“In my judgment the arbitrators were right both to address first the question whether the two clauses could and should be construed so as not to conflict and to conclude that they could. They can sensibly and commercially be read together so that the speed warranty is to apply as such but subject to the owners establishing, if it be material, that the cause of the vessel failing to reach 11 knots was one or more of the statutory exceptions. If it were otherwise the clause paramount would be emasculated in a manner which is contrary to its express terms. I do not think the wording permits any reliance on s. 5 of the United States Act as it says in terms that the owner is not to be deemed to be surrendering any of its rights or immunities under the Act. In any event cl. 5 is of no relevance if the speed warranty and the clause paramount are not in conflict.” d) There is in my judgment a direct analogy with the terms of NYPE standard form. This imposes an apparently unqualified and absolute obligation to deliver the vessel “in every way fitted for the service” and to “keep the vessel in a thoroughly efficient state”
“It is true that inert gas systems were installed on tankers fundamentally for the protection of the vessel. However, the purpose of the inert gas system is primarily to manage the cargo, not only for the protection of the cargo but for the ultimate protection of the vessel from adverse consequences associated with that cargo. Thus, essentially the inert gas system is concerned with the management of the cargo and, in my view, damage occasioned to cargo by mismanagement of the inert gas system cannot be categorized as neglect or fault in the management of the ship. Consistently with the principles enunciated in The Tenos, I must hold that the subject damage was not occasioned by an act of neglect or default in the management of the ship but rather in the management of the cargo.”
“If the cause of the damage is solely, or even primarily, a neglect to take reasonable care of the cargo, the ship is liable, but if the cause of the damage is a neglect to take reasonable care of the ship, or some part of it, as distinct from the cargo, the ship is relieved from liability; but for if the negligence is not negligence towards the ship, but only negligent failure to use the apparatus of the ship for the protection of the cargo, the ship is not so relieved.”
“In my judgment, however, the particular wording of clause 23 and the fact that, in the present case, only one composite claim for demurrage was made by owners, means that Mr Kimmins' argument has to be rejected, despite its initial superficial attraction. Clause 23 required owners to present “a claim in writing” (my emphasis) within 90 days of discharge of cargo, “together with supporting documentation substantiating each and every constituent part of the claim” (my emphasis). Unless such a claim, with supporting documentation, is presented within the relevant time period, charterers are released “from all liability in respect of any claim for demurrage”, ie not merely that particular constituent part of the claim that is not supported by relevant documentation. Accordingly, if, as here, only one composite claim for demurrage was made, owners are time-barred in respect of the entirety of the claim, notwithstanding that the absence of documents only relates to one constituent part of the claim. It is clear from the particulars of claim, the invoice and the supporting documents, that only one single claim for demurrage was made in the present case.”