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SHIPPING CORP. OF INDIA v. SUN OIL CO.

July 28, 1983

THE SHIPPING CORPORATION OF INDIA LTD.
v.
SUN OIL COMPANY



The opinion of the court was delivered by: HUYETT

 HUYETT, J.

 This admiralty case arises out of a contractual dispute. The defendant, Sun Oil Company (charterer), twice chartered the MAHARSHI DAYANAND (vessel) owned by the plaintiff, the Shipping Corporation of India, Ltd. (owner), to carry two cargoes of crude oil. The dispute concerns the calculation of demurrage, which is liquidated damages for delay provided for in a charter party. Plaintiff brought this action to recover unpaid demurrage and all costs of this suit and attorneys' fees. Defendant has counterclaimed for $8,742.50 it alleges was erroneously paid as demurrage for a weather delay. Jurisdiction is governed by 28 U.S.C. § 1333 since the principal subject matter of the contract is maritime. Before me are the parties' cross-motions for summary judgment.

 After considering the stipulations of facts submitted by the parties, the language of the charter form and the facts in the light most favorable to the plaintiff, I conclude that judgment could be entered in favor of the defendant on both the complaint and the counterclaim. A brief statement of the facts follows.

 I

 A. THE CHARTER FORMS

 Plaintiff, the Shipping Corporation of India, and defendant, Sun Oil Company, entered into a contract of charter party dated January 9, 1979 (the first charter) and one dated December 10, 1979 (the second charter) under which the tanker MAHARSHI DAYANAND was to carry a port cargo of crude oil and/or dirty petroleum products. The charter form in each case was the ASBATANKVOY 1977 charter as modified by the parties. The ASBATANKVOY charter form is in all material respects identical to earlier versions entitled ESSONVOY and EXXONVOY 1969 charters. The key clauses in dispute are:

 
6. NOTICE OF READINESS. Upon arrival at customary anchorage at each port of loading or discharge, the Master or his agent shall give the Charterer or his agent notice by letter, telegraph, wireless or telephone that the Vessel is ready to load or discharge cargo, berth or no berth, and laytime, as hereinafter provided, shall commence upon the expiration of six (6) hours after receipt of such notice, or upon the Vessel's arrival in berth (i.e., finished mooring when at a sealoading or discharging terminal and all fast when loading or discharging alongside a wharf), whichever first occurs. However, where delay is caused to Vessel getting into berth after giving notice of readiness for any reason over which Charterer has no control, such delay shall not count as used laytime.
 
7. HOURS FOR LOADING AND DISCHARGING. The number of running hours specified as laytime in Part I shall be permitted the Charterer as laytime for loading and discharging cargo; but any delay due to the Vessel's condition or breakdown or inability of the Vessel's facilities to load or discharge cargo within the time allowed shall not count as used laytime. If regulations of the Owner or port authorities prohibit loading or discharging of the cargo at night, time so lost shall not count as used laytime; if the Charterer, shipper or consignee prohibits loading or discharging at night, time so lost shall count as used laytime. Time consumed by the vessel in moving from loading or discharge port anchorage to her loading or discharge berth, discharging ballast water or slops, will not count as used laytime.
 
8. DEMURRAGE. Charterer shall pay demurrage per running hour and pro rata for a part thereof at the rate specified in Part I for all time that loading and discharging and used laytime as elsewhere herein provided exceeds the allowed laytime elsewhere herein specified. If, however, demurrage shall be incurred at ports of loading and/or discharge by reason of fire, explosion, storm or by a strike, lockout, stoppage or restraint of labor or by breakdown of machinery or equipment in or about the plant of the Charterer, supplier, shipper or consignee of the cargo, the rate of demurrage shall be reduced one-half of the amount stated in Part I per running hour or pro rata for part of an hour for demurrage so incurred. The Charterer shall not be liable for any demurrage for delay caused by strike, lockout, stoppage or restraint of labor for Master, officers and crew of the Vessel or tugboat or pilots.
 
. . . .

 B. THE FIRST CHARTER Pursuant to the first charter, the MAHARSHI DAYANAND loaded a cargo of crude oil at Hound Point, Scotland to be discharged at Nederland, Texas. The vessel arrived at Hound Point anchorage on January 18, 1979, and at 600 hours on January 18, the vessel tendered notice of readiness to load a cargo of crude oil at the loading port anchorage. The notice of readiness was accepted at this time. Hound Point Terminal is an offshore terminal with one berth. When the MAHARSHI DAYANAND arrived at Hound Point loading port, another vessel was in the berth which required the MAHARSHI DAYANAND to wait until the berth was free. The parties agree that because of conditions and events at the loading port, allowed laytime had been exhausted prior to the time that the vessel shifted from anchorage to berth. The sequence of events at the loading port may be summarized as follows: TIME DATE ACTIVITY 1600 1/18/79 Vessel at anchorage tenders notice of readiness. 1/19/79 Berth becomes available sometime this date; unknown if it was before or after next event. 400 1/19/79 No vessels permitted to berth 1900 1/20/79 ...


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