Voyage Charters. Laytime. Owners’ Fault. Last updated 22-Sep-2014

In my opinion, this being a claim for demurrage in respect of the detention of the vessel … it does not lie in the mouth of the owners to say that the vessel was being detained by the charterers during the time that they, the owners, for their own convenience, were bunkering…
Per Bankes LJ in Ropner Shipping Co. Ltd. v Cleeves Western Valleys Anthracite Collieries Ltd.,(1927) 27 Ll.L.Rep. 317; at p.319

Laytime or demurrage interrupted

Owners’ claim for demurrage is always subject to their compliance with an obligation to do nothing to prevent the vessel being available and at the disposal of the charterers for the purpose of completing the loading or discharging of the cargo.

In order that demurrage may be claimed by the owners they must at least do nothing to prevent the vessel being available and at the disposal of the charterers for the purpose of completing the loading of the cargo.
Ropner Shipping Co. Ltd. v Cleeves Western Valleys Anthracite Collieries Ltd., (1927) 27 Ll.L.Rep. 317 per Sargant LJ at p.320

Therefore running of laytime or demurrage, as applicable, will be interrupted if due to the owners’ fault vessel was not available to the charterers either for loading or discharging operation. It is irrelevant that liability for the breach which flows from such fault is excluded by express provision in charterparty.

In the first place on general principles an exceptions clause should be given no wider operation than its words allow. In the second place a breach of duty remains a breach of duty, and therefore fault, notwithstanding that liability for the breach is excluded. In the third place, far from doing nothing to prevent the vessel being available, owners have, by negligent navigation or management, so prevented her and, … , it does not lie in their mouths to say that the vessel was being detained by the charterers during the period when by their negligence she was grounded.
Per Parker, J. in Blue Anchor Line Ltd. v Alfred C. Toepfer International (The Union Amsterdam) [1982] 2 Lloyd’s Rep. 432 at p.436.

When charterparty provides for "time lost at loading and/or discharging port(s) which can be reasonably attributed to crew and/or ship’s mechanical failure, shall not be counted as laytime or time on demurrage" the effect of such stipulation is to permit deduction of the period of delay from the used laytime or if the vessel is already on demurrage from the time on demurrage, when such delay was caused by failure of the crew to perform functions relevant to cargo operations. Moreover, the charterers do not have to establish that the shipowners were in breach by reason of such crew failure, it is sufficient to establish fact of such crew’s failure and resulted delay.

Where, however, there is a provision, such as cl. 25, which has the effect of interrupting or reducing the period of laytime or time on demurrage, the analysis is somewhat different. If the facts provided for in the clause as a ground for the interruption of time are established, time is treated as automatically curtailed to the extent provided for.
Alphapoint Shipping Ltd. v Rotem Amfert Negev Ltd. and Another (The Agios Dimitrios) [2004] EWHC 2232 (Comm); [2005] 1 Lloyd’s Rep. 23 at para 20 per Colman J.

It is safe to say that liability for delays at the port of loading and discharging depends on who causes the time loss, albeit that discharge duties normally vest with the charterer. Thus in The Delian Spirit NOR was held to be valid even though the ship had to apply for "free pratique" because she was available at any material time for the purpose of discharging. Even if a charterparty requires that the master is to obtain "free pratique" from port, health and sanitary authorities in writing and that laytime not to run till all three obtained in writing, but "free pratique" was issued over the radio by the Port Medical Officer, such procedure was held to be the normal official version of "free pratique" in that port and laytime begun to accrue on the tender of NOR.

The fault of the shipowner can be determined through the test whether the owner’s actions were reasonable in all the circumstances of the case and whether use of the vessel was solely for the owner’s own purposes. If operation, e.g. ballasting, is necessary for the safety of the ship then laytime continue to run, but if the shipowner bunkers the vessel for the next voyage then laytime or demurrage will be interrupted. In practice however either party can substantially diminish its exposure to liabilities for various delays by express provisions similar to one provided below:

Time lost by any causes or circumstance whatsoever beyond the reasonable control of Shippers/Charterers, including but not limited to time used for:
a) vessel’s moving in from the anchorage to completion of mooring at the loading berth;
b) vessel’s waiting pratique, pilot, tugs or tides;
c) vessel’s breakdown, inefficiency or other causes, leading to an inability or failure of such vessel to be loaded at the normal loading rate provided same is not caused by Charterers stevedores;
d) bad weather;
e) industrial disturbance including, without any limitation, any strike, lock-out, stoppage or restraint of labour of the Master, officers or crew of the vessel or tugboat or pilot;
f) deballasting or any other delay caused by vessel’s inability to load shall not count as laytime even if vessel already on demurrage.

In some instances such as draft survey it is common to expressly provide how time spent for this activity is to be counted.

Time used for draft survey/check shall not count as laytime.

Or

Time for intermediate draft checks if required by shipper/Seller to count as laytime, if required by the master/vessel not to count as laytime. Time for initial and final draft survey not to count as laytime.

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