A vessel was fixed for a voyage from Baltic to port(s) of Argentina and Uruguay. The charter party incorporated such clauses related to laytime calculation as :
(*) laycan - 12 - 16 April;
(*) ANY TIME USED PRIOR COMMENCEMENT OF LAYCAN SHALL NOT COUNT AS LAYTIME
(*) Loading Terms: 6'000 MT, PER WWD OF 24 CONSECUTIVE HOURS, SUNDAYS HOLYDAYS INCLUDED N.O.R. CAN BE TENDERED SHINC DURING NORMAL OFFICE HOURS, 8 AM - 5 PM OR LOCAL EQUIVALENT.
(*) LAYTIME TO COMMENCE AT 14.00 HRS IF NOTICE OF READINESS IS TENDERED DURING OFFICE HOURS PRIOR NOON (NOON INCLUDED) AND AT 08:00 HRS NEXT DAY IF NOR TENDERED DURING OFFICE HOURS AFTER NOON. NOR TENDERED AND ACCEPTED EVEN BY CABLE WIBON, WIPON, WIFPON, WICCON
(*) TIME USED FOR DRAFT SURVEYS NOT TO COUNT AS LAYTIME / DEMURRAGE
(*) DISCHARGING TERMS: 3'500 MT, PER WWD OF 24 CONSECUTIVE HOURS, SATURDAY NOON HOLIDAYS EXCLUDED UU IUATUTC
(*) AT DISCHARGE PORT(S) N.O.R. CAN BE TENDERED SSHEX DURING NORMAL OFFICE HOURS, 8 AM - 5 PM OR LOCAL EQUIVALENT and saturday 0800/1200hrs IN CASE BERTH IS OCCUPIED OWNERS ARE ALLOWED TO TENDER N.O.R. WIPON, WIBON, WICCON, WIFPON.
(*) LAYTIME TO COMMENCE AT 14.00 HRS IF NOTICE OF READINESS IS TENDERED DURING OFFICE HOURS PRIOR NOON (NOON INCLUDED) AND AT 08:00 HRS NEXT WORKING DAY IF NOR TENDERED DURING OFFICE HOURS AFTER NOON. NOR TENDERED AND ACCEPTED EVEN BY CABLE WIBON, WIPON, WIFPON, WICCON.
(*) TIME USED FOR DRAFT SURVEYS NOT TO COUNT AS LAYTIME / DEMURRAGE
(*) TIME TO COUNT AS PER GENCON CLAUSE 8HRS / 14 HRS AT DISCHARGE
(*) DEMURRAGE 14.000,-- USD PDPR / HALF DESPATCH ON TIME SAVED PRO RATA BENDS
(*) LAYTIME NOT TO BE REVERSIBLE BETWEEN LOADING AND DISCHARGING. LAYTIME REVERSIBLE BETWEEN DISCHARGING PORTS.
(*) TIME FOR PROCEEDING FROM ANCHORAGE TO LOADING OR DISCHARGING BERTH NOT TO COUNT AS LAYTIME EVEN IF VESSEL ALREADY ON DEMURRAGE.
(*) Swell Clause to apply at Necochea: If vessel is unable to enter and/or sail due to swell and/or bad weather, the Master to be permitted to tender Notice of Readiness at/off the port, and time to count as per C/P. Any/all time/cost lost due to swells to be for Charterers' account.
(*) Ice-breaker clause to apply:
Notice of Readiness can be tendered by the master on arrival at ice
Edge ice breaker meeting point.
(a) Ice-breaker assistance shall be rendered within 48 running hours
after notification of arrival at the ice edge is given by the master, or,
when leaving the loading port, within 48 running hours after
notification by the master of readiness to leave.
(b) Time lost by the vessel in waiting for ice-breaker assistance at
the edge of the ice or when leaving the loading port in excess of the
time provided in section (a) shall count as laytime or time on
demurrage.
And we'll see what has turned out of it in the following posts!
Wednesday 19 October 2011
Tuesday 5 April 2011
Shifting a vessel from anchorage to berth once on demurrage
The present post concerns whether time of shifting a vessel from anchorage to the berth is excluded from the laytime or not. Normally, it is excluded. Related charter party clause may look like: “Shifting from waiting berth, if any, to the final loading or discharging berth to be considered as part of the voyage and to be for Owners’ account”. However, the vessel was already on demurrage. The question becomes: “shall the time of shifting be excluded from laytime given that the vessel is already on demurrage?” Once on demurrage, the vessel is always on demurrage. In our case, there was no express provision in the charter party stating that shifting shall be excluded once demurrage. In the book of John Schofield “Laytime and Demurrage”, it is said that “Whether time shifiting from anchorage to berth is excluded once on demurrage has begun to run will normally depend on whether there is an appropriate exception clause in the charter”. The question is whether the Owners were right to exclude time of shifting from laytime?
Monday 24 January 2011
Necochea swell clause dispute
The vessel was fixed on amended “GENCON”, English law to apply. Necochea was declared as one of discharge ports.
Port of Necochea is well-known for regular heavy waves preventing entering or leaving the port. If the height of waves is more than 2.10 meters, a vessel is not authorized to enter or leave the port. It may last for an uncertain period of time. In order to save shipowner’s time, and to protect shipowners’ interests against such uncertainty, Necochea swell clause is usually incorporated in the charter party.
The following wording was applied to the fixture:
“If the vessel is unable to enter and/or sail due to swell and/or bad weather, the Master to be permitted to tender notice of readiness at/off the port, and time to count as per Charter party. Any/all time/cost lost due to shifting due to swells to be for Charterers’ account.”
Apparently, the first sentence is purely related to tendering NOR. If the vessel is unable to enter due to swell, the Master tenders NOR at/off the port limit. It is pretty clear. Next, if the vessel is unable to sail, does it mean that the Master is permitted to tender NOR at/off the port limit? Is not it strange and pointless?
The second sentence is even more vague. It says about a kind of “shifting due to swell”, but, again, it does not stipulate whether laytime to count or not if the vessel can not leave the port due to swell.
Strange, as it may seem, the vessel entered the port without any problem.
The swell problem occurred upon completion of discharge operation. From the statement of facts, it follows, the vessel completed discharge operations at Necochea port on Saturday at 14.05. Final draft survey was carried out by P&I surveyor from 14.30 till 16.30. Only at 17.20, the port Authorities informed the height of swell was still 3.00 meters, and, according to port regulations, vessel was not authorized to sail. Vessel remained alongside waiting for weather conditions to improve till the end of Saturday. On Sunday morning, at 06.25, port authorities informed the height of swell was 2.10 meters and the vessel was authorized to sail. However, clearance was not performed until 08.00. Finally, the vessel sailed at 09.15 on Sunday.
Shipowner’s position is that the time from Saturday 14.05 till Sunday 09.15 to count as laytime (with exception of the final draft survey from 14.30 till 16.30).
The Charterers replied: “Indeed, there is a certain clause in the c/p named ‘necochea swell clause’, however, same does not work in owner’s benefit in this respect”. In fact, the clause says: “If the vessel is unable to enter and/or sail due to swell and/or bad weather, the Master to be permitted to tender notice of readiness at/off the port, and time to count as per Charter party. Any/all time/cost lost due to shifting due to swells to be for Charterers’ account.” The first sentence is purely related to tendering N.O.R. while the second is related to shiftings and etc.”
Shipowners became flabbergasted with such interpretation of the clause and seeked for an expert's advise.
The Expert advised: “Unfortunately, the clause is not as clear as one would wish. The problem is the reference to vessel being unable "to sail due to swell or bad weather...the master may give notice of readiness...", which raises the question why should the master give notice if the vessel is prevented from sailing? The context in which the provision appears makes no sense UNLESS the meaning is that the time lost when the vessel is unable to leave because of swell/bad weather will count against the charterers.
The general position would be that, if the C/P is silent on this issue, the vessel's inability to leave the berth/port because of inclement weather after completion of loading or discharge constitutes temporary hindrance pertaining to the navigation of the vessel, which falls within the owners' sphere of risk and responsibility. The owners may argue, however, in the present case that the contract does in fact contain provisions which govern this situation and, as indicated above, the provision would only make sense if it is applied to the situation at hand and that the time lost would, therefore, count against the charteres.”
Owners replied to the Charterers asking if the Charterers are trying to make a profanation of the clause, as the purpose of Necochea clause is to clearly describe the natural phenomenon effecting this particular port, when a vessel is unable to enter and/or leave because of the swell. Owners also wrote: “Necochea swell clause governs this situation, otherwise, it makes no sense to apply/name necochea swell clause as such, unless the meaning of it is that the time lost due to swell shall count against the Charterers to save Owners expenses.”
The Charterers reverted with disagreement. They wrote: “The existence of this clause in the governing c/p,gives a number of rights and immunities to both contractual parties, however same must be in line with the wording of the clause. We do believe that Owners' interpretention is really an exaggerated one and closer to Owners wishes . Eventhough we do entirely disagree with Owners' position , as a good gesture could propose to share half the delay at Necochea.”
Owners had to agree with the Charterer’s proposal.
Port of Necochea is well-known for regular heavy waves preventing entering or leaving the port. If the height of waves is more than 2.10 meters, a vessel is not authorized to enter or leave the port. It may last for an uncertain period of time. In order to save shipowner’s time, and to protect shipowners’ interests against such uncertainty, Necochea swell clause is usually incorporated in the charter party.
The following wording was applied to the fixture:
“If the vessel is unable to enter and/or sail due to swell and/or bad weather, the Master to be permitted to tender notice of readiness at/off the port, and time to count as per Charter party. Any/all time/cost lost due to shifting due to swells to be for Charterers’ account.”
Apparently, the first sentence is purely related to tendering NOR. If the vessel is unable to enter due to swell, the Master tenders NOR at/off the port limit. It is pretty clear. Next, if the vessel is unable to sail, does it mean that the Master is permitted to tender NOR at/off the port limit? Is not it strange and pointless?
The second sentence is even more vague. It says about a kind of “shifting due to swell”, but, again, it does not stipulate whether laytime to count or not if the vessel can not leave the port due to swell.
Strange, as it may seem, the vessel entered the port without any problem.
The swell problem occurred upon completion of discharge operation. From the statement of facts, it follows, the vessel completed discharge operations at Necochea port on Saturday at 14.05. Final draft survey was carried out by P&I surveyor from 14.30 till 16.30. Only at 17.20, the port Authorities informed the height of swell was still 3.00 meters, and, according to port regulations, vessel was not authorized to sail. Vessel remained alongside waiting for weather conditions to improve till the end of Saturday. On Sunday morning, at 06.25, port authorities informed the height of swell was 2.10 meters and the vessel was authorized to sail. However, clearance was not performed until 08.00. Finally, the vessel sailed at 09.15 on Sunday.
Shipowner’s position is that the time from Saturday 14.05 till Sunday 09.15 to count as laytime (with exception of the final draft survey from 14.30 till 16.30).
The Charterers replied: “Indeed, there is a certain clause in the c/p named ‘necochea swell clause’, however, same does not work in owner’s benefit in this respect”. In fact, the clause says: “If the vessel is unable to enter and/or sail due to swell and/or bad weather, the Master to be permitted to tender notice of readiness at/off the port, and time to count as per Charter party. Any/all time/cost lost due to shifting due to swells to be for Charterers’ account.” The first sentence is purely related to tendering N.O.R. while the second is related to shiftings and etc.”
Shipowners became flabbergasted with such interpretation of the clause and seeked for an expert's advise.
The Expert advised: “Unfortunately, the clause is not as clear as one would wish. The problem is the reference to vessel being unable "to sail due to swell or bad weather...the master may give notice of readiness...", which raises the question why should the master give notice if the vessel is prevented from sailing? The context in which the provision appears makes no sense UNLESS the meaning is that the time lost when the vessel is unable to leave because of swell/bad weather will count against the charterers.
The general position would be that, if the C/P is silent on this issue, the vessel's inability to leave the berth/port because of inclement weather after completion of loading or discharge constitutes temporary hindrance pertaining to the navigation of the vessel, which falls within the owners' sphere of risk and responsibility. The owners may argue, however, in the present case that the contract does in fact contain provisions which govern this situation and, as indicated above, the provision would only make sense if it is applied to the situation at hand and that the time lost would, therefore, count against the charteres.”
Owners replied to the Charterers asking if the Charterers are trying to make a profanation of the clause, as the purpose of Necochea clause is to clearly describe the natural phenomenon effecting this particular port, when a vessel is unable to enter and/or leave because of the swell. Owners also wrote: “Necochea swell clause governs this situation, otherwise, it makes no sense to apply/name necochea swell clause as such, unless the meaning of it is that the time lost due to swell shall count against the Charterers to save Owners expenses.”
The Charterers reverted with disagreement. They wrote: “The existence of this clause in the governing c/p,gives a number of rights and immunities to both contractual parties, however same must be in line with the wording of the clause. We do believe that Owners' interpretention is really an exaggerated one and closer to Owners wishes . Eventhough we do entirely disagree with Owners' position , as a good gesture could propose to share half the delay at Necochea.”
Owners had to agree with the Charterer’s proposal.
Subscribe to:
Posts (Atom)