that the charterer could suspend laytime during the period when the vessel was not discharging ashore. The vessel was entitled to an additional 12 hours for COW and tank stripping and this time could be used solely for such purposes if required.
It never ceases to amaze that this clause can still provoke profound differences of interpretation. The latest dispute to come to our attention involved the situation where the designated berth was occupied when the vessel arrived. However, at the same time, the berth was deemed "inaccessible" according to the provision of cl.13(1)(a), due to tidal conditions. The dispute concerned when laytime should begin, i.e. 6 hours after anchoring or 6 hours after the tidal conditions became favourable for berthing. The solution can be found in the words "for so long as the vessel is or would be prevented from proceeding to it" that define when the berth is deemed "inaccessible". The vessel would have been prevented by the tide from reaching the berth, even if the berth had been free. The berth was therefore inaccessible and time could not run until 6 hours after the passage to the berth was no longer prevented by any of the conditions specified in Cl.13(1)(a).
According to many weather clauses, delays after berthing will be shared 50/50 between owner and charterer. What about the time and costs incurred when a vessel is forced by bad weather to leave the berth and later reberths to complete loading or discharge? If the c/p is silent on this point, an answer can be found in the Cosmar Compania Naviera S.A. v. Total Transport Corporation (The "Isabelle") [1982] 2 Lloyd's Rep 81. In this case the judge concluded that where the vessel has to move from the berth for safety reasons, the cost of the involuntary shifting will usually be for the ship owner's account. However, laytime or demurrage will continue to run in accordance with the c/p terms.
The responsibility for time lost due to failure of equipment at a terminal will depend on which charter party form is used. Charterers will find no relief under Shellvoy5. However, BPVOY3 is more generous. Clause 21 says that any delay arising from "breakdown or failure of equipment, plant or machinery in or about the ports or places of loading and/or discharge" will count as half laytime/demurrage "provided always that the cause of the delay(s) was not within the reasonable control of Charterers or Owners or their respective servants or agents". In a recent arbitration concerning Cl.21 of BPVOY3, which was eventually settled by agreement between the parties, a floating-roof had become misaligned and the storage tank had to be taken out of service. This reduced the amount of ullage space available to receive the cargo and occasioned an extended delay to the discharge. It became apparent that the charterers were going to have the burden of proving that a) the equipment failure occurred at the time and in the way claimed, b) the failure was the direct cause of the delay and c) it was outside the control of the charterer or his agents.