NYPE - INORDINATE AND INEXCUSABLE DELAY AFTER COMMENCEMENT OF ARBITRATION - ARBITRATION ACT OF 1996 - APPLICATION FOR DISMISSAL DUE TO WANT OF PROSECUTION - LIMITATION PERIOD - APPLICATION TO APPEAL TO HIGH COURT Damage claims arose after the collapse of a crane on board a vessel. Arbitration commenced two years later however no submissions were made until nearly 12 years after the incident. Charterer applied to have the claim dismissed for want of prosecution by owner. The panel agreed with charterer and owner applied to the High Court for a chance to appeal.
VESSEL ORDERED TO ANCHOR OUTSIDE “PORT LIMITS” BY PORT AUTHORITY - DEFINITION OF “PORT LIMITS” - WHETHER VESSEL CONSIDERED GEOGRAPHICALLY READY TO TENDER NOR WITHIN THE CONTEXT OF C/P - DEMURRAGE A vessel arrived off of the load port and was instructed by the port authority to anchor outside the port limits to await berth availability. The Court was tasked at determining whether the vessel was geographically ready for the purposes of tendering notice of readiness. The Court also looked at the definition of “port limits”.
BIMCO OREVOY VOYAGE CHARTER - VESSEL UNABLE TO LIFT MINIMUM QUANTITY - OWNER CLAIMS FORCE MAJEURE - CHARTERER REPUDIATES CHARTER AND CHARTERS SUBSTITUTE VESSEL A vessel arrived at the load port with a portion of her previous cargo frozen to the inside of her hold. After owner failed to secure a substitute vessel charterer terminated the charter and fixed its own sub. Charterer’s claim for damages was denied by owner who presented a counterclaim basis what owner believed to be charterer’s wrongful repudiation of the charter party.
VALIDITY OF NOR TENDERED PRIOR TO FREE PRATIQUE AND CUSTOMS CLEARANCE AND WITH STOWAWAYS ONBOARD - OWNER’S OBLIGATION TO DISCLOSE PRESENCE OF STOWAWAYS - WHETHER PANAMA CANAL EXPENSES DUE TO OVERLOADING FOR OWNER’S OR CHARTERER’S ACCOUNT Under a COA a vessel was nominated to carry coal from Colombia to Chile. Due to not yet having obtained free pratique and customs clearance, and whilst having stowaways onboard, Charterer argued that the NOR tendered at load was invalid. During transit to the disport the vessel was found in breach of Panama Canal draft restrictions and incurred unexpected expenses due to overloading which each party believes to be for the other party’s account.
INTERIM PORT - LIGHTERING - DEMURRAGE - TIME BAR - WORLDSCALE A demurrage claim presented by owners was rejected due to charterers belief that the time in question was to be considered an interim port.
TIME CHARTER – HOLD INSPECTION FAILED – WHETHER DELAY IN RE-BERTHING AFTER HOLDS CLEANED AND PASSED INSPECTION OFF HIRE Upon arrival at the load port, the vessel’s holds failed inspection. After the holds were cleaned, the vessel was re-entered into the berthing queue. Charterer claimed the second delay in berthing was due to the holds failing inspection whereas owner claimed it was due to berth congestion.
A golden rule when assessing a contract is to read the contract as a whole and give meaning to all clauses in conjunction with each other. A recent NY Arbitration, SMA 4272, combined with an older award, SMA 2477, shows how simple phrasing, reinforced via a lack of options and market constraints, can overwhelm other charter terms and convert a port charter to a berth charter.
COMMENCEMENT OF LAYTIME - WHETHER SHINC TERM TRUMPS OFFICE HOURS - DESPATCH After NOR was tendered and loading commenced on a Sunday, the Owner and Charterer disputed when laytime commenced. Owner noted the laytime allowance referenced “shinc” allowing for laytime to commence on Sunday whereas charterer noted NOR was only to be tendered Monday through Friday.
EXTENSIVE DELAY PURSUING CLAIM IN ARBITRATION – WHETHER DELAY INORDINATE AND INEXCUSABLE – WHETHER SETTLEMENT NEGOTIATIONS ONGOING DURING DELAY - WHETHER NEGOTIATIONS CONSTITUTED A STAY OF PROCEEDINGS Respondent requested an arbitration claim be withdrawn citing an inordinate and inexcusable delay in moving forward with proceedings. The claimant countered that the delay was due to both parties agreeing to stay proceedings whilst working towards a settlement.
NYPE TIME CHARTER - LATE PAYMENT AND NON-PAYMENT OF HIRE - WHETHER LATE PAYMENT A REPUDIATORY BREACH - CALCULATION OF DAMAGES - Owner Award The charterer acknowledged its late payments of hire were a breach of the charterparty yet denied that the late payments were a repudiatory breach. In contrast, and despite charterer offering payment proposals, the owner contended charterer’s conduct constituted non-payment rather than late payment and was thus a repudiation of the charter party.