Demurrage claims under Voyage Charterparties

26 Авг

В публикации рассматриваются вопросы, связанные с демереджем по рейсовому чартеру в продолжение анализа таких вопросов по коносаменту. Особое внимание уделяется автором отношениям по поводу сталийного времени.

Introduction

In a previous article we have looked at demurrage claims under bills of lading. We now turn to consider liability for demurrage under charterparties; or rather more specifically voyage charterparties. With a time charter the charterer of course pays for the use of the ship on a time basis at a daily rate so the time spent by the ship in the course of unloading and discharging operations, as compared to the time spent at sea, is really an irrelevance from the point of view of the owner and it is the charterer, as the party paying for daily use of the ship, who is concerned to procure warranties from the owner (and possibly off-hire terms) to cover cases of e.g. slow steaming or ship-induced delay in any cargo work.

Different considerations apply with a voyage charter where the owner negotiates the freight for the voyage either by reference to a fixed lump sum or pro rata per tonne of cargo loaded. He will want some compensation if the vessel is unduly detained in the performance of the loading or discharging operations at each end of the performing voyage. The parties will need therefore to give careful consideration to the free time allowed to the charterer for the loading operations (i.e. the so-called laytime) and the damages (i.e. the so-called demurrage where those damages are liquidated as they almost invariably are) payable by the charterer in the event that the allowed laytime is exceeded.

The law of laytime and demurrage is, to say the least, of some considerable complexity and is full of traps and pitfalls for the unwary; so much so that charterers and owners often have dedicated post-fixture staff dealing just with such claims. The following brief guide can only serve as a preliminary introduction to what is an exceedingly intricate subject. Application of the relevant principles requires both a good technical knowledge of the law of charterparties along with a strong practical knowledge of ship operations as well as an eye on the overall legal principles applicable to all commercial contracts. Large sums of money may be at stake and the incidence of demurrage may be critical to the parties’ profit and loss calculations for the voyage.

A voyage charter may be divided essentially into four successive stages; namely firstly the positioning or approach voyage, secondly the loading operation, thirdly the performing or carrying voyage and fourthly the discharge operation. Each stage is consecutive and each must be completed before the next can begin so that, for example, the vessel must reach its specified disport destination before the discharge operation can commence. The positioning and performing voyages are essentially in the hands of, and at the risk of, the shipowner but the two other stages of the operation are joint operations where, by and large, the charterparty will spread the risk between the two according to the particular laytime and demurrage provisions negotiated between the parties.

Furthermore in the ordinary way the owner has a duty to prosecute the performing voyage with reasonable dispatch and the charterer an absolute duty to provide a cargo.

When does laytime commence- the four requirements

Laytime only commences when ship has met the following four requirements; namely (1) has ‘arrived’ at the place specified in the charter party for loading/discharging operations – whether this be a berth, dock or port and got as near as possible to her berth, (2) is ready for cargo operations in sense that no legal or physical restrictions exist on proposed cargo work such as unseaworthiness of the ship, an obstruction in the holds, lack of readiness of cargo gear or absence of free pratique, (3) has given any necessary notice as required by the charterparty and lastly, (4) any free time allowed by the charterparty has elapsed – the charterparty will usually provide for notice to take effect upon the expiry of a certain number of hours after service of the notice.

The berth, dock or port may fall to be nominated by the charterer or alternatively be actually named in the charterparty. An owner has, at least in the absence of the express provision to the contrary in the charterparty, no right to complain if the agreed port, dock or berth is not reachable on arrival because of tides, weather or other natural hindrances or even because of entirely unexpected human factors such as strikes or congestion; unless it is unsafe in which case, where safety is impliedly (e.g. in cases other than that of a named location) or expressly warranted by the charterer, there may be a breach by the charterer of a discrete term of the charterparty. In other words absent any question of the port, dock or berth being unsafe the risk of delay in access, or indeed egress, rests with the owner. There is no want of safety merely because of some temporary restriction on access by reason of, say, a low spring tide or bad weather.

As a consequence it is very common for berth charters especially to incorporate “always accessible/reachable on arrival” terms allow for notice of arrival to be given even if the berth is inaccessible. However, even with such terms if the berth is in fact accessible the ship must proceed straight in to her berth to complete the voyage before giving notice and in any case the vessel must still have arrived within the port. Another commonly encountered term is WIBON “whether In Berth or Not” which serves to allow the ship to give notice of arrival where only the lack of an available berth through congestion, prevents the ship completing the voyage. The ship however must have arrived within the port (absent any provision allowing service of notice of arrival off or outside the port) and the berth must be congested; rather than merely inaccessible by reason of e.g. bad weather.

Port nominations can create particular problems in that the usual waiting anchorage for a port of an estuarial nature may sometimes be located a considerable distance, albeit still within the port jurisdiction, from the berth, as in the case of the Mersey, or in other cases even completely outside the port limits or confines; as in the case of Hull and the Weser.

Provided the waiting area is the one designated by the port (albeit a considerable distance from the berth) then it is likely that the ship will nevertheless be considered to be an arrived ship when she arrives at that point if, but only if, she can proceed no further in. The position where the designated waiting area is outside the port is rather more problematic. Clearly in these cases foresight as to possible problems and careful drafting at the charterparty negotiation stage through e.g. use of a WIPON “Whether in Port Or Not” clause (which is of similar effect to a WIBON clause substituting port for berth) or a “time lost in waiting for berth to count as laytime” clause can avoid, or at least mitigate, many such problems.

The precise form of the notice of arrival is often important in view of the terms of the charterparty which may provide for the notice to be served in a specific form and manner and upon a specific party. It is incumbent on the owner to observe the requirements of the charterparty in this connection as an invalid notice of readiness has no effect unless there can be shown to be an estoppel or waiver of the defects on the part of the charterer therein by reason of his communication of some form of acceptance of the validity of the notice by an express acknowledgement of its validity on his part or on the part of those for whom he is responsible, such as the cargo terminal, or actual commencement of loading/discharging. However in the ordinary way silence or even equivocal conduct does not without more amount to an estoppel or waiver. Something more is required in the form of some unequivocal act or communication referable only to acceptance.

It is best practise to serve successive arrival notices in any case of doubt as it will be appreciated that by remaining silent an astute charterer, who realises the possibility of some error in the notice, may substantially improve his position in those cases where a significant delay occurs between service of the notice of readiness and the commencement of discharge. A notice may be served, and time run may run on the notice (as opposed to laytime itself) before the commencement of any laycan spread period allowed for in the charterparty.

A notice of arrival must be distinguished from any ETA notices required to be given by the owner under the charterparty and a failure to serve an ETA notice or notices does not of itself, and without more, invalidate a notice of arrival; albeit provable delay caused to the charterer by such neglect may result in the charterer being entitled to damages from the owner equivalent to his liability in demurrage for that period of delay.

The period allowed for laytime

Laytime may be customary, or as is far more common, fixed by the charterparty itself in which latter case it may be fixed by reference to a specified number of days, or variations thereof (such as weather working days), or by reference to a daily rate of cargo work per ship/hold/tank/hook etc. In practice the charterparty will define the period allowed as laytime by a complicated formula constructed from a series of well-known lapidary acronyms which further extend any stipulated periods of laytime by reference to certain express “interruptions” and “exceptions” which serve as the real kernel of the laytime and demurrage clause in the charterparty.

The substantive difference, in legal terms at least, between interruptions and exceptions is a nice, albeit important, one. Interruptions define the primary period allowed for laytime and it is not necessary to prove that the interruption has any effect on cargo operations whilst exceptions are qualifications to the primary period allowed and as such it is necessary to show that an excepted event actually affected the cargo operations.

Confusion in practice is however caused by the fact that the standard definitions adopted by the Baltic and others, and as used over many years by parties negotiating charterparties, define an excepted cause as one which serves to interrupt the running of the primary period of laytime so “bad weather excepted” means that the specified days do not count as laytime even if loading or discharge is undertaken on those days absent an “unless used” clause. The excepted event (e.g. in this example bad weather) therefore in law amounts to an interruption although not known or referred to by that latter label. By contrast “weather permitting” means that only the time during which weather actually prevents working shall not count as laytime!

So where a charterparty clause provides without more for laytime to be three “weather days” or for bad weather to be “excepted” there is no necessity to show that the weather affects the cargo operations; as there would be where the charterparty provides for time lost thorough bad weather not to count as laytime. Nor for matter in the first two examples would work in bad weather count as laytime used in the absence of specific provision (e.g. “unless used”) to that end.

Laytime allowed may be a combined total period for both the loadport and disport or make provision for separate (and perhaps different) periods for each operation depending on the nature of the cargo and type of ship. In tanker operations loading and discharging rates are likely to be the same whereas with some bulk cargoes one or other rates may be likely different. Where separate periods are allowed for loading and discharging operations the charterparty may provide for the total time to be averaged (or as it is usually called “reversible”) in calculating liability for demurrage.

Once laytime has started to run it will continue to run until the occurrence of the earlier of the completion of loading/discharging operations or expiry of the time allowed; so where, say, three days are allowed for discharge then once laytime has commenced the three days run consecutively.

Demurrage

If the allowed laytime is exceeded either general damages or liquidated damages (i.e. demurrage) are payable according to the terms of the charterparty. Invariably of course the charterparty will provide for demurrage to be payable rather than leave the quantification of damages at large though in some cases demurrage may be payable by the terms of the charterparty for only a fixed number of days delay leaving any claim for damages for further delay at large.

The exceptions to laytime allowed for in the charterparty are not (at least in the absence of specific provision to the contrary) applicable once the vessel has gone on demurrage; hence the very well-known phrase “once on demurrage always on demurrage”. So whilst, say. under the terms of the charterparty bad weather and strikes may serve to extend laytime once the allowed laytime is exceeded the same events do not give rise to suspension of the obligation to pay demurrage. Nevertheless, that being said, sometimes the charterparty may stipulate for, say, half-rate demurrage for causes beyond the control of the charterer. Nor are the laytime exceptions applicable in the ordinary way to the running of any period of notice allowed as ‘free time’ on arrival by the terms of the charterparty.

The general rule is that the owner must do nothing illegitimate to deprive the charterer of use of the ship whilst laytime, or for that matter demurrage, is running. This is no more than example of the usual rule applicable to all contracts that a party cannot claim damages arising of own fault. Likewise the charterer must do nothing to prevent the ship vessel becoming an arrived ship and must remove any obstacles, even if not originally caused by him, to the completion of the enterprise where it falls within his competency so to do.

General exceptions in the charterparty excusing one or both parties from performance of their obligations in, say, force majeure or other circumstances, will not usually apply to the parties’ rights and obligations as set out in the demurrage provisions of the charter party – at least in the absence of express reference to that end. Nor will, in the absence of very clear words to the contrary, any laytime exceptions apply to the operation of bringing the cargo to the berth ready for loading or removing it after discharge. The charterer’s duties in this connection are prime facie absolute and to be excused only in exceptional cases of say frustration or illegality as would excuse performance of any other contract term.

Dispatch money

The charterparty sometimes provides for payment of so-called “dispatch money” in cases where the allowed laytime is not you used and time thereby saved.

Part-Charters

Where there are part cargoes, as is often the case in the tanker trade, there is no reason why demurrage should not be collected from more than one charterer for the same period of delay but clearly the owner cannot allow performance of his obligations under one part-charter to obstruct his performance of another part-charter.

Time bar clauses

Most modern demurrage provide for any claim to demurrage to be made by the owner within a certain number of days (say 90 days) from a certain event such as discharge and to be accompanied by certain specified documents such as statement of facts signed by the master. Even if the clause does not specifically provide that the claim will be time barred that will be the likely effect of the clause if no claim is presented with in the stipulated time.

Автор: Paul Bugden

Источник: http://www.forwarderlaw.com/library/view.php?article_id=841

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