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In the judge’s view, it was entirely apt for the charter to describe the Q88 as “integral” to it. The use of the word “waiver” by those familiar with daily vessel operations and with shipping practice generally for UKC policies, strongly indicated to the judge that the UKC policy was considered to be binding and was not to be breached without consent. The importance of the UKC policy was underlined, said the judge, by the fact that there was a need for a careful risk assessment and a UKC calculation, before a waiver could be considered.
The judge did not find it surprising that the charter was silent as to the circumstances in which a waiver might be granted . Whether a wavier waiver would be granted was a matter for Owners. In practice, as seen in the present case, the decision would be taken by the Master and Owners’ agent after consultation. There was no suggestion by Charterers that the power to grant a waiver was in any way limited, nor any suggestion on their part that the Owners’ refusal to grant a waiver in this case was capricious (which might have amount to a “fault”).
Turning to the facts, the judge noted that, on receiving the request for a waiver on 1 April 2019, the Master laid down some clear caveats, namely that (a) the vessel was all fast at 2100 hours with no delays, (b) discharge could commence within three hours, and (c) there was no “technical failure from the terminal or ship”. In the judge’s view, the Master’s reaction was realistic, with the risk analysis predicated on the discharge being trouble free.
Further, in the judge’s view, NMM’s response – as set out in the seventh paragraph of the Background section above – was entirely appropriate, in essence rephrasing the Master’s points, noting their conclusion that there were “insufficient controls to [safely] mitigate the risks”, so that a waiver could not be issued.
In view of the above, the judge concluded that NMM’s refusal to grant a UKC policy waiver, for berthing at 2100 hours on 1 April 2019, was appropriate and did not put Owners in breach of or at “fault” under the charter. In these circumstances, the delays encountered in berthing at Paulsboro were for the Charterers’ account.