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Eastern Pacific Chartering Inc and Polar Maritime Ltd [2022] EWHC2095 (Comm)

The High Court confirmed that the ‘good weather method’ is the conventional method for measuring speed and performance. The ‘good weather method’ involves establishing the vessel did not perform as it should during good weather and pro-rating the underperformance against the whole period under review. This is the conventional method for measuring speed and performance. This case also reminds us that the threshold for damages for wrongful arrest remains high.

The factual background

The Claimant owners chartered the “Divinegate” to the Defendant charterers on a trip time charter for a voyage from Riga to New Orleans. The charterparty was an amended NYPE 1946 with fixture recap and rider clauses.

The Claimant claimed outstanding hire, bunkers and some expenses. The Defendant counterclaimed certain deductions from hire and damages for breach of charter in respect of the vessel’s performance. Expert evidence was presented by both sides during the trial. During the hearing, the Claimants admitted that the deck logs were not an accurate record of adverse currents.

To secure their claim against the Defendants, the Claimants arrested the Pola Devora in Gibraltar, on the basis that the Claimants believed, wrongly, as it turned out, that this second vessel was in the same beneficial ownership. Defendants brought a separate counterclaim for damages for wrongful arrest.
There was a dispute as to the state of the hull both before and after cleaning which took place before the charterparty was entered into.

The Judgment

The time bar
There was a 90-day time bar clause requiring a statement of claim and supporting documents in respect of claims not relating to cargo.
The judge held that this did not mean the Charterer had to present its claim so precisely that every part of it was supported by documentation. The point of the time bar was to ensure the Charterer presented its claim promptly to put the Owner on notice so it could investigate and preserve its own documents.

The good weather method
The judge reconfirmed that establishing the vessel did not perform as it should during good weather and pro-rating the underperformance against the entire period being reviewed, i.e., the good weather method, was the conventional method for measuring speed and performance. She recognised that it is not the only method and compensation may be claimed by other methods. However, where the parties have adopted the conventional method, then that will be the primary benchmark for assessing whether the vessel met the criteria. Any alternative method needs to be reliable and consistent with the express performance warranty.

Positive currents
The judge made clear that the vessel’s better performance resulting from positive currents is for the benefit of both owners and charterers and that benefit is not to be deducted from the speed and performance calculations unless the charterparty expressly says so. Here the charterparty was silent on positive currents and therefore these were not excluded.

Hull fouling
As the good weather method covered underperformance by reason of any matters affecting performance, the judge found it unnecessary to draw factual conclusions about the level of hull fouling and its possible impact on performance.


Charterer should check time bar provisions carefully – this case does not mean that those clauses which require full supporting documentation, such as gave rise to the hearings in the MT Hong Kong and the Tiger Shanghai requiring all support documentation, no longer apply. If a clause states all supporting documents, it is likely to be interpreted strictly.

The case made clear that logbooks are not infallible, supporting those Charterers who negotiate adding a weather routing company into the speed and consumption clauses. Charterers should carefully consider the wording of the clause to try and ensure that their weather routing company carries equal weight to the logbooks.

If Charterers want positive currents to be excluded when calculating performance, they must make this an express stipulation in the charterparty.

The case confirmed that the threshold for damages for wrongful arrest remains high. Establishing who is the beneficial owner of the vessel is the key to establishing jurisdiction to arrest the ship.Normally this will be the registered owner and the court confirmed that there must be a specific reason to look behind the registration at beneficial ownership. The judge found that the Defendant was not the beneficial owner at the time of arrest but for the Claimants to be liable in tort for wrongful arrest the arrest must have been made in bad faith or with gross negligence, which was not the case here. The court accepted that this high threshold can be harsh on the shipowner, but the law is well established and if it is to be changed, legislation is needed.

The MECO Group