London Arbitration 6/25
Recently, a London arbitration tribunal was requested to consider whether the owners of the vessel were in breach of charterparty where the Master, on safety grounds, decided to cease following charterers’ ordered route from Terneuzen, Netherlands to Jacksonville, USA, via the Pentland, and instead proceeded through the English Channel. The Tribunal had to decide if the Master’s decision was justified, whether he was permitted to take that decision under the charterparty and if the vessel was off hire by putting back or deviating.
Factual Background
The vessel was fixed for one time charter trip on an amended 1993 NYPE charter. The original passage plan prepared on 8 February was through the English Channel, across the Atlantic to Florida, the “Southern Route”. Charterers’ weather routing company (WRC) advised that the shortest route, with a better weather forecast, was via the North Sea and the Pentland Firth, the “Northern Route”. The Master accepted this and prepared a second passage plan.
The vessel departed Terneuzen on 10 February following the Northern Route. Late that day, WRC advised that the vessel would encounter heavy weather. On 11 February, the Master questioned the safety of the Northern Route with the vessel’s technical managers. WRC advised a more southerly route would experience worse weather. The Master told the vessel’s managers that the Northern Route was unsafe and dangerous. The managers agreed. Owners asked charterers to consider sailing via the English Channel. The same evening, the Master followed the managers’ suggestion to turn round.
After redelivery, owners claimed US$119,557.65, mainly in respect of hire and bunkers. Charterers denied liability because the Master had lengthened the voyage by not following their Northern Route orders, alternatively by delaying his decision to proceed on the Southern Route.
Key Charterparty Terms
“8. Performance of Voyages
(a) The Master shall perform the voyages with due despatch … shall be under the orders and directions of the Charterers as regards employment and agency …
17. Off Hire
… Should the Vessel deviate or put back during a voyage, contrary to the orders or directions of the Charterers, for any reason other than accident to the cargo …, the hire is to be suspended from the time of her deviating or putting back until she is again in the same or equidistant position from the destination and the voyage resumed therefrom. All bunkers used by the Vessel while off hire shall be for the Owners’ account. …
Clause 77 Weather Routing
… The Master will comply with Charterer’s independent weather routing service’s reporting procedures at all times and endeavour to follow Charterer’s (or their routing service’s) recommended routing. However, the final choice of selecting the safest route will be the Master’s decision, providing it is justified, in which case Master to inform Charterers as soon as possible. …
Held
The evidence suggested that the weather forecast indicated that the weather on 12 and 13 February would be severe. The Master failed to give a detailed consideration of the weather forecast and wave heights prior to 10 February, when he considered that the vessel might be faced with waves of more than 10-12 metres. There was also a risk of parametric and synchronous rolling.
The Tribunal was surprised the Master did not challenge WRC’s recommended Northern Route, which was very different to the original planned Southern Route. The shortest route was unlikely to be the safest crossing of the North Atlantic in winter and there were grounds to believe the route was unsafe. No weather information was supplied by WRC regarding the Southern Route.
There was no evidence before the Tribunal that would lead it to conclude that no reasonable Master would have followed the WRC recommendation. As the charterers’ own weather routing service recommended the Northern Route, the Master could not be blamed for endeavouring to follow it as required by Clause 77, nor could it be said the Master was in breach of his due despatch obligations by choosing to follow it. By the Master not questioning the recommended route prior to leaving port, he ran the risk that time and bunkers would be wasted. The belated consideration of the route was a breach of the duty to proceed with due despatch.
The Tribunal rejected owners’ argument that there was an implied term making charterers responsible for the consequences of the Master following a recommendation under clause 77. The recommendation was not an order; the Master’s actions depended on his own assessment and there was no implied indemnity.
The vessel could not have been off-hire pursuant to clause 17 as it did not put back “contrary to the orders or directions of the Charterer”. However, the expenses of putting back – time lost and bunkers consumed – were recoverable as damages and could be set off against owners’ claim.
Charterers’ counterclaim, that owners had failed to follow their legitimate employment orders in breach of clause 8, failed because the Master did not have to follow their recommendation. Their alternative counterclaim, that the Master should have rejected WRC’s recommended route, also failed.
Owners’ claim succeeded in the sum of US$32,719.15. Charterers’ counterclaim failed.
Comment
This is an interesting Award and suggests that the Tribunal was keen to do the right thing commercially. Cleary, the Tribunal did not want to suggest negligence on the part of the Master by finding that he should have decided on the safer route earlier. There is no suggestion of estoppel having been raised, which is unsurprising, but neither is it surprising that the charterers were not liable for the extra time and bunkers.
Those Assureds familiar with the “Hill Harmony” case, will recall that the Master’s choosing of a different route to the one ordered, based on his previous experience of damage to the vessel caused by bad weather on the ordered route, was considered a breach of his/owners’ duty to proceed with utmost despatch and to comply with charterers’ orders.
