Speed and performance

speed and performance warranty - effect of favourable current - whether methodology binding

LONDON ARBITRATION 21 / 04

introduction

The vessel was chartered on an amended NYPE form. The Tribunal was asked to consider the effect of Clause 61(a) of the charterparty, which read:

"….The vessel shall be capable at all times during the currency of the charterparty of steaming at about 13 knots in ballast / laden. For the purposes of this charterparty "Good Weather Conditions" are to be defined as weather conditions in wind speeds including not exceeding Beaufort Force 4. In the event of a dispute over an apparent performance, data supplied by Oceanroutes shall be taken as binding on both parties".

In ascertaining whether the vessel had complied with the speed / performance warranty, the Tribunal considered two interesting sub-issues:

1. Was current to be a factor in considering the performance of the vessel?

2. Were Oceanroutes findings binding on the parties?

the current

It was held that the effect of the current should not be considered when assessing the vessel's performance. The Tribunal believed the omission of a reference to current in clause 61(a) of the charterparty was not accidental. The Tribunal commented that the effect of currents was difficult to quantify, but that the parties were nevertheless open to specifically state that current was to be a factor if they so desired.

oceanroutes findings

The charterers sought to argue that the effect of clause 61(a), and in particular, the third sentence of that clause, was that Oceanroutes report should be binding on the parties. However, the Tribunal rejected the charterers argument, instead highlighting the use of the word "data" in the third sentence, which they held was intended to cover the raw materials and data used by Oceanroutes but not the entire report or the methodology used by Oceanroutes. The owners were thus open to challenge the findings of the Oceanroutes report.

conclusions

The benefit of clear drafting is evident from both the issues discussed above. If it is intended that current should be a factor to be considered when evaluating the performance of the vessel, this should be specifically stated in the charterparty. Likewise, the charterparty should clearly state the extent to which both the raw data and the final report of any weather experts will be binding on the parties.