UNDER KEEL CLEARANCE (UKC)
PART 1 - UNDER KEEL CLEARANCE AND Q88
The minimum under keel clearance is one factor required to provide safe passage for a vessel. Once known, it enables the chartered voyage, including its cargo operations, to be planned, considering the vessel's size, draught and nature of the cargo.
UKC acts as a guide to both owners and charterers for the safe commercial operation of the voyage in terms of the cargo that can be loaded, carried and discharged considering the ports and places where cargo operations take place, always safely afloat, and without the risk of grounding.
For charterers, UKC is an aspect of the description of the vessel they are considering fixing. Q88 is the established form in the modern era through which a detailed description of the vessel is provided. Questions 1.39 to 1.44 states load line information, setting out the legal limit to which a ship may be loaded for specific geographical areas and seasons of the year. Q88 Version 5 requires owners to state their UKC guidelines. These guidelines together with other information set out in the questionnaire provides information which is crucial to the question of the vessel's suitability for performing the voyage and provides charterers (and other parties within the trade chain) information they will use and rely on to operate the vessel during the voyage.
Many cargo operations occur at terminals which require transits in the confined waters of ports and harbours where a minimum clearance is defined and controlled. Most ports and terminals use whichever is the greater of a defined figure or 10% of a vessel's draught as the minimum under keel clearance.
Three parties have an interest in UKC and its guidelines. Breach of them can lead to delays and claims for detention or demurrage and questions of which party ensures compliance.
PART 2 - BP VOY 5 CL 23 AND UNDER KEEL CLEARANCE
The approach that the BPVOY 5 form voyage charter takes is to apply BP's Under Keel Clearance Policy and make owners at all times solely responsible for determining the vessel's correct sailing drafts.
Under CL 23 BPVOY 5 prior to the loading operation, the owners must inform the charterers of the maximum cargo intake, which complies with this policy at nominated ports or berths or other ports or berths nominated by Charterers.
The scheme of BPVOY 5 is that the owner must ensure that cargo intake is such that, at all stages of the voyage, the Vessel's Under Keel Clearance complies with BP's UKC policy. Any 'over the tide operations' are not permitted.
Maximum cargo intake is controlled by BP UKC and not by the charterers' voyage instructions. If 'loss or damage' is caused by a failure to comply with the policy, owners are deemed responsible. Breach of UKC policy is therefore likely to trigger a claim that the CL 12.1 (e) exception to laytime and demurrage of BPVOY 5 applies if time is lost. This is unlikely to apply to Revised Orders under CL 24.
UNDER KEEL CLEARANCE (UKC)
PART 3 - CM P-MAX III LTD v PETROLEOS DEL NORTE SA (THE MT "STENA PRIMORSK") [2022] EWHC 2147 (Comm)
THE "STENA PRIMORSK" considered whether time was suspended because of the owners' alleged breach of the charterparty for failing to follow charterers' instructions as to berthing where owners UKC guidelines would not have been complied with had the vessel berthed.
The Stena Primorsk was chartered on an amended SHELLVOY 6 form charterparty to perform a voyage loading at Bilbao and discharging at a range of ports with Paulsboro on the Delaware River being nominated as the discharge port. The SHELLVOY 6 form charter states that owners must follow charterers' voyage instructions as long as these orders are considered safe by the Master.
Part 1 (A) of the charter, described MT Stena Primorsk, and stated that information set out in Q88 formed "an integral part of this charter". Q88 Question 143 set out the owner's "guidelines" for under-keel clearance. SHELLVOY 6 in contrast to BPVOY 5 does not state which party ensures compliance with UKC guidelines.
The Delaware River is tidal at Paulsboro, which is about 78 miles (126 km) from the Atlantic Ocean at the entrance to the Delaware Bay. A one-off waiver of the vessel's UKC guidelines was granted to charterers to proceed in on high water and on an understanding that the Vessel would discharge upon berthing at high tide and at a rate over 15,000 barrels an hour. At that rate of discharge, the Vessel, although initially breaching the UKC guidelines on the falling tide, was unlikely to ground. By granting a waiver, the owners permitted an over the tide operation, not permitted under BPVOY 5.
Upon berthing, the terminal informed the Master that the discharge rate over 15,000 barrels an hour would not be met. For the first 7-8 hours, the receiving rate would be only 5,000 barrels an hour. The Master's on-the-spot calculation was that at this rate, the Vessel's UKC guidelines would rapidly be breached. If the pilot left the vessel, there may have been a substantial wait at the berth before the pilot could return with the grave consequences of a laden tanker grounding and the risk of pollution. Given these safety concerns with the pilot still on board, the Master decided he should immediately engage the pilot in returning to the anchorage on the grounds of safety. Neither owners nor charterers disputed this was the right decision.
The following day the Charterers ordered the vessel to go in on the next high tide at 21:00 as the terminal advised it could now accept cargo at the rate of initially 10,000 barrels for the first six hours and thereafter at approximately 15,000 to 20,000 barrels an hour. This would have involved the UKC guidelines being breached for the first hour, but provided that discharge began immediately and the proposed rate of discharge being met, there would be no further breach of owners' UKC guidelines and no risk of grounding. The charterers sought another waiver.
In the light of the first failed attempt to berth and discharge the vessel owners were not convinced that the rates now being put forward by the terminal would actually be achieved and decided that an unacceptable risk remained. The owners refused the waiver and refused charterers orders. They said that the vessel would need to lighter some 8,100 MT of cargo before reberthing because if the discharge rate was lower than expected or if the time to begin discharge was longer than expected there were clear, justified safety concerns, the UKC guidelines would be breached and an attendant risk of grounding.
The charterers therefore arranged lighters under protest to remove cargo at the anchorage before the vessel finally berthed at 23:54 on 4 April and completed discharge of the balance cargo alongside.
The Charterers disputed that time on demurrage should run against them from 21:00 on 1 April when they ordered the Vessel to return to the berth, until 23:54 on 4 April, less any discharge time into the lighters. Charterers also claimed the costs of arranging the lighters. They said that the decision not to return to the berth was in breach of the charter. The vessel could safely reach the discharging berth and discharge the cargo there, always safely afloat.
The judge accepted that Clause 14 of SHELLVOY 6 makes it plain that time lost because of the owner's breach will not be charged to the charterer. This exception is triggered by a breach of charter. Arguably, such a breach occurred when the owner refused to follow the charterer's instructions.
Alternatively, the judge accepted that legal authorities such as The Fontevivo [1975] 1 Lloyd's Rep 339 state that "fault" by the owner suspends laytime or time on demurrage at common law. This common law exception to time is wider than the exception under clause 14 because it does not require charterers to establish a breach of charter. It requires ‘fault'. A fault can occur if there is no breach of contract. Viewed in this light, fault can be understood as meaning being responsible for the delay.
The judge failed to see where there was a breach or fault by the owners. The owner's decision was made entirely under clause 3 (1) of SHELLVOY 6 which provides that
'the vessel…. shall [having loaded] proceed as ordered on signing bills of lading to such berths as Charterers may specify, in any port or ports within Part I clause (E) nominated by Charterers, or so near thereunto as she may safely get and there, always safely afloat, discharge the cargo".
He accepted owners were understandably concerned about the time taken to do the cargo and tank survey before discharge began and how the discharge rate had changed so dramatically from one day to the next, with no compelling explanation. There was clearly a safety concern and breach of UKC. The owner could not be satisfied, that the vessel could berth and discharge her load always "safely afloat". The safety margins were too slim and the risks too great. The decision not to grant a further waiver of UKC was justified. The request to lighter in such circumstances was contemplated by the terms of the charterparty and was or charterers account. Time counted as no exception under the charterparty or at common law applied.
POINTS TO NOTE
The Stena Primorsk was decided on its own facts and circumstances and terms of its charter in this case.
The legal issues involved are complex. The judge could come to a straightforward and pragmatic decision on the facts in this case. In other circumstances, such as those where the Master has responsibility for the actual quantity of cargo taken in and an awareness of the charterers' orders as to the discharge port and the overall voyage to be performed, different considerations could prevail, leading to a finding of fault by the owners. Such considerations could be amplified by the fact that the overall knowledge to do a UKC calculation taking account of all the parameters it involves and therefore responsibility for UKC ultimately must rest with owners. Failing to consider UKC at a discharge port could amount to fault, triggering an exception to the counting of time.
A different result would have occurred had BPVOY 5 CL 23 applied and Asdem is aware of some trading companies who adopt this clause to ensure that the difficult calculations required to ensure compliance with UKC Guidelines are made by the Master who is primarily responsible for their compliance and loads accordingly within the cargo quantity allowances that apply.
One aspect which is not considered in the case report is why the terminal at Paulsboro and port authorities allowed the vessel to berth for discharge on two occasions despite the risks perceived by owners which the judge felt were clear and entirely justified. Key meetings that are held between all the parties interested in the discharge operation reveal issues such as those that occurred in this case. There is no mention of this in the case report or any consideration of why the terminal felt that discharge was safe whilst the vessel did not.