International law firm Clyde & Co has published the first of a two-part series of articles highlighting the key legal issues from the impact of IMO 2020 regarding bunker quality claims, it has been written by Ik Wei Chong, Leon Alexander and Paul Collier; the article has also been shared with Manifold Times:

In recent years the shipping industry has faced a significant number of bunker quality claims, most notably arising out of the so-called "Houston problem", where there were numerous complaints that contaminated fuel had caused engine problems, including sludge blocking fuel filters and the sticking and seizure of fuel injection components. In the most serious cases, there were reports of vessel blackouts and groundings. The global impact of shipping problems was also evident; whilst complaints regarding the "Houston problem" were originally concentrated around the US Gulf region, complaints regarding off-specification fuel quickly spread across the globe, including to Panama and Singapore.
 
With the IMO 2020 sulphur cap now in force as of 1 January 2020, the shipping industry faces a new set of potential issues regarding bunker quality. Given that a significant number of vessels have not been fitted with exhaust gas cleaning systems or “scrubbers” (enabling the vessels to consume high sulphur fuels in compliance with the new limits in MARPOL Annex VI), there is increased demand for low sulphur fuel, and prices have risen accordingly.

However, concerns have been raised about the quality of some blends of low sulphur fuels, and in particular, the potential impact on vessels which may not have implemented comprehensive fuel management procedures to store and consume low sulphur fuel.

Owing to different fuel blends, the compositions and properties of low sulphur fuel on the market can vary widely. Experts have raised concerns about the level of catalytic fines (catfines) which can often be at relatively high levels in non-distillate low sulphur fuels, owing to the refining processes and blends with cutter stock to reduce sulphur content. If catfines levels are high and/or vessels do not have adequate purifiers in operation, then these small, hard particles can embed in soft metal surfaces in fuel pumps, injectors and cylinder lines in engines, and act as an abrasive, dramatically increasing the rate of wear of engine components, with the risk of wear beyond maximum limits occurring in weeks.

Concerns have also been raised about the stability levels of blended low sulphur fuel, and the risk that asphaltene content may precipitate out of solution, causing the formation of sludge which can block engine filters and pipes, leading to the potential loss of power and propulsion.

There are also numerous potential issues which could arise with the enforcement of the lower sulphur limits in MARPOL Annex VI, which could result in legal claims. Potential claims could arise where the MARPOL bunker sample tests on specification, but other samples when tested, generate results which narrowly exceed the prescribed 0.50% m/m limit. From 1 March 2020, vessels without scrubbers will not be permitted to carry fuel over the 0.50% m/m limit, leading to potential enforcement action against such vessels and disputes between Owners and Charterers regarding any losses arising out of such enforcement action. Disputes may also arise where Port State Control obtain their own bunker samples from bunker tanks but these test off-specification due to high sulphur content. In such cases, a vessel may be detained and/or forced to debunker by the authorities.

Where there are complaints about bunker quality, a number of potential legal claims could arise between different parties concerned with the bunker supply. Disputes between Owners and Time Charterers concerning bunker quality regularly occur, and we expect that the impact of IMO 2020 will lead to an overall increase in the number of these disputes. There may also be an increase in the number of claims by bunker purchasers against bunker traders and suppliers, as well as claims by vessel Owners under H&M policies, if there is an increase in the number of reports of engine damage.

This article (the first in a two-part series) focuses on some the key legal issues that can arise under charterparties in relation to bunker quality claims.

Charterparty claims between Owners and Time Charterers concerning bunker quality

 A. Charterers' obligations in respect of bunker quality

It is widely accepted that, in the absence of any special conditions, Time Charterers will be under an "absolute" obligation to provide bunkers that are of reasonable general quality and suitable for the type of engines on the vessel. In practice, most charterparties also include express requirements stipulating the grade and type of fuel to be supplied, referable to one of the recent ISO 8217 standards. Given the "absolute" obligation, Charterers will not be able to avoid liability for the supply of bad quality fuel to a vessel by contending they have used reputable suppliers; Charterers are under an obligation to ensure that all fuel bunkered is suitable for consumption by a reasonably well maintained vessel.

In any event, in the absence of express provisions, a vessel Owner could argue that Charterers are under an implied obligation to source bunkers which are "fit for the purpose intended". This is likely to have a degree of overlap with the requirement under clause 5.3 of ISO 8217 that fuel should be "free of any material that renders a fuel unacceptable for use in marine applications".

However, Charterers will not be obliged to meet any unusual requirements of the vessel's engines, unless those requirements have been brought to Charterers’ attention (generally through specifying in the charterparty any requirements that need to be met in terms of fuel).

One of the key issues that may arise concern with bunker fuel in 2020 is whether any engine damage suffered is primarily caused by poor quality fuel supplied by Charterers in breach of charterparty requirements, or primarily caused by factors that are Owners' responsibility; such as maintenance of the engines, or fuel management practices.

 B. Bunker quality claims by Owners against Charterers

Claims for engine damage

In order to successfully advance a claim against Charterers for engine damage, Owners will need to overcome two key hurdles. Firstly, Owners will need to prove that Charterers supplied bunkers to the vessel which were in breach of their obligations in respect of bunker quality. Secondly, Owners will need to prove that the fuel supplied by Charterers caused the engine damage alleged.

Owners often experience difficulties discharging the burden of proof in relation to this second hurdle. Following notification of engine damage, Charterers may allege that the fuel supplied did not cause the engine problems alleged, or alternatively, Owners' management of the vessel (at least in part) contributed to the engine damage. Charterers, may for example, assert that bunkers supplied under a previous charterparty may have caused the damage alleged, Owners had not maintained the engine properly, incompatible fuels had been mixed (causing the bunkers to become unstable) or that Owners otherwise had improper fuel management procedures which caused, or contributed to, the engine damage.

When such disputes arise, the outcome will largely depend on the quality of the evidence, and in particular, whether a party is able to rely on evidence which supports their account of the damage. For this reason, it is important that if engine damage is alleged to have been the result of bad quality bunkers, that the evidence is gathered at an early stage – with surveyors inspecting the engine, samples of the fuel being taken, any damaged components being preserved for analysis, and all relevant documentary records (including but not limited to log books, alarm records, oil record books and maintenance records) concerning the vessel being retained. This evidence will need to be considered, together with the results of sample analysis.

If, following tests on samples, Owners are unable to identify a contaminant in the fuel supplied by Charterers, it will likely be difficult for Owners to discharge the burden of (i) showing that the fuel supplied was off-specification and (ii) that the fuel was the cause of the alleged engine damage.

A further defence that Charterers may seek to rely on in cases where it is determined that off-specification bunkers were supplied to a vessel is to assert that Owners are under a duty to mitigate their losses, and not to exacerbate any damage by continuing to burn bunkers. If the vessel continues to consume bunkers which Owners suspect to be contaminated, notwithstanding concerns about engine damage, then Charterers may be able to argue that any further damage suffered as a result of fuel consumption after initial concerns of damage became apparent are Owners' responsibility.

Claims where the fuel has not yet been consumed

If Owners have received test results indicating that the fuel supplied by Charterers is off-specification, and there are risks to the vessel in consuming such fuel, then Owners will be placed in a difficult position. As mentioned above, the burden will be on Owners to mitigate their losses. Whilst Owners can demand Charterers debunker off-specification fuel supplied to the vessel, and supply replacement bunkers, there is no guarantee that Charterers will comply with such a demand, particularly if the bunker supplier refuses to re-supply the vessel. Given the burden on Owners to mitigate their losses, it would also be worthwhile Owners establishing whether any options are available that would enable the fuel to be consumed safely (such as blending or incorporating additives to fuel). However, depending on the circumstances, if it is not possible for the vessel to safely consume the fuel, and Charterers have refused to debunker, it may prudent for Owners to carry out debunkering at first instance, and subsequently advance a claim against Charterers for any losses they incur.

Sampling and testing issues

The samples taken at the time of the bunker supply are of critical importance, given that testing of these samples can indicate whether the fuel supplied is off-specification or not (although some contaminants are only identifiable with advanced GC/MS testing). Moreover, the samples taken are key to the outcome of any subsequent bunker quality dispute. It is therefore important that Owners ensure that the samples taken are representative of the product supplied, with it being desirable for Owners to ensure that samples are taken at the vessel’s manifold by drip sample, rather than on the bunker barge.

Results of different samples tested can vary, and this can give rise to the scope for dispute. In particular, in addition to the natural variation in test results, regrettably, the shipping industry has faced problems where unscrupulous bunker suppliers knowingly supply off-specification fuel to vessels, and attempt to mask this through providing false samples of the fuel supplied. The best way for Owners and operators to avoid the risk of this is to insist on fully witnessed sampling at the vessel manifold. This will greatly assist Owners in identifying and dealing with any bunker quality issues that could arise, and protect their position against Time Charterers (if Charterers supplied the fuel) or against bunker traders or suppliers (if Owners contracted with the bunker traders or suppliers directly).

IMO 2020 raises further issues regarding the fuel carried on vessels. With the 1 January 2020 implementation deadline having passed, the consumption of high sulphur fuel without a scrubber is prohibited. On 1 March 2020, vessels without scrubbers will no longer be able to carry non-compliant fuel. If a vessel does not have a scrubber, Owners will wish to ensure that any fuel supplied does not risk the vessel facing potential enforcement action, and that any residual high sulphur fuel in the vessel’s tanks does not push any fuel supplied above the 0.50% m/m limit.

Conclusions – considering possible future impacts

Whilst the key deadline of 1 January 2020 has passed, the full ramifications of the IMO 2020 sulphur cap have yet to be fully felt. In the coming weeks and months, the enforcement steps taken by States against non-compliant vessels will be witnessed. In addition, the shipping industry will be able to see whether the concerns regarding an increase in the consumption of low sulphur fuel will lead to an increase in reports of engine problems.

The key steps that vessel Owners and operators can take to protect their position regarding the supply of bunkers are to ensure that full and proper sampling takes place at the time of supply, and if any issues are later found to arise, to gather all evidence regarding the supply so as to assist in defending any enforcement action from States and to preserve any rights of recourse that may exist against the Time Charterers or bunker suppliers.

Part 2 of this series will consider the legal issues arising out of bunker supply contracts.

Source: Clyde & Co
Published: 3 January, 2020