Delivery with dirty ballast under NYPE C/P


Published: 9 November 2012

Skuld has handled a matter concerning liability for loss of time due to discharge of dirty ballast water.

A trip time C/P under a NYPE form was concluded to perform a voyage between Turkey and the Red Sea with a delivery in Ukrainian waters.

To be able to enter a Turkish port, it is mandatory for the vessel to have clean ballast water on board.

De-ballasting was performed after vessel's delivery in Ukrainian waters and before reaching Turkish water.

The charterers argued that the time lost (2½ day) caused by deballasting unclean ballast and ballasting clean ballast was for owners account and thus deducted an amount covering this period in the hire.

Since no agreement could be reached between the charterers and owners arbitration was started where owners claimed for the payment of the full hire, which the charterers refused based on either:

  • Damages under breach of clause 2 of the C/P which provides for the vessel to be in every way fitted for the service having water ballast; the argument was that the owners had to ensure that the vessel's ballast water was clean on delivery at the Ukraine so that she could carry out the intended service from Turkey as agreed under the C/P. Owners should have known that it was mandatory for the ballast water to be clean on arrival in Turkey, or
  • alternatively off-hire under clause 17: since change of ballast water was an event that could be assimilated to "similar" cause, preventing the full working of the vessel.

The sole arbitrator denied both arguments from the charterers and considered that

  • "Had the charterers wanted to stipulate that ballast water on delivery be clean they could have done so".
  • It was apparent that at the time that the contract was made neither party addressed the quality of the ballast water on delivery.
  • About clause 17 (the off-hire clause) the sole arbitrator stated that "It was not a condition of delivery that she arrived with clean ballast water and the vessel was accepted as such by the charterers. It was only subsequent to her delivery that the vessel was required to discharge the dirty ballast water prior to loading in Turkish waters and therefore the owners had only complied with the charterers' instructions".

We shall underline that the sole arbitrator based his opinion inter alia on the fact that discharging dirty ballast water before entering in a port is not straightforward or universal.

It could be that his opinion will be different if and once the international convention for control and management of ships' ballast water and sediments comes into force.

This would mean that if clean ballast water is recognised as a universal obligation then the owners may at that stage have an obligation to deliver the vessel with clean ballast before performing any voyage.

Until we reach that point, it belongs to charterers, should the vessel reach Turkey (or any port requesting clean ballast water-Norway for instance), to ensure that a provision in respect of clean ballast at time of delivery is provided for into the C/P.