QUESTION: WHEN DOES A NOMINATED PORT BECOME A DEVIATION
ANSWER: IN AN ARBITRATION PROCEEDING.
In a recent decision a panel ruled that the first nominated port was a deviation and disregarded the second nominated port. This ruling is based on a Contract of Affreightment on an Asbatankvoy C/P form fixed on August 4, 2005. The loadport was Trinidad, August 16 and the discharge range was 1-2 SP USAC or CHOPT 1-2 SP USG. This decision set an unwarranted precedent in favor of Owners.
The following facts were presented to the Panel:
The vessel completed loading on August 21, 2005.
The Charterer nominated two discharge ports, USCG.
During the six day voyage to the first nominated port, the Master’s ETA reports were:
August 21: wind direction “Lt Airs’, current “favourable”, ETA Aug 27, Noon
August 22: wind direction “SW-4 / Mod Seas & Swell”, current “favorable”, ETA Aug 26, 2200 LT.
August 23: wind direction “SW-5 / Mod Seas & Swell”, current “none”, ETA Aug 26, 2200 LT.
August 24: wind direction “Lt Airs”, current “none”, ETA Aug 26, 2200 LT.
August 25: wind direction “Lt Airs”, current “none”, ETA Aug 26, 2200 LT
August 26: wind direction “N-4 / mod seas & Swell”, current “favorable”, ETA Aug 26 2400 LT. Remarks: ETA delayed (by 2 hours) due to deteriorating weather conditions.
At no time in the Master’s ETA’s was there any indication of any weather difficulties until August 26 when in fact she arrived at the first nominated port on August 26, at 2200 LT, two hours earlier than her ETA time.
She anchored and tendered her NOR on August 27 at 1100 LT.
Upon anchoring, the USGC closed the port due to the approach of a hurricane. Ship waited out the storm. When the storm passed, the Agent could not advise as to when the ship could berth at the first nominated port or steam to the second port in the Miss River.
The Charterer exercised its rights under CL 23 and instructed the ship to go to Houston asap.
The Charterer paid for the deviation from NOL to Houston plus bunkers.
The Charterer also paid freight based on a 1 port load and a 2 port discharge, in accordance with Part 1 of the C/P. The actual voyage performed was from Trinidad/NOL/Houston. The Charterer paid freight based on the terms in the C/P plus deviation and bunkers.
The Charterer's position was that NOL either counted at 1/2 under the Weather Clause or not at all. The Panel ruled that the first nominated port was a deviation and Charterer had to pay for all of the time in NOL. The Panel also ruled that the weather clause in the C/P was not applicable. In essence, this changed the terms and conditions of the agreed upon C/P to a 1 port load and a 1 port discharge.
This decision made the Charterer responsible for weather.
The Charterer relied on the provisions in the C/P which were negotiated and accepted by the parties. The Charterer relied on the following clauses:
CL 23 Deviation:
Notwithstanding anything else to the contrary in the C/P and notwithstanding what loading and/or discharging port(s) may have been nominated and bills of lading issued, Charterer shall have the right to change is nomination of the loading and/or discharging port(s) in accordance with Part 1 C and D of the C/P.
Any extra time and expenses incurred by Owner in complying with Charterer’s orders shall be for the Charterer’s account and shall be calculated in accordance with part II Clause 4 © of the C/P. Freight shall be based on the actual voyage performed. Charterer shall have the right to make as many changes as it deems necessary.
The Panel ruled that all of the time in NOL fell under the deviation clause disregarding the fact that it was a nominated port and that "it was not necessary to consider any weather-related clauses in the C/P or whether Katrina was a hurricane or an Act of God".
Part 11, Asbatankvoy
Clause 6. Notice of Readiness
Clause 19. General Exceptions Clause
Charterer’s Rider Clauses
7. Laytime Clause: If for any reason laytime has expired, Charterer shall be allowed the benefits of Clauses 6,7, and 8 of Part 11 at each port of loa ding or discharge before demurrage shall be incurred.
38. Weather Clause. ...delays in berthing for loading or discharging and any delays after berthing which are due to weather shall count as one half laytime or, if on demurrage at one half demurrage rate. However, any additional costs (for tugs, pilotage, bunkers, or otherwise) due to maneuvers caused by bad weather shall be for Owner’s account.
The Panel ruled it was not necessary to consider any weather-related clauses in the C/P or whether Katrina was a hurricane or an Act of God and that the hurricane came as no surprise. This was a complete disregard as to the how the term “act of God” has been defined legally.
The actual voyage performed was Trinidad-Convent-Houston. The charterer paid against freight $393,768.59 (less address commission);
$6.320.89 against deviation to Houston plus bunkers.
The Panel awarded an additional $151,995.24 for outstanding freight and deviation costs; interest and a payment of $10,000 towards the Claimant’s attorney’s fee for a total of $174,084.90.
The only issue in this matter was the determination of the time spent in NOL.
"Nothing is ever accomplished by a committee unless it consists of three members, one of whom happens to be sick and the other absent". Henrik Van Loon, 1942
