When Is A Time Charterparty Performance Warranty Limited By A 'Good Weather' Requirement?

Hyundai Merchant Marine Company Ltd v. Trafigure Beheer BV (Gaz Energy) [2011] EWHC 3108 (Comm)

This is what the English High Court considered recently, in the Gaz Energy.

The background facts

The charterers time chartered the LPG tanker Gaz Energy from her disponent owners on the Shelltime 3 form – which attached rider clauses and a Gas Form C.

Disputes arose regarding the vessel's performance.

The charterparty provided as follows:

Clause 24 ("Detailed Description and Performance") "Owners warrant that at the date of delivery...the vessel shall be of the description set out in Gas Form C...and undertake to use their best endeavours so to maintain the vessel during the period of her service hereunder. Further...Owners guarantee that the average speed of the vessel will be not less than [blank] knots in ballast and [blank] knots fully laden, with a maximum bunker consumption of [blank] tons diesel oil/[blank] tons fuel oil per day...See Additional Clause 42 attached which also overrides any references to over performance herein. The aforesaid average speeds shall be calculated...on all sea passages and over the whole of the time the vessel is on hire... ...In the event of any conflict between the...Form and any other provision (including this clause) of this charter, such other provision shall prevail". Clause 42 ("Speed/Consumption") "Speed about 15 knots average Consumption about 40 mts IFO 380 CST at sea plus about 0.2 mts GO and about 10 mt IFO 380CST at port plus about 0.2 mt GO. Otherwise as per Gas Form C". Gas Form C "...Speed Guaranteed average speed on a year's period and max wind force 4 in Beaufort scale: Loaded about 14.5 knots, Ballast about 15.5 knots". Daily consumption At sea

In port

Main engine/HFO

35 mt

-

Aux. engine/HFO/GO

6/0.2 mt

9/0.2 mt

Boiler/HFO

2.5 mt

Inert gas generator/gasoil

285 kg/h

Clause 21 placed the vessel off-hire if her clause 24 guaranteed average speed was reduced by specific off-hire causes. The owners said that, under the Gas Form, they had warranted the vessel's performance in "good weather" (Beaufort Force 4 or less) and so, pursuant to the Gas Enterpise [1993] 2 LLR 352 and the Didymi [1987] 2 LLR 166, her "good weather" performance was established and then applied over the whole voyage.

The charterers argued that the performance warranty applied irrespective of the weather (more onerous than a "good weather" warranty).

The Commercial Court decision

The court held that the charterers were right.

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