UK Defence Club advise on Gulf oil pollution's impact
on charterparties
The Deepwater Horizon oil spill in the Gulf of Mexico
has prompted a flurry of queries from members of the UK Defence Club about safe
ports, time and voyage charterparties and hull fouling.
The Club has responded with advice in its latest
'Soundings' bulletin while acknowledging that the situation---and official
requirements---can change suddenly.
At present, the main shipping lanes towards the
Mississippi appear to be clear of oil. The US Coast Guard has advised it has no
plans to restrict traffic using the Southwest Pass, the river's main channel
for commercial shipping but the oil spill area is under constant
surveillance.
The Coast Guard has organised two ship cleaning
stations near Southwest Pass where ships fouled by oil stains should stop for
cleaning before proceeding into the river. It has placed restrictions on three
other passes to the Mississippi and imposed a "no wake zone" near the booms
deployed to help protect sensitive coastal areas from the spill.
Although there are no court decisions on the point, a
port could be considered as unsafe if its approaches are covered with oil which
could damage a ship or cause it to incur penalties, delays or fines. Assessing
whether a port is unsafe is a question of fact but if the danger can be avoided
by an alternative safe route or good seamanship, it is unlikely the port will
be considered unsafe.
Gulf of Mexico ports close to the oil spill may not be
considered as sufficiently unsafe to allow an owner to refuse an order to go to
such a port under a time charter or refuse such a nomination under a voyage
charter. Nevertheless, acceptance of such an order should not normally preclude
an owner from claiming damages later for losses resulting from the oil.
Delays are likely to occur. A master might take a
longer route to a Gulf of Mexico port to avoid an oil slick, perhaps to comply
with USCG requirements. Moreover, a port may be temporarily closed as the slick
develops. In these situations, a ship is likely to remain on-hire unless there
are specific clauses to the contrary in a time charterparty.
Restrictions imposed on shipping might cause delays in
entering and departing from ports in the area. Much will depend on the wording
of each charter. Unless demurrage is already running, the risk of delay will
fall initially on the owner. However, if a nominated port becomes closed prior
to its arrival, the ship may earn demurrage once she proceeds "so near as she
may safely get."
Ships trading recently in the Gulf's affected areas
should ensure there is no hull fouling before entering ports outside the area,
thereby complying with oil pollution regulations. In terms of compensation for
cleaning costs or lost time, an owner may have a claim against a time charterer
under an implied indemnity for following the charterer's orders, or perhaps
under a safe port warranty. Claims might be submitted to BP and others.
However, claimants should consider the likelihood of any recovery given
limitations of liability currently in place in the US.
Updates on the situation can be found on a US Coast
Guard website dedicated to the oil spill response - www.
deepwaterhorizonresponse.com. P&I related updates can be found on
www. ukpandi.com. UK
Defence Club managers can be contacted for advice and assistance re legal
issues. Bimco has issued a guidance clause re voyage charterparties, designed
to address the Gulf incident rather than oil spills in general. Owners and
charterers should visit www.bimco.org
For further information:
Daniel Evans, Club
Manager +44 207 204 2124
daniel.evans@thomasmiller.com
Susanne Murphy, Senior Claims Director +44 207 204
2312 susanne.murphy@thomasmiller.com
The UK Defence Club Thomas Miller Defence Ltd,
90 Fenchurch Street, London, EC3M 4ST Tel: +44 207 283 4646 fax: +44 207 204
2131
email:
tmdefence@thomasmiller.com web:
www.ukdefence.com
Issued by: Martin Rowland, Dunelm Public Relations
Limited. +44 207 345 5232. Email:
martinrowland@dunelmpr.co.uk Web:
www.dunelmpr.co.uk
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