Moscow Arbitrazh Court Considered a Dispute Between Stone-Logistics LLC and Petrotanker LLC from a Time Charter in the Amount of about 90 Million Roubles
The dispute concerned the issue of which of the parties to the time charter would bear the risks of the ship breaking down in the ice during the charter period.
On 25 May 2021 Stone-Logistics (Charterer) and Petrotanker (Owner) entered into a time charter on the basis of the Baltaim,1939, the vessel PETROTRANS-5902.
On 10 October 2021, the chartered vessel made a cargo voyage from the port of Arkhangelsk to the port of Bukhta Sever with a load of pipes. On 15 October 2021, the vessel arrived at the Bukhta Sever checkpoint, on 23 October 2021, the unloading of the vessel began, on 29 October 2021, the unloading at the Bukhta Sever checkpoint was completed.
Due to the expiration of the charter period, the vessel was planned to be handed over/returned to the Owner and, upon completion of unloading, was to proceed to the port of Arkhangelsk. Planned time of arrival to the port of Arkhangelsk was within six days after the end of unloading.
However, despite the completion of the unloading on 29 October 2021, the ship left the Bukhta Sever checkpoint only on 5 December 2021.
On 8 December 2021, when the vessel, escorted by the icebreaker, was making the passage to the port of Murmansk, the Owner notified the Charterer of the malfunctions on the vessel (failure of one propulsion complex and a number of ship systems).
Upon the vessel’s arrival at the port of Murmansk, the Charterer, using his right to check the condition of the vessel, engaged a surveyor, and according to the results of the inspection, it was established that the failure of the propulsion complex was discovered by the crew on 20 November 2021, and the cause of the breakdown was not related to the Charterer’s guilty actions / not is the responsibility of the Charterer.
In the opinion of the Charterer, the captain of the vessel should have submitted, but failed to submit an off-hair notice to withdraw the vessel from the lease and did not notify the Charterer in a timely manner that the vessel became unfit for operation. The charterer considered that the funds paid by him for this were unjust enrichment of the Owner, and filed a claim in the amount of 75 million Roubles, then increased the amount of claims.
The shipowner, in turn, filed a counterclaim for the freight amount for this period, for payment for communication services, losses (expenses for repairing the ship), lost profits - in the total amount of about 150 million Roubles. The Owner referred to the Charterer's letter of guarantee, where the Charterer promised to cover the losses incurred due to the ship's entry into any ice-covered place. The Shipowner argued that the risks of ice damage lay with the Charterer and that it was the Charterer who insisted on returning the vessel from the ice blockade to return from the time charter.
A forensic examination was carried out in the case, the experts established violations by the Shipowner of the operation of the vessel in ice, which affected the seaworthiness of the vessel. The examination was carried out by the Agency for Expertise of the MGB.
The court noted that the correct selection and placement of personnel, access to authority, control over the activities of employees (subordinates) - all this is a manifestation of reasonable care and diligence of a legal entity aimed at ensuring its activities.
The court also noted that the captain of the vessel, without showing due diligence, did not take into account the change in ice conditions, entered the port, unloaded the cargo, and also did not take measures to timely exit the port. At the same time, the charterer's instructions do not have legal significance, since only the charterer's instructions regarding the commercial operation of the vessel are of importance (Article 206 of the CTM RF).
The Court noted that it did not find in the Charterer's letter of guarantee those wordings referred to by the Shipowner.
On 6 July 2023, the court satisfied the Charterer's claim and denied the Shipowner's counterclaim.
Apparently, the agreement that the parties to the dispute concluded did not take into account individual risks. In this regard, shipowners can be recommended to carefully plan the transportation of cargo, make changes to the standard time charter agreement, taking into account the specifics of the operation of the vessel in a particular area, and involve specialists to prepare an agreement and guarantees.