2,065
edits
Changes
no edit summary
Michael Nolan QC (instructed by Laurence Marron Solicitors) for C Transport (Charterers)
'''ARBITRATION ACT 1996 SECTION 69 APPEAL ON POINT OF LAW:TIME CHARTERPARTY: CONTINUING WARRANTY OF SPEED AND CONSUMPTION: VESSEL SUSTAINED UNDERWATER FOULING DUE TO PROLONGED STAY IN TROPICAL WATERS RESULTING IN UNDERPERFORMANCE: WHETHER A DEFENCE FOR OWNERS TO PROVE THAT VESSEL UNDERPERFORMED BECAUSE OF COMPLIANCE WITH CHARTERERS’ ORDERS'''
'''Summary'''
“Where the owners give a continuing undertaking as to performance of the ship, and the ship has in fact underperformed, it is a defence for the owners to prove that the underperformance resulted from their compliance with the charterers’ orders: see The Pamphilos [2002] 2 Lloyd’s Rep 681 per Colman J., at page 690. In that case, the ship’s failure to achieve the promised performance resulted from marine fouling, which was in turn the result of the owners’ complying with the charterers’ order to wait for 21 days at a tropical port.”
'''Judgment'''
The judge first summarised the material facts (above), referred to the relevant time charter clause (above), and stated that the question of law to be decided on appeal was:
This judgment highlights the risks faced with giving an unqualified speed and consumption warranty on a continuing basis under a time charter. It also goes to show that well-known legal practitioners’ works should not simply be relied on without first checking the substance of the proposition to be used in support.
It has since became become frequent practice to include in time charterparties a marine fouling provision that operates to provide the owner with a defence and, often, to create an obligation on the charterer to clean the hull, or to pay liquidated damages for not doing so, before redelivery, whether or not there is a continuing warranty.
Footnote 1: [1994] 2 Lloyd’s Rep 227 (CA)
Footnote 2 [2002] 2 Lloyd’s Rep 681