Speed and performance – London 2012

18 Дек

Правовые отношения, по которым имеются достаточно ясные прецеденты, получили новое освещение в недавних решениях английского арбитража. Публикация вызывает особенный интерес тем, что одни и те же отношения, складывающиеся на основании договора фрахтования судна, рассматриваются комплексно, то есть как с точки зрения фрахтователя, так и с точки зрения собственника (владельца) судна.

Notwithstanding that two of the leading cases on Speed and Performance were heard two decades ago (The Didymi [1988] 2 LLR 108 and The Gas Enterprise [1993] 2 LLR 352) these types of dispute remain common in arbitration.

In those two cases, the Court of Appeal held that a vessel’s speed and performance should be determined by assessment in periods of good weather, and reasoned that if the vessel underperformed in good weather, then she would also have underperformed in bad weather.

Two recent arbitrations reported in the London Maritime Law Newsletter (3/12 and 4/12) have shed more light on the principles contained in the Didymi and Gas Enterprise.

London Arbitration 3/12 and 4/12

In general, charterparties will expressly define what is meant by good weather. In 3/12 and 4/12, it included weather “up to/including Beaufort Force 4 and Douglas Sea State”. The charter also provided that the vessel should “maintain on all sea passages from seabuoy to seabuoy speed and consumption as per vessel’s description… figures… always about and… always in good weather conditions and no adverse currents”.

London Arbitration 3/12 and 4/12 have three main lessons:

  1. Subject of assessment: entire period or each voyage?

    When their Charterers deducted sums from hire because of alleged underperformance during 2 out of 17 voyages, the Owners took a novel approach by arguing that it was necessary to assess the“average performance” of the vessel over the full charter period (i.e. 17 voyages). Owners said that in order to calculate the “average performance” it was necessary to consider a reasonably sufficient number and spread of good weather periods (i.e. the full period of the charter). On Owners’ calculation the vessel did not underperform.

    The Arbitrators, however, agreed with Charterers that as the warranty was “on sea passages from seabuoy to seabuoy” the correct interpretation was for each voyage to be considered separately when analysing whether the vessel underperformed. As a result, there was underperformance.

  2. Off-setting bunker saved against underperformance claims

    Owners also argued that they had a right to off-set a saving in fuel consumption “across the Charter” against the Charterers’ deduction for hire resulting from the underperformance.

    The Arbitrators found that at most Owners could off-set the under-consumption of say IFO against an overconsumption of MDO but not off-set the savings in bunkers (if any) against underperformance claims.

  3. “Half an eye on the charter warranties”

    Both arbitrations dealt with an issue that often arises – inconsistencies between the log book records and those of a weather bureau report concerning the weather conditions.

The arbitrators commented in 3/12,  “The assessment of sea conditions was not an accurate science and log entries were at times made with half an eye on charter warranties.”

In London Arbitration 4/12 the Arbitrators found that there was a sufficient inconsistency of over 0.5 on the Beaufort scale on average to justify the application of a charterparty provision giving priority to the evidence contained in independent bureau reports where there was a pattern of discrepancy.

Key points when fixing a charter from Owners’ perspective

While each case that is arbitrated is very fact dependent, there are a number of points that Owners may generally wish to consider when fixing their vessels:

  1. Endeavour to ensure that the vessel is able to perform according to the warranty.
  2. Preface any warranty given with “about” – e.g. “about 12 knots on about 40 mt.” This will generally give a 0.5 knot speed margin and a 5% mt consumption margin either side of the warranted quantity.
  3. If possible preface the warranty with “Without Guarantee”, which will allow an argument that the warranty has no contractual effect.
  4. Clearly define what constitutes “Good Weather”.
  5. Insert a clause providing that adverse currents and/or condition of the bottom of the vessel are taken into account when assessing performance.
  6. Ensure that Owners are entitled to a credit for fuel or hire saved should the vessel overperform and detail how the credit should be applied.
  7. Insert a clause that provides for the evidence of log books to take precedence over that of weather bureau reports.

Key points when fixing a charter from Charterers’ perspective

As is true in most negotiations, the Charterers should largely be taking the opposite position to Owners in relation to any speed and consumption warranty provided by Owners (e.g. not agree to “about” or “without guarantee” if possible.)

Charterers should also be aware that if the definition of good weather is too narrow there may never be “good weather” against which a speed and performance claim can be measured, which could make it close to impossible for the Charterer to make a claim.

Автор: Edward Waite

Источник: http://www.hfw.com/publications/bulletins/shipping-bulletin-december-2012/shipping-bulletin-december-2012-speed-and-performance-london-2012

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