Pumping disputes are, without doubt, the greatest cause of delay to the settlement of tanker charter party and CIF/CRF contract demurrage claims. The usual arguments arise either from the interpretation of the c/p pumping warranty or from the technical data surrounding the cargo discharge itself. Following the pumping debate at the 3rd Tanker Demurrage Conference in May 1997, we have been working towards:
a) collating accurate technical information that can be used to evaluate pumping performance, and
b) achieving a better consensus on the interpretation of charter party pumping clauses. We have already circulated some information in our previous newsletters.
We hope to be able to take this matter further by establishing a small working party to look at all the aspects of the problem, including the possibility of drafting a standard clause which might be acceptable to both ship owners and charterers. The group will include Nick Gikas of Mobil, Phil Stalley of BP Shipping, Malcolm Edkins of Trader Navigation Mark Aspinall of Shaw & Croft, and Roger Sepkes of Asdem. We hope to arrange a first meeting in October. Our intention is to put together proposals and technical data that can be presented at the next Tanker Demurrage Conference in May 1999.
We have been advised of two recent unpublished arbitration awards relating to pumping. While it is not possible to draw many conclusions from them, we can make the following observations:
(i) Where laytime has been exceeded, the onus is on the charterers to show why the excess time should not all count as demurrage.
(ii) When there is conflicting evidence, e.g. over recorded back pressures, arbitrators will generally give the benefit of the doubt to the ship owner.
(iii) The word “capable” in the context of a warranty to discharge within 24 hours or to maintain 100 psi is likely to be interpreted on the basis that the vessel “can discharge” rather than “will invariably discharge” at these levels, particularly when there is evidence of shore-side restrictions.
Under charter party terms a claim by the ship owners will often have to be submitted to the charterers within 90 days. What happens when the owner has sent the claim to the shipbroker who has not passed it on before the expiry of the 90 days? Is the claim time barred? We consider that it is. To avoid being time barred, there would have to be a prior agreement or clear understanding that the agent or broker was acting on behalf of the charterers and that receipt of the claim by them would be the same as receipt by the charterers themselves. There is nothing to prevent the ship owner sending his claim direct to the charterer. In not doing so, the ship owner will always run the risk that his demurrage claim may not passed on by the agents/brokers within 90 days. We are not aware of a court case or arbitration that covers this point exactly. However, London Arbitration 11/90 LMLN285 illustrates the point that the ship owner’s obligation to provide the charterer with a documented claim within 90 days is unlikely to be affected by the action of third parties such as agents and brokers. In this case the disponent owners claimed that they should not be time barred because they had not received all the documents from the agents at the load port. The charterers had appointed the agents. The arbitration panel concluded that the owners had been dilatory in chasing for the documents and that they could have obtained them from other sources. Whether the agents were competent or not did not make any difference and nothing had occurred which altered the owners’ fundamental obligation to provide the documented claim to the charterers within 90 days. The claim was time-barred.
We have recently encountered a number of charter party disputes over the granting of Free Pratique. Some charterers include a clause in their c/p’s to the effect that if Free Pratique is not granted within two (or sometimes six) hours of tendering NOR, the master must issue a letter of protest immediately. Failing this laytime will only commence on berthing. This places a heavy responsibility on the master to ensure that he has obtained the correct clearance or to issue an immediate LOP. Free Pratique is defined as clearance by the port’s medical authorities for the crew of a vessel arriving from a foreign port to go ashore and for local people to board the vessel. It is normally granted on, or sometimes even before, arrival at the port. Free Pratique and Sanitary Pratique are the same. Customs and immigration clearances, which are frequently not granted until after the vessel has berthed, are a completely separate matter. N.B. A vessel can tender NOR and laytime will commence before free pratique is granted, i.e. its granting is not necessary before a vessel may be considered an arrived ship, see the case of The Delian Spirit . However, if free pratique is refused the vessel will be placed in quarantine. In such circumstances it cannot be ready to load/discharge and laytime will not run until quarantine restrictions have been lifted.