In Minerva Navigation Inc v Oceana Shipping AG: Oceana Shipping AG v Transatlantica Commodities SA [2012], the court analysed the terms of an amended NYPE 1946 charterparty in order to assess whether the charterers' claim for off hire was valid, and whether there had been an actual loss of time.
The ''ATHENA'' carried wheat from Novorossiysk, Russia, to Tartous, Syria. On arrival the cargo was rejected as contaminated. The vessel then proceeded towards Libya, stopping and drifting for two weeks in international waters, 50 miles off Benghazi, while the issue of new bills of lading was being resolved. The charterers claimed that the vessel was off hire during the drifting period. They succeeded in arbitration and the owners appealed.
Mr Justice Walker allowed the owners' appeal.
The off hire clause, clause 15, provided: ''...in the event of loss of time from...default of master...or by any other cause preventing the full working of the vessel, the payment of hire shall cease for the time thereby lost..and all extra expenses directly incurred including bunkers consumed during period of suspended hire shall be for Owners' account...''
Analysing this clause involved two questions:
a. whether clause 15 was engaged, and, if it was;
b. what the consequences were.
a. In this case, clause 15 was held to have been engaged, as the arbitrators had found that the service immediately required of the vessel was delayed due to default on the part of the Master preventing the vessel from proceeding to port.
b. The arbitrators had, however, found as a fact that even if the vessel had proceeded directly to Benghazi, she would not have berthed earlier than she in fact did. The same bill of lading issues would have been present, and there was no reason to believe that those problems would have been resolved any ealier than they actually were. So time was not, in fact, ''thereby lost''. As the charterers could not show that there had been a net loss of time in performing the chartered service overall, they could not place the vessel off hire.
The court's decision makes good commercial sense. If there has been no actual delay, then the vessel will not go off hire under a NYPE 46 off hire clause. In other words, despite loss of a period of service, if the adventure is, in fact, not delayed, then hire will be due.
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