There is no express or implied obligation to provide clean holds after each intermediate voyage. Most charterparties provide for the vessel’s holds on delivery to be clean-swept (see line 34 of the NYPE ’93 form). Some charters contain express intermediate hold cleaning clauses, which usually oblige the crew to render customary assistance in cleaning of holds in preparation for the next cargo. As discussed below, this is very different from the warranty of clean-swept holds on delivery.
It is settled law that the owners’ warranty that the holds are clean-swept on delivery does not extend to subsequent cargoes. Charterers are expected to know when fixing what cargoes the vessel is able to carry. The crew are not skilled cleaning operatives and there are obvious limitations on what cleaning can be effected while the vessel is at sea. In such circumstances it would unreasonable for owners to warrant that the vessel will present at each subsequent loadport with her holds clean and ready to load charterers’ intended cargo. This was certainly the case in The Bunga Saga Lima1, where the charterers failed to argue that the warranty which exists at the first loading port should also be in place for the subsequent ports.
However, the charterparty employment provisions (see clause 8 of the NYPE ’93 form) impose a duty on owners, though their servants, master and crew, to provide “customary assistance” in hold cleaning for the entire duration of the charter. This apparently wide duty has been refined by the courts to include the crew’s duty to perform intermediate hold cleaning to a reasonable (as opposed to a particular) standard, limited always by the available means onboard. This duty should not be mistaken with an obligation to have the holds clean enough to receive the cargo. In the case of The Bela Krajina 2, Donaldson J found that “customary assistance” does not include specialist services that may be required depending on the nature of the cargo to be loaded. As long as the crew carry out reasonable and customary cleaning, any time lost at the load port on account of the holds being unclean should be for charterers’ account.
Problems of this nature usually arise when the charterers, having loaded dirty cargoes on previous voyages, decide to load a clean cargo, such as grain. In these charterers should not expect the owners to undertake a mid-sea cleaning operation to the standard of those carried out at shore. This argument formed part of the reasoning behind the judgment in the case of The Berge Sund 3.
In a recent London Arbitration4, the governing charterparty included a specific “Intermediate Hold Cleaning” clause, which the charterers tried to rely on to recover hire on account of the delays at the loadport, apparently caused by the crew’s inability to clean the holds well enough to receive a cargo of urea. The owners’ agreed that the crew would do their utmost to clean the holds during intermediate voyages, without guarantee that the same would be sufficiently clean to be accepted upon arrival. The vessel’s last cargo was cement clinker, which was discharged in high humidity, and her previous five cargoes had all been dirty. It is well known that cement clinker is a particularly difficult cargo to clean and that urea requires a very high level of hold cleanliness.
The majority of the arbitrators ruled in favour of owners on the basis that the specialist cleaning required (in particular, access was required to the higher reaches of the holds using staging and/or cherry pickers) went well beyond that which could be expected of the crew by way of customary assistance during an intermediate voyage. Although the majority decision was that the the “Intermediate Hold Cleaning” clause did not alter owners’ other contractual obligations and was merely a reinforcement to the Employment clause (Clause 8 in NYPE), it is interesting to note the views of the dissenting arbitrator. He was critical of the master for not informing the charterers that the crew could not reach the upper level of the holds (where residues of not only cement clinker but also coal were trapped in the beams and metalwork) to enable the charterers to arrange shore labour and equipment earlier. The dissenting arbitrator’s view was that it was incumbent on the master to tell charterers when he realised, or ought to have realised, that the holds would not be passed for loading urea (which he knew was to be the next cargo 5 days before the holds failed the first survey).
The views of the dissenting arbitrator neatly illustrate the distinction that needs to be made between holds that are unclean due to previous cargo loaded and holds that are uncargoworthy on account of poor maintenance. If, say, the holds are unfit because the crew have failed to clean loose rust chipping off the walls of the holds, as was the case in The Bela Krajina, it is arguable that owners are in breach of the maintenance clause (which charterers failed establish in The Bela Krajina). Although the Bela Krajina involved loose rust as opposed to cargo residues, the rust was also located in the upper reaches of the holds and was inaccessible to the crew without staging. The position is summarised in the umpire’s finding that “customary assistance does not extend to scaling operations requiring the use of sophistictaed tools, like pneumatic hammers, high pressure water jets or sandblasting equipment” as recorded and adopted in the judgement of Donaldson J (as he then was).
As the law currently stands, in the absence of clear intermediate cleaning standard provisions in the charterparty, the owners’ duty is limited to doing their best in preparing the holds for the next cargo within the boundaries set by “customary assistance”. There is no strict obligation to meet any standard of cleanliness that may be necessary for receiving the next cargo but it is important for owners and charterers to maintain a close dialogue when intemediate hold cleaning is taking place to avoid problems and delays at the next loadport.
1. [2005] 2 Lloyd's Rep. 1
2. [1975] 1 Lloyd’s Rep 139
3. [1993] 2 Lloyds Rep. 453
4. (2007) 716 LMLN 1
