| Archives: December 2020

2nd degree – Voyage charter party – Synacomex charter party- Ports of unloading not mentioned in the charter party – Charterer’s guarantee on a draught of water limit at the port(s) of unloading – (non) safe port.
In a Synacomex charter party, a charterer undertook to ensure that the permissible draught of water at the port of unloading (in Algeria) was
at least 9.75 metres. Soon after loading, the vessel’s captain sent the charterer his draught of water forecast on arrival, with a safety margin of nearly one foot with regard to the limit guaranteed by the charterer. However, on the same day the charterer announced its intention of naming a port where the permissible draught of water limit is only 9.30 metres, and asked the shipowner if the captain could adjust the vessel’s draught of water accordingly on arrival, namely 0.45 metres below the limit stated in the charter party. The shipowner responded that its vessel could only reduce its draught of water to 9.48 metres. Two days later, the charterer officially confirmed this Algerian port as the only port of unloading, and when the vessel arrived at the harbour, the shipowner refused to enter. Several days of talks ensued, the charterer pointing out that the vessel could enter on the strength of official nautical data. The port authorities finally revealed that a safety margin of 0.30 m on official draughts allowed the vessel to enter, even though the new permissible draught of water was 5 cm lower than the one guaranteed by the charterer. The captain sent his notice of readiness, the vessel berthed and the cargo was delivered without any damage. The shipowner then claimed compensation for the losses incurred during the days spent waiting. The arbitral tribunal granted this compensation after noting the charterer’s breach of commitments made in the charter. The tribunal decided to apply the rate of demurrage specified in the charter party for the vessel’s delay and the fuel used by the vessel.

Chartering – Charterer – Vessel delayed on departure due to the belated issuance of phytosanitary certificates – Effects – Charterer’s liability – The charterer’s creditor company – Seizure of the vessel – Unjustified seizure – Shared liability.
According to a voyage charter, a vessel was chartered to transport wheat from Russia to Guinea. In Russia, once loading was completed, the vessel had to wait for 6 days for the phytosanitary certificates concerning the goods to be issued. Liability for the resulting immobilization of the vessel was attributed to the charterer, in charge of all goods-related documents, and the immobilization was indemnified on the basis of an amount equivalent to the demurrage. When it arrived in Guinea a third-party company claiming to be the charter’s creditor asked the local Court to seize the vessel. Contrary to all expectations, the seizure was approved and the vessel was immobilized for nearly 16 days. The Arbitral Tribunal decided that while the unlawful seizure was not in itself grounds for apportioning liability to either party, liability could validly be apportioned for the handling of the ensuing crisis on non-contractual grounds, as the dispute between the parties was outside the scope of the contractual framework. The arbitrators considered that the highly particular and unprecedented situation to their knowledge required the parties to collaborate, because in their capacity as professionals of maritime operations they knew the costs of immobilizing a vessel and were duty bound to help reduce them. On the one hand, the shipowner could not put the liability back for the seizure on the charterer nor wait, as it did, to apply for the lifting of the seizure. And by refusing to grant a cross-guarantee, the charterer did not facilitate resolution of the dispute. Hence the shared liability of the parties.