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HULL FOULING
Causes and Consequences
STEPHEN GRAINGER
Partners:
Anthony Brown, Joe Mays, David Wartski, Stephen Grainger
This firm is regulated by the Solicitors’ Regulation Authority with number 00386858
WHAT IS HULL FOULING?
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Bio-fouling.
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The accumulation of marine growth on the underside and sides of ships.
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Three types depending on temperature and water quality:
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Shell species such as barnacles and mussels.
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Weed such as seaweed and brown weed.
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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.
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The start of fouling is very dependent upon local conditions and fouling intensity variations
over time.
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The combination of warm and shallow water is the most challenging and will generally cause
fouling to attach sooner and grow faster.
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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 the
marine 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’
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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?
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Fouling can affect a ship’s hull, rudder, chests and propeller.
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Increases under water resistance to propulsion.
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Blocks main engine cooling intakes.
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Loss of speed by up to 10% as a result of reduced engine revolutions and high propeller slip.
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Increase in fuel consumption by up to 40%.
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Dry docking necessary to remove fouling, cleaning costs and loss of time.
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Consequential losses, for example during the ship’s next employment.
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CHARTERPARTY CONSIDERATIONS
OWNER’S DELIVERY OBLIGATIONS?
1.
Knowledge by Charterer?
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On-hire survey?
Shipyard reports?
Charterer’s Questionnaire?
1.
Date of delivery as opposed to date of charterparty – The Apollonius (1978)
2.
Breach of ‘thoroughly efficient state’ of hull warranty (for example lines 1-12 NYPE ’46)? The Ioanna (1985)
3.
Breach of ‘in every way fitted for the service’ warranty (Lines 13-24 NYPE ’46)? –
London Arbitration 10/100
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OFF-HIRE?
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Pre-existing at the time of delivery or arises during charter service?
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Evidence of likely timing and place of hull fouling?
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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
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Is there a ‘defect’ affecting the performance of the ship which triggers off-hire?
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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.’
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‘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?
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Limited to where a ship’s capability is affected at the time of delivery. See London Arbitration
24/05
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An additional remedy to off-hire.
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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:
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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.
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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
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Breach of duty of utmost despatch? See by analogy The Charalambros N Pateras (1972)
CLAIMS ARISING WHERE FOULING OCCURS DURING
CHARTER SERVICE
Responsibility for losses arising due to fouling as between Owners and Charterers
Breach by Charterer of an express term by reference to warm water ports?
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Direct result of obeying Charterers’ orders to trade to a port outside permitted trading limits?
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Waiver by Owners by complying with unlawful orders? Temple Steamship v. V/O Sovfracht (1945) and
The Kanchenjunga (1990)
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Express indemnities in Owner’s favour in the event of defined idle periods? See below.
Losses sustained as a result of complying with Charterer’s orders as to the employment of the vessel –
implied indemnity?
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Owners not entitled to claim in relation to navigational matters. See The Erecthion (1987)
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Owners not entitled to claim from Charterers where foreseeable losses and expenses are incurred.
See The Island Archon (1994)
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Leading case of The Kitsa (2005):
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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...
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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)
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3)
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Contractual trading limits including warm water ports?
Legitimate employment orders by Charterers?
Time not exceed reasonable expectation?
No delays caused by Charterers?
Delays and the occurrence of fouling foreseen?
Risk is one accepted by Owners?
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See also London Arbitration 9/07
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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?
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Ordinary wear and tear. See The Pamphilos (2002)
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Where Charterers are in breach? See The Puerto Buitrago (1976) subject to damages/
‘cost of cure’ claim.
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SPECIFIC/EXPRESS PROVISIONS AND THEIR EFFECTS
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‘Should the vessel be kept by Charterers in tropical waters for more than 20 running days either alongside
berth 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’.
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‘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 to
be arranged by Owners at Charterer’s time and expense’.
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‘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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‘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’.
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‘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 question
until underwater scrubbing is carried out’.
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‘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 onhire 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
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.
b)
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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?
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Relevant issues include (1) Running or consecutive days , (2) Interruption of consecutive
days? and (3) ‘Tropical’ or ‘tropical’ waters?
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Impacts on the common law position with regard to The Rijn, placing responsibility for
the consequences of bottom fouling (specifically in relation to reduction in speed and/or
increased consumption) on Owners which arises from a short idle period?
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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