Hull fouling is regarded as a contributor to the spread of invasive or alien species and the issue is being addressed on a global scale by international organisations like the World Ocean Council WOC and the International Maritime Organization IMO. The proposed actions focus on shipping and the marine industry, where improvements are being sought in biofouling management.
Apart from prevention a lot of effort is being put into research and development to create more effective antifouling applications. The European Boating Association EBA , being aware that the hull fouling issue is equally applicable to Recreational Boating , is concerned that the currently available antifouling products that are permitted within the set limitations are ineffective to prevent hull fouling and introduce a higher risk of spreading alien aquatic species.
The EBA urges regulators to take steps to mitigate the contradiction that is created between the Biocide Directive and the Global initiative to reduce the risk of introducing alien aquatic species by hull fouling. The EBA is of the opinion that the current situation where legal limits set by the biocide directive and even stricter adherence of these limits by certain Member States has created a range of ineffective products that may be used for recreational boats with significant increase of aquatic hull fouling as a direct result, thus introducing a new path for the spread of alien species.
The EBA is committed to informing the recreational boating community about the risk of spreading alien aquatic species when hull fouling occurs. At the same time EBA will advise recreational boaters that they should clean their boats before they undertake long journeys in order to avoid the above mentioned risk even if this means in water cleaning; in water cleaning in the home environment should only remove natural species. The EBA believes that regulators should take steps to mitigate the contradiction that is created between the Biocide Directive, leading to ineffective antifouling applications available for recreational boating, and the Global initiative to reduce the risk of introducing alien aquatic species by hull fouling.
However, the Master may obey unlawful orders from Charterers without such conduct amounting to a waiver by Owners of Charterers' breach of charterparty and without prejudicing Owners' right to claim for damage or losses arising 6. In such circumstances Charterers would need to show that their unlawful order was not causative of the hull fouling. Otherwise, where the fouling is shown to be a direct result of obeying Charterers' orders to trade at a port outside the charterparty permitted trading limits, Charterers are likely be held liable for the cost of cleaning the hull and the time taken for the cleaning operation, representing damages arising from Charterers' breach of charterparty.
Did fouling arise due to Charterers' orders as opposed to while Charterers' orders are being carried out? However, if the charterparty permitted trading range included warm water or weather ports, but the port to which Charterers ordered the vessel fell outside the permitted trading range due to other logistical issues, then Charterers may not, automatically, be held liable for the fouling of the vessel.
An indemnity for hull fouling and associated losses can be implied depending on the facts of the incident. Owners will not be entitled to claim from Charterers under an implied indemnity where losses and expenses are incurred as a consequence of complying with Charterers' legitimate and ordinary employment orders 8. Therefore, where lawful orders have been provided by charterers and the vessel incurs hull fouling in the course of ordinary trading, the costs of cleaning the fouling from the hull, repairing the paint work and time for such works fall to Owners as a risk which they consented to bear on fixing the charterparty.
Such fouling is considered foreseeable at the time of fixing the vessel, especially where the vessel is permitted to trade in warm waters, and falls within Owners' obligation to maintain the vessel.
An indemnity will generally be implied against unforeseen liability, losses or costs incurred by Owners as a direct consequence of complying with Charterers' orders 9.
Such implied indemnity would arise when Charterers give unlawful orders and fouling is fortuitous. Unforeseen or fortuitous fouling occurring despite Charterers' orders being lawful would also be a potent factor for deciding that the loss or expense falls within the scope of the implied indemnity. Fouling of a hull gives rise to two incidents of lost time that Charterers would seek to deduct from hire 1 time lost due to the underperformance of the vessel, and 2 time lost due to cleaning of the hull.
Charterers may deduct from hire if either of these incidents can be shown to fall within either clause 15 of the NYPE charterparty form or the deviation clause. For a vessel to be off-hire under clause 15, the cause of the off-hire must be fortuitous i. Clause 15 contains two possible provisions to bring hull fouling within the off-hire provision, 1 "… any other cause preventing the full working of the vessel, and 2 "defect in the hull".
Where a vessel underperforms and time is lost as a direct result of hull fouling and that fouling arose as a natural consequence of the service under the charterparty, then the vessel cannot be considered to be off-hire in accordance with 15 For such fouling to fall within clause 15, Charterers would have to show that the Owners breached the obligation to maintain the vessel by failing to adhere to an appropriate anti-fouling programme during the course of the charter.
If the fouling was unforeseen and arose due to Charterers giving an unlawful order as to employment, then Charterers would not have a right to claim deductions for underperformance under clause 15 because it was the Charterers' breach of charterparty which caused the loss of time.
The deviation clause usually permits for the vessel to be placed off-hire for the period when Owners deviate the vessel from a voyage for Owners' own purposes.
Where Owners clean the hull as part of their obligation to maintain the vessel, then the vessel may be placed off-hire for the period for which the vessel is unavailable to Charterers, as was held in The "Kitsa". In The "Kitsa" , it was held that the Charterers had given legitimate orders to the vessel and, therefore, that the port of call was within the permitted trading limits of the charterparty.
It was also found that the risk of fouling at that port had been foreseeable by Owners and Charterers on fixing the charterparty and that the fouling was not fortuitous as, particularly, the vessel had not sat at that port for a period longer than was usual for that type of vessel trading at that port.
Therefore, the risk of fouling was considered to be an operational risk which Owners had consented to bear when fixing the charterparty and there were no grounds on which Owners could claim an indemnity from Charterers for the cost of cleaning the hull.
Charterers were not permitted to make deductions from hire due to underperformance arising from fouling, but Charterers were permitted to deduct from hire for the period of deviation for Owners to clean the hull. The Captain although appointed by the Owners shall be under the orders and directions of the Charterers as regards employment and agency; and Charterers are to load, stow, secure and discharge and trim the cargo at their expense under the supervision of the Captain, who is to sign Bills of Lading for cargo as presented, in conformity with Mate's or Tally Clerk's receipts.
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