Clyde & Co lawyers discuss legal issues on bunker quality claims in 2020
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
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713 mt of LSFO produced by Sinopec Guangzhou cleared the export division of Huangpu Customs, and was supplied to international vessels docked at Port of Guangzhou.
Taiwan applies for tougher restrictions on bunker, aviation, and land-based fuels
0.5% sulphur cap will apply for Taiwanese international and domestic vessels by 1 July 2020, even though it is not a member of the IMO, states government.
MSC issues statement on “MSC Joanna” violating fuel oil carriage ban in UAE
MSC Joanna scrubber installation was delayed following the COVID-19 pandemic which forced Chinese shipyards to close for an extended period of time, it explains.
BIMCO: Roundtable meeting expects 77% drop in SOx emissions from ships
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The Shipowners’ Club: Legal costs cover and IMO 2020
Maritime insurer discusses potential commercial disputes it foresees post IMO 2020, and outlines response parameters for legal costs covers.
FOBAS Alerts: Large Bunker Quantity Shortages Encountered With VLSFO
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Gazprom Neft IMO 2020 compliant bunker sales up by 47% in 2019
‘In 2020, we plan to increase the share of ultra- and low-sulphur marine fuels in total sales up to 50%,’ says CEO.
IMO reiterates start of non-compliant fuel oil carriage ban
Reminds shipping industry that carriage ban is meant to support consistent implementation of the sulphur cap.
Gard: China updates regulations on marine pollution from ships
P&I club outlines clarifications on SPRO Agreement and oil booming requirements through China MSA document.
Argus Media: Panama MGO sales up but VLSFO demand dominates
‘High-sulphur resid was replaced by VLSFO sales in Panama, because VLSFO sells at a discount to MGO,’ reports Argus Media.
Sinopec Maoming Company announces first LSFO bunker cargo
Production and export of LSFO aimed at reducing inventory of HFO and increasing profits, reports Sinopec News Network.
Argus Media: LSFO bunker spreads at record lows
Lower demand and improved supply logistics for LSFO main factors behind the narrowing of price premium over HSFO.
Sinopec Qilu Company announces first delivery of LSFO marine fuel product
LSFO production meant to gain greater market share in the international marine fuel market, says the company.
BIMCO, ICS, INTERCARGO, INTERTANKO launch IMO 2020 fuels survey
Survey aims to further understand the quality of new compliant fuel oils and possible safety implications of IMO 2020 fuels.
SAL Heavy Lift adopts ‘Smart Trader’ to weather IMO 2020 uncertainties
Inatech’s ‘Smart Trader’ is a complete end-to-end system for optimising fleet mapping and fuel procurement efficiently.
Stillwater Associates: IMO 2020 - No Large Speed Bump Thus Far
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Demand for IMO compliant fuel spikes in Rotterdam
Reports note a remarkable increase in LNG sales that more than tripled alongside the expected surge in VLSFO sales post IMO 2020.
Argus Media: U.S. bunker demand moves towards VLSFO
Reporting agency assesses split in U.S. demand for VSLFO, MGO and HSFO grades since the introduction of IMO 2020.
ECSA publishes position paper in response to EU Green Deal
Welcomes EU climate change ambition by outlining eight points where it can work with the shipping industry.
Think-ING: The surprising move in marine fuel spreads
ING economist outlines factors and implications behind unexpected outcomes in the marine fuel product markets post IMO 2020.
Clean Arctic Alliance welcomes Canada’s backing of heavy fuel oil ban
IMO must ‘not entertain any arguments calling for a delay or exemptions’ in implementation of Arctic HFO ban, says Dr Sian Prior.
The Royal Society policy paper discusses ammonia as marine fuel
Policy briefing Ammonia: zero-carbon fertiliser, fuel and energy store focuses on future use of zero-carbon ammonia and its opportunities.
Stand.earth highlights debate on ship scrubbers in this week’s ‘IMO Arctic Summit’
Papers submitted to PPR7 questioning use of scrubbers as alternative compliance mechanisms for IMO 2020 regulations.
Impending Carriage Ban - “Legitimate” de-bunker/disposal practices
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Argus Media: U.S. refiners turn to marine fuel cast-offs with IMO 2020
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Gazprom Neft commences commercial production of VLSFO
Preparations since 2008 pay off and supply of VLSFO to Russian domestic market alone expected to exceed 1.5 million tons.
Integr8 Fuels on VLSFO: Better quality but mind critical parameters
While VLSFO seems to be stabilising, report cautions industry as consequences from off-spec VLSFOs are much more serious than HSFO.
Gard: Beware local restrictions before discharging washwater from scrubbers
Although gas scrubbers are considered acceptable to meet IMO2020’s SOx emission rules, it is not globally accepted in all states.
DNV GL on HSFO carriage ban: Compliance is the only option
HSFO carriage ban effective from 1 March is an attempt to ensure transparency and that ships are not unjustly penalised.
Pacific Green Technologies highlights LSFO as ‘GHG timebomb’
Points to several studies showing producing and burning LSFO increases carbon emissions, whereas gas scrubbers save money and the environment.
Star International releases on-board IMO 2020 fuel testing and treatment products
Range is directed at providing the industry with tools to obtain additional assurance that suppliers are providing compliant, stable fuel.
CRU viewpoint: IMO 2020 regulation likely to raise freight rates by around 10-20%
10%-15% of total ocean-going freight capacity will employ scrubbers in 2020; difference in freight rates will be main variable to determine optimal investment pay-off period.
Planning and preparations to be ‘IMO 2020 ready’ pays off, says IBIA
Several large globally operating shipping and bunkering companies reporting a surprisingly smooth transition to the 0.5%sulphur limit for marine fuels.
BIMCO: Low-sulphur fuel oil prices drop USD 99 per MT in Singapore
Price level of VLSFO declines from the all-time high of USD 740 per mt on 7 January to USD 641 per mt on 22 January, the largest drop seen in Singapore.
Argus Media: Sediment rates high in Americas bunkers, says Lloyd's Register
9% of low sulphur fuel samples in the Americas analysed between 1 December to 13 January found to be off spec for issues, including engine-damaging sediment, says FOBAS.
Clean Arctic Alliance urges IMO to prohibit ‘super pollutant’ VLSFO and LSHFO
VLSFO and LSHFO usage will contribute to a massive increase of Black Carbon emissions which represent 7% to 21% of shipping’s overall GHG equivalent impact on the climate.
IMO 2020 regulation could have negative health and climate impacts, says research author
Dr Daniel Lack says cost-cutting group of oil refiners using residual fuel blends could send ship-source black carbon emissions soaring overnight.
Argus Media: China to apply bunker fuel tax rebates from 1 February 2020
Development is intended to boost country's ambitions to create a bunkering hub to rival Singapore marine refuelling market, says analyst.
The Standard Club: UAE instructions to vessels entering UAE waters to comply with IMO 2020
From 1 January 2020, all UAE flagged and foreign flagged vessels entering UAE waters are to use 0.5% sulphur limit fuel oil; with exemptions for scrubbers and other fuels.
Middle East Bunkering Convention: What are the questions we should be asking post IMO 2020?
MEBC to be held on 5-6 February in Dubai will offer expert assessment on the impact of IMO 2020 sulphur regulation on both Middle East and global markets.
HFW: Briefing of AMSA documents on IMO 2020 compliance and enforcement in Australia
Australia issues regulations for implementation of IMO 2020 premised on a policy of strict compliance.
Pakistan prohibits discharge of wash-water from open-loop scrubbers at Port of Karachi
The Standard Club advises members with ships fitted with scrubbers and calling at the Port of Karachi to take note of the attached circular and comply with local regulations.
IMO Secretary-General evaluates shipping industry’s transition to IMO 2020
Prices for compliant fuels such as very-low sulphur fuel oil and marine gas oil rose quickly initially but now appear to be stabilising.
Malaysia Northport receives first LSFO shipment at Southpoint Terminal
6,190 dwt bunker vessel Straits Energy delivers LSFO shipment to dedicated storage tanks at Southpoint Terminal.
Tokyo and Paris MoUs: Prohibition on the carriage of non compliant fuel
Emphasis placed on requirements entering into force on 1 March 2020, prohibiting the carriage of non-compliant fuel for use on ships not equipped with EGCSs.
China MSA publishes Guidance for Supervision and Management of Air Emissions from Ships
The Standard Club provides a summary of key points for IMO 2020 enforcement in Chinese waters by local port state authorities.
Global Maritime Forum: Approximately USD 1-1.4 trillion needed to achieve IMO 2050
Significant investments needed to decarbonise shipping can only be expected to happen if there is a long term commercially viable business case.
Wanmar to upgrade cargo vessel “mv Donau” with Value Maritime scrubber
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Port of Rotterdam: LNG bunkering ops up in 2019, to introduce bunker permit by 2021
Three permanent LNG bunker vessels operating in port to date, with further four LNG bunkering specialists owning LNG bunkering licence.
Argus Media: Singapore 0.5% fuel oil stocks between 7 to 8 million mt, says IEA
Singapore’s swelling inventory has not prevent shortages, but constraints in bunker delivery infrastructure during the transition to low-sulphur fuels remain a concern.
BIMCO: Low-sulphur fuel sale jumps as 2020 sulphur cap kicks in
Sales of low-sulphur fuels, including LSFO and MGO LS, rose by 51% month-on-month in December to 3,127 kilo mt, compared to the 1,271 kilo mt of HSFO sold in the same month.
Iran Ship Owners Union says enough low-sulphur fuel has been supplied for IRISL fleet
The Islamic Republic of Iran Shipping Line and National Iranian Tanker Company are both cooperating to secure avails of low sulphur fuel, says IRSOU spokesman Yahya Ziaei.
DNV GL grants statement of compliance to Rivertrace SMART ESM washwater monitor for scrubbers
SMART ESM monitors regulated water quality parameters PAH, Turbidity, Temperature and pH, on open-loop, closed-loop and hybrid scrubber systems.
Standard Club: Regulation of IMO 2020 compliant fuel availability issue
In the event of unavailability of compliant fuel, members are required to document and evidence all steps taken to achieve compliance (Regulation 220.127.116.11).
Argus Media: More IMO violations emerge in China’s coastal waters
Chinese maritime authorities have caught at least three vessels using marine fuel that exceeds International Maritime Organization (IMO) standards.
Safe Bulkers extends scrubber partnership with Alfa Laval through service agreement
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Vertex and Bunker One enter into 10-year Marine Fuel agreement
Bunker One will have the exclusive rights to purchase 100% of Vertex's Marrero, Louisiana refinery's marine fuel production until December 2029.
Low supply of LSFO for bunkering to halt shipping operations on east coast of India
Monthly estimated demand of 30,000 mt of LSFO for coastal ships plying on India’s eastern coastal route are not met, say local bunker suppliers.
Rosneft begins supplying 0.1% sulphur fuel oil for bunkering at Russian river ports
Company begins refuelling ships with TMS type A eco-friendly fuel (low-viscosity marine fuel) produced by the Novokuybyshevsky Oil Refinery.
GARD: Target for 0.47% in VLSFO test sample to ensure IMO compliance
For bunker producer/supplier to meet 95% confidence limit, blend target should be the limit minus 0.59R.
The IMO 2020 fuel oil spread: China to the rescue?
China’s fuel oil tax rebate may lower bunker prices, especially in Asian shipping hubs, says FIS’ Chris Hudson.
China govt approves national tax rebate for VLSFO production
Initial exports of bunker fuel may be limited due to focus on developing domestic coastal bunker fuel market.
Argus Media Viewpoint: Sulphur cap to support 0.5% fuel oil
Delayed exhaust gas scrubber installations will further boost demand for IMO-compliant products.
North P&I Club shares IMO 2020 impact encountered by members
Sulphur content issues, redelivery, and charterparty disputes among the most common problems encountered.
MOL CEO highlights initial difficulties of IMO 2020 in New Year message
‘We need to pay close attention and maintain our focus on compliance as we move toward a stable path.’
“K” Line CEO says LNG fuel ‘cannot reach IMO’s 2030 targets’
CEO Yukikazu Myochin addresses the need for the company to continue studies on new technologies such as Kite energy.
LSFO prices rise USD 165 pmt through December in Singapore
The price levels for VLSFO and LS MGO have risen respectively by 30% and 24% from start of December.
GSF encourages shippers to challenge the basis of any VLSFO surcharge
Shippers need to make sure they understand exactly what they are being asked to pay extra for by carriers.
News: High sediment reported in test samples of IMO 2020-fuel blends
Test samples of 0.5% sulphur fuel produced from blending process found to have 0.16 to 0.21% m/m.
Argus Media viewpoint: IMO 2020 to have delayed price effect
Full impact of IMO 2020 is likely to be felt in March, once the current global stockpile of LSFO has dwindled.
HPCL launches IMO 2020 compliant 0.5% sulphur marine fuel, says refiner
HPCL has produced the first batch of VLSFO from its Visakh Refinery ahead from IMO 2020 January 1 deadline.
Clyde & Co lawyers discuss legal issues on bunker quality claims in 2020
Enforcement against vessels that narrowly exceed 0.5% VLSFO in test results may lead to legal claims.
IRISL fleet will have IMO 2020 compliant bunkers, says NIOPDC MD
NIOPDC to supply and distribute 0.5% low sulphur fuel oil needed for the country’s maritime IRISL fleet.
Vitol Group acquires Sinanju Tankers Holdings; gains foothold in Singapore bunker ops
The Singapore Bunkering license holding entity has been renamed Vitol Bunkers (S) Pte Ltd and from 1 April 2020 all bunker deliveries will be carried out by Vitol Bunkers (S) Pte Ltd.
PMI Trading responds to Nustar Energy over alleged off-spec bunker fuel supply at Houston
Seeks to enforce either arbitration clause under contract or to dismiss NuStar and TPP respective liability claims, according to documents obtained by Manifold Times.
‘Minimal disruption’ to Singapore bunkering operations despite COVID-19, confirms MPA
‘We are closely monitoring the rapidly developing COVID-2019 situation while remaining committed to working with the bunkering industry to ensure minimal disruption to bunkering operations and services.’
Photo Essay: “Marine Vicky” in multi-agency emergency preparedness exercise at Singapore port
The emergency preparedness exercise involving SCDF, PCG, MPA, and Sinanju was carried out on the LNG dual-fuel bunker tanker at Raffles Anchorage on 17 March, learned Manifold Times.
Singapore bunker players continue Business Continuity Plans in response to COVID-19
Manifold Times checks along the bunker supply chain on how various companies are managing operations after the republic entered DORSCON Orange in response to COVID-19.
Survey: Singapore physical bunker players not as widely hit, despite fall in crude oil prices
Manifold Times checks with industry players on how the recent sharp fall in crude oil prices have affected each node along the marine fuels supply chain in Singapore.