Κυριακή 17 Νοεμβρίου 2019

PAYMENT OF HIRE AND RIGHT TO WITHDRAW VESSEL


1 1. A BRIEF OVERVIEW OF TIME CHARTER AND DEFINITION OF TERMS
Payment of Hire and withdrawal of vessel for non-payment of hire are very important clauses usually included to constitute the core of the contract in a Time Charter. The terms of a Time Charter vary completely from those of Demise or bareboat Charter, the voyage charter and the Slot Charter. Scholars have posited that this radical difference is as a result of the difference of its function.
In a time Charter, the owner of the ship places the vessel for an agreed period of time in the care and at the disposal of the Charterer who is at liberty to engage it for his own use within the ambit of the contractual terms. The Charterer in a time charter is responsible for the ship throughout the duration of the charter; he controls the commercial function of the vessel and is liable for the consequential expenses and resultant risk that may arise from the master obeying his instructions.
In a Time charter, the charterer pays for the bunker fuel, fresh water, port charges, etc, in addition to charter hire[2].  However, the proficiency of the chartered vessel is of vital importance to the charterer because the success of the commercial initiative depends on it[3]. The Charter party therefore sets out terms and conditions[4] upon which liabilities and warranties are based. According to J. F. Wilson, “there are different views as to the legal significance of such statements and the remedies available in the event of them proving inaccurate.  Thus, while the New York Arbitrators generally regard specifications as to speed and fuel consumption as constituting  continuing warranties that the vessel will maintain such capabilities throughout the charter, English courts treat them merely as warranties as to the state of the vessel at the time of delivery under the charter. In the event of breach of any of these warranties, it would appear that the appropriate measure of damages would be the difference in the market rate of hire between a vessel with the intended specifications and chartered vessel. In the case of a breach of the speed warranty, it has been suggested that an alternative remedy might be to treat the vessel as off hire for the appropriate period” Generally, the weight that will be attached to each situation will depend on the fact and peculiarity of the series of event.
In the course of this discuss, some phrases will be frequently used. It is however important that we define these phrases for easy understanding.
          HIRE: Hire is the price paid for the use of a vessel in a time charter and is usually calculated on the basis of a fixed sum per ton of the vessel dead weight for a specific period of time, such as 30 days or a calendar month.   
OFF-HIRE:This is a Period of time during which a vessel under time charter is unable to meet the requirements agreed between the charterer and shipowner due to some reasons within the control of the latter; in this case, e.g. machinery breakdown, the charterer is not required to pay hire money 
  
2. PAYMENT OF HIRE
Time charterparties usually provide that hire is payable in advance, although the parties sometimes agree that hire is payable in arrears. The charterparty will also specify whether hire is to be paid monthly, semi-monthly, every 15 days or by reference to some other period agreed by the parties[8]. One of the characteristic of maritime trade is such that takes the vessel away for relatively long periods. The constant currency depreciation, fluctuation in the rate of hire and cost of inflation on the aggregate vessel operational cost, all borne by the shipowner, creates the need for explicit terms which will regulate the payment of hire. This exigency thus necessitates clauses such as “Currency Clause” providing for a fixed exchange rate between the stipulated hire payment currency and any other currency of relevance and an “Escalator Clause” providing for a periodic review of hire rate.
An example of a simple hire is provided by Clause 11 of The New York Produce Exchange Time Charter revised 14 September 1993:
 “Payment of hire shall be made so to be received by the owner or their designated payee in ……………… viz, ……………..in ………………….Currency, or in the United States currency, in funds available to the owner on the due date, 15 days in advance and for the last month or part of same the approximate amount of hire, and should same not cover the actual time, hire shall be paid for the balance day by day as it becomes due, if so required by the owner…”

3. PAYMENT IN CASH
Most often, Time charters require payment of hire in cash. This however is not construed in the literal form to mean liquid money in paper or coin form. This simply implies that the money must be available to the ship owner in usable form as at the due date for the payment of hire. In the view of Brandon J in The Brimnes[10]“these words must be interpreted against the backdrop of modern commercial practice. Sointerpreted to me that they cannot mean only payment in dollars bills or other legal tender of the US. They must … have a wider meaning, comprehending any commercially recognized method of transferring funds, the result of which is to give the transferring fund, the result of which it is to give the transferee the unconditional right to the immediate use of the funds transferred.”In practice, banker’s drafts, banker’s payment slip, cheques and other negotiable instruments have been used, the caveat being that the money must be available to the shipowner on the due date for immediate use. On this premise, a charterer has no right to draw funds from an account upon which a banker’s note was issued until the said note has been processed. In The Laconai opinions of the House of Lords was divided as to whether payment order under the London Currency Settlement Scheme falls within the category of bankers’s notes acceptable for the payment of hire.
In The Afovos, Lord Lloyd held that payment of hire by telex transfer from one bank to another constitute payment in cash. He stated that “when payment is made by telex transfer from one bank to another for the account of a customer, the payment is complete when the telex is received and tested by the receiving bank: so that if the owner were to make an enquiry at their bank they would be told ‘Yes, the money has arrived for your account’ it is necessary that the fund should have been credited to the owners’ account. Still less is it necessary that the owner should have been in a position to transfer the funds out of the account. It is enough that the fund should have been received for the owner’s account”. 
A sharp contrast to the decision in The Afovos is the decision of the court in The Chikuma. In this case, monthly installment of hire had been paid into the owner’s bank in Genoa on the due date, but the telex transfer included a “value date” four days later. However, the practice among Italian bankers is that the money will yield no interest whatsoever until the value date and if the owner intents to withdraw same before the value date was due he will have to remit interest to the bank. Following the above condition, the House of Lords held that such a payment was not “equivalent to cash”. A similar case is The Brimnes,where the owner and the charterer both had accounts in the same branch of the same bank, the telex receipt instruction from the charterer to transfer the sum of the monthly installment of hire into the owner’s account did not have the effect of a payment in cash until the appropriate amount was credited into the account and the owner able to draw cash from same.

4. PAYMENT IN ADVANCE
A very vital requirement of payment of hire is that it should be made in advance at monthly (or 30 day) or semi-monthly intervals. Imbursement if required before performance and may be made on or before the hire due date. Situations may arise where the due date falls on a Sunday or a non-banking day, the Court has pronounced that such payment must be made not later than the immediate prior banking day, else the charterer would be held to have defaulted. However, some charters provide that in such situations, the hire shall be paid on the next banking day.
The charterer is expected to pay the complete period of hire up to midnight of the day which the installment is due in which to make the payment. In The Afovos Lord Hailsham opined that “I take it to be a general principle of law not requiring authority that where a person under an obligation to do a particular act has to do it on or before a particular date he has the whole of that day to perform his duty” According to Wilson, it is immaterial that payment can only be effected during banking hours, as long as the charterer is not in default until the expiry of that period. In the judgment of Lord Griffiths, “it is far preferable that so important an obligation …should be fixed at the certain time of midnight rather than it should depend upon the particular hours of business of a particular bank named in a charterparty which are likely, of course, to vary from country to country and even from bank to bank and to be ready source of confusion”.
Where no such provision exists, the final installment of hire due under the charter is payable in full to the owner. This is notwithstanding the fact that the vessel will be redelivered to its owner before the expiry of the relevant period.
It is immaterial in a charterparty that a charters default in paying hire installment as at when due was not intentional. The Obligation to pay hire promptly in advance is strictly construed and the charterer is in default if he fails to make the payment on or before the specified due date. This was given assent by Lord Porter in Tankexpress v. Compaigne Financiere Belge des Petroles, “Apart from some special circumstances excusing performance, it is enough to constitute default that payment has not in fact been made; neither deliberate non-performance nor negligence in performing the contract is required”. 

5. RIGHT TO WITHDRAW VESSEL FOR NON-PAYMENT OF HIRE
At common law, time is not of essence of the contract of hire and a shipowner cannot repudiate the charterparty and withdraw his vessel for late payment of an installment unless the surrounding fact show a clear intent on the part of the charterer not to perform the contract either by for instance expressly repudiating his obligation by recurring non-payment. Nevertheless, a charterparty customarily provide an express contractual right to withdraw the vessel. An Example is found in Clause 6 of the Baltime form:
“In default of payment, the owners to have the right of withdrawing the vessel from the service of the charterers without noting any protest and without interference by any court or any other formality whatsoever and without prejudice to any claim the owners may have on the charterers under the charter.”
A similar provision can be found in Clause 5 of the New York Produce Exchange Form where the shipowner is empowered to withdraw the vessel upon the charterer’s “failing the punctual and regular payment of the hire”. The object of which is to exert some form of pressure on the charterer in default or to re-gain possession of the vessel before it could become an object of debt recovery in a bankruptcy /insolvency proceedings against an indigent charterer. The clause also enables the shipowner to re-possess the vessel where there is a fluctuating hire rate, so that he can re-hire and or re-negotiate hire at the current market rate to the same charterer or another. This inspired the popular quote by Lord Denning MR., in The Tropwind that “when market rates are rising, the shipowner keeps close watch on payments of hire. If the charterer makes a slip of any kind- a few minutes too late or a few dollars too little – the shipowner jump on him like a ton of bricks. They give notice of withdrawal and demand thenceforward full payment of hire at the top of the market rate. Very rarely is the vessel actually withdrawn. Arrangements are made by which she continues in the service of the charterer just as if nothing had happened. Then there is a contest before the arbitrators or in the courts. It is as to whether notice of withdrawal was justified or not”. Though such conducts are devoid of merit, the courts “do not suggest … that the owners [are] guilty of any sharp practice … it [is] just a matter of business – a matter of very hard business”. 
However, withdrawal is often only a sensible option if the vessel is free of cargo. This is because withdrawal of the vessel from the charterers’ service does not bring the bill of lading contract to an end. Where the owners are the carriers under the bill of lading contract (as is commonly the case), they will remain under an obligation to deliver the cargo at the port(s) named in the bills of lading despite the withdrawal of the vessel from the charterers’ service. In such situations, if the bills of lading in question are "freight prepaid" bills of lading, the owners’ prospects of recovering any of the expenses incurred in the carriage and delivery of the cargo to the port(s) named in the bills of lading will be remote. Where the owners are not the carriers under the bill of lading contract, their position will be somewhat better albeit they will still owe a duty of care as bailees of the cargo to those interested in it. It is clear therefore, that an owner should think carefully before withdrawing a vessel which is laden with cargo when the charterers have defaulted in its payment of hire.

6. REQUIREMENTS FOR EXERCISE OF RIGHT OF WITHDRAWAL
For a shipowner to be able to exercise his right to withdraw, the charterer must be in default by either failing to pay an installment or failing to pay on time. It is established that the owners’ right of withdrawal arises not only when a full hire installment is not paid, but also when a timely payment has been made for a sum which is less than the amount due and the outstanding balance is not paid by the due date.
The shipowner is required to give notice to the charterer before withdrawing the vessel in the form of a “Grace period” which simply provides the charterer with an agreed extension to the payment date. Once this grace period lapses and if payment has not been received by the shipowner, then he would be in a position to withdraw the vessel provided proper notice was given. Unless there are express provisions to the contrary contained in the charter party, the notice of withdrawal must be given to the charterers. The owners are not bound to give prior notice of their intention to withdraw to the charterers. All that is required is that the withdrawal notice is unequivocal: i.e., it states clearly that the owner is treating the non-payment of hire as having terminated the charterparty and that the vessel is withdrawn. Continuing to perform the bill of lading contract by carrying the cargo to destination does not have the effect of reinstating the charter. 
In recent development, owing to the hardship suffered by shipowners from perpetual defaulting charterers, BIMCOhas reviewed its Non-payment hire clause to enable a ship owner suspend performance under a time charter following a failure by the charterer to pay hire when due. Due consideration was given to recent case laws like The Pamela and The Li Hai . Both cases emphasize that in the absence of any indication to the contrary, the time for payment of hire will expire at midnight on the due date and the necessity of making it very clear when issuing a notice for late payment of hire that in the absence of payment, the vessel will be withdrawn.

7. WAIVER OF RIGHT TO WITHDRAW
The shipowner’s right to withdraw may appear absolute as contained in the charterparty. However, he may lose his right to withdraw where he expressly or by implication waives the breach committed by the charterer. Conduct such as acceptance of late payment and subsequent demand for details of deduction coupled with delay in withdrawing the vessel may amount to a waiver.
In The Mihalios Xilas Case, The MV Mihalios Xilas was chartered on the Baltime form with hire to be paid monthly in advance. The charterers mistakenly believed the ninth month to be the last month under the charter party and so they remitted the ninth hire installment less US$31,000.00. The owners queried the deduction and then withdrew the vessel five days later without returning the part payment of the advance hire.The Court of Appeal held that the short payment was not a proper payment and, in the circumstances, the owners could elect to either accept the short payment and not withdraw the vessel or refuse it and withdraw the vessel. The Court further held that the owners’ retention of the short payment, coupled with their demand for further details about the deduction and the fact that the owners took several days to decide to withdraw the vessel, indicated that the owners had waived their right of withdrawal.
Another instance where a shipowner could be said to have waived his right to withdraw is where a course of dealing has been established by the owners accepting late payment without protest, the owners will not be able to withdraw the vessel if a subsequent hire installment is paid late pursuant to that course of dealing. In order to re-establish their right to withdraw in such circumstances, the owners need to give notice to the charterers that they require the charterers to adhere strictly to the hire payment provisions in the charterparty. Only once the owners have re-established that hire must be paid when it falls due will the owners be in a position to exercise their right of withdrawal. This was the position of the Court in The Scaptrade.

8. EFFECT OF EXERCISE OF RIGHT TO WITHDRAW
The effect of the exercise of a right to withdrawal of vessel for default in payment of hire is that it extinguishes the charterparty. The shipowner has no right to temporally withdraw the vessel in an attempt to put pressure on the charterer to pay the hire unless there is an express term in the charterparty to that effect. Such actions by the owner amounts to a breach of contract for which damages are recoverable. Nor is the owner entitled to take any other action as, for example, withdrawing the charter’s contractual authority to sign bills of lading or instructing the master not to sign pre-paid bills of lading as was the case in The Nanfri.
The effect of exercising a right to withdraw the vessel is to terminate the contract from that point and the shipowner is not entitled to any hire for the remainder of the charter period. Nor is he entitled to retain any unearned hire already paid in advance. See The Mihalis Xilas(supra). Damages for the unexpired period of the charter can only be recovered where default of payment of hire amounts to a repudiation of the contract by the charterer. As time is usually not of the essence of a time charter, default in payment of hire by the charterer will rarely amount to repudiation of the contract and the owner wishing to withdraw the vessel will customarily have to rely on the contractual withdrawal clause.

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