Ocean Routes

A relatively recent case is The Gas Enterprise (1993). In this case the time charterers drew up speed calculations on the basis that if the vessel had under-performed in periods of good weather, she must have under-performed in bad weather as well to the extent that the under-performance was not entirely due to the bad weather. Conversely, the owner’s calculations were based on the charter party containing an undertaking as to the performance on each sea passage, but confined to periods of weather up to and including Beaufort force four of winds and waves. The Court of Appeal confirmed the lower Court’s finding for the charterers. If the owner intended to warrant a ship’s performance only in good weather conditions, he should have so stated in clearly express language. Unless he did so there was no reason to confine the vessel’s capacity to perform to periods when the weather was force four or less. The warranty should apply in this case to all voyages whether cargo-laden or in ballast. In order to determine properly whether there had been truly a breach of either speed or consumption warranty, reference must be made to the vessel’s deck log books for the voyage in question supplemented by weather data supplied by a reputable weather routing organisation such as Ocean Routes. What are the obligations of an owner regarding the seaworthiness of the ship he is chartering out? Line 22 of the NYPE form incorporates this in the words “tight, staunch and true and in every way fitted for service”, this to apply on delivery. The Baltime form has an equivalent phrase – Clause 1 providing that on delivery the ship is to be “in every way fitted for ordinary cargo service”. The express undertakings are absolute and even if they were not expressed there is an implied undertaking recognised by the Common Law of England. A distinction should be made between the above described undertakings that the vessel is seaworthy at the time of delivery, which is not a continuing undertaking, with other wording to be found elsewhere in the charter parties that the vessel is to be kept in a “thoroughly efficient state….for the period of the service”, i.e. for the charter period. These obligations to maintain, which should be kept separately in mind from the undertakings and seaworthiness, are not absolute and the owner is expected to take reasonable steps to see that any maintenance required should be done as soon as is reasonable and with due care and skill. No owner is expected to keep his ship in “near perfect” trim every minute of the charter service.