CM P-Max III Ltd v Petroleos Del Norte SA
| Jurisdiction | England & Wales |
| Judge | Bird |
| Judgment Date | 12 August 2022 |
| Neutral Citation | [2022] EWHC 2147 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: LM-2022-000083 |
Voyage charter dated 9 March 2019
[2022] EWHC 2147 (Comm)
HIS HONOUR JUDGE Bird SITTING AS A JUDGE OF THIS COURT
Case No: LM-2022-000083
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LONDON CIRCUIT COMMERCIAL COURT
SHORTER TRIALS SCHEME
Royal Courts of Justice
Strand, London, WC2A 2LL
Matthew McGhee (instructed by Hill Dickinson LLP) for the Claimant
Tom Bird (instructed by Stephenson Harwood LLP) for the Defendant
Hearing dates: 17 and 18 May 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HIS HONOUR JUDGE Bird SITTING AS A JUDGE OF THIS COURT
Introduction
The claimant (“owner”) chartered the MT Stena Primorsk, a tanker, to the defendant (“charterer”) under the terms of an amended Shellvoy 6 for a single voyage. The contract is set out in, or evidenced by, a recap of 9 March 2019. The vessel was built in 2006, is registered in Bermuda, and has an overall length of 182.9m and a breadth of 40m.
This is the owner's claim for demurrage in the sum of US$ 143,153.64. The recap provided for a single allowance of 72 hours of laytime for loading and discharge with demurrage to be paid at the rate of US $22,500 per day pro rata. The charter provides for certain circumstances in which time either does not start to run or, having started to run, is suspended.
The charterer defends the claim on the basis that time did not start to run (because the relevant notice of readiness (“NoR”) was not valid) and on the basis that time was suspended because the owner was in breach of the charter. The evidence centred on two incidents which are said to have suspended time. First, the owner's decision to leave the discharge terminal within 12 minutes of berthing on 31 March 2019 and secondly, the owner's refusal to comply with the charterer's request to return to berth at 2100 on 1 April.
The validity of the NoR falls to be determined by reference to free pratique. The owner avers that the decision to leave the berth on 31 March and the decision to refuse the request to berth and commence discharge on 1 April were decisions based on the safety of the vessel as permitted by the charter and so could not amount to breach or fault.
Further, the charterer counterclaims for lightering costs in the sum of $US64,186.60. If I find that the owner is in breach of the charter it is common ground that the counterclaim will succeed. The charterer submits that in any event its counterclaim is made good by clause 7 of the charter.
The trial of this matter took place under the shorter trials scheme.
The relevant facts
The charterparty
The Shellvoy 6 contract is in 3 parts (numbered as I, II, III but in this judgment as 1, 2 and 3). Part 1 is divided into sections A to O. Part 1(A) deals with the “description of the vessel” and sets out warranties given by the owner. Clause 1(A)(III) contains a warranty by the owner that information set out in any supplied questionnaire is complete and correct and “an integral part of this charter”.
Part 1 of the charter is paramount. As the preamble makes clear, it trumps any contrary provision in part 2 or part 3. Part 2 sets out the main terms of the charter and part 3 sets out terms specific to identified countries.
Q88
Q88 (Intertanko Chartering Questionnaire 88), a standard form questionnaire, was provided to the charterer and so is covered by clause 1(A)(III). It is a comprehensive list of the type of data that the charterer would need to make full and safe use of the vessel. For example, under Question 1 and the heading “general information” it sets out the dimensions of the vessel, her owners and her insurers. Repeating the information set out in the recap, it identifies Northern Marine Management Limited (“NMM”) as the vessel's technical operator at question 1.10. At questions 1.39 to 1.44 it sets out “loadline information” including summer, winter, tropical, lightship and normal ballast condition drafts for the vessel.
Question 1.43 sets out the owner's “guidelines” for under keel clearance (“UKC”). The answer (insofar as relevant) is:
“ within port limits, fairways berths etc: 10% of the deepest navigational draft”.
Part 2
In the following extracts from Part 2, the emboldened words form part of the amendments added to the contract by the parties.
Clause 3(1) provides as follows: “ Subject to the provisions of this Charter the vessel shall perform her service with utmost despatch and shall [having loaded the vessel] proceed as ordered on signing bills of lading to such berths as Charterers may specify, in any port or ports within Part I clause (E) nominated by Charterers, or so near thereunto as she may safely get and there, always safely afloat, discharge the cargo.”
Clause 3(2) states: “ Owners shall be responsible for and indemnify Charterers for any time, costs, delays or loss including but not limited to use of laytime, demurrage, ….. due to any failure whatsoever to comply fully with Charterers' voyage instructions… . Owners shall adhere to Charterers' voyage instructions as long as such orders are considered safe by the Master of the ship.”
Clause 4 provides that: “ Charterers shall exercise due diligence to order the vessel only to ports and berths which are safe for the vessel and where the vessel will always be afloat….”
Clause 7 provides that: “ The cargo shall be loaded into the vessel at the expense of Charterers and, up to the vessel's permanent hose connections, at Charterers' risk. The cargo shall be discharged from the vessel at the expense of Owners and, up to the vessel's permanent hose connections, at Owners' risk. Owners shall, unless otherwise notified by Charterers or their agents, supply at Owners' expense all hands, equipment and facilities required on board for mooring and unmooring and connecting and disconnecting hoses for loading and discharging which meet the most recent Oil companies International Marine Forum (OCIMF) standards. If requested by Charterer, Vessel shall load and/or discharge more than one grade simultaneously if Vessel is technically capable of doing so. Any delay resulting from the failure by Owners to provide such personnel, equipment and facilities shall not count as laytime or, if the vessel is on demurrage, as demurrage.”
Clause 9: “ If at any time before cargo operations are completed it becomes dangerous for the vessel to remain at the specified berth as a result of wind or water conditions, Charterers shall pay all additional expenses of shifting from any such berth and back to that or any other specified berth within port limits…. time spent shifting shall count against laytime or if the vessel is on demurrage for demurrage.”
Clause 13(1)(a) provides that time at the port of discharge will commence to run 6 hours after the NoR has been tendered by the master or Owners' agents to charterers or their agents and or the vessel is securely moored at the specified loading or discharging berth, whichever occurs first. If the owners “ fail to obtain free pratique unless this is not customary prior to berthing…..either within the 6 hours after notice of readiness originally tendered or when time would otherwise normally commence under this Charter, then the original notice of readiness shall not be valid”.
Clause 14: “ Time shall not count when: …..(c) lost as a result of: (i) breach of this Charter by Owners…..”
Clause 15 deals with the obligation to pay demurrage. Clause 15(2) provides: “… Any delays for which laytime/demurrage consequences are not specifically allocated in this or any other clause of this Charter and which are beyond the reasonable control of Owner or Charterer shall count as laytime or, if Vessel is on demurrage, as time on demurrage. If demurrage is incurred, on account of such delays, it shall be paid at half the Demurrage Rate.”
Clause 25(1): “ If the vessel, with the quantity of cargo then on board, is unable due to inadequate depth of water in the port safely to reach any specified discharging berth and discharge the cargo there always safely afloat, Charterers shall specify a location within port limits where the vessel can discharge sufficient cargo into vessels or lighters to enable the vessel safely to reach and discharge cargo at such discharging berth, and the vessel shall lighten at such location. All lightering expenses to be for Charterers' account.”
Loading
The vessel loaded a cargo of 54,322.913 tonnes of oil (approximately 366,817 barrels) at Bilbao. It is agreed that 68 hours and 54 minutes of laytime were used at the loading port. Once loaded the vessel headed for her port of discharge, Paulsboro on the Delaware river.
Waiver
Before arrival the Master sought a waiver of the UKC policy in order to berth and discharge the cargo. Discussions began with the vessel's technical agents on 25 March. The Master confirmed that depth at berth was 12.19m, the tide expected to be 1.6m and the vessel's freshwater draft 12.15m. On 27 March the Master sent relevant UKC calculations to NMM (on form SFOPS 62) together with a detailed risk assessment (on form SFSAF 28). On 28 March, after considering the calculations and the risk assessment, NMM confirmed that it was prepared to grant a “ one off waiver for the NMM UKC policy for the inboard loaded passage from [the] anchorage to crown point terminal on AM high water of the 31st March 2019”. The waiver therefore covered both the transit from anchorage and the berthing. The waiver was based on the assumptions “ that the vessel draft 12.15m is equal to or less that the declared safe draft of the river 40ft (12.19m) at high water...
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