Letters of Protest. User’s Manual. Part IV Charterparty requirements

Express terms are terms that have been specifically mentioned and agreed by both parties at the time the contract is made. They can either be oral or in writing.
However, sometimes a term which has not been mentioned by either party will nonetheless be ‘included’ in the contract, often because the contract doesn’t make commercial sense without that term. Terms like this are called implied terms
Source: www.tutur2u.net

Express provisions in charterparty

Some charter parties expressly provide for certain requirements related to documentation in general and to letters of protest in particular.

Very important role of Letters of Protest is that they usually form a part of documentation submitted by the shipowner in support of his demurrage claim. For this purpose their legal effect, in the meaning described above, is not of much importance so far as they comply with requirements stipulated by the charterers. (Read more about demurrage provisions in charterparties here)

Such letters of protest usually enumerate and describe delays happened during cargo operations and thus give an additional information to ship’s time sheet or statement of facts.

For example in tanker voyage charterparties owners usually undertake that the vessel shall discharge a full cargo within 24 hours or that the vessel shall maintain an average discharge pressure of 100 PSI at the vessel’s manifold (see picture) throughout the period of discharge. An effect of such and similar provisions is that that charterers are under no obligation even to consider a claim for demurrage for additional time if the 24 hour rule is exceeded, unless owners have demonstrated, by provision of the relevant documentation identified in the charterparty that they are not in breach of their pumping warranty, and that the fault lies with the terminal. Thus, such letter of protest as "Slow Pumping" or "Delays" serve to show what was the reason of any delay, what restrictions from the terminal side extended discharging time over 24 hours and whether pumping performance of the vessel was affected by number and size of manifolds, length of shore line, etc.

Documentation required to support a demurrage claim may slightly vary from charter to charter but, for instance, for contracts concluded on Beepeevoy 3 and Beepeevoy 4 forms the following documents required: an hourly pumping log, signed by a responsible officer of the Vessel and a terminal or Charterers’ representative, showing the pressure maintained at the manifold throughout discharge and, in the absence of a signature from a terminal or Charterers’ representative, a Note of Protest; copies of all Notes of Protest issued or received by the Vessel in relation to the discharge in question; and copies of any other documentation generated by the Vessel or by the shore receiving terminal relevant to the discharge in question.

Thus, absence of letter of protest as required by charterparty may render demurrage claim against the charterers unenforceable.

Many standard forms of charterparties have additional clauses. As an example of such clause also illustrating modern trend to specifically regulate legal issues related to transportation of liquid cargoes with high hydro sulfide content one can consider BP H2S AND MERCAPTANS CLAUSE. Among the other things it says:

(I) REQUESTS SHORE SIDE H2S READINGS IN LIQUID /VAPOUR AND A MSDS FROM THE TERMINAL BEFORE LOADING THE SAID CARGO AND PROMPTLY PROVIDES COPIES OF THE SAME TO CHARTERERS AND SHALL ISSUE A NOTE OF PROTEST IF THE H2S READINGS AND / OR MSDS ARE NOT PROVIDED BY THE TERMINAL;

Requirements listed above, if not fulfilled, may affect the owners’ ability to defend themselves in instances when discharging of high H2S cargo is banned or suspended in environmentally sensitive port.

It is important to realise that if in cases when no particular requirements as to letters of protest stipulated in the charter, omittance to issue LOP will seldom, if ever, have any direct negative consequences to the owners, in cases of non-compliance with express instructions mentioned in charterparty such non-compliance is itself a breach of the said charterparty and will most probably result in payment of damages if the charterers sustain any loss as a consequence of this breach.

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