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'''Summary'''
In upholding a final arbitration award made in Owners’ favour, which awarded as a debt the time used to clean the vessel’s hull and propeller at the hire rate after her redelivery under from a one voyage time charter tripconsisting of one laden leg, the High Court held that Owners were not confined to a claim in damages, which would have obliged them to prove a loss of time in the vessel’s use, because the hull fouling clause required the “underwater cleaning of hull including propeller etc. to be done at first workable opportunity and ''always'' at Charterers’ time” (emphasis added).
Case note contributed by Jim Leighton, LLM (Maritime Law), LLB (Hons), BSc (Hons), Solicitor Advocate of England & Wales, IMI Qualified Mediator, LMAA Supporting Member and International Contributor to DMC’s Case Notes
'''Background'''
Owners (as disponent owners) let the bulk carrier “Globe Danae” to Charterers on an amended NYPE form for a one voyage time charter trip consisting of one laden leg, to carry a cargo of metallurgical coke in bulk via India to Brazil, the duration to be about 40-50 days.
The charter, which was subject to English law and LMAA arbitration in London, provided for the vessel to be on hire from delivery until her redelivery, in good order and condition, fair wear and tear excepted and for the master to prosecute the voyage with utmost despatch and to be under Charterers’ employment orders. It also included the following hull fouling provision (clause 86):
The vessel was delivered to Charterers on 10 June 2021. After proceeding to Haldia and loading the cargo, the vessel proceeded to Brazil. The intended receivers rejected the cargo. The vessel remained idle in a laden state in a tropical water port in Brazil for at least 42 days, thereby engaging clause 86.
The vessel was redelivered to the Owners following completion of discharge at Acu, Brazil, at 1400 hours on 4 September 2021, without the Charterers undertaking cleaning of the hull, despite the Owners' requests. The vessel's subsequent fixture required her to sail to Tubarao, where she arrived on 9 September 2021. Owners therefore undertook underwater cleaning of the vessel’s hull and propeller for a period of about 30 hours, between 9 and 11 September, before the vessel was delivered under her next employment, on 16 September 2021.
Owners claimed the sum of USD74,506.70, mainly comprised of loss of time (2.29 days) spent cleaning at the hire rate (UD55,103.13) and related costs. The arbitral tribunal appointed found in Owners’ favour. Permission to appeal was given to Charterers by the High Court on the following question of law:
Regarding the concept of the first workable opportunity, the Judge considered that the reality was that it would turn on the operations of the vessel, and neither Charterers nor Owners would always be able to choose when it occurred.
As to The “Nicki R”, the Judge noted that clause 49 was analogous, rather than identical, to clause 86 in the present case; the former divided the responsibility for remedial work on the vessel between charterers and owners depending on whether the damage affected the vessel's seaworthiness, whereas under the latter responsibility was always with Charterers. Bingham J held that where clause 49 required that repair be “at charterer’s expense”, it meant a claim for hire in debt at the charter hire rate, not a claim in respect of time lost or damages, even though the repairs took place after completion of the contractual trip and concurrently with owners’ engine repairs. As such, the Judge considered the tribunal was correct that The "Nicki R " lent support to its conclusion.
Finally, on the two reported London arbitration awards on which Charterers relied (fn.3), the Judge considered that it was difficult to discern their full import, given they were brief reports. The one report was quite a different case, and the clause in the other report obliged charterers to arrange cleaning. The bottom line was that neither report gave reason not to apply The “Nicki R”.
(3) The time, risk and expense involved with foreseeable fouling arising during the performance of a time charter (such as from a prolonged idle stay in a tropical waters port) is on owners’ account, as per The “Kitsa” (fn.4), and amounts to reasonable wear and tear under clause 4 of the NYPE form on redelivery absent a clause that fully displaces the common law position; and
(4) The “Nicki R” is “analogous, rather than identical”, as the Judge accepted, so is not on all fours with this case with, among amongst other things, the clause in that case explicitly requiring the repairs to be undertaken “after completion of the voyage”, which is clear and prescriptive compared to “always” in this case, particularly when Charterers, as the Judge accepted, did not need to undertake cleaning and there was no obliged obligation for the vessel to have been cleaned before redelivery.
