As far as we can tell the main beneficiaries of this charter party are lawyers. How many demurrage disputes have reached the courts concerning BEEPEEVOY3 or SHELLVOY5? We have encountered more problems with Asbatankvoy than with all the other charter parties combined. So why does it remain so popular? Unless 40 or 50 extra clauses are added it is heavily biased in the ship owner's favour. However, even when the charterer feels he has protected himself, he can still trip up, for example, on the House of Lord's Laura Prima [1982] interpretation of clause 9, "reachable on arrival". We have encountered two similar disputes over the responsibility for delays which would not have arisen if the berth had been vacant on the vessel's arrival. One, concerning the application of the Conoco weather clause to bad weather which only began some time after the vessel had arrived, is now going to arbitration. The other problem concerns a tug strike which started just before the berth became vacant. The owners considered that the exception regarding strikes in clause 8 might not apply because the charterers were already in breach of the "berth reachable on arrival" provision. We will comment further after the arbitration has been decided.
The charter party said "Vessel not to tender NOR at loading port prior to laydays... NOR to be tendered... within 0600 and 1700 local time." The vessel arrived early at the loadport and waited until 0001 on the first day of laydays before tendering NOR. The question was whether failure to follow this clause in the c/p invalidated the NOR or whether the NOR became valid at 0600. The case of The Mexico I [1990] was cited by the charterers, suggesting that since an invalid NOR could not become valid at a later date, the NOR was a nullity and therefore laytime did not commence until berthing at the earliest. The owners, referring to various arbitrations on NOR's tendered outside "office hours", contended that the NOR was never invalid since the vessel was within the port and fully at the charterer's disposal at the time it was tendered. It would therefore count from 0600 when it would be received by the charterer's agents. The panel of three arbitrators unanimously agreed with the owners. They concluded that the clause did not forbid the giving of NOR's outside the specified hours; it simply sets out the hours during which it is deemed to be effective. We understand that the charterers are now considering an appeal.
We have recently settled two separate disputes, both of which involved, among other matters, the question of when delivery had to be performed. One CIF contract contained the words "delivery consistent with scheduled loading 10/11th October", while the other said "delivery during the period consistent with vessel's loading during 10th - 14th July". The intention of traders and brokers is that the inclusion of the word "scheduled" transforms what would otherwise be a guarantee of a delivery period into no more than a stipulation that the vessel will arrive for loading by the specified dates and that the cargo has already been included in the FOB supplier's loading schedule for that period.
We are now increasingly appointed to act as sole arbiter, with Asdem's decision to be final and binding. While this is flattering, it places a heavy responsibility on us to arrive at a correct decision, both legally and commercially. As we will most likely continue to have dealings with the parties on other matters in the future, it is incumbent on us to do our best to convince both sides that the result is equitable. We also try to be constructive and will highlight areas which could be improved to avoid similar problems in the future. We are fortunate in being able to sound out the opinions of many industry experts and lawyers, and this often leads to a consensus approach to the resolution of difficult problems.