Introduction
This class of extra-charter party delay claims are extremely important in an environment such as Nigeria's where reports of delay causing factors (such as ports congestion, suboptimal infrastructure or even malpractices) are quite frequent and may not be appropriately or adequately dealt by claims founded on a charter party.
Delay Claims based on Charter Party
The general principles attendant to delay claims based on charter parties are that once laytime (the agreed time within which the charterer, upon being issued with a notice of readiness by the ship must unload or discharge the cargo) commences, it generally runs without interruption unless the charterer can establish certain exceptions such as a force majeure event, fault of the vessel or a specific clause in the charter party excepting the delay causing event. Once laytime is spent therefore, the charterer compensates the owner for each day of delay in terms of the per-agreed demurrage rate.
The Asbatankvoy printed charter party form provides a good example of this. Clause 6 thereof provides inter alia that where delay is caused to Vessel getting into berth after giving notice of readiness for any reason over which charterer has no control, such delay shall not count as used laytime. Clause 7 again provides that any delay due to the Vessel's condition or breakdown or inability of the Vessel's facilities to load or discharge cargo within the time allowed shall not count as used laytime. Clause 8 also provides to the effect that that if demurrage is incurred at ports of loading or discharge by reason of explosion, strike, stoppage or restraint of labor or by breakdown of machinery or equipment ashore, (among other events), the rate of demurrage shall be reduced by one half.
For claimants vested with the requisite privity, claiming for compensation for delay under the above describe regime is straightforward. A court or an arbitration tribunal is thus only called upon to interpret the provisions of the relevant charter party – having regards to the particular facts of the case – once a demurrage claim is disputed.
Extra Charter Party Delay Claims
Delay causing events however have far reaching liability impacts on persons and entities who may not be the named parties to a charter party. A charterer may, for instance, be able to avoid claims for demurrage in a situation where the ports authority occasioned delay through wrongful grant of berthing precedence to another ship but the ship owner who is the victim of this situation may seek to obtain compensation for the delay from the port authority. Again, a charterer who was liable in damages for delay caused by an unsafe berth may seek an indemnity for loses occasioned by the resulting delay from of the terminal/berth operator.
The Nigerian case of the The Fotini1 is a good example of a compensation for delay claim founded not on the charter party but on an implied contract. The Defendant /Respondent as purchasers entered into a contract of sale with a foreign supplier for supply of baged cement from Spain to Lagos. The Supplier, pursuant to this hired the Plaintiff/Applicant's vessel to convey the cargo from Spain to Lagos. On arrival at the Lagos ports however, the ship could not be discharged owing to the defendant’s inability to provide a berth on account of massive congestion at port. The ship was at the defendant’s request subsequently discharged in Ghana with demurrage incurred for the period of delay. The defendant/respondents paid demurrage charges to the foreign supplier for the delay occasioned in Lagos. None was paid for demurrage incurred in Ghana. Accordingly, the plaintiff/appellants as ship owners, sued the defendant/respondents for the payment of the outstanding balance and the accrued interest thereon. The defendant/respondents, on their part, denied any privity of contract between them and the plaintiff/appellants and alleged that their contract was with the foreign supplier. Furthermore, they claimed that by accepting the demurrage paid through the supplier to them, the plaintiffs had waived their right to demand demurrage directly from the defendant.
The Supreme court in allowing the Plaintiff/Applicants appeal which had suffered the opposite outcome at both the court of appeal and the trial court held that though the cement contract which contained the demurrage clause was concluded between the Respondents and the foreign supplier and the appellant being total strangers to it may not based on it establish a case in contract against the Respondents, a fresh and independent contract however came into existence with the Respondent’s engagement of the Appellant’s vessel to sail to Ghana which offer was accepted by Appellant’s sailing ship. Thus a contract matured between them which contract may or may not be enforceable. Compensation for delay in terms of the deumurrage incurred in Ghanna was awarded the Appelant on a quantum meruit basis.
Unique Challenges in Extra Charter Party Delay Claims
Cases where claims for delay are sought to be ‘extra-charter party’ do present unique sets of challenges which the claimant must overcome in other to be successful. Locating the duty of care in circumstances where negligence is sought to be relied upon for instance may not be quiet a straight forward thing. This writer is aware of a yet to be reported case where the claimant relying on provisions of the Nigerian Evidence Act; to wit that customs form part of the law governing a particular matter, argued that the customary practice of granting berthing precedence in the order of arrival at a particular Nigerian port imposed on the berth operator the duty to spare it of losses arising out of not following the said customary practice.
Conclusion
The crucial starting point in 'extra-charter party' claims for delay would most definitely be to identify their basis in tort, or contract (implied or otherwise). This may not always be readily apparent and as noted may indeed be challenging. Potential claimants and their solicitors will nonetheless be well advised to consider them exhaustively.
End Notes
1Alfortrin Limited (The Owners of M/V Fotini v. The A.G. of the Federation and Another Nigerian Shipping Cases Vol 6 327- 366
2Section 16 (1) of the Evidence Act 2011 A custom may be adopted as part of the law governing a particular set of circumstances if it can be judicially noticed or can be proved to exist by evidence.
