We reported in our last newsletter that an increasing number of charterers were moving away from Asbatankvoy as their charter party of choice. We can now report that Litasco, the international trading arm of Lukoil, has decided to switch to ExxonMobil Voy2000 from September 2005. If you are interested in looking at the benefits of changing from Asbatankvoy, we would be pleased to discuss this with you.
In a recently published arbitration, LMLN 16/05, under an amended Asbatankvoy charter party form, the charterers challenged the validity of the owners’ NOR on two grounds. Firstly, they claimed that there was no evidence that the Master had tendered the NOR either orally or in writing to the charterers or to anyone who might be considered as acting as their agents. Secondly, the charterers claimed that at the time the NOR was alleged to have been tendered, the vessel had noted its position as only just entering the port area at EOSP (end of sea passage). The vessel did not anchor until 1½ hours later. The anchorage area at the port was relatively small, having sufficient space for only 6 vessels. The tribunal did not accept that the NOR, if indeed it was tendered at all, had been given after the vessel had arrived at the customary anchorage as required by clause 6 of the charter party. Accordingly, no valid NOR had been tendered. The tribunal, citing the authority of The Happy Day [2002] 2 Lloyd’s Rep 487, decided that laytime only commenced when discharge began two days later. As a result, there was no demurrage due to the owners. Ship owners should take note that a notice of readiness tendered at the wrong place is likely to be invalid. Most charterers have been prepared to accept that an NOR tendered at the end of the sea passage would be valid at the time the vessel reached the anchorage area. This arbitration suggests that charterers would be within their rights to reject such an NOR as premature. However, if that is the case, we would expect that the NOR would, at the latest, be triggered from all fast in accordance with clause 6 of Asbatankvoy.
In the High Court case of The Bow Cedar [2005] 1 Lloyd’s Rep 275, the charterers had been forced to cancel their charter because they had been unable to supply a cargo. The vessel had waited several days at the load port and as a result the owners claimed for damages and demurrage. The charterers contended that the owners’ claim was time barred under the terms of the charter party. The c/p stipulated that a demurrage claim had to be submitted within 90 days of completion discharge and any other claims for amounts for the charterers’ account had to be made within 180 days. The High Court ruled that as there had been no discharge, the time bar did not apply. Furthermore, a claim for damages for breach of the charter party was not a claim for amounts that were for the charterers’ account under the c/p.
We are often surprised that experienced demurrage analysts might think that tides or bore tides would count as weather conditions. Tides and bore tides are caused by the gravitational influence of the sun and the moon, not by weather. Most of the oil companies’ charter parties include an exception to laytime/demurrage specifically for delays to berthing due to tides. Asbatankvoy does not, so all time lost awaiting tides will count unless the c/p has been amended to cover tidal delays. The Conoco Weather clause does not cover tides. It also does not cover “sea state”. Waves, swell and surf are usually caused by winds but are not in themselves “weather conditions”. However, they may delay berthing for some time after adverse weather has abated. If charterers want their weather clause to cover such conditions as exceptions to laytime/ demurrage they must ensure that the clause includes “sea state”.
Every month we encounter at least one dispute over the interpretation of the Conoco Weather clause. (See previous News Updates Nos. 4, 23 and 27). We have come to the conclusion that if charterers want an all-embracing weather clause, they should consider drafting something that clearly gives them what they want, rather than trying to argue that “delays in berthing” in the Conoco clause should cover them when their vessels are sitting in a berthing queue and the primary cause of delay is actually congestion. One of the most comprehensive clauses we have seen is
Vitol’s: "Any time lost at load and/or discharge port(s), whenever/howsoever lost, which is directly/indirectly attributed to weather conditions and/or 'sea state', shall count as half laytime or if the vessel is on demurrage, at one half demurrage rate".
Owners may wish to amend some aspects of this clause if they consider that its coverage is too wide, but at least it has the distinct advantage of being unambiguous.