Споры между нефтедобывающими странами о производственной мощности в сочетании с резким снижением потребительского спроса на нефть в результате пандемии Covid-19 привели к серьезной нехватке нефтехранилищ на суше и даже отрицательным ценам на нефть. Слишком много нефти и недостаточно мест для ее хранения.
Настоящая статья посвящена оговоркам в чартерах, о которых следует помнить, когда интересы фрахтователей отличаются от интересов владельцев груза по коносаментам, и хранение нефти в плавучих хранилищах требует трехсторонних переговоров. Авторы рассматривают многочисленные вопросы, связанные с организацией хранения нефти на плаву при помощи оформления как рейсовых, так и тайм-чартеров, как действующих, так и новых. В частности и особенности: обрастание корпуса, гарантии скорости и исполнения, бункеровка и снабжение, безопасность, продолжительность и оплата хранения, страхование и претензии по грузу. В заключение авторы отмечают, что даже если фрахтователи не обязательно намерены использовать судно для плавучего хранения перед началом нового чартера, было бы разумно в текущих рыночных условиях всегда включать вариант плавучего хранилища в каждый чартер с тем, чтобы получить максимальный доход, а также избежать потенциальных споров. Если плавучее хранилище предусмотрено в соответствии с действующим чартером, в котором ранее это не предусматривалось в подробностях, рекомендуется согласовать аддендум, в котором конкретно рассматриваются соответствующие вопросы.
Disputes between oil producing nations
on output capacity, coupled with a steep
decline in consumer demand for oil as a
result of the Covid-19 pandemic, have led
to serious oil storage capacity shortages
on-shore and plummeting (even
negative) oil prices. There is far too much
oil and not enough places to store it.
This has in turn generated a surge in demand for tankers
under time and voyage charters to act as floating storage
both (i) as conversion of existing charters into “floating
storage”; and (ii) new business. This has pushed tanker
rates up but has also led to a renewed focus on legal/
charter issues associated with short and long term
storage afloat.
Rory Butler and William Gidman
have reviewed a number of existing
and new charters over the last few
weeks and advised both owning
and charterer clients on storage/
charter issues. With VLCC hire rates
reported at well over US$100,000 a
day (some reports have been as high
as US$200,000-US$300,000 a day)
these charters have potential annual
values of US$40 million plus and so
the sums at stake are large.
With higher rates, disputes can
escalate quickly. What might
previously have been a modest 2-3
days off-hire, demurrage or damages
claim may easily be worth a few
hundred thousand dollars now. It is
therefore wise to focus on agreeing
terms that allocate the additional
risks associated with floating storage
even if there is a commercial need to
conclude such deals quickly!
Whilst this article focuses on the
position under charterparties, it
should be remembered that where
the charterers are different from the
cargo interests under bills of lading,
floating storage really requires threeparty discussions.
We have dealt with enquiries under
existing and new charters and refer
below to some of the issues arising.
Time charters
• The charterers are generally free
to employ the vessel to carry
cargo how they see fit within
the charter period, which may
include orders to proceed to a
specific destination or wait to
load or discharge cargo, providing
always that they trade within the
geographical limits and honour
any specific charter obligations or
exclusions such as safe port/berth
obligations, the types of permitted
cargo, and sanctions clauses, etc.
• Some tanker time charter forms
do expressly permit the charterers
to use the vessel as floating
storage – e.g. clause 21 of BPTime
3 (which is a short form clause
and does not grapple with all
the issues highlighted below).
However, many charters do not.
• Where there is a specific charter
clause permitting floating storage
then obviously the charterers have
that option – subject to the terms
of the clause.
• Where there is no such clause
then there is a potential debate
about whether charterers can
ask owners to agree to use the
vessel as floating storage/whether
any such orders would be lawful.
This will of course depend on
consideration of the specific
charter terms and also whether
any bill of lading has been issued
by the owners (as owners can
normally refuse orders that would
place them in breach of a bill of
lading, which will include a duty to
prosecute the voyage with utmost
despatch and not to deviate).
• However, putting specific charter
terms to one side, from a practical
perspective if charterers ordered
a vessel to wait off a nominated
discharge port for a relatively short
period pending discharge (e.g.
because there is no shore ullage) it
may be difficult to challenge from
an owners’ perspective as this is
a normal operation of the vessel.
On the other hand, ordering the
vessel to wait for months at a
floating storage location, which is
not the nominated discharge port,
would arguably not be consistent
with charterers’ rights under
a time charter/the contractual
bargain agreed, and owners may
be able to argue such orders are
not legitimate and can be refused.
• The position under the bill of
lading is important and cargo
owners need to agree to any
floating storage, as do owners’
insurers. Therefore the position
under a time charter is not
necessarily as straightforward
as may be first thought. To avoid
such debates the parties would
be well advised to agree specific
terms for use of the vessel as
storage and to ensure the consent
of cargo owners and owners’
insurers is obtained.
• If charterers do order the vessel to
be used as floating storage then
their obligations/liabilities will
usually extend (even without a
storage clause) to:
– Exercising due diligence to
order the vessel to anchor
or drift at a safe place – this
could be relevant in the event
of collisions and/or pollution
issues; and
– An implied indemnity
in owners’ favour for the
consequences of complying
with charterers’ orders.
Voyage charters
• Voyage charters are generally
more problematic. Most charters
define the load and discharge
port(s) and require the owners to
proceed with utmost despatch
on the usual and customary route
between the ports. This will also
be owners’ obligation under any
bill of lading.
• Unless there is an express
provision to allow the vessel to be
used as storage, even accepting
an order from charterers to stop
the vessel might be a breach of
the charter’s utmost despatch
requirement and constitute
a breach of the bill of lading
obligations/a deviation which
may also prejudice an owners’
insurance cover. Although
hypothetically it may be possible
to argue an implied indemnity as
against the charterers, it is widely
recognised that establishing such
an indemnity is considerably
harder than under a time charter.
Thus owners would likely want to
refuse such orders.
• Certain charters do permit the
charterers to stop the vessel
and issue revised orders. For
example, under clause 22 of
BPVOY4 charterers are permitted
to instruct owners to “stop and/
or divert the Vessel”. If she is laden
then “all time spent by the Vessel
awaiting orders shall count as
laytime or … demurrage”.
• It is debatable whether charterers
could rely solely on such a
provision to demand that the
owners stop the vessel to effect
floating storage. The provision
appears to anticipate the vessel
being stopped purely to allow the
charterers to revise the discharge
port orders. Floating storage
may not be time spent “awaiting
orders”.
• Nevertheless, the owners
might be happy to accept the
demurrage rate if it is higher
than the market freight rate.
However, disputes could arise if
the market conditions flip and
owners want to trade the vessel
elsewhere. Further, if it is found
that floating storage does not fall
within provisions such as clause
22 then arguably the owners are
not entitled to demurrage, but to
damages for detention instead.
Unless defined, the detention rate
could be higher or lower than the
demurrage rate.
• Even if the charterers continue
to pay demurrage and this is
accepted by the owners under
protest, there may come a point
in time when the delay for floating
storage amounts to frustration.
Guidance on demurrage and
frustration can be taken from
cases such as MSC v Cottonex
[2016] EWCA Civ 789 (considering
container demurrage). Based on
this line of authority, it is arguable
that a voyage charter could be
considered frustrated where
the performance of the contract
becomes radically different to
what had originally been intended.
This will be a question of fact, but
it may be relevant to look at the
duration of the delay (storage)
compared to the time the voyage
should have taken.
Issues
• In relation to both existing time
and voyage charters we have
already been involved in disputes
where owners have refused
charterers’ orders for the vessel
to drift/anchor away (or even sail
away) from the discharge port
range (de facto storage) and
have instead reserved their right
to proceed to the nominated
discharge port, tender NOR and
claim laytime/demurrage or hire
as applicable. Following such a
standoff the parties have normally
agreed commercial terms on a
storage option – e.g. agreeing an
addendum to the charter to cover
extended storage afloat at market
rates or a compromise earnings
figure where the charter period
is extended with specific terms
(see below) to deal with storage
issues. The cargo owners have
also consented/been involved in
discussions.
• Difficult issues may arise under
existing charters where vessels are
at or off the discharge port and
the charterers do not (or cannot)
order discharge. Owners’ remedy
here may be limited to demurrage
or hire only, unless it can be
said charterers are in breach
of specific terms or obligations
under the charter (which may
allow a claim for damages for the
difference between charter and
market rates). However, it is worth
remembering that demurrage
may not be applicable (absent
an express provision) unless the
vessel is actually within port limits
and has tendered NOR.
• From charterers’ side, if there is a
particular reason why discharge
cannot commence (e.g. Covid-19
or lack of shore labour, etc.)
close attention should be paid
to exceptions or force majeure
provisions which may allow total
or partial avoidance of payment
of demurrage/hire. Obviously,
the situation will turn on the
particular contract wording, but
in the very worst case scenario for
owners, they may be stuck at or
off a discharge port with market
rates rising above the charter rate,
and partial or no payment under
the current charter because of
exceptions under the charter.
• Other issues regarding floating
storage concern the following:
Hull fouling & speed and
performance
• Employing the vessel as floating
storage at a fixed location for an
extended period can lead to hull
fouling and ultimately speed and
performance issues under a time
charter. The English Court found
in The Coral Seas [2016] EWHC
1506 (Comm) that the implied
indemnity would not apply to hull
cleaning if the vessel is ordered to
stay in a warm water port for an
extended period and said express
hull fouling clauses were needed.
So, absent an express provision,
the owners will likely bear hull
cleaning and associated speed
and performance claims arising
from storage (save to the extent
it can be said that such orders are
not lawful and charterers must
pay damages).
• From an owners’ perspective it
would be prudent to include an
express provision that speed and
performance warranties will not
apply post storage.
• A provision may also be agreed
to permit the vessel to steam in
the vicinity at regular intervals to
minimise hull fouling – who is to
bear responsibility for the cost of
bunkers consumed?
• Even under a voyage charter, hull
fouling could affect whether the
vessel can reach any warranted
speed.
Bunkers and supplies
• Under a time charter, charterers
are usually responsible for
providing bunkers, fresh water
and other supplies. Careful
planning before the storage (and
during, depending on duration)
is required to ensure the vessel is
well stocked. Not least as a vessel’s
ability to make fresh water is often
restricted when not underway.
• Under a voyage charter, the
owners may have planned the
bunkering and supplies schedule
based on the anticipated voyage
duration without acting as floating
storage.
• Therefore, if the vessel does
anchor for storage then the vessel
may need to be permitted to go
closer to the shore to bunker,
take on fresh water and supplies,
and responsibility for the time
and bunkers used needs to be
allocated, and the storage location
needs to be selected, with this in
mind.
Safety of the storage place
• Which party will be responsible
for verifying the safety of the place
of storage? Clause 21 of BPTime 3
is silent on this. However, usually,
this will be a due diligence
requirement on the part of
charterers under a time charter,
unless the owners have accepted
the storage place at the outset of
the charter.
• Careful consideration must be
given if the storage area is at
or off a busy port. Security also
needs to be factored in if there is
a risk of piracy in the area or it is
an additional war risk premium
region.
• Owners will want to shift
safety and any extra security or
insurance risks onto the charterers
as well as giving the master
freedom to shift location as they
see fit. It is best if all these issues
are considered in a bespoke
clause.
Duration and payment
• In the context of a time charter
the parties will need to decide if
the overall charter duration should
be extended.
• The parties would be wise
to consider if minimum and
maximum periods for the floating
storage should be included in
the contract as well as notice
provisions concerning termination
of the floating storage period.
• The parties will also need to
decide if the rate of payment
(hire for a time charter) will be
increased (or decreased) for
the storage period. Where the
contract is a voyage charter we
have seen the demurrage rate
used as payment for the floating
storage period.
Insurance
• Is there a deviation? Do the
owners’ insurance policies – P&I,
H&M, K&R, War, etc. – cover vessels
acting as floating storage? If not,
who is to bear the additional
premium costs? Advice needs
to be taken from brokers and
underwriters.
Cargo claims
• It is understood petroleum
products can deteriorate over
time. If clean bills of lading are
issued but the cargo deteriorates
naturally, owners may need to try
to rely on the Hague/Hague-Visby
Rules exceptions (e.g. inherent
defect), or the implied indemnity,
to defeat a cargo claim. It might
be sensible to agree a bespoke
clause dealing with quality issues
following storage to prescribe
liability. Generally speaking we
would expect owners to want to
shift cargo deterioration or excess
ROB risks caused by the extended
storage onto the charterers.
• Further, are there any specific
cargo instructions that need to be
adhered to (e.g. heating), and who
pays for the bunkers used to do
this?
Conclusion
The issues arising out of floating
storage are not straightforward,
and charters cannot be looked at
in isolation. Consideration should
also be given to bills of lading, sales
contracts and insurance provisions.
We would suggest that even where
charterers do not necessarily intend
to use the vessel for floating storage
at the outset of a new charter, it
would be prudent in the current
market conditions to always build
in a floating storage option to every
charter to give maximum commercial
future flexibility and avoid potential
disputes.
If floating storage is envisaged under
an existing charter that had not
previously contemplated such action,
then it is recommended to agree an
addendum to expressly deal with
these issues.
Авторы: Rory Butler, William Gidman
Источник: https://www.hfw.com/downloads/002080-HFW-Floating-storage-High-reward-and-high-risk.pdf