Recently, we’ve seen an uptick in hull fouling claims. These are usually caused by circumstances where ships have been sitting idle off ports waiting to load or discharge or have been laid up due to issues related to the pandemic. The question is always: who should bear the consequences and pick up the tab for the often expensive job of cleaning the fouled hull and propeller?
Hull fouling claims have been around for many years. BIMCO has produced a standard clause which one often sees in charters, although it is often frequently amended. In some recent cases, we have identified loopholes in the clause, particularly as regards shipowners who deliver the vessel into a new charter in a potentially fouled condition and then seek to take the benefit of a free clean at the other end of the charter.
The cost of cleaning varies from ship to ship but it can be as much as US$50,000 for larger vessels and substantially more if dry-docking is required. Recently, there have been more problems with cleaning simply because of a lack of divers and facilities due to the Covid-19 pandemic. As such, cleaning costs have become more significant and that has led to more disputes. There is also the cost of reduced performance to consider as fouled ships are slower and consume more fuel.
There are many things that can be done to reduce fouling. Many owners are now employing consultants to advise them on fouling risks with particular concern being the temperature and chlorophyll levels of seawater. It has generally been accepted that the warmer waters in more tropical climates are riskier but that does not mean that marine growth cannot form elsewhere.
Short sea passage is the most common measure used to reduce fouling. Essentially, this is the right of the owner to move the ship after certain idle periods to brush barnacles and marine growth from the bottom, thus extending the life of the anti-fouling paint. That provision, however, requires some special provision in a charter so that it does not amount to a deviation.
Another consideration is the effectiveness of the anti-fouling paint itself. Many shipowners opt for the cheaper form of anti-fouling paint on certain parts of the ship, which increases the risk of fouling. It is important that the speed and performance warranties and provisions dealing with idling tie in with the anti-fouling paint in use. There is no point, for example, in agreeing that the ship can idle for 21 days if the anti-fouling paint is only good for 14 days.
Finally, one area of common dispute is where the fouling occurred. It is possible to reconstruct the vessel’s passage and identify areas of potential fouling and couple that with any photographs taken of the condition of the hull. For example, a clearly defined line of marine growth may be visible on an inspection but that may not correlate with an idle period under the charter. The classic example is fouling that has clearly been incurred while the ship was in ballast condition which is then alleged to have been incurred while the ship was laden. The absence of fouling above the line however would indicate that the ship was not fouled on the laden voyage.
In our experience, it is important to retain the right expert input at an early stage when dealing with a fouling claim and it requires a careful analysis of the relevant clauses in the governing charter. Through that approach, we have managed to help our clients resolve most of the recent cases.
Nick Burgess
Partner
Constantin von Hirsch
Trainee
