Weather, or not?
Posted on 9th December 2019 at 09:48
Bad weather, and the threat of it, is certainly topical. We briefly discussed this in our post of 7 June, it was highly newsworthy recently and it came up again in London Arbitration 21/19 [(2019) 1039 LMLN 1]. There, with about $321,000 at stake, the Tribunal discussed the distinction between actual and approaching bad weather, and considered the meaning of “attributable” in common exclusion wording.
Under a COA dated 31 July the vessel was to load at a Mississippi terminal, and laytime and demurrage would not count:
“ … if ... loading … [was] … suspended:
[a] due to bad weather (including … storms, high winds …) or
[b] for other reasons not attributable to Charterers or their shippers/receivers.”
On 25 August the vessel tendered NOR, loading started and time began.
A tropical storm was approaching, with gale force winds predicted within 48 hours and the USCG indicating progressively more serious situation reports. However, the vessel continued to load, in benign berth conditions, and at 13:00 hrs on 26 August the terminal indicated “[no present intention to shut-down due to the [hurricane’s] uncertain landfall ...”.
Soon after, though, the facility ordered the vessel away. Loading ceased at 15:30 hrs and the vessel left, with the terminal advising that, as weather-related actions elsewhere would make anchorages scarce, it had “no alternative but to vacate the vessel … for the safety of our dock, fleet and terminal.”
Due to the hurricane’s landfall the port closed completely on 29 August and the vessel re-berthed and finished loading a month later.
The main issue was whether time stopped when the vessel was ordered off the berth, and the Tribunal held that it did.
Owners said that charterers had to show that time was lost directly due to bad weather, rather than just in anticipation of that. The Tribunal agreed, and noted that the question was how imminent approaching phenomena had to be to permit the actual, present circumstances to be reckoned as bad weather.
The answer might depend on the type of weather being considered.
Thus rain or snow was not likely to be considered bad weather until it actually started, as hatches could quickly be closed and cargo operations suspended.
But with a hurricane it might be different, and perhaps the crucial point was when good seamanship dictated that working cargo should cease and the vessel must sail, even though local conditions did not yet justify suspending operations.
Charterers had submitted that this meant not leaving a vessel in port to be hit by a hurricane, but owners countered that the worse the threatened weather, the more likely that the effective cause of any departure was safety, rather than bad weather.
The Tribunal observed that it was impossible to calibrate the imminence and nature of weather so as to yield a rule or definition, and (alongside the relevant clause) one must consider the circumstances, each time.
Here the facts did not suggest suspension of loading due to bad weather. The hurricane was still some two days away and there was no immediate danger, but the terminal had to consider the safety of its barges and was concerned about lack of anchorages, and its order to vacate was made in anticipation of bad weather.
(Similarly, the Tribunal also held that, on the wording of the particular clause, anticipation of a force majeure event was not force majeure.)
“for other reasons not attributable to Charterers or their shippers/receivers”
The Tribunal found that, prima facie, charterers came within this by showing that they, the shippers and the terminal were separate legal entities, with no agency relationship.
Owners further argued that as the terminal was performing charterers’ loading functions, ordering the vessel off berth was “attributable” to them, but the Tribunal rejected that as seeking to distinguish between owner and charterer functions, which this wording neither did nor required.
Dictionary definitions saying that “attributable” just meant “due to” or “caused by” did not help, since something could be attributable to someone even though they had done nothing to cause it, and even if they had no control over it.
Charterers however succeeded here by showing that they had no connection with the terminal, apart from it being where the vessel was loading. That alone did not mean that the terminal was performing the functions of charterers, such that what it did was attributable to them.
This Award is a useful indication of a Tribunal’s likely approach, but it further highlights the difficulties in addressing approaching adverse weather within standard exclusion wording, and careful thought should be given to the nature and likely incidence of local phenomena.
Also, while the familiar “attributable” can depend on relationships with other stakeholders, causation is not needed. On one view, it just means “can be attributed”, and parties should remember this when considering this common word.
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