So-called “early loading clauses” whereby the charterers receive additional laytime for agreeing to load before the commencement of laydays have become increasingly common additions to charter parties. Some c/p’s such as BPVOY3 cl. 17, BPVOY4 cl. 7.3.1 and ExxonMobil Voy2000 cl.13(b) already include such clauses. These state that time from commencement of loading to the time when laytime would otherwise start under the c/p, i.e. 0600 on the first day of laydays, will be added to the allowed laytime. However, during this period some event may occur that interrupts loading which the owners cannot claim for or perhaps can only claim at half rate. Nevertheless, the charterers will still receive the benefit of additional laytime for the full elapsed time from start of loading to when laytime would otherwise have started under the c/p.
We have seen some additional clauses that have been added to Asbatankvoy which would appear to operate more equitably. These say that “time saved” in loading prior to the commencement of laytime under the c/p will be added to the laytime allowance. For example, if a vessel commenced loading 24 hours early and during this period loading was interrupted for 10 hours, the time actually saved and added to laytime would be only 14 hours.
There are still some charterers who try to deduct time awaiting daylight for berthing by relying on Asbatankvoy Part II Clause 7. Clause 7 refers only to a prohibition on loading/discharging at night when the ship is at the berth. Unless amended, this only applies when the ship is on laytime, not demurrage. It does not relate to movements within the port, i.e. navigation. If charterers want an exception for awaiting daylight (or for awaiting tide, pilot or tugs) they must include this as an amendment or as an additional clause.
“Pro rata for part cargo” is a deceptively simple phrase which can have a significant effect on the amount of demurrage recoverable under a sales contract. When traders or operators get this wrong it can be an expensive mistake. The usual practice in contracts for sales of part cargoes is to pro rate the laytime allowance, but not the demurrage rate. If it is “your” ship, i.e. you are selling CIF or buying FOB, you definitely want to follow this rule. The logic is that less time should be required to load or discharge a part cargo, but if the time allowed is exceeded, the entire ship is being delayed and the full demurrage rate should be charged. However, as a FOB seller or CIF buyer of a small part of the total cargo, you may want to ensure that you receive a reasonable minimum laytime allowance or a demurrage rate appropriate for the parcel size. Ideally, this should be achieved by negotiation between parties who fully understand the implications of the words “pro rata for part cargo”.
As discussed in our last newsletter, charterers have been quick to seize on the implications of the High Court judgment in Stolt Tankers Inc. V. Landmark Chemicals SA (The “Stolt Spur”) [2001] LMLN 579. We have received several requests for a charter party clause to protect the owner’s position when bunkering vessels that are waiting in a berthing queue. One of the best we have seen is "If vessel takes bunkers while waiting for a berth to become vacant, laytime/ demurrage continues to run so long as the ship does not lose its place in the berthing queue".
A few charterers persist in deducting, without any legitimate reason, small amounts from ship owners’ demurrage claims, often in the expectation that owners will accept them in order to reach a prompt settlement. Deducting time for placing the gangway in position is a typical example.
Our view is that exceptions to the running of laytime and demurrage have to be specific and unequivocal. If charterers want to deduct time for placing the gangway they must include it in their charter parties as, for example, ExxonMobil Voy2000 and BPVOY4 do. Otherwise, shifting ends at all fast, i.e. securely moored. However, if placing the gangway takes more than 20 minutes it could be worth checking the reason for the del ay with the local agent.
We never cease to be surprised by some of the creative arguments used when negotiating demurrage claims. One of the more unusual was a charterer’s proposal that he should receive a deduction for the 1 hour lost when Europe moved the clocks forward at the end of March. We doubt that the charterer intended to pay for an additional hour when the clocks went back in October. If anyone has encountered a bizarre excuse for not paying a claim, we would be pleased to receive details.