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12 Charterers to Provide and Pay for

Time Charters

12 Charterers to Provide and Pay for Charterers to Provide and Pay for “39.2. That the Charterers shall provide and pay for all the fuel except as otherwise agreed, Port Charges, Pilotages, Agencies, Commissions, 40. Consular Charges (except those pertaining to the Crew) and all other usual expenses except those before stated, but when the vessel puts into 41. a port for causes for which vessel is responsible, then all such charges incurred shall be paid by the Owners. Fumigations ordered because of 42. illness of the crew to be for Owners account. Fumigations ordered because of cargoes carried or ports visited while vessel is employed under this 43. charter to be for Charterers account. All other fumigations to be for Charterers account after vessel has been on charter for a continuous period 44. of six months or more. 45. Charterers are to provide necessary dunnage and shifting boards, also any extra fittings requisite for a special trade or unusual cargo, but 46. Owners to allow them the use of any dunnage and shifting boards already aboard vessel. Charterers to have the privilege of using shifting boards 47. for dunnage, they making good any damage thereto.” General nature of charterers’ duty to provide 12.1 In general the obligation cast upon the charterers by Lines 39 and 40 of the New York Produce form and by Clause 4 of the Baltime form is ‘absolute’, in the sense that they must actually provide the stipulated items rather than merely exercise due diligence towards that end. Thus, in a voyage charter case, where the charterers undertook to provide icebreaker assistance in the event of the loading port being inaccessible by reason of ice, it was held by the House of Lords that they were under an absolute obligation to do so: Anastassia v. Ugle-Export (1934) 49 Ll.L.Rep. 1. Lord Wright in that case said: “[T]he charterers have contracted to supply the assistance, and that, in my opinion, means either by themselves or by others, so that they cannot justify a failure to do so on the pretext that they had not the icebreakers under their control and could not get them supplied by those who controlled them. In that sense the obligation is absolute. The charterers assumed the obligation and the risk. It follows equally that the charterers’ obligation is not limited to an obligation to do their best to supply.” But in some circumstances there may be a duty upon the owners to give information to the charterers to enable them to make proper provision and the owners cannot complain if the charterers fail to make such provision because of the inaccuracy of that information: see below.

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