Voyage Charters

Timothy Young KC; Michael Ashcroft; Julian Cooke; Andrew Taylor; John Kimball; LeRoy Lambert; David Martowski; Michael Sturley

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Chapter 45 Ice

(a) ICE. In case port of loading or discharge should be inaccessible owing to ice, the Vessel shall direct her course according to Master’s judgment, notifying by telegraph or radio, if available, the Charterers, shipper or consignee, who is bound to telegraph or radio orders for another port, which is free from ice and where there are facilities for the loading or reception of the cargo in bulk. The whole of the time occupied from the time the Vessel is diverted by reason of the ice until her arrival at an ice-free port of loading or discharge, as the case may be, shall be paid for by the Charterer at the demurrage rate stipulated in Part I.

(b) If on account of ice the Master considers it dangerous to enter or remain at any loading or discharging place for fear of the Vessel being frozen in or damaged, the Master shall communicate by telegraph or radio if available with the Charterer, shipper or consignee of the cargo, who shall telegraph or radio him in reply, giving orders to proceed to another port as per Clause 14(a) where there is no danger of ice and where there are the necessary facilities for the loading or reception of the cargo in bulk, or to remain at the original port at their risk, and in either case Charterer to pay for the time that the Vessel may be delayed, at the demurrage rate stipulated in Part I.

45.1 This clause treats the ice risk in a different, but no less obscure, way from the General Ice Clause in the Gencon charter. Nevertheless, the interpretation of the words and phrases common to both clauses will be similar. Accordingly, the comments below should be read in conjunction with the commentary on the General Ice Clause in the Gencon form in .

Sub-clause (a)

45.2 The exercise by the owner of the rights under clause 14(a) is triggered if the port of loading or discharge is inaccessible owing to ice.1 The master is given a discretion to “direct” the vessel’s course, although he would have normal navigational control in any event. He must notify the charterer, shipper or consignee, and they are bound to give fresh orders to an ice-free port. Although the master’s discretion to direct the vessel’s course continues until alternative orders are received from the charterer, it is probably the case that the master should continue a course as close as possible to that of the contractual voyage. The clause does not seem expressly to contemplate him simply stopping to await orders, but that could be within the term “direct her course”. 45.3 The clause is silent as to the contents of any notice to be given by the master, but it should probably notify the charterer of the inaccessibility of the port and seek fresh orders, possibly also indicating the alternative course being followed. Upon receipt of the master’s notice there is an express obligation on the charterer, shipper or consignee to telegraph or radio orders for an ice-free port where facilities exist for loading or reception of cargo in bulk. From the wording of the clause, the master is apparently free to act on the instructions of either the

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charterer or shipper or consignee. In the event of conflict of instructions, the master would presumably be entitled, at least prior to loading, to act on the instructions of the charterer. The fresh orders must, it is submitted, be given within a reasonable time of the master’s notice. 45.4 The port to which the charterer orders the vessel must be free of ice. This is not to be equated with a port which is accessible notwithstanding the presence of ice. 45.5 Finally, the clause provides the whole of the time occupied from the time the vessel is diverted by reason of the ice until her arrival at an ice-free port shall be paid for by the charterer at the demurrage rate. It is the time occupied that is to be compensated for at the demurrage rate and not, for example, time lost or extra time taken. If the discharge port becomes inaccessible shortly after the vessel’s departure and the vessel diverts, the clause would appear to permit the owner to claim the full freight and demurrage from the time of her diversion until arrival at the alternative port. One solution, to prevent unreasonable results, would be to place a narrow construction upon “occupied” or “diverted” and limit demurrage to extra time taken by reason of the deviation. Further, should the master deviate from the contractual voyage before this becomes necessary owing to the inaccessibility of the original port of loading or discharge, that time spent may not be recoverable from the charterer as it was not occupied by reason of ice.

Sub-clause (b)

45.6 The rights contained in clause 14(b) supplement those contained in clause 14(a). Thus, even if the loading or discharging port is not inaccessible, the master may consider it dangerous to enter or remain at a loading or discharging place for fear of the vessel being frozen in or damaged. The fear is the master’s.2 The operative fear is a fear of the vessel being frozen in or damaged. A master can reasonably fear damage to the vessel by ice even if the port is not, or is not likely to become, inaccessible. 45.7 The procedure to be adopted when the master considers it dangerous to enter or remain at the port is similar to that discussed above in relation to clause 14(a). Several further points should, however, be noted. The charterer has the option of ordering the vessel to another port as per Clause 14(a) where there is no danger of ice, or to remain at the original port. It is unclear what the reference to clause 14(a) adds to clause 14(b) unless that port is to be both free of ice and with no danger of ice. On any view the expression “no danger of ice” is ambiguous. It is probably to be read as meaning “no real” or “no substantial” danger of ice; it is not “ice-free”. 45.8 Surprisingly, the clause also gives the charterer the option of ordering the vessel to remain at the original port, although “at their risk”. The effect of the latter words is probably that the charterer is liable to indemnify the owner against all losses3 resulting from the requirement to remain, whether incurred by reason of the detention of the ship, damage to the ship or otherwise. Under the express provisions of the clause the indemnity payable for the detention of the ship will be calculated at the demurrage rate. Nevertheless, the provision is surprising because, where there is an obvious risk of physical damage or loss, it is odd that the owner is obliged to rely on the charterer’s ability to indemnify him under the charter rather than have the right to refuse to remain at the port. It may be that, given the master’s general obligation to avoid obvious dangers,4 that must still remain paramount, but this is not made clear.

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45.9 Finally, it will be noted that, in contrast to clause 14(a), demurrage is, under clause 14(b), to be paid for time the vessel may be “delayed”, which seems to involve a comparison of times, but the times involved in that comparison are not clear; it seems to be the intention that one compares the time in fact spent with the time which would have been spent if there had been no problem with ice. It does not, in any event, seem to refer to the time spent delayed in cargo handling operations since there would be no need to restate or interfere with the normal laytime and demurrage regime.

U.S. Law

General

45A.1 While an owner’s “ice claim” usually alleges charterer’s breach of its safe berth warranty and the Ice Clause, arbitrators focus on clause 14 and, because of its inclusion, reject charterer’s contention that owner assumes the risks of vessel damage, delay, and expense by accepting premium rates for undertaking known hazards of a winter voyage to a named port. 45A.2 An owner should recover damages for the charterer’s refusal or delay in naming an alternative ice-free port in breach of clause 14 if it can be shown that the loading or discharging port was inaccessible or dangerous to enter or remain at owing to ice; that the master acted reasonably; and that he gave sufficient and timely notice to the charterer, shipper, or consignee. The determination as to if and when clause 14 protection attaches (and, indeed, may detach) essentially turns on close questions of fact. Arbitrators recognize that the master is frequently in a difficult position and give significant weight to his or her judgment under the then-existing circumstances, analyzing actual weather and ice conditions at the port and its approaches, his as well as the master’s evaluation of weather and ice routing data, and navigational decisions. 45A.3 These considerations are best illustrated in The Leprechaun Spirit,5 The Fiona Jane,6 and The Claudio R,7 which involved winter voyages to the named port of Quebec. 45A.4 In The Leprechaun Spirit, the vessel was detained by ice as she ended her sea passage en route to Quebec, and requested the charterer’s confirmation that laytime would count on arrival at Cape Ray under clause 14 or, alternatively, the charterer’s nomination of another safe port. The charterer agreed to the first alternative, and the vessel proceeded under ice breaker’s instructions and partial convoy to Quebec, sustaining hull damage. The owner argued that the charterer was responsible for repairs and detention damages arising from breach of its safe port and berth obligations, and failure to nominate an alternative ice-free port. 45A.5 The charterer contended that winter trade in this area necessarily involved ice navigation, both parties were or should have been aware of conditions that could have been anticipated, and the risk was anticipated and insured. 45A.6 The majority denied the owner’s claims, stating:

The Panel first considered the specific voyage agreed to by the Parties at the time the charter was made which was a voyage for discharge in Quebec in March. The area was not therefore considered unsafe per se by either of the Parties. Vessels trade to Quebec throughout the winter and are frequently subject to delays in the reaches to Quebec by the shifting or packing of ice flows [sic.] in the river and in the Gulf. Both Parties were aware of these possibilities. Under the “Ice Clause” the master had the right to idle, delay or backtrack and wait, until in his judgment, he could proceed further. Any lost time was to be paid for by the Charterer at the demurrage rate and this served to relieve the master of any pressure to force his vessel or to proceed during periods of adverse conditions …

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