High Seas Venture v Sinom (Hong Kong)
Where a charterparty required demurrage to be calculated "on the basis of" the statement of facts "mutually confirmed by the Master and the … Port Authorities", the court held a) that the words "on the basis of" were insufficiently strong to make the statement of facts final and binding on the parties and b) that "mutually confirmed" meant at or around the same time – and not some eight months later, as happened in this case. However, the court found largely for the charterer on the facts of the case, since it gave greater weight to the statement of facts, which the Master had signed at the time without protest, than to statements made in witness statements prepared after the event.
DMC Category Rating: Confirmed
This case note is based on an Article in the April 2007 Edition of the ‘Shipping Offshore and Transport Bulletin’, published by the international firm of lawyers,DLA Piper. DLA Piper is an International Contributor to this website.
The vessel arrived at Yantai on 21 February 2005, tendered notice of readiness and needed to be lightened before berthing. Mobile cranes were carried out to the vessel on lighters and installed alongside so that lightening could commence. After several hours, it was suspended due to bad weather. There followed a stop-start lightening and discharging operation that gave rise to five separate disputed periods.
On 3 March, the local agents issued a statement of facts, which was confirmed by the master the following day and later endorsed with the port authority's "chop", but not until November 2006.
The case should serve as a reminder to shipowners that if they do have concerns about aspects of the port or the discharge operations they should (i), via the master, lodge an appropriate letter of protest at the time; and/or (ii) not sign off on the statement of facts if they do not agree with it; and/or (iii), if the matter does proceed to a hearing, make sure they are able to call reliable evidence from the master that supports their version of events.
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