This article considers the legal obligations of owners regarding the cleanliness of their vessel’s holds from the perspective of both time and voyage charters. Hold cleaning remains a vital issue for the carriage of any bulk cargo. Failure to comply with the contractual obligations for cleanliness can often lead to disputes and lost time in addition to potential claims for cargo contamination.
The required level of hold cleanliness
Broadly, a charterparty or a fixture recap will usually specify the level of cleanliness required. For example, Clause 2(c) of the BIMCO NYPE 2015 form requires holds to be “clean and in all respects ready to receive the intended cargo”. However, in cases where a standard form is used, it is a common trade practice for this to be amended with further requirements. Particularly because the requirements will vary depending on the exact nature of the cargo.
Common terms used in the market include:
Hospital clean – this is considered the most onerous type of clean. The wording stipulates all paint must be 100% intact and the holds must have been swept and washed completely clean.
Grain clean – this requires the holds to be free from insects, odour, residue of previous cargo, lashing material, loose rust scale and paint flakes. Prior to loading, the holds must be swept, washed down with fresh water, dried and well ventilated.
Normal clean – this involves the holds to be swept, washed and dried clean.
Shovel clean – this is considered the least onerous cleaning requirement and simply involves the removal of previous cargo residue only (it does not require washing).
When are the holds required to be clean?
The charterparty often determines when exactly the holds must be in the required cleanliness state, however there can sometimes be contradictions between the standard wording and the fixture recap or rider clauses. Standard wording may require the holds to be clean on delivery, while bespoke fixture recap or rider clauses could specify cleanliness upon arrival at the load port.
Disputes can arise when a vessel is clean upon arrival but a specified event (such as a subsequent change in cargo) then renders the vessel holds unclean, as occurred in the Bunga Saga Lima[1]. In such cases, the vessel would have met the charterparty requirements, and any time lost cleaning would be for charterer’s account.
Who determines cleanliness?
Many charterparties may stipulate that the condition of the holds is determined by an “independent surveyor”. However, the definition of independent surveyor has been the source of dispute in the past. In the case of Protank Orinoco[2], the Commercial Court addressed this issue and decided that an independent expert is defined as one jointly appointed by both owners and charterers.
Intermediate hold cleanliness
Under a time charter, unless there is an additional express clause, it is generally accepted that the obligation of clean holds is provided only on delivery and does not extend to subsequent voyages under the same charter.
However, some charterparties (including the NYPE 2015) require the owners to render “customary assistance” in hold cleaning throughout the charter. In the Bela Krajina[3] case the court held that this obligation was limited to the level of cleaning the crew (who were not professional/specialist hold cleaners) could reasonably achieve. If further cleaning was required, for example when a charterer moved from a cement cargo to a grain cargo, this would not fall within “customary assistance” and, unless expressly stated otherwise in the charterparty, would be at the charterer’s expense.
Possible Claims
Holding cleaning can give rise to several different claims. If a charterer misses the laycan for a sub-charter due to cleaning delays, those costs may, prima facie, be claimable from the owner.
Furthermore, if cleaning takes longer than anticipated, the charterer may attempt to place a time-chartered vessel off-hire. Such a claim would only succeed if the delay was caused by an “off-hire event” as defined in the relevant clause. In Berge Sund[4], the court held that the need for the additional cleaning during the charterparty term did not constitute an off-hire event.
Additionally, inadequate hold cleaning can lead to claims from cargo owners if contamination occurs after the cargo has been loaded.
Some practical considerations
When considering the level of hold cleanliness required, owners should bear in mind the following:
a. The contractual provisions;
b. The nature of the cargo;
c. The previous cargoes carried; and
d. The load and discharge ports.
If Members are unsure about what is required from a practical perspective, please consult with the Club’s Loss Prevention team.
Our Members are reminded that if they are concerned about a legal issue arising out of the points discussed in this article, they may be entitled to some initial legal advice free of charge, from a select panel of external lawyers under the Club’s Legal Advice Benefit. If Members wish to take advantage of this benefit, please contact the Claims team to discuss.
[1] Bunga Saga Lima [2005] 2 Lloyd's Rep. 1
[2] Protank Shipping Inc. v. Total Transport Corporation [1997] 2 Lloyd's Rep
[3] Bela Krajina [1975] 1 Lloyd’s Rep 139
[4] Berge Sund [1993] 2 LLR 453