Hull Fouling & Charterer Liability: When Performance Claims Backfire!

 ⚖️ "Hull Fouling & Charterer Liability: When Performance Claims Backfire!"

❓ Are You on Thin Ice with Your Sub-Charterers?

1️⃣ Did you knowingly fix a vessel underperformance issue without corrective action?
2️⃣ Are you relying on back-to-back performance clauses without verifying vessel condition?
3️⃣ Can Charterers shift the blame to Owners when they rejected underwater hull cleaning?

 

📜 Clause Breakdown: Who Bears the Risk When a Fouled Hull Sinks Performance?

This blog dives into a real-world dispute between Owners and Charterers over underperformance claims under a sub-charter with XYZ. Here’s the crux of the issue:

• Since 2 July 2021, Charterers were well aware of the vessel's likely underperformance due to hull fouling at Topolobampo.
• Owners repeatedly proposed hull inspection and cleaning, which Charterers vetoed.
• Despite this, Charterers fixed the vessel with XYZ, giving performance warranties they knew could not be met.
• Now, facing performance claims from XYZ, Charterers are trying to pass responsibility onto Owners.

👉 Owners’ position:
The Charterers assumed this commercial risk and must accept the consequences. By rejecting deviation for cleaning, Charterers failed to mitigate losses and can’t allege breach of the head charter’s performance warranty.

 

⚠️ Common Pitfalls

🚫 Assuming back-to-back safety nets: Charterers often fix sub-charters assuming upstream protection, without checking vessel condition.

🚫 Ignoring pre-fix condition: When you knowingly skip underwater hull cleaning, you’re weakening your position in any performance dispute.

🚫 Neglecting mitigation duties: Courts and tribunals expect you to act prudently. Ignoring known fouling risks invites liability.

 

💼 Actionable Takeaways for Shipping Professionals

🧭 For Charterers:

• ✅ Always verify the vessel’s physical condition—especially if performance warranties are to be passed downstream.
• ✅ Never veto Owners’ proposed mitigation measures (like cleaning) without a well-documented justification.
• ✅ Consult legal/technical teams before accepting back-to-back clauses blindly.

⚓ For Owners:

• ✅ Document every correspondence where cleaning was suggested and declined.
• ✅ Remind Charterers that failure to mitigate may void their ability to bring claims.
• ✅ Keep thorough records of vessel condition and cleaning proposals.

📄 For Voyage & Technical Managers:

• ✅ Integrate hull condition checks into your pre-fixture process.
• ✅ Avoid confirming warranties you know can't be fulfilled unless mitigation steps are underway.
• ✅ Build robust communication trails on cleaning, fouling, and deviation discussions.

 

📢 Final Word: Be Smart Before You Fix

The hull wasn’t the only thing fouled here—so was the decision-making chain. Performance claims don’t exist in a vacuum. If you knowingly bypass risk mitigation and hand over warranties that won’t hold water, the blame may land squarely on you.

💬 Have you encountered similar friction between hull condition and charter party expectations? Drop your experience in the comments!

👉 Like this post, share it with your commercial & operations team, and follow @ShipOpsInsights with Dattaram for more powerful shipping perspectives that blend legal, operational, and commercial wisdom.

 

📌 Disclaimer:
This article is intended for educational and general informational purposes only. Readers are advised to consult relevant charter party terms, legal counsel, or technical experts before taking operational or contractual decisions.

 ⚖️ "Hull Fouling & Charterer Liability: When Performance Claims Backfire!"

❓ Are You on Thin Ice with Your Sub-Charterers?

1️⃣ Did you knowingly fix a vessel underperformance issue without corrective action?
2️⃣ Are you relying on back-to-back performance clauses without verifying vessel condition?
3️⃣ Can Charterers shift the blame to Owners when they rejected underwater hull cleaning?

 

📜 Clause Breakdown: Who Bears the Risk When a Fouled Hull Sinks Performance?

This blog dives into a real-world dispute between Owners and Charterers over underperformance claims under a sub-charter with XYZ. Here’s the crux of the issue:

• Since 2 July 2021, Charterers were well aware of the vessel's likely underperformance due to hull fouling at Topolobampo.
• Owners repeatedly proposed hull inspection and cleaning, which Charterers vetoed.
• Despite this, Charterers fixed the vessel with XYZ, giving performance warranties they knew could not be met.
• Now, facing performance claims from XYZ, Charterers are trying to pass responsibility onto Owners.

👉 Owners’ position:
The Charterers assumed this commercial risk and must accept the consequences. By rejecting deviation for cleaning, Charterers failed to mitigate losses and can’t allege breach of the head charter’s performance warranty.

 

⚠️ Common Pitfalls

🚫 Assuming back-to-back safety nets: Charterers often fix sub-charters assuming upstream protection, without checking vessel condition.

🚫 Ignoring pre-fix condition: When you knowingly skip underwater hull cleaning, you’re weakening your position in any performance dispute.

🚫 Neglecting mitigation duties: Courts and tribunals expect you to act prudently. Ignoring known fouling risks invites liability.

 

💼 Actionable Takeaways for Shipping Professionals

🧭 For Charterers:

• ✅ Always verify the vessel’s physical condition—especially if performance warranties are to be passed downstream.
• ✅ Never veto Owners’ proposed mitigation measures (like cleaning) without a well-documented justification.
• ✅ Consult legal/technical teams before accepting back-to-back clauses blindly.

⚓ For Owners:

• ✅ Document every correspondence where cleaning was suggested and declined.
• ✅ Remind Charterers that failure to mitigate may void their ability to bring claims.
• ✅ Keep thorough records of vessel condition and cleaning proposals.

📄 For Voyage & Technical Managers:

• ✅ Integrate hull condition checks into your pre-fixture process.
• ✅ Avoid confirming warranties you know can't be fulfilled unless mitigation steps are underway.
• ✅ Build robust communication trails on cleaning, fouling, and deviation discussions.

 

📢 Final Word: Be Smart Before You Fix

The hull wasn’t the only thing fouled here—so was the decision-making chain. Performance claims don’t exist in a vacuum. If you knowingly bypass risk mitigation and hand over warranties that won’t hold water, the blame may land squarely on you.

💬 Have you encountered similar friction between hull condition and charter party expectations? Drop your experience in the comments!

👉 Like this post, share it with your commercial & operations team, and follow @ShipOpsInsights with Dattaram for more powerful shipping perspectives that blend legal, operational, and commercial wisdom.

 

📌 Disclaimer:
This article is intended for educational and general informational purposes only. Readers are advised to consult relevant charter party terms, legal counsel, or technical experts before taking operational or contractual decisions.