M T Lady Sina

Details of Manipulated Arbitration Award by LMAA in respect to M T Caribbean is already uploaded on this site and now Full details about M T Lady Sina - another manipulated arbitration award from LMAA under small claim procedure, has also been uploaded, along with claimants submission / charterers defence submission / claimants reply submission, under heading M T Lady Sina, for reading purposes.

The facts of M T Lady Sina, where fraudulent arbitration award was delivered by Brian Williamson / LMAA , under small claim procedure, in brief is as follows:

Facts : M T lady Sina arrived at 2nd Dis port Budge Budge to discharge remaining 6000 Mts of CPO and tendered NOR at sandheads anchorage at 1900 Hrs on 11th dec 2016. 6 Hrs TT expired on 0100 hrs on 12th December 2016. From 12th december 2016 to 16th Decmeber 2016, the vessel was awaiting at sandhead anchorage, because of Kolkata Port trusts order not to allow navigation of the vessel during the period of bore tide.

The vessel was charterered on vegoil voy cp plus charterers rider clauses. The charter party contained the following terms:

Charterers Rider Terms

3. Time shall not count as laytime or if on demurrage as demurrage time when used:
   a) For and on an inward passage moving from anchorage, including awaiting tugs, pilot, tide, daylight, locks or any other reason whatsoever over which charterers have no control, even if lightening has taken place at anchorage, until the vessel is securely moored at the berth or other loading or discharging place specified in part 1(c) and (d) thereof.
   
   Printed Terms of vegoil voy / Part II
   
   
4. “NOTICE OF READINESS AND COMMENCEMENT OF LAYTIME. (a) When the Vessel has arrived at the port of loading or discharge and is ready to load or discharge, a - 3 - notice of readiness shall be tendered to the Charterer or its agent by the Master or Agent by letter, telegraph, wireless or telephone. The Vessel shall be deemed ready within the meaning of this clause whether she arrived during or outside of usual business hours, whether she is in or out of berth or whether or not she has ballast water or slops in her tanks. Laytime shall commence either at the expiration of six (6) running hours after tender notice of readiness, Vessel in or out berth, except that any delay to the Vessel in reaching her berth caused by the fault of the Vessel or Owner shall not count as used laytime; or immediately upon the Vessel’s arrival in berth (i.e. finished mooring when at sealoading or discharging terminal and all fast when loading or discharging alongside a wharf) with or without notice of readiness, whichever first occurs. (b) Notwithstanding anything contained in paragraph (a) of this clause, laytime shall commence when Vessel arrives at the loading or discharging port, whether or not berth is available; provided that notice of readiness shall always be tendered as therein stipulated.
   
   
5. SAFE BERTH. SHIFTING. (a) If under Part 1 hereof the Charterer is given the right to name the loading and discharging berth, the Vessel shall load and discharge at any safe place or wharf, or alongside vessels or lighters reachable on her arrival, which shall be designated and procured by the Charterer, provided that the Vessel can proceed thereto, lie at, and depart therefrom always safely afloat, any lighterage, being at the expense, risk and peril of the Charterer…”
   
   

   ISSUE ONE : Could the charterers have excepted from laytime calculations, the time the vessel could not proceed to berth from Sandhead anchorage from 12th December 2016 to 16th December 2016, because of the order / restriction of Kolkata Port trust which restricted / forbid navigation during the bore tide period from 12th Dec 2016 to 16th December 2016 as per the circular of Kolkata Port Trust? Does the judgement in Laura Prima have any application ?
   
   

   In the facts of the case, even if there was a breach of reachable on arrival provision, the charterers could have still continued to rely on laytime & demurrage exceptions provision provided in Rider Clause 3 a, which expressly excluded delays because of any reasons whatsoever over which charterers have no control. The order of kolkata Port trust restricting navigation during bore tide period, can easily classify as any reason whatsover beyond the charterers control, provided in Rider Clause 3 A.
   
   

   In a 1991 reported arbitration, LMLN 303- 15 June 1991 (See Exhibit I , charterers defence submission at page 46, under M T Lady Sina in the website) the vessel was delayed by bad weather after arrival at the loading port. Clause 6 of the tanker voyage form charter provided that the ship was to load at a place or at a dock or alongside lighters reachable on arrival, which was to be indicated by the charterers. Clause 7 of CP provided, "laytime was to commence from the time the vessel is ready to receive..her cargo, the captain giving six hours notice to the charterers agents, berth or no berth. TYPE WRITTEN CLAUSE (i.e. RIDER CLAUSE) read "Any time used in waiting for daylight, bad weather or port services.. shall not count as laytime at port of loading or discharging."
   
   

   Type written clause 46, incorporated an addition to clause 9 reading : " Neither owners Nor charterers shall be responsible if, in the event of strikes of workmen, lock out, riots or floodsor any accident or cause beyond the control of either party, loading or unloading of the vessel is delayed, prevented or interrupted. In such circumstances, laytime will not commence or if commenced will not continue until the cause of the interruption or delay is removed."
   
   

   The shipowners contended that the charterers were in breach of their obligation under clause 6 of theirs (i.e. reachable on arrival provision) and accordingly not entitled to rely on Rider clause 28. The charterers said that their case was different from that of "The Laura Prima”, which was concerned with the effect if any to be given to the exception in the last sentence of clause 6 in the charter there under consideration, an exception which did not appear in their case. It was held that the charterers argument was correct and they were entitled to exclude from laytime calculation, waiting period at port due to bad weather, relying on laytime exception clause on account bad weather as agreed in their Rider clause or if necessary, basis the general exceptions in clause 46 and were accordingly entitled to succeed on that issue.
   
   Source : Commencement of Laytime by Donald Davies, Fourth Edition, Page 112
   
   

   The arbitrator Brian Williamson despite of being informed about similarity of M T Lady Sinas case with LMLN 303 -15th June 1991, did not take the same into consideration, and held that laytime continued to count during the time the ship was not permitted to enter the berth'/ port because of Kolkata Port authorities order not to allow navigation of the vessel during period of bore tide.
   
   

   The arbitrator Brian Williamson wrote at serial no 43, page 12 of his Arbitration award : "… I am satisfied that the vessel could not proceed because of the bore tides. As charterers are allowed a further 6 hrs free time for the final discharge discharge port, I find that time began to run again at 0100 hrs on 12th December"
   
   

   Did the order of Kolkata Port authorities not to allow the vessel during period of bore tides, not fall under rider clause 3 a, i.e. or any reason whatsoever beyond charterers control ?
   
   

   The facts of LMLN 303 -15th June 1991 was similar to M T Lady Sina, in that,
   
   a) there was waiting at the port because of reasons outside charterers control,
   
   b) there was a breach of reachable on arrival clause as per printed CP terms, and both had a rider laytime exception clause providing for time not to count as laytime in case of delays outside the control of charterers, nevertheless different conclusions was arrived at by LMAA in the two cases.
   
   

   An interesting observation by Asdem on reachable on arrival clause / Laytime / Laura Prima Judgement is as follows:
   
   ASBATANKVOY CL.9 BERTH “REACHABLE ON ARRIVAL”
   In the last few months we have encountered a surprising increase in the number of disputes relating to the scope of the charterer’s warranty in clause 9 of Asbatankvoy Part II to provide "a berth reachable on arrival”. It seems that some ship owners have been encouraged by an unpublished award from a single arbitrator who apparently concluded that the "reachable on arrival” warranty overrode not only the exceptions to laytime/ demurrage in the Asbatankvoy form but also cancelled out the effect of exceptions contained in the additional clauses. It would appear that this decision has ignored the words of Lord Roskill in The "Laura Prima” [1982]: "‘Reachable on arrival’ is a well-known phrase and means precisely what it says. If a berth cannot be reached on arrival, the warranty is broken unless there is some relevant protecting exception….” It also contradicts all the other arbitration awards which we have seen over recent years where arbitrators have accepted that the "Laura Prima” referred specifically to the application of the last sentence of clause 6 of Asbatankvoy.
   
   Source : https://asdem.com/posts/issue-23
   
   

   ISSUE TWO : Can the time awaiting for daylight, be excepted from Laytime calculations?
   
   Rider clause 3 a , expressly provides time awaiting daylight not to count as laytime / demurrage. The vessel arrived at anchorage area at 1900 Hrs on 11th december 2016, before which the sun had already set in Kolkata,(see page 38, charterers defence submission) but nevertheless it was not taken into consideration by the arbitrator, perhaps because he forgot that Rider Term has been a given a special place in contract law and that Rider Clause Prevails in case of a conflict with Printed terms in CP.
   
   

   ISSUE THREE : Was the vessel waiting time from 12th december to 16th December 2016, due to Ports order or due to Bore Tide?
   
   

   The arbitrator writes in his award at serial number 43, page 12 that the vessel could not proceed to port because of bore tides even though the claimant in his claim submission , clearly stated that the vessel could not proceed to Port because of order of port authority. Claimant shipowners in serial number 10 of page 4 of claim submissions, uploaded on this website, under M T Lady Sina, has stated " The vessel waited at Sandheads anchorage until 16th December 2016 on the instructions of the charterers and the port authorities because no berths were reachable during this period due to the bore tides".
   
   

   Actually the vessel waited at anchorage because of Port authorities instructions, as can be seen from Kolkata Port Trust Order and not as per charterers instructions, as the charterers have no power over navigation matters in the port. Pls see serial number 18 of circular from Kolkata Port trust(see page 41, charterers defence submission,on this website under section M T Lady Sina) which specifies the bore tide period from 12th december to 16th December 2016. The Port circular also specifies navigation restrictions during bore tides.
   
   

   There were other issues as well, full details of which is available in charterers defence submission on the website under section M T Lady Sina
   
   

   The charter party actually provided for dispute resolution through singapore / Hong Kong Law and through arbitration at Singapore / Hongokong, but it was because of our blind faith in London that the charterers got the dispute resolution done through LMAA , who in turn cheated.