369. Bulk Ship Union SA v Clipper Bulk Shipping Ltd (the “Pearl C”) [2012] EWHC 2595 (COMM)

NYPE time charter – deliberate slow steaming by master and crew – charterers held entitled to a reduction of hire.

The Facts

The vessel was let for a period of 9 – 12 months on an amended NYPE form.

After re-delivery had taken place owners instituted a substantial claim in arbitration proceedings before Christopher Spencer and John Schofield.

Portion of the owners’ total claim was in respect of slow steaming which occurred on 3 of the 16 voyages completed during the term of the charter.

The relevant clauses of the charter were as follows:

“(B) SPEED AND CONSUMPTION

  1. BALLAST SPEED:  ABT 13 KNOTS

LADEN SPEED:  ABT 13 KNOTS

SPEED AND CONSUMPTION IS GIVEN FOR GOOD WEATHER CONDITIONS UP TO BEAUFORT SCALE 4 AND DOUGLAS SEA STATE 3 AND NO ADVERSE CURRENTS

(6) BHE/RPM (85 PCT):  MCR 12200 BHP AT 95 RPM

NCR 10980 BHP AT 92 RPM

ALL DETAILS ABOUT.”

 

Clause 1 provided that owners were obliged to keep the vessel in a thoroughly efficient state in hull, machinery and equipment for the duration of the service.

Clause 8 provided that “the captain shall prosecute his voyages with the utmost dispatch.”

Clause 15 read as follows:

“That in the event of the loss of time from deficiency, sickness, strike, accident or default of Master, Officers or crew, or deficiency or men or stores, fire, breakdown or damages to hull, machinery or equipment, grounding, detention by average accident to ship or cargo, dry docking for the purpose of examination or painting bottom or by any other cause preventing the full use of the vessel to the Charterers, the payment of hire shall cease for the time thereby lost;  and all directly related proven extra expenses incurred including bunkers consumed during period of suspended hire shall be for Owners’ account.  [first part] and if upon the voyage the speed be reduced by defect in, or breakdown of, any part of her hull, machinery or equipment the time so lost and the cost of any extra fuel consumed in consequence thereof and all extra expenses shall be deducted from the hire.  [second part]  Provided always the reason that result of any of the above events is not due to an act or default or omission of the Charterers, their servants or agents whether by way of negligence or otherwise.” (emphasis added)

The charterparty also contained a clause paragraph making Article 4 Rule 2(a) of the Hague Rules a term of the charterparty.  Article 4 Rule 2(a) provides:  “Neither the carrier nor the ship shall be responsible for loss or damage arising resulting from: 

(a)  act, neglect or default of the master, mariner… or the servants of the carrier in the navigation or in the management of the ship”

There was no evidence that the vessel had not been maintained in a thoroughly efficient state in hull, machinery and equipment. Also there was no evidence of mechanical, technical or weather problems affecting the performance of the vessel.

There was evidence that the vessel proceeded at a speed between 77 and 82 RPM while the stipulated Normal Continuous Rating (NCR) was 92 RPM and the Maximum Continuous Rating (MCR) was 95 RPM.

 Findings

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