Hull cleaning by owners after redelivery - at charterers' time & expense?

Hull fouling clauses in charterparties often state that ‘underwater cleaning of hull is always at charterers' time and expense’. What is the significance of the word ‘always’? Does this mean that if cleaning is undertaken after redelivery, then the owners can claim for the cleaning time even if they have not suffered any loss of time? This was the question before the English High Court in The Globe Danae [2023].

The vessel was on single time charter trip to Brazil, where she waited to discharge for 42 days. The owners carried out hull and propeller cleaning at the next port before commencing her new fixture. They were claiming for the time spent cleaning (2.2 days) at the hire rate. Charterers were arguing that charterers were not obliged to carry out cleaning after redelivery of the vessel, and even if owners are allowed to make a claim for such after redelivery, then they can only claim for damages provided they can demonstrate an actual loss of time.

As per the court, the use of the word ‘always’ meant that charterers must always pay for the time associated with underwater cleaning. They might not be required to undertake the cleaning themselves after redelivery, but when done it will be at charterers’ time & expense. The clause also stated that cleaning is to be done at the ‘first workable opportunity’. The Court construed this as covering periods both before and after the charterparty. In single trip charters such as this one, the first workable opportunity would likely be after redelivery. The court also recognized the commercial implications of redelivering a vessel with a fouled hull, which is that there would be a breach of warranty to the new charterers by the owners, and therefore cleaning before a new fixture is paramount.

Seeing no reason to provide the charterers with an incentive to redeliver the vessel without cleaning, and to evade having to pay hire for the time spent cleaning, they were directed to compensate the owners at the hire rate for the time spent cleaning.

Link to judgement: https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Comm/2023/1683.html&query=(fouling)

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