Voyage Charters

Page 1011

Chapter 49


18. CLEANING. The Owner shall clean the tanks, pipes and pumps of the Vessel to the satisfaction of the Charterer’s Inspector. The Vessel shall not be responsible for any admixture if more than one quality of oil is shipped, nor for leakage, contamination or deterioration in quality of the cargo unless the admixture, leakage, contamination or deterioration results from (a) unseaworthiness existing at the time of loading or at the inception of the voyage which was discoverable by the exercise of due diligence, or (b) error or fault of the servants of the Owner in the loading, care or discharge of the cargo.

Cleaning to charterer's inspector's satisfaction

49.1 The practice in the tanker trade with regard to cleaning of cargo holds should be borne in mind when considering the provisions of clause 18. Most major receivers of petroleum cargoes, and certainly all of the major oil companies, have a detailed code governing the cleaning of holds prior to carriage of particular grades of cargo. These codes usually demand crude oil washing (“COW”), and may contain prohibitions on the carriage of high grade fuels, such as aviation jet fuel, immediately after the carriage of heavier crudes or products. The masters of vessels commonly employed in the tanker trade are familiar with the requirements of the major oil companies, and special cleaning clauses are often added to the charterparty. 49.2 On the face of it, clause 18 leaves the standard of cleaning entirely to the discretion of the charterer’s inspector, and there is no decision on the clause which establishes any requirement that he should act reasonably. It would be impermissible to adopt a construction of the clause which robs the decision of the charterer’s inspector of all significance, and simply allows the court or arbitrator to substitute its own decision as to whether the tanks have been cleaned satisfactorily. On the other hand, the clause imposes no obligation to appoint a person who is independent,1 or a joint inspector2 or one who has any special qualifications, and there would seem to be strong grounds for imposing some limit on the exercise of the discretion, since the charterer might otherwise prevent performance of the charter, and expose the owner to liability in damages, by appointing a wholly ignorant or unreasonable inspector.3 It is probable, therefore, that a term should be implied that in reaching his decision the inspector should

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act in good faith and on reasonable grounds or at least not capriciously.4 The effect of such a term is that the inspector’s decision will prevail, even if the tribunal would have reached a different decision, as long as it falls within the range of reasonable permissible opinions.5 Under the not-dissimilar provisions of the sugar charter it has been held in London arbitration6 that a term is to be implied that the inspector shall judge the condition of the holds on proper and reasonable grounds, and make his decision on the basis of an objective assessment of the holds. 49.3 The requirement to clean to the charterer’s inspector’s satisfaction is additional to, not in substitution for, the owner’s obligation of seaworthiness under clause 1 and the Hague Rules.

The Gianna M was chartered to carry a cargo of fuel oil and refined petroleum or spirit from Con-stanza to West Africa. The charter contained an absolute warranty of seaworthiness, although with an exception of “latent defects in the hull not resulting from want of due diligence”. Clause 16 obliged the owners to keep the vessel’s tanks “always clean” and Clause 27 provided “steamer to clean for the cargo in question to the satisfaction of charterer’s inspector”. At Constanza the charterer’s inspector viewed the tanks and, after giving instructions for some further cleaning, passed them. One of the grades loaded was benzene, which upon shipment was water white. However, on discharge the benzene in certain tanks was found to be “superfine white” or “coloured”.

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