London Arbitration 7/25

The dispute arose under a time charter based on the amended NYPE 1993 form incorporating additional clauses. Following disagreements over final hire accounts and performance claims, the matter proceeded to arbitration under the LMAA Fast and Low Cost Arbitration (FALCA) Rules. A sole arbitrator was appointed by agreement between the parties.

The charterparty contained a clause warranting specific speed and consumption figures in ballast and laden conditions, qualified by “abt” and applicable only in good weather – defined as up to Beaufort Force 4, Douglas Sea State 3, and no adverse current. All performance figures were stated to be “in good faith and without guarantee.”

Relying on a weather routing company (WRC) report, Charterers deducted hire basis alleged underperformance and fouling of the hull. Owners countered that the report misclassified good weather and that the vessel performed within the agreed parameters.

The arbitrator rejected the charterers’ claims. The expression “abt” referred to an allowable variation of ±0.5 knots. “Up to BF4” meant “up to and including” BF4. The phrase “in good faith” was held not to qualify the existence of a warranty. Citing The Divinegate [2023] 1 Lloyd’s Rep 442, only days with adverse current were to be excluded, while days with favorable current remained valid for performance analysis.

The master’s logs were preferred over the WRC data given that there was no evidence of falsification. The allegation that the master deliberately sailed at eco speed was unsupported. The extent of hull fouling was minor and would not have materially affected performance. On balance, the arbitrator found the vessel had complied with its performance warranties. The charterers’ case failed for lack of proof.

Owners in turn claimed stevedores had caused damage to the ship’s cranes and wires during log cargo operations and sought recovery under Clause 62, which made charterers responsible for stevedore damage.

Evidence included damage notices, vessel documentation, and surveyor reports from the load and discharge ports. Owners argued that survey findings were consistent with rough stevedore handling.

Owner’s claim failed. The arbitrator found the surveyor’s comments lacked specific attribution of the damage to stevedores. Statements about rough handling being common were insufficient to establish causation. The claim required more than a suggestion of likelihood; the burden of proof remained with the owners and had not been met.

The final dispute in this arbitration concerned a bunkering operation when the vessel was double-banked when two mooring ropes parted, prompting the master to abort the operation and sail away. A seaman was injured in the incident. Charterers argued the vessel was off-hire, asserting the owners must prove the master acted reasonably and that the ropes were in proper condition.

In this instance, the Arbitrator found in favor of the owners. The clause gave the master discretion to decide on safety, and his actions were justified by the facts – including the serious injury. The charterers’ argument improperly sought to reverse the burden of proof. No novus actus interveniens had been shown. As the incident arose during compliance with charterers’ bunkering instructions, owners were entitled to recover time lost.

In conclusion, the owners succeeded in their claim and were awarded US$65,408.39, plus interest at 5% per annum, compounded quarterly. The charterers’ counterclaims were dismissed. They were ordered to pay their own and the owners’ costs of the reference, the cost of the award, and applicable interest. Jurisdiction was reserved to assess costs if not agreed.