Deduction from Freight. Cargo Retention Clause
There are also many technical factors, such as ship’s pumps performance and characteristics, physical pumpability criteria of the oil, tanks’ structure and design which impede complete delivery of the cargo over the ship’s manifolds.
Per Mrs Justice Gloster, DBE in Waterfront Shipping Company Limited v Trafigura AG EWHC 2482 (Comm) at paras 19,22:
Beepeevoy 3, cl 16:
Owners shall undertake that the Vessel shall discharge a full cargo, as defined hereunder, within 24 hours, or pro rata thereof in respect of a part cargo, from the commencement of pumping or that the Vessel shall maintain an average discharge pressure of 100 psig at the Vessel’s manifold throughout the period of discharge except when stripping provided that the shore receiving facilities are capable of accepting discharge of the cargo within such time or at such pressure. The shore receiving facilities shall have the right to gauge discharge pressure at the Vessel’s manifold.
Any additional time used owing to the inability of the Vessel to discharge the cargo within 24 hours or 30 hours, as the case may be, or such shorter period as may be applicable in the case of a part cargo, or to maintain a average discharge pressure of 100 psig at the Vessel’s manifold throughout the discharge except when stripping shall be for Owners’ account and shall not count as Laytime or, if the Vessel is on demurrage, as demurrage. If the shore receiving terminal facilities are unable to accept discharge of the cargo within the aforementioned time or at the aforementioned discharge pressure the Master shall present the shore receiving terminal with a Note of Protest forthwith, and in any event prior to the Vessel’s departure from the berth, and shall use all reasonable endeavours to have such Note of Protest countersigned on behalf of the shore receiving terminal in the absence of which countersignature the Master shall present a further Note of Protest to the shore receiving terminal. For the purpose of this Clause, a full cargo shall mean the quantity referred to in Clause 3 or the bill of lading quantity, whichever is the greater. Charterers will not consider any claim by Owners for additional time used in the foregoing circumstances in the absence of the provision by Owners of the following documentation:
(a) an hourly pumping log, signed by a responsible officer of the Vessel and a terminal or Charterers’ representative, showing the pressure maintained at the manifold throughout discharge and, in the absence of a signature from a terminal or Charterers’ representative, a Note of Protest;
(b) copies of all Notes of Protest issued or received by the Vessel in relation to the discharge in question; and
(c) copies of any other documentation generated by the Vessel or by the shore receiving terminal relevant to the discharge in question.
19. …It is obvious from the plain reading of clause 16, that, in any case where the Vessel takes longer than 24 hours to discharge its cargo (as it did here), the issue will immediately arise whether Owners have complied with their alternative obligation under clause 16 to maintain an average pressure of 100 psig. Thus, if, as here, the Vessel has taken approximately 47 hours to pump out her cargo, demurrage will only accrue for the additional time beyond 24 hours if the required average pressure has been maintained by the Vessel…
Clause 16 supplements the provisions of clause 23 by making it clear that Charterers are under no obligation even to consider a claim for demurrage for additional time if the 24 hour rule is exceeded, unless effectively Owners have demonstrated, by provision of the relevant documentation identified in clause 16(a)-(c), that they are not in breach of their pumping warranty, and that the fault lies with the terminal. Thus clause 16 identifies some of the necessary ‘supporting documentation’ for the purposes of clause 23.