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. 12.2 The charterers’ obligation (and corresponding entitlement) to provide fuel (and, it is suggested, other matters within Clause 2) does not entitle them to require the ship to take on bunkers (or other goods or services covered by Clause 2) not required for the performance of the chartered service: see The Captain Diamantis , , below.Fuel
12.3 Provision is made in Clause 3 of the New York Produce form and Clause 5 of the Baltime form for the purchase by the charterers of fuel on board on delivery and by the owners of fuel on board on redelivery: see et seq. Fuel so purchased by the charterers becomes their property, together with fuel provided by them during the charter service: see . See also The Yuta Bondarovskaya , in which time charterers were held not to have implied actual authority, or apparent authority, to purchase bunkers so as to bind owners to pay bunker suppliers for bunkers ordered for the ship.Quantity
12.4 Of necessity, the ability of the charterers to provide the ship with the correct quantity of bunkers requires the co-operation of the owners and their officers, upon whom the charterers must largely rely for the provision of information as to previous and current consumption. The owners or their officers may also indicate the further quantities that will be required for safe completion of the next voyage or voyages ordered by the charterers. If the charterers reasonably rely upon such information, and it turns out to be wrong, they cannot be held responsible for the consequent losses.The Patapsco was time chartered for a round voyage from Liverpool to the River Plate and back. Owing to a miscalculation by the ship’s engineer, the ship did not take on sufficient bunker coals for the first stage of the homeward voyage and she had to deviate for additional bunkers. The owners contended that the extra expenses incurred were the charterers’ responsibility since, under the terms of the charter, the charterers were to “provide and pay for all coal”. But the Court of Appeal, affirming Kennedy, J., held that the obligation on the charterers to provide coal did not cut down the owners’ initial warranty of seaworthiness, which included the obligation to arrange for sufficient bunkers at each stage of the round voyage.