Lightening or Lighterage. A lightening clause may read as follows:
“Should steamer be ordered to discharge at a place where there is not sufficient water to enter on the first tide after arrival, without lightening, and be always afloat, laytime to count from twenty-four hours after arrival at a safe anchorage fox similar vessels bound for such place, and any lighterage incurred to enable her to reach the place of discharge is to be at the expense and risk of the receivers of cargo, any custom of the port or place to the contrary notwithstanding, but time occupied in proceeding from the anchorage to the place of discharge is not to count.”
Normally, the ship must be ordered to a port into which it can safely enter and in which it can safely discharge its entire cargo without touching the ground. (See Safe port.) If the ship is ordered to a port where its draught would prevent it from entering without touching the bottom, the draught would have to be reduced by discharging some of the cargo into one or more lightening vessels outside the port. This process is called “lightering” or “lightening”. Vessels can be smaller vessels or even harbour craft called “lighters.” If the charterers offer to lighten the vessel outside the harbour but the master of the ship considers that the place of lightening is “unsafe”, he may be able to refuse to lighten there and can insist on going into a nearby, deeper port to discharge. The courts would have to decide if the lightening place was part of a “safe port” and mere demonstration of a custom of lightening outside the harbour before the ship’s entry may not be sufficient to make the port a “safe port”.
If the owner incurs expenses because of lightening so the ship can enter the port safely, these may be claimed from the charterers as damages. However, a good charterparty clause dealing with the responsibilities for lightening and reducing the necessity of claims, can be found in the MULTIFORM voyage charterparty:
“Provided the vessel has complied with the draft provision in Clause 3, any lightening necessary at ports) of discharge to enable the vessel to reach her discharging berths) shall be at Charterers’ risk and expense, time counting as laytime or time on demurrage but time shifting from the place of lightening to the discharging berths) is not to count.”
In “Clause 3” the owners are required to guarantee a maximum draught in saltwater for the vessel on its arrival at the first or only discharging port.
Sometimes this question of draught and lightening can become significant even in time charters. In the case of The Aquacharm, 1982, the vessel was chartered on the NYPE form. The ship was ordered to load to maximum draught and to pass through the Panama Canal. The Panama Canal is limited to a maximum Fresh Water Arrival Draught (FWAD) of 11.3 metres because the water in most of the Canal is of fresh water density. If a ship loads to a maximum saltwater draught, this draught will increase by the ship’s “Fresh Water Allowance” when the ship arrives in fresh water. In the case of the Aquacharnz the master failed to take into account that the ship’s draught would increase when it passed through the Canal. The ship was loaded to its maximum saltwater draught: On arrival at the entrance to the Canal, it was refused permission to transit and had to be lightened. The part-discharged cargo was carried through the Canal on board another ship, and reloaded on board the Aquacharm at the other end. The court held that the time charterers were not responsible for the lightening expenses because of the master’s negligence but the vessel was not treated as off hire.
Lightening. When a vessel has to be “lightened” this is usually to reduce its draught so as to enable it to enter into a port or arrive at a berth, where there may be restricted depth of available water. The charter may provide for the vessel to be ordered to a “ . . . safe port or as near thereto as she can safely get, and lie always safely afloat . . .”. In this case the restricted depth may prevent the vessel from being safe or afloat. The criterion is not merely a state of tide, because the vessel may simply have to wait until the tidal conditions are appropriate. The depth of water may never be suitable and safe for the vessel to navigate and lightening may be necessary if the vessel is loaded to a draught that is too deep on its arrival at the discharging port or if it has to pass through a waterway where draught restrictions apply.
For example, if a vessel has to pass through the Panama Canal, the maximum draught permitted for a transit is a “Tropical, Fresh Water” (TFW) draught of 39 feet 6 inches. If the vessel is loaded to this draught in salt water, on its arrival at the approaches to the Canal, it will immerse further according to its “fresh water allowance” and the permitted draught will be exceeded. The vessel may be delayed for lightening. In this case, if the master of the vessel loaded to the maximum draught in salt water he may be found negligent and the shipowner may have to cover the time lost because of lightening.
With regard to laytime, the lightening operation may or may not be considered to be part of the discharging operation. Lightening can be considered to be a “partial discharge”. Lightening can be “ship to ship” or “ship to shore” where “shore” is a place some distance from the agreed discharging destination.
If lightening is part of the discharging operation, laytime may begin when the vessel arrives at the nearest point to where it cats safely discharge and lightening commences. It may continue from its commencement or it may be suspended because of some agreed event, such as shifting from the place of lightening to the agreed discharging berth. The words in the charterparty would have to be quite precise as to the result of lightening on laytime.
In The Savvas, 1981, the vessel was on a charter in which it was provided that any lightening would be at owner’s risk and expense and time used for lightening would not count as laytime. The vessel arrived at Bombay gave Notice of Readiness and, according to the charterparty, laytime should have commenced the next day. However, lightening was necessary but this could not be carried out until 17 days after the vessel’s arrival. The lightening took seven days. The charterers argued that because lightening was necessary and this could not begin, laytime did not commence. As far as they were concerned; laytime commenced only after the lightening operations were completed.
It was decided that the time used for lightening included only the time actually used and did not include the time spent waiting for lightening facilities. The time spent in waiting for lightening would have to be at the charterer’s risk. The judge clearly set down the principles of a lightening clause and the responsibilities in such a clause. (In the case, the lightening clause was “Clause 22”.) He said:
“To my mind `lightening’ and `time spent waiting for lighters to arrive’ are two quite different maters. Clause 22 is an unusual clause, in as much as it imposes upon the Owners what is normally the Charterers’ liability. If it had been intended to extend the meaning of the word `lightening’ to cover that which is not normally included in its ordinary meaning, then clear words were required and could, without any great difficulty, have been supplied: specific provision could have been made for time lost in waiting for lightening not to count against laytime.”
The “time lost” provisions in a charterparty are usually related to the time lost while waiting for a berth to count as laytime, but here the judge was discussing the reverse. It is submitted that whatever the words used in the charterparty, the effect of lightening on laytime should be as precisely stated as possible.
If the charterparty does not contain a “ . . . as near thereto as she may safely get . . .” provision, the time for lightening may not be counted as “laytime” but any delay should still be at the charterer’s risk if the nominated port is not a “safe port”.
For laytime to commence during lightening, the vessel should be an “arrived ship”. This means that it must have arrived at the contractual destination. In the case of a “port charter”, this includes a position within the port where the vessel is at the immediate and effective disposition of the Charterer. In the case of a “berth charter”, this means that the vessel must actually arrive in the berth. Before the vessel becomes an “arrived ship” laytime may not commence and, if the vessel has to be lightened, the Charterer may or may not escape any risk of loss of time for the lightening operation. In an old English case, Nielsen y. Wait, 1885, the judge said that if the charter specified the destination, the owner would not be entitled to count the time spent in lightening as laytime, if the vessel did not reach the agreed destination. This contrasted with an earlier Scottish case, Dickinson v. Martini, 1874, where shipowners were allowed to count lightening time as laytime outside a port.
Tanker charterparties frequently contain lightening provisions. In the case of these vessels, they may carry large parcels of cargo which have to be transhipped at sea before continuing on to . the discharging destination. For example, in TANKERVOY 87 it is provided that:
“ . . . if the vessel loads or discharges cargo by transhipment at sea, all time from-the vessel’s arrival at the transhipment place until final unmooring of the lightening vessel at the end of transhipment operations shall count as laytime or for demurrage if the vessel is on demurrage.”
In this situation, the shifting time from the transhipment place to the final port of discharge does not count as laytime.
In the EXXONVOY 84 tanker charterparty, the lightening clause contains a provision that the Charterer provides a “lightening master” and appropriate lightening equipment, but the vessel’s master is always responsible for the lightening operation.
