London Arbitration 23/19
TIME CHARTER – OFF-HIRE – WHETHER ANCHOR FOULED – VESSEL SEAWORTHINESS – DELAY TO BERTH
After receiving the berthing orders from Charterer, the time-chartered Vessel was unable to raise its anchor and proceed to berth for a limited period of time. Charterers then claimed that during this delay to berth that the Vessel was off hire. Owner claimed against Charterer for the unpaid hire/ damages, whilst Charterers denied liability and submitted a counterclaim against the Owner.
[dropcap]O[/dropcap]wner claimed that the Vessel’s anchor was caught on a submarine obstruction which in turn damaged the Vessel’s windlass and prevented the Vessel from raising the anchor in order to proceed towards berth. Charterer did not agree that the anchor was fouled, but failed to produce any evidence in order to argue that the Vessel’s anchor was not fouled. Such as providing reports in regards to the nature of the bottom of the anchorage location or inquiring whether other ships in the same anchorage location had experienced similar issues.
The tribunal was then left with the burden to determine if the anchor had indeed been fouled or if the Owner had met the obligation to provide a seaworthy Vessel and exercise the due diligence and proper maintenance to ensure the Vessel’s seaworthiness. If it was determined that the anchor was fouled, thus being the root cause of the delay, then the question of whether the Owners were in breach of any of their obligations would be irrelevant as such breach would not have been causative and the delay to berth would have occurred regardless.
The tribunal also viewed the evidence provided by the Owner as not altogether satisfactory. The Vessel dock logs that were produced by the Owner had a timestamp labeled “anchor stuck on bottom” that looked to have been added to the document after the fact. Additionally, the signatures that appeared on the logs, notice of readiness, and statements of facts were clearly different than those -allegedly by the same personnel- found on the maintenance documents. Although there was no clear explanation for these discrepancies, they bore no weight to the question of whether the anchor had been fouled.
With Charterers failing to provide any evidence to support the argument that the Vessel’s anchor was never fouled, the tribunal -albeit hesitantly- concluded that the anchor was indeed fouled and was determined to be the cause of Vessel’s delay to berth. The Vessel was determined to not be off-hire during this delay and not only was the Charterers counterclaim denied, Charterer was also found liable for the unpaid hire/damages to the Owner in the amount of $20,821.16.