505. Exmar NV v BP Shipping Ltd (the “Gas Enterprise”) [1993] 2 Lloyds Rep 352

Speed and Consumption Warranty – Damages due to under performance claimable in good and bad weather

The Facts

The vessel was let on the BEEPEETIME 2 form for 12 months 30 days more or less from delivery.

Revised clause 5 read as follows:

[After setting out certain benchmarks]

(4) For the purpose of assessing the performance of the vessel, the average speed and bunker consumption of the vessel shall be calculated upon the distance made, the time taken and the quantity of bunkers consumed by the vessel on each sea passage as ordered to be performed by the Charterers, but inclusive of any deviation from, or change in, the passage has actually carried out by the vessel, from pilot station to pilot station up to an including Beaufort force 4 wind and wave….

(5) if during any passage reviewed under sub clause 4; (a) the average speed of the vessel is less than or exceeds the average speed based upon the Charterers instructions to the Master from time to time during the passage then the resulting loss or saving in time expressed in hours and/ or portions thereof shall be multiplied by the hourly rate of hire and in the case of loss of time the resulting sum shall become payable by owners to Charterers in accordance with sub clause 6 hereof.

(b) the total bunker consumption of the vessel is less than or exceeds the quantity of bunkers which would have been consumed by the vessel had she performed at average speed based on Charterers instructions as aforesaid and the average bunker consumption applicable to such speed in accordance with the table set out in sub clause 2 hereof an amount equal to the value of any excess in bunkers consumed shall become payable by owners to Charterers in accordance with sub clause 6 hereof.”

Charterers argued that the speed and consumption warranty applied only to recorded periods of good weather as defined in sub clause 4 i.e. “up to an including Beaufort Force 4 wind and wave”.


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