Anchor Away - London Arbitration 16/9
Posted on 18th November 2019 at 08:28
Our title here is the common misconstruction of “anchor aweigh”, but it is appropriate for London Arbitration 16/19 [(2019) 1037 LMLN 3], which concerned a vessel that tendered NOR with one of its anchors missing.
The vessel had been fixed on an amended Gencon form to lift 31,700 tonnes of clinker. NOR could be tendered any time after arrival at an anchorage 150 km downriver from the disport, with intermediate transit time not to count.
The vessel tendered NOR at 08:30 on 13 May 2018, but soon after boarding on 15 May the pilot discovered that there was only one anchor available.
(The missing anchor had been lost in a storm two months before, and it was a condition of class that it was replaced as soon as possible, and no later than 11 June.)
The situation had not been pre-notified to the port authorities, and the pilot would not proceed upriver with just one anchor unless owners hired an escort tug. Declining that, due to the cost, owners chose to replace the anchor, so the vessel was sent back to the anchorage at 23:45 on 15 May for the necessary work. She weighed anchor again at 06:00 on 18 May - this time with two anchors - and reached the disport later that day.
Allowing 12 hours turn time, owners calculated laytime from 20:30 on 13 May, but excluded time from 20:35 on 15 May (when the vessel first proceeded to the pilot station) to when she arrived at the disport.
Charterers said the 13 May NOR was invalid, and as they had not waived that and no further NOR had been tendered, laytime did not start until discharge began on 19 May.
Owners’ expert agreed that a tug escort was the best and usual alternative if a port authority insisted on both anchors for safe river passage, but did not accept that such was a normal requirement for that.
Charterers’ expert said that the request for a standby tug was reasonable and usual and should in the circumstances have been anticipated.
Agreeing with charterers’ expert, the Tribunal ruled that having two anchors was a normal requirement for river navigation, with a standby tug a usual and reasonable one if an anchor was missing.
Owners should indeed have anticipated that, and the failure to report the situation to the authorities was surprising.
However, charterers needed a finding that on tendering NOR the vessel was not in a condition that enabled her to undertake the remaining river passage, but (though with a missing anchor) she could have done that with tug assistance. What stopped her was owners’ decision not to engage a tug.
Owners had already deducted the time consequence of that - plus a little more, probably - and their choice of remedy did not retrospectively invalidate the NOR, which had been tendered at a time when the vessel was able to proceed to the disport, albeit with a tug in lieu of having both anchors.
Owners were therefore awarded US$11,722 demurrage, as claimed.
While, technically, this is probably correct, there is something troubling about owners upholding NOR validity on the basis that the vessel could have undertaken the upriver passage, but only by an external means that they had refused to pay for - especially where the Tribunal ruled as above on the expert evidence, and later referred to “somewhat cynical conduct [by] … owners”.
But the concern that we feel is chiefly in the silent warnings issued by this Award.
It plainly does not decide that all vessels can operate in all locations with just one anchor, at least until class condition limits are reached. Certainly, seaworthiness issues might arise, perhaps with very serious consequences.
Also, the relevant location, or voyage logistics, may involve other characteristics or factors that mean two anchors are always needed, as not even an escort tug will do, or (conversely) no, or no sufficient, tug may be available, or there may be long delay for one. In all these circumstances owners would probably not be able to tender a valid NOR with just one anchor, with cost consequences perhaps far greater than the surprisingly small amount at stake here.
Lastly, many charterparties include detailed requirements on the vessel’s condition. Such commonly also provide that any time lost due to breach is not laytime or demurrage, and (depending as ever on wording) might even contractually preclude valid tender of NOR, pending remedy.
It must very often be a great risk for owners to continue to trade a vessel with just one anchor, as logistical, NOR, demurrage and even more serious issues may well arise.
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