Laytime
disputes and demurrage claims under charterparties are the stable diet of
shipping and maritime lawyers globally.
The payments and receipts of money as
demurrage, or post fixture claims being recognized well both by tanker owners
and charterers not only as devices encouraging efficient usage of time in
loading and discharging operations but also as hedges against
fluctuating freight markets.
The Maritime law reports and the literature
are replete with decisions and guidance on the application and construction of
the Laytime and Demurrage (L&D) clauses in charterparties.
These have attracted much attention and analysis
in their original base contracts, ie charterparties. They also exist in International
Sales Contracts where two issues are raised.
1. First, what is the link between an L&D
clause in a sales contract and its relevant charterparty.
2. Second, when the interpretation of the clauses
is applied, are we guided by charterparties or court decisions?
A new approach is been taken towards the
drafting of such clauses separately in the contracts, keeping the verbiage, precise
and accurate. Charterparties are concluded in most cases in order to perform
obligations under sale contracts and charterers find themselves liable under charterparties
for delays caused by their counterparties under their sales contracts.
This brings us to the two points of discussion,
both of which related to the link between L&D clauses in sales contracts
and charterparties.
Tanker owners have a vested interested in ensuring
that their voyage charterer do not delay their asset - the tanker. Time delays caused
have a direct impact of prolonging the duration of the voyage beyond the profit
margins allowed by the tanker owner in settling of the final freight. Tanker
owners enforce this interest by stipulating for L&D in the agreed
charterparty.
Where the charterer is also a CIF or CFR seller
of the commodity, demurrage might be paid on account of a delay caused by the buyer
during the discharge operation. This is co-relation of capital cash flow in the
oil trading market. The reverse my occur where the charterer is the FOB buyer.
The very purpose of the L&D clause in the
sales contract is the ability to pass on to the counterparty, the cost of
demurrage paid to the shipowner by the charterer, which has been in the first
place, caused by the counter party.
Financial link
The financial link between the two clauses,
1. is the L&D clause in the sales contract intended
simply to indemnify the party to the sales contract against losses suffered under
the counterpart clause in the charter party or,
2. does the clause in the sales contract stand
quite independently of the liability under the charterparty?
What is the legal link between these clauses:
when applying and construing the L&D clause in a sales contract, do we need
to transplant in the sales contract all the law surrounding similar clauses
created in the context of charterparties?
The L&D clause in a sales contract stands
free and independent from their counterparties’ charterparty. L&D clauses in
sales contracts should be construed and applied as clauses in sales contracts, not
as adjuncts to charterparties. Their interpretation should therefore be colored
not by direction of the charterparties but by their relationship to the
contractual duties of being an FOB or a CIF buyer or seller.
Of specific interest here is the start of
laytime. A valid Notice of Readiness (NOR) may not necessarily be the same of what
the charterers have been charged by the tanker owners, compared to what can be onward charged to the counterparty.
The commencement of laytime in the charterparty
or a valid NOR may depend on various factors, which the charterers can use to
accept as a valid NOR.
A valid NOR from tanker owners to charterers
may not necessarily be the same valid NOR from charterers to their buyers.
Also worth a mention is the commencement of
laytime is relevant at the first discharge port but not at the second and third
port, where the laytime is to start at arrival immediately at arrival at the
port.
FOB loading duties
While we are aware that the CIF buyer is under
no obligation to discharge the cargo, it is impossible to suggest that an FOB seller
is under no implied obligations to lead – and, if the FOB seller is obliged to
load, he must be under the obligation to do so
within a specific time.
It is of the essence in the FOB sales contract
that the seller performs his obligation to deliver by loading the goods free on
board. The obligation is also of the essence in the sense that the seller must deliver
the goods within the shipment period stipulated in the sales contract subject
to of course the buyer making the arrangements for the engagement of shipping
space allowing the seller to ship within the shipping period where the sales contract
leave such arrangements to the buyer.
However, to say that the FOB seller is under
an implied duty to place the cargo free on board the vessel within the period stipulated
in the sales contract does not mean so necessarily that the FOB seller is bound
to load within the stipulated time to avoid the buyer’s potential liability to
the tanker owner for demurrage.
Laytime starts
Where the charterparty names a port as the
terminal for loading or discharging operation, then subject to any term in the charterparty
stipulating for the giving of an NOR, laytime starts as soon as the vessel
reaches the named terminal. i.e. once the tanker has ‘arrived’ at the port. The
precise ambit of the port consequently becomes an issue between owner and charterer
i.e. any time spent idle between ‘arrival’ and berthing for the benefit of the
charterers eats into the laytime agreed in the charterparty and brings closer
the moment at which the owner starts earning demurrage.
It is interesting to identify who bears the risk
of congestion between the arrival and berthing of the vessel.
Who bears this risk?
Is it between tanker owner and charterer or
between buyer and seller in the sales contract?
To undertake a liability for demurrage while
the vessel is in port but waiting for berth would be an open-ended commitment in
a contract for the purchase of what must probably be a part cargo. In fixing
the start of laytime in a sales contract, overriding regard should be had to
the nature of the sales contract rather than to the charter party origins of
laytime.
Valid NOR
In the case where there is ambiguity towards
start of laytime, this runs from the moment the seller places the cargo at the
disposal of the buyer. Even when the contract provides for an NOR to be
provided, laytime still runs from the moment when a valid NOR has been
provided, such that the risk of congestion remains with the CIF seller or
charterer.
In conclusion, although the points of reference
discussed above are all interlinked and related, the ultimate interest is the
ability to dissect and clarify the risk to which any particular party is
exposed because all of this translates into a dollar value which makes the
L&D industry worth billions of dollars annually.
Traders and execution officers responsible for
carrying out the trade deal are to be familiar with the interstices of the law
of L&D in the charterparty, as it has been evolving and developing in the commercial
courts and beyond.
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