1468123665 Ycnsunom 3. Hull Fouling

8/9/2019 1468123665 Ycnsunom 3. Hull Fouling

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WHAT IS HULL FOULING?

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• Bio-fouling.

• The accumulation of marine growth on the underside and sides of ships.

• Three types depending on temperature and water quality:

• Shell species such as barnacles and mussels.

• Weed such as seaweed and brown weed.

• Slime caused by accumulation of algae.


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HOW DOES FOULING OCCUR?

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• A natural phenomenon and occupational hazard to which all ships are susceptible but

particularly in circumstances where ships remain idle/static in warm/tropical waters.

• The start of fouling is very dependent upon local conditions and fouling intensity variations

over time.

• The combination of warm and shallow water is the most challenging and will generally cause

fouling to attach sooner and grow faster.

• For stationary exposure when fouling normally is the biggest problem, periods of more than

10-14 days give a large increase in the risk of fouling.


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CAN FOULING BE PREVENTED?

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• Extract from The Pamphilos (2002):

‘Self polishing anti fouling paints...operate to protect the hull by reason of the fact that themarine organisms which attach to the paint during the first 12 days of static conditions are

killed by its biocide qualities remain attached to the paint until the vessel begins to move,

whereupon they are polished off by the movement through the water, whereas if the vessel

was stationery for more than 12 days its biocide release rate ceases to operate efficiently

and living organisms attach to and grow upon the dead ones can cannot thereafter be

polished off ’

• Life span of anti fouling paints vary depending on the condition of the ship’s hull when

applied, its actual application and the use of the ship in the intervening period. See the

discussion in London Arbitration 17/98.


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WHY IS FOULING A PROBLEM?

• Fouling can affect a ship’s hull, rudder, chests and propeller.

• Increases under water resistance to propulsion.

• Blocks main engine cooling intakes.

• Loss of speed by up to 10% as a result of reduced engine revolutions and high propeller slip.

• Increase in fuel consumption by up to 40%.

• Dry docking necessary to remove fouling, cleaning costs and loss of time.

• Consequential losses, for example during the ship’s next employment.


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OFF-HIRE?

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• Pre-existing at the time of delivery or arises during charter service?

• Evidence of likely timing and place of hull fouling?

• Dry docking schedule?

• Inspections?

• Treatment of hull?

• Trading pattern ?

• Idle/static periods?

• Previous under performance?

See for example London Arbitrations 17/98, 9/08 and 24/05

• Is there a ‘defect’ affecting the performance of the ship which triggers off-hire?

• Pre-existing – The Ioanna (1985):

‘It seems to me...that when a vessel starts on a charter-party with a fouled bottom there is a defect in her

hull. ‘Defect’ according to the Oxford Dictionary means imperfection or flaw. There was an imperfection or

flaw in this vessel.’


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• During charter service – The Rijn (1984):

‘ ...I find it hard to visualize the accumulation of marine growth during the contract service as a ‘defect’ in

the hull. But even if it were, the defect arose as a natural consequence of the way in which the charterers

chose to employ the ship. I do not consider that the loss of time thus caused should be deducted from the

amount of time for which hire is payable.’

• ‘Any other cause’ as a means of triggering off-hire?

Only when the fouling is fortuitous. See The Appollonius (1978)

‘ ...it seems clear that the encrustation of the vessel’s bottom by a thick coat of molluscs or barnacles during

her lengthy stay at Whampoa was unexpected, since the water there was fresh or slightly brackish, while

molluscs prefer salt water. Clearly what happened to the ship’s bottom at Whampoa was not only

unexpected but out of the ordinary course of things’ .


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BREACH OF PERFORMANCE WARRANTIES?

• Limited to where a ship’s capability is affected at the time of delivery. See London Arbitration

24/05

• An additional remedy to off-hire.

• Off-hire is usually preferred due to different rules on set-off between loss of time and savings in

fuel. See The Ionanna (1985)

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Charterers need to demonstrate a separate breach of the charterparty, for example:

• Breach of obligation to maintain during the charterparty?

• Owners obligation to maintain was not absolute but only requires them to have a

sensible programme of maintenance and to deal with problems as they arise.

• See The Pamphilos (2002) and London Arbitration 10/00 and 20/00.

• Breach of delivery obligations and that the breach has resulted in or contributed to fouling

affecting the ship’s performance? See London Arbitration 20/00

• Breach of duty of utmost despatch? See by analogy The Charalambros N Pateras (1972)


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• Leading case of The Kitsa (2005):

• Basis of claim:

‘Even when the charterer’s order was, beyond a shadow of a doubt, a legitimate order

with which the owner was bound to comply, the indemnity may be granted, not merely in

respect of liabilities incurred, but also in respect of loss or damage caused. In such cases,

however, much may turn upon the facts of the particular case, upon the terms of the

particular charter-party, and, in the light of these, upon what risks it appears each party

has agreed to bear...

• The test:

...we regard as wholly unrealistic any suggestion that the time actually spent by the vessel

at Visak went beyond any reasonable expectation on the part of an owner of a vessel

similar to Kitsa as to how long this vessel might be required to spend there in the course

of entirely ordinary employment to the sub-continent. In our view, the risk of fouling as a

result of that employment was not a risk that owners in the present case cannot be taken

to have accepted.’

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• Relevant factors:

1) Contractual trading limits including warm water ports?

2) Legitimate employment orders by Charterers?

3) Time not exceed reasonable expectation?4) No delays caused by Charterers?

5) Delays and the occurrence of fouling foreseen?

6) Risk is one accepted by Owners?

• See also London Arbitration 9/07

• But see by analogy The Appollonius (1978) where unexpected marine growth accrues at

a port to which Charterers had ordered the vessel to proceed under the charterparty.

Breach of redelivery obligations?

• Ordinary wear and tear. See The Pamphilos (2002)

• Where Charterers are in breach? See The Puerto Buitrago (1976) subject to damages/

‘cost of cure’ claim.


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• ‘Should the vessel be kept by Charterers in tropical waters for more than 20 running days either alongsideberth and/or at anchorage and/or adrift whether under cargo operations or not so that bottom growth takes

place which affects vessel’s efficiency, then Charterers shall either arrange for bottom cleaning for their time

and expense or alternatively forfeit any claims as to speed and/or bunker consumption’ .

• ‘Should the vessel stay in a loading or in a discharging port more than 25 days whilst under Charterers’ service

and as a result of that is subject to underwater growth, barnacles, etc. The Owners/vessel are not to be held

responsible for any deficiency in speed/consumption of fuel in such a case. Underwater cleaning/scrubbing tobe arranged by Owners at Charterer’s time and expense’ .

• ‘In the event that the vessel’s speed capacity is reduced as a result of marine growth on the vessel’s bottom by

reason of the vessel being in a port or place for a long period, the Owners shall not be responsible for

reduction of speed or increase of bunker consumption of the vessel up until such time as her next schedule

drydock or a bottom cleaning arranged by the Charterers at their time, risk and expense to the Owner’s

satisfaction, whichever is earlier’ .

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SPECIFIC/EXPRESS PROVISIONS AND THEIR EFFECTS


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• ‘Owners will not be responsible when bottom fouling resulting from a prolonged stay in port/anchorage

and/or idling for a running period of more than 25 days under Charterers’ arrangements and orders. Owners

are not responsible for reduced speed and/or increased bunker consumption due to fouling from a prolonged

stay’ .

• ‘If the vessel is encountering prolong stay, minimum 30 days in a port and there is strong reason to believe

that the vessel’s hull has acquired excessive marine growth affecting vessel’s speed/consumption due to the

stay at this specific port, Owners are to arrange for a diver inspection. Should the result of this diver

inspection indicate there is excessive marine growth on the hull, Owner/Charterers to arrange underwater

scrubbing of the hull in Charterers’ time and expense, prior to vessel’s departure from the port, if same can be

done without reasonable delay. If the underwater scrubbing is not available or cannot be carried out at the

port in question same to be carried out in Charterers’ time in the next convenient port. Charterers agree no

claim for under performance of the vessel for the passage from the port in question until the next convenient

port. Charterers agree no claim for under performance of the vessel for the passage from the port in questionuntil underwater scrubbing is carried out’ .

• ‘If the vessel is in a port of more than 20 days or idle at a safe anchorage for more than 20 days, Owners to

appoint divers to check hull bottom and report with signature to Charterers. If Charterers need hull bottoms

cleaning at their discretion, Charterers are to bear the cost of hull bottom cleaning. Owners shall endeavour

to carry out bottom cleaning at next available port where such facilities are available. Vessel is to remain on-

hire during the cleaning operation. However, when practical, the bottom cleaning should take place at the

port where the ship has been laying for more than 20 days, but if it is not practical to do so and cleaning has

to take place at another location, Charterers have no right to lodge a speed or bunker claim against the

Owners during the periods the vessel is in a condition and en route to the port identified where the hull

cleaning is to be undertaken’ .

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• ‘The Charterers shall, in their time and at their risk and expense, arrange for the removal

of bottom-fouling if such bottom-fouling:

a) Was caused by the Vessel having been kept by Charterers in tropical waters for more

than 10 (ten) consecutive days, either alongside a berth and/or at anchorage or adrift,whether or not under cargo operation, so that bottom fouling takes place which affects

the Vessel’s efficiency; or

b) Is a natural and foreseeable consequence of the Vessel’s complying with the Charterers’

orders. Until such bottom-fouling has been removed, the Charterers shall be stopped

from presenting any claim for performance, speed or bunker consumption caused

thereby.

• Impacts on the common law position with regard to The Kitsa, placing responsibility for

the occurrence of bottom fouling on Charterers which arises as a result of a prolonged

idle period?

• Relevant issues include (1) Running or consecutive days , (2) Interruption of consecutive

days? and (3) ‘Tropical’ or ‘tropical’ waters?

• Impacts on the common law position with regard to The Rijn, placing responsibility forthe consequences of bottom fouling (specifically in relation to reduction in speed and/or

increased consumption) on Owners which arises from a short idle period?

• Probably not as a matter of construction in the absence of very clear wording.

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NEW CLEANING TECHNOLOGY?


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• The Robotic Hull Bio-inspired Underwater Grooming tool, or Hull BUG

Documents

1468123665 Ycnsunom 3. Hull Fouling