CUSTOMARY ASSISTANCE AND INTERMEDIATE HOLD CLEANING CLAUSES

- Written by Per Zerman - Date: 19/06-2007

C/Ps like the NYPE forms include duties for the vessel’s master to “render all customary assistance
with ship’s crew”. The extent to which a particular service is customary or not will depend on the facts
and circumstances, but with regard to hold cleaning there are limits to what the crew can be expected
to do.

In a case from 1975 (the BELA KRAJINA) the two previous cargoes had been, firstly, phosphate and
pot ash and, secondly, manganese. On each occasion, the crew had noticed loose rust and cleaned it
off, but when the vessel arrived at its next port to load grain, the holds were turned down. The crew
eventually succeeded in removing rust scale over a period of seven days, and the charterers claimed
the vessel to be off-hire during this cleaning period. The London court held, however, that the removal
of hard adhering rust was a major operation which could not be expected to be done by the crew
during the course of a ballast voyage; it necessitated the erection of staging, mechanical de-rusting
equipment etc. and the cleaning of holds did not include chipping steel – customary assistance did not
extend to scaling operations requiring the use of sophisticated tools like pneumatic chipping hammers,
high pressure water jets or sandblasting equipment.

On the other hand, customary assistance include the removal of large, loose rust patches in
accessible locations.

In a recent London arbitration award ((2007) 716 LMLN 1), there was the further issue that the C/P
included a specific intermediate hold cleaning clause. This clause provided that the crew should
render customary assistance in cleaning all cargo compartments and that this cleaning work should be
performed while the vessel was en route to next loading port provided that this could be safely done
and that the duration of the voyage was sufficient. The clause also stipulated that the owners would
endeavour to effect such cleaning “as best as possible” but without any guarantee that the holds
would be sufficiently cleaned and accepted on arrival. Finally, there was an express exclusion of
liability in that the owners would not be responsible for any consequences arising from the fact that the
crew had been employed in cleaning.

The vessel was ordered to a port for loading a cargo of urea and the charterers in fact sent voyage
instructions to the vessel’s master that he should do the “utmost to have vessel’s holds clean as
possible”.

The vessel failed its first hold survey and shore cleaning gangs had to come on board together with
specialised equipment, and later in this process additional shore cleaners were employed with cherry
pickers to assist.

Nevertheless, the vessel’s holds were rejected again for reason of cleanliness.

Eventually, the vessel’s holds were passed but the charterers argued that the owners had failed to
render customary assistance whereas the owners argued that the charterers were well aware that the
vessel had previously loaded six consecutive dirty cargoes.

The majority of the arbitrators held that both the vessel’s master and charterers knew or should have
known that a very high level of hold cleanliness was required to load urea and that the previous cargo
of cement clinker was particularly difficult to clean. They added that the master and crew could,
however, not guarantee to clean the holds by way of “intermediate hold cleaning” to a grain clean
standard following six dirty cargoes. In other words, there was no guarantee from the vessel to clean
to a grain clean standard by way of an intermediate hold cleaning in cases where specialised
personnel and equipment including staging and cherry pickers were required.

The C/P also did not include any specific duty for the owners under the C/P to clean the vessel’s holds
to any particular standard for, in this case, the 10th voyage for the cargo of urea. The intermediate
hold cleaning clause was clear in that cleaning was to be performed “without guarantee” and provided
that the crew rendered their “customary assistance” when cleaning the holds, the owners were fully
entitled to rely on the exclusion of liability under the specific clause. On the evidence before the
arbitrators, the crew was considered to have made every effort during the time available, but the work
required was far beyond the capability of the crew and not within the scope of intermediate hold
cleaning as contemplated under the hold cleaning clause.

The charterers’ specific orders for cleaning did not change this: the order to clean the holds beyond
what would be “customary cleaning” would be outside the scope of what was required under the C/P.
The Owners were therefore entitled to rely on the exclusion of liability in the C/P.

The Owners had therefore protected themselves adequately in excluding liability (and limiting the
scope of their customary assistance). For Charterers, this is a reminder that if a specific cleaning
standard is wanted, this should be spelt out clearly and in detail in the C/P.