CM P-MAX III LIMITED v PETROLEOS DEL NORTE SA

A charterer’s demurrage claim depends on whether laytime was suspended by fault attributable to the owner. Where the owner acts pursuant to express charter terms and a genuine safety assessment, the owner will ordinarily not be at fault. A master may disregard voyage instructions where compliance is not considered safe, particularly where an incorporated under-keel-clearance policy forms part of the charter. The assessment is contextual and must be made on the information reasonably available at the time, without hindsight. A lightering provision governs lightering costs where the vessel cannot safely discharge at the nominated berth; a general discharge-cost provision does not displace it. A half-rate demurrage clause applies only where the charter makes no specific provision and the delay is beyond both parties’ reasonable control.

The owner claimed US$143,153.64 in demurrage under a single-voyage tanker charterparty. The charterer defended the claim on the grounds that the notice of readiness was invalid for want of free pratique and that laytime was suspended because the owner breached the charter by leaving the discharge berth and later refusing an instruction to return.

The charterer also counterclaimed US$64,186.60 for lightering costs and disputed the applicable demurrage rate. The principal issue was whether the owner’s refusal to reberth was justified by the vessel’s under-keel-clearance policy and the requirement that the vessel remain safely afloat.

1. Claim allowed; counterclaim dismissed. Judgment was entered for the claimant in the sum claimed.
2. The charter required the vessel to proceed with utmost despatch but always safely afloat. The owner’s obligation to follow voyage instructions was expressly qualified by the Master’s safety assessment. The Q88 information, including the under-keel-clearance policy, was an integral and paramount part of the charter.
3. The under-keel-clearance policy was a binding operational restriction. A waiver was a matter for the owner, acting through the Master and its agents after consultation. A capricious refusal might amount to fault, but there was no such refusal here.
4. The decision not to reberth on 1 April was based on genuine and justifiable safety concerns. The available margin was slight, the anticipated discharge arrangements were uncertain, and earlier events had undermined confidence in the projected rate. The decision complied with the charter and did not constitute breach or fault. It was inappropriate to assess it with hindsight.
5. Applying The Fontevivo [1975] 1 Lloyd’s Rep. 339, fault attributable to the owner or those for whom it was responsible was required before time could be suspended for demurrage. No such fault was established.
6. Free pratique was customary at the port and had been granted through a default mechanism, notwithstanding the absence of an express record. The notice of readiness was therefore valid.
7. Clause 25 specifically allocated lightering costs to the charterer where lightering was required because the vessel could not safely discharge at berth. Clause 7, dealing with general discharge, did not apply. The half-rate provision was also inapplicable because the charter made specific provision for the relevant circumstances.