What is the curicial point for performance claims ?
Although there are many crucial points, i can emphasis on followings which needs to be considered with vital importance during defending the claims and some of them even during c/p negotiations.
- Good weather definition
- Which days to be taken as good weather days
- Average speed and consumption on good weather days
- Time of C.O.S.P and E.O.S.P
- Any instruction from charterers for slow speed
Why is "good weather definition" critically important in order to avoid and defend potential performance claims ?
Because performance evaluations are based on the parameters expressly stated in good weather definition and speed & consumption warrantied in charter party. Therefore if good weather definition is well detailed and consist of the parameters of Beaufort Scale, Douglas Sea Scale, information and limitations of swells, currents, significant wave heights, sea surface temperature and any long idle waiting period in tropical waters, then you will avoid most of the underperformance claims.
Any ambigous good weather definition with little information or without limitations will give charterers good chance to make an underperformance and /or overconsumption claim.
Are all "Performance Evaluation Reports" rightful to claim a time loss and/or overconsumption ?
Definitely NO. As explained above, depending on the figures that evaluation report is based on, if you have a well detailed good weather definition in charter party, there is always a good chance to defend your rigths against the alleged underperformance. However even if your good weather definition is not well detailed there is still some chance to defend and reduce the claimed amount of time loss and overconsumption.
Is the master aware of good weather definition and does he inform correct and full definition to weather routing company ?
This is quite important item. If master ( or charterers or owners ) does not inform good weather definition and warrantied speed & consumption correctly with all details, weather routing companies may evaluate the performance of the vessel based on wrong definitions and missing data. Not surprisingly the outcome of the analysis will be to the benefit to charterers.
Are you aware of precedent arbitration cases (LMLN and SMA ) ?
There are many arbitration awards support both claimants (mostly charterers) and defendants (mostly owners). In order to defend your rights, you should be aware of all of these arbitration awards and details of the case. Do not expect weather routing companies to advise you any arbitration award supporting your defence. I rest assure you that there may be several arbitration awards which conflicts with each other and only the ones against your benefits will be uttered. However, when you go into the details of those cases, you may further notice that terms of those cases have no relation with yours. Unless you are aware of the same, you may lose the battle on the table regardless of whether or not there is an actual underperformance and/or overconsumption.
Bear also in mind that calculating on the wrong legal interpretation of the data is waste of time. You may need an expert eye to defend your rights
Why do weather routing companies mostly come out with an evaluation report showing underperformance and/or overconsumption ?
As explained above, there may be several reasons but the main reason might be ;
"Not informing the weather routing company about the correct and full "sped and consumption" figures and good weather definition". It is master's / owners' duty to check that correct and full good weather definition has been submitted to weather routing company in order to avoid any wrongful claim.
Is there any LMLN and SMA arbitration award on speed and consumption claim that supports owners ?
Yes. There are many arbitration awards supporting owners' arguments. However you should bear in mind that detailed good weather definitions with some limitations on swells / winds wave heights, adverse currents will mostly help to defend owners' rights.
What is "abt " factor . How is it used in calculations ?
About factor is generally accepted and widely used as an allowance of 0.5 knots on speed and 5% on fuel consumption. Although this "rule" seems to be applied invariably in London arbitrations, it is not actually the Law. Unless it is expressly stated in charter party, 5% allowance on fuel consumption only be considered while calculating whether there is an overconsuption or not. In other words 5% allowance on fuel not to be used in bunker savings unles otherwise stated in charter party.
Are "currents" on advantage or disadvantage to owners ?
It depends on the good weather definition of the governing charter party. Sometimes vessel makes good speed despite of adverse currents and exceeds the speed warrantied in charter party, however you may not be allowed to consider that day as good weather day due to the wording " no negative influence of currents" or " no adverse current" in good weather definition. Despite of exceptional usage as mentioned above, this wording (" no negative influence of currents" or " no adverse current" ) mostly serves to advantage to owners, thus should be included in good weather definition.
What is "significant wave height" ?
Combined sea and swell: Also known as total wave height, or significant wave height. Combined sea and swell describes the combined height of the sea and the swell that mariners experience on open waters. The height of the combined sea and swell refers to the average wave height of the highest one third of the waves.
Weather and seas definitions - Beaufort Scale and Douglas Sea Scale
This is an area utmost importance should be given during charter party negotiations. Recent arbitration awards show that the parties must be extremely careful with the wording they choose to rely on when making the agreement. We strongly recommend to set the limitations for significant wave height and currents. We also recommend our clients visit below websites in which you may find very useful information and definitions.
Marine Meteorology terms and definitions :
Weather glossary 1: http://www.weather.gov/glossary
Weather glossary 2: http://www.oceanweather.com/about/glossary.html
In order to avoid underperformance claims;
- Maintain proper and correct records during the voyage. In London arbitration and SMA, If charterers contest the reability of the logs ( i.e speed and/or weather conditions in vessel's logs) it is incumbent on charterers to provide evidence to prove such unless otherwise stipulated in charter party.
- Collect evidence and substantiate the logging of " adverse currents, head swell and heavy and moderate swells, heavy weathers and winds" etc. by documents publications and weather reports/facsimile
- If there is any indication of underperformance, investigate the reasons in order to avoid a substantial delay and time loss.
- During good weather days, pay additional attention to vessel's performance to ensure that vessel is performing better or as per
Does "TIME LOSS" always mean "OVERCONSUMPTION" ?
Definitely NO. Although many of speed claims go hand in hand with overconsumption claims, but the same does not necessarily apply in all cases. While the vessel's speed performance shows "time loss", she may still be saving bunkers which offset the time loss.