The following interesting question was asked on my post regarding the definititon of a 'ballast bonus'
I have decided to BUMP the question and you guys can make up your own minds.
Here is a tricky one for you. My vessel is opening in West Africa. The Charterer wants to take the vessel not dlosp but rather APS Recalada in order to load Up River Parana. We agree a daily rate and then we also agree a ballast bonus of xxxx$. My vessel begins its voyage to Recalada crossing the Atlantic, is eventually at Recalada and the ballast bonus paid. The day after and after receiving the ballast bonus my vessel for some reason has an electrical default and burns not being able to perform the agreed trip. The question is DOES THE CHARTERER HAVE THE RIGHT TO CLAIM BACK THE BALLAST BONUS???????
Hello Anon and thanks for the question.
First let me say that I am not a lawyer so the following is only my opinion. A few things remain uncertain in your story that would require clarification.
1. If the vessel has delivered and you have infact recieved the ballast bonus payment (usually a few day after delivery) has the ship infact started loading the cargo? If ther is cargo onboard this would complicate the issue.
2. Can the ship be fixed / repaired at the port or nearby. What is the time frame for repair.
3. Has the market changed significantly since the fixture was agreed and are there other ships around?
We dont know the above information but here is my intial thoughts. When you agreed the contract with the charterer part of any shipping contract stipulates that you must provide a ship in fully working condition for the 'entire duration' of the contract. If for some reason you cannot, and this reason has nothing to do with the charterers, then technically you would be in breach of contract.
Then you have to think about a remedy.
The charterer will probably argue he is within his rights to insist that you perform either with this ship or another one. Then it could be an offhire issue etc
If you cannot perform then he would probabloy seek damages and this would be reflected in the price of chartering a replacement ship.
The question here is does the Ballast Bonus come into play? - Well my opinion is that the ballast bonus although not charter hire, has been factored into the overall cost to the charterer and thus would contitute an unexpected loss to the non performance of the contract.
Again I am not a lawyer so this is only my opinion and I am sure the legal jargon I am using is not 100 percent on the mark - but you get my drift. Its reasonable to assume (and the law/arbitrators should reflect what is reasonable) that due to no fault of the charterers they should not have to forgoe a huge lumpsum ballast bonus payment - especially when you are ulimatley walking away from all resonsibilities...
Thats my opinion anyway - I am sure you could mount an arguement the other way...
Feel free to disagree..
Love the question - if anyone else want to pose another legal questions for debate - go for it!
- The Virtual Shipbroker
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