NYPE

The Aditya Vaibhu (1993) further illustrates the extent of the ability of a charterer to set-off hire in equity. The charterer had deducted a sum representing his loss resulting from a delay of 14 days due to the owners having failed to clean the holds properly. The owners did not contest the charterer’s right to deduct but did complain that the deduction exceeded the amount of hire payable for those 14 days. The charterer argued that all losses/expenses (including wasted time) flowing from the owners’ failure/breach could be deducted. The Court held that the charterer could only deduct an amount equivalent to the hire which would have been earned during the period of deprivation of use of the ship and not other consequential losses. The basic wording of the NYPE form (in line 78 of Clause 8) is “… and charterers are to load, stow and trim the cargo at their expense under the supervision of the Captain”. This leaves in doubt where responsibility lies for the discharge process unless, of course, the word “discharge” is added in. If not inserted, the question of responsibility would probably rest upon what was usual in the trade on which the charterer was employing the vessel. The NYPE form is notoriously lacking in clear interpretation as to where the division of responsibility for cargo exactly lies. Even if the Carriage of Goods by Sea Act 1971 was incorporated this would not solve the questions since that Act was never intended to lay down as between owner and time charterer who was to be responsible for the loading, stowing, trimming and discharging processes respectively. Provisions on this point are left to the parties freely to agree between themselves.