‘Once on demurrage, always on demurrage’, reiterates an English Tribunal, as it declares that all time lost will be for the charterer’s account
In a recently published London arbitration award, the English tribunal has held that all time lost as a result of loading, and then discharging, a confiscated or unsafe cargo will be for the charterer’s account.
Under a Contract of Affreightment, or CoA, the owner was required to carry eight shipments of nickel ore. The ship promptly arrived at the nominated load, with loading commencing the very next day.
Loading stopped two weeks later, however, and the local navy issued a confiscation order, resulting in the ship being compounded in a nearby naval base. The confiscation order was issued due to the cargo being mined outside the parameters of the locally granted permits.
Three months later the ship was released to discharge the cargo already onboard the ship, which took two more months to complete.
“If the subject charter includes the phrase ‘once on demurrage, always on demurrage’, the charterer will remain liable for all time used until the load or discharge operation is completed.”
When the ship was released, the charterer emailed the owner requiring it to organise the remaining discharge operation. In addition, the charterer advised that it would not provide any cargo for the next shipment.
In response, the owner advised the charterer that it had wrongfully repudiated the CoA and claimed, through London arbitration, demurrage for the entire duration of delay.
The Tribunal’s decision
The arbitration tribunal would only consider the claim for demurrage, not the claim for possible wrongful termination.
The charterer’s primary defense to the demurrage claim was based upon the following CoA clause:
“In case any acts of God, riots, civil commotions, fire or any other causes comprehend in the Force Majeure terms which may delay or prevent to provide the cargo at the port of loading and load/discharge of the cargo, such time lost is not to count as laytime as neither charterers nor shipper nor suppliers nor receivers shall be liable for any loss of demurrage, unless vessel already on demurrage. Once on demurrage always on demurrage.”
The tribunal found that the above clause did not aid the charterer in its defence. It was held that the confiscation of the ship by the local navy did not fall within the boundaries of ‘any acts of God, riots, civil commotions, fire or any other causes comprehend in force majeure terms’.
Also, the tribunal found that because the subject cargo had been illegally mined, the charterer had failed to meet its primary contractual obligation under the CoA to provide a safe cargo, which could not be ‘excused’ by other contractual defences.
Finally, as the intervention by the navy was after the ship fell on demurrage, it was found that as per the above wording, ‘once on demurrage always on demurrage’, the charterer remained liable for the entire period of detention and delay.
On the other hand, the tribunal refused to accept that the charterer should not be allowed load time. This was on the basis that cargo had been partially loaded. The charterer was therefore allowed laytime, on a pro rata basis, irrespective of it being considered an unsafe cargo.
Take all precautions
Following the above decision, members acting in a charterer’s capacity should take all precautions to ensure that the cargo to be loaded onboard a ship is safe, legal and that all applicable documentation is in order to best prevent similar situations from arising in the future.
It should also be noted that if the subject charter includes the phrase ‘once on demurrage, always on demurrage’, the charterer will remain liable for all time used until the load or discharge operation is completed. Charterer members should, therefore, be proactive and continue to use their best efforts to minimise any time lost.
Clive Rees is a master mariner and marine surveyor at Charles Taylor, with more than 30 years’ of sea-going experience across bulk carriers, general cargo and tanker vessels. He can be contacted at firstname.lastname@example.org or +44 207 522 7486.