Outlining a recent arbitration award deciding on the scope of “customary assistance” - and a reminder to Charterers to very specific when agreeing to standard of hold cleaning.
C/Ps like the NYPE forms include duties for the vessel's master to "render all customary assistance with ship's crew". The extent to which a particular service is customary or not will depend on the facts and circumstances, but with regard to hold cleaning there are limits to what the crew can be expected to do.
In a case from 1975 (the BELA KRAJINA) the two previous cargoes had been, firstly, phosphate and pot ash and, secondly, manganese. On each occasion, the crew had noticed loose rust and cleaned it off, but when the vessel arrived at its next port to load grain, the holds were turned down. The crew eventually succeeded in removing rust scale over a period of seven days, and the charterers claimed the vessel to be off-hire during this cleaning period. The London court held, however, that the removal of hard adhering rust was a major operation which could not be expected to be done by the crew during the course of a ballast voyage; it necessitated the erection of staging, mechanical de-rusting equipment etc. and the cleaning of holds did not include chipping steel – customary assistance did not extend to scaling operations requiring the use of sophisticated tools like pneumatic chipping hammers, high pressure water jets or sandblasting equipment. On the other hand, customary assistance include the removal of large, loose rust patches in accessible locations.
In a recent London arbitration award ((2007) 716 LMLN 1), there was the further issue that the C/P included a specific intermediate hold cleaning clause. This clause provided that the crew should render customary assistance in cleaning all cargo compartments and that this cleaning work should be performed while the vessel was en route to next loading port provided that this could be safely done and that the duration of the voyage was sufficient. The clause also stipulated that the owners would endeavour to effect such cleaning "as best as possible" but without any guarantee that the holds would be sufficiently cleaned and accepted on arrival. Finally, there was an express exclusion of liability in that the owners would not be responsible for any consequences arising from the fact that the crew had been employed in cleaning.
The vessel was ordered to a port for loading a cargo of urea and the charterers in fact sent voyage instructions to the vessel’s master that he should do the "utmost to have vessel’s holds clean as possible".
The vessel failed its first hold survey and shore cleaning gangs had to come on board together with specialised equipment, and later in this process additional shore cleaners were employed with cherry pickers to assist.
Nevertheless, the vessel's holds were rejected again for reason of cleanliness.
Eventually, the vessel's holds were passed but the charterers argued that the owners had failed to render customary assistance whereas the owners argued that the charterers were well aware that the vessel had previously loaded six consecutive dirty cargoes.
The majority of the arbitrators held that both the vessel's master andcharterers knew or should have known that a very high level of hold cleanliness was required to load urea and that the previous cargo of cement clinker was particularly difficult to clean. They added that the master and crew could, however, not guarantee to clean the holds by way of "intermediate hold cleaning" to a grain clean standard following six dirty cargoes. In other words, there was no guarantee from the vessel to clean to a grain clean standard by way of an intermediate hold cleaning in cases where specialised personnel and equipment including staging and cherry pickers were required.
The C/P also did not include any specific duty for the owners under the C/P to clean the vessel's holds to any particular standard for, in this case, the 10th voyage for the cargo of urea. The intermediate hold cleaning clause was clear in that cleaning was to be performed "without guarantee" and provided that the crew rendered their "customary assistance" when cleaning the holds, the owners were fully entitled to rely on the exclusion of liability under the specific clause. On the evidence before the arbitrators, the crew was considered to have made every effort during the time available, but the work required was far beyond the capability of the crew and not within the scope of intermediate hold cleaning as contemplated under the hold cleaning clause.
The charterers' specific orders for cleaning did not change this: the order to clean the holds beyond what would be "customary cleaning" would be outside the scope of what was required under the C/P. The Owners were therefore entitled to rely on the exclusion of liability in the C/P.
The Owners had therefore protected themselves adequately in excluding liability (and limiting the scope of their customary assistance). For Charterers, this is a reminder that if a specific cleaning standard is wanted, this should be spelt out clearly and in detail in the C/P.
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The Bela Krajina [1975] 1 Lloyd's Rep 139
(2007) 716 LMLN 1 – London Arbitration 6/07