Force Majeure laytime and demurrage exception. Delay within reasonable control of charterers?

In London Arbitration 23-17,  the vessel was prevented from berthing because of an incident involving a previous vessel, vessel X, at the berth whereby there had been a rupture of the loading hose which had caused an oil spill. Vessel X was detained by the authorities in the berth at the time of the subject vessel’s arrival and remained there for a further eight days, during which the subject vessel was unable to proceed to the loading berth.

Charterers contended that the delay fell within cl.21 of BPVOY3. This provided for half laytime/demurrage in the event of “Any delay(s) arising from adverse weather or sea state conditions, fire, explosion, breakdown or failure of equipment, plant or machinery in or about ports or places of loading and/or discharge, Act of God, act of war, labour disputes, strike, riot, civil commotion, or arrest or restraint of princes, rulers or peoples shall, provided always that the cause of the delay(s) was not within the reasonable control of Charterers or Owners or their respective servants or agents…”

The Tribunal found that the rupture of a loading hose did not constitute a “breakdown or failure of equipment, plant or machinery in or about ports or places of loading and/or discharge” as the hose could have been replaced before the arrival of the subject vessel. The Tribunal accepted owners’ contentions that: (1) an oil spill was not a listed exception in clause 21; (2) the suspension of loading as the result an oil spill was not a listed exception in clause 21; (3) the inability of the shippers to provide cargo for Vessel X or any other vessel was not a listed exception in clause 21.  As regards ‘arrest’ the arrest could be an arrest of a third-party ship, provided it was one whose arrest delayed the chartered ship but there was no requirement that any arrest must be action by a state, not ordinary court proceedings and involve forcible interference.

However, the half demurrage provision did not apply because the cause of the delay had been within the reasonable control of the charterers or their servants or agents, in that it arose out of the loading of Vessel X. Whether the rupture of the loading hose was caused by the terminal or Vessel X, it fell within the reasonable control of the charterers or their servants or agents.