BIMCO Masterclass Workshop

PUMPING/STRIPPING/COW CLAUSES
RICHARD WILLIAMS

The information and opinions which this paper contains are not intended to be a comprehensive
study, nor to provide legal advice and should not be treated as a substitute for specific advice
concerning individual situations.

As in the case of speed and consumption charterers are concerned to ensure that the pumping (i.e.
cargo discharging) capability of the vessel is as warranted in the charter. There are many types of
pumping warranty clause and the different wording used can result in dramatically different results.
Few disputes concerning pumping warranties ever come before the courts and there is accordingly,
little help from the courts to assist parties in the construction of such clauses. However, many disputes
are considered by arbitrators in the major arbitration centres around the world and some trends are
discernible 1.

Most clauses provide for alternative performance promises such as the following:-

"Owners warrant vessel is capable of discharging her entire cargo within 24 hours or maintaining
100 psi2 at ship's rail provided shore facilities permit".

The following factors are relevant:

(i) It should be appreciated that the obligations are alternative. The performance warranty
is satisfied if the vessel either maintains 100 psi back pressure or discharges the cargo
within 24 hours.
(ii) The alternative warranties are pre-conditioned on the fact that shore facilities allow the
vessel to perform in the warranted manner. Therefore, if, for example, the vessel is
provided with an insufficient number of shore connecting hoses or hoses of insufficient
diameter there may not be a breach of warranty on the part of the ship. Alternatively,
pumping performance may be restricted by the fact that the shore receiving facilities are
on high ground therefore demanding increased pumping performance on the part of the
ship 3.
(However, it should be remembered that whilst similar restrictions can be expected
when the vessel is performing lightening services into another vessel the words “shore
restrictions” may not be wide enough to encompass restrictions placed by the lightening
operation.)
The question of evidence is usually very important when considering the impact of shore
restrictions. The basic problem is that shore restrictions are essentially a form of defence
to the charterers’ claim that the vessel has under-performed. However, the necessary
information is often not within the control of the ship. Where the restriction is the result
of the inherent nature of the discharge facility the restriction may be reasonably clear.
However, the evidence may not be so obvious should the terminal require the vessel to
discharge at a reduced rate or to use less than the required number or grade of

1
For a helpful consideration of many such arbitration awards see “Laytime and Demurrage” by John
Schofield, 5th edition 2005 at paragraphs 6.114-148.
2
“psi”= pounds per square inch. The equivalent pressure in metric terms is 7 bar. Ideally, the clause should
provide for maintenance of the pressure at the ship’s manifold rather than at the ship’s rail.

3
In such circumstances a shore booster pump may be used to assist the vessel’s pumps. However, this
can make it very difficult for the ship to maintain the warranted pressure at the manifold.

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discharge lines or where the delay can be attributed to some incident ashore. In the
circumstances, some charters now state expressly what steps are to be taken by the ship
in the event of an allegation of shore restriction.
For example, clauses 19.6 and 19.7 of BPVOY 4 states that:

19.6
“…if the Terminal is unable to receive the full cargo within twenty-four (24) hours or at a
discharge pressure of 7 bar measured at the Vessel’s manifold, the Master shall present a
Note of Protest (“NOP”) to a Terminal representative detailing any Terminal restrictions
and/or deficiencies as soon as they are imposed and/or become apparent and shall use
all reasonable endeavours to have the NOP signed by the Terminal representative. If the
master is unable to obtain a signature from the Terminal representative he shall present
a further NOP recording the failure of the terminal representative to sign the original
NOP. In the case of restrictions imposed by the Terminal or arising from physical
attributes of the Terminal, the master shall ensure that such restrictions are clearly
recorded in the Vessel’s Pumping Log.
19.7
No claim by owners in respect of additional time used in the cargo operations carried out
under this Clause 19 shall be considered by Charterers unless it is accompanied by the
following supporting documents:-
19.7.1 (the Vessel’s Pumping Log)
19.7.2 copies of all NOPs issued, or received, by the Master in connection with cargo
operations.”

Similar provisions are found in Clause 18 (f) of Exxon Mobil 2000

(iii) Whilst most tanker vessels should be capable of complying with the warranty provided
there are no shore restrictions this ability may be affected by vessel or cargo restrictions.
For example, some cargo will cling to the tank surfaces and be inaccessible to the ship’s
pumps. The discharge of such cargo will require the use of Crude Oil Washing (COW)
techniques and the use of stripping lines both of which operations will detract from the
ship’s optimum performance. Even if the stripping out of some of the cargo tanks is done
concurrently with the main discharge from others, there will eventually be a fall in discharge
pressure when the last two or three tanks are stripped out.
Some charters deal with the problem expressly. In the case of COW, clause 18 (g) of
ExxonMobil Voy 2000 provides that:

“Charterer shall have the right to require Vessel, if it is so equipped, to Crude Oil Wash
the cargo tanks and, in such case, the allowed pumping hours (i.e. the twenty-four (24)
hours of pumping time specified in paragraph (f) of this Clause or the number of pumping
hours taken to discharge the entire cargo when Vessel, maintains the applicable pressure
in accordance with (f) of this Clause, whichever is applicable) shall be increased by the
maximum hours specified in part 1 (A) for Crude Oil Washing. If less than all of the tanks
are washed, the said maximum hours shall be pro-rated on the basis of the number of
tanks washed to the total number of cargo tanks and the hours resulting from such
proration shall be added to the allowed pumping hours.”

Similarly, Clause 19 of BPVOY 4 provides that:

“When the Vessel carries out crude oil washing to the MARPOL minimum standard, in the
absence of instructions from Charterers to carry out additional crude oil washing, there
shall be no increase in time allowed for discharge of the cargo. If charterers instruct
Owners to carry out additional crude oil washing then the period referred to in Clauses

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19.3.2 and 19.5, as the case may be, shall be increased by twenty-five per cent (25%).”

Clause 20 of SHELLVOY 5 (as amended) follows the same approach but provides that if
COW is required “by Charterers or any competent authority” laytime/demurrage shall be
increased by 0.6 hours per cargo tank washed subject to a maximum increase of 8 hours.

In the case of stripping Clause 19.9 of BPVOY 4 provides that:

“Owners shall, provided always that the Vessel maintains a minimum discharge pressure
of seven (7) bar during bulk discharge or meets such lesser performance required
pursuant to a restriction imposed by the Terminal or arising from physical attributes of
the Terminal, be allowed a period of not more than two (2) hours per segregated
grade/parcel for final draining and stripping unless such final draining and stripping is
carried out concurrently with discharge of another grade/parcel. Any time taken for final
draining and stripping in excess of such allowance shall not count as used laytime or, if
vessel is on demurrage, as demurrage.”

Clause 18 (g) of VELAVOY 94 provides for a maximum increase of 6 hours (pro-rated in

the case of less than all tanks) to perform both COW and stripping.

However, in the absence of an express clause it is a matter of some debate whether

stripping and COW time should be included in or deducted from the allowed pumping
time 4. The precise wording used may be conclusive. Therefore, if the clause provides for
performance “throughout discharge” then the alternative warranties will probably
include COW or stripping time.

(iv) It should also be appreciated that pumping clauses were originally designed for the
contemporaneous discharge of full homogeneous cargoes. The discharge of part cargoes
and cargoes of different grades (particularly if they require segregation) may make it
difficult for the ship to comply with the warranty even if there are no shore restrictions.
Most modern charters recognise and deal expressly with the problem. For example,
clause 19.3 of BPVOY 4 provides that:

“In the case of multiple grades of cargo where the total time taken to discharge the full
cargo is in excess of twenty-four (24) hours (or pro rata in the case of a part cargo) and
the Vessel fails to maintain a minimum discharge pressure of seven (7) bar throughout
the discharge, each grade carried will be assessed separately as follows:”
(There follows a detailed assessment procedure)

By way of contrast clause 18 (f) of Exxon Mobil Voy 2000 provides that:

“Owner warrants that Vessel shall discharge entire cargo (be it one or more grades) within
twenty-four (24) hours pumping time or maintain 100 psi at vessel’s rail during the entire
period of discharge provided shore facilities permit.”

In the absence of express words it is arguable that the warranty is to apply irrespective of the
number of grades of cargo carried and also to the carriage of unusually viscous or gaseous
cargoes. However, this argument is not necessarily conclusive since it can be argued
against this that there is no need for amendment since the clause is only intended to apply
to the contemporaneous discharge of a homogeneous cargo. Indeed, it can be said in

4
Contrast the views of the author of “Laytime and Demurrage” (John Schofield) 5th edition at para 6.146
and the author of the Intertanko publication “A Guide to Tanker Charters” (Harvey Williams) at page 41.

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addition that if the parties wanted the clause to apply to multi-grade situations they would
have said so or used a clause similar to that in clause 18 (f) of ExxonMobil Voy 2000 quoted
above. Therefore, the fact that the parties did not use such wording can be taken as evidence
that they intended the clause to apply only in the traditional case of homogeneous bulk
cargoes.

(v) The pumping capability of the vessel may also be affected by the temperature of the
cargo. As oils get colder they become thicker and more difficult to pump. Accordingly,
many charters also contain heating warranties which require the shipowner to heat to or
maintain certain cargoes at a specified temperature. For example clause 25 of BPVOY 4
provides that:
`
“Charterers shall have the right to instruct owners to maintain the loaded temperature of
the cargo up to a maximum of 60C. Owners undertake that the Vessel is capable of
maintaining the cargo temperature up to 60C throughout the laden voyage and
discharge of the cargo…”

Similar clauses can be found in Exxon Mobil Voy 2000 (clause 25) and SHELLVOY 5
(clause 27).

Breach of such a provision has a direct effect on the pumping warranty since, albeit that
the ship will be able to maintain a back pressure of 100 psi, the discharge time will be
longer than it would have been had the cargo been properly heated. In such
circumstances, the shipowner is not entitled to demurrage for such excess pumping
time. 5

(vi) In its unamended form this is not a warranty that the vessel will perform in the manner
described but that she is capable of so doing at the date of the charter. Therefore the mere
fact that the vessel does not discharge within 24 hours or maintain 100 psi does not
automatically prove that there is a breach. The performance of the vessel on prior and
subsequent fixtures may prove that she was in fact capable of doing so. In such a case the
loss suffered by the Charterers if the vessel is in breach of warranty is not the difference
between the actual time taken to discharge and 24 hours but the difference between the
time actually taken and the time which would have been taken if the vessel had been able
to maintain 100 psi [assuming that shore facilities permitted her to do so].
In more modern charters this limited promise has been extended into a continuing warranty
which obliges the shipowner to maintain the alternative performance parameters
throughout the charter and which entitles the charterer to deduct excess pumping time
from laytime or demurrage For example clause 18 (f) of ExxonMobil VOY 2000 provides
that:

“Owner warrants that Vessel shall discharge entire cargo (be it one or more grades) within
twenty-four (24) hours pumping time or maintain 100 psi at vessel’s rail during the entire
period of discharge provided shore facilities permit .All time lost as a result of Vessel being
unable to discharge its cargo in accordance with the pumping warranty above shall not
count as laytime, or if Vessel is on demurrage, as time on demurrage.6”

Similarly, clause 19.3.2 of BPVOY 4 provides that:

5
Cia Argentina de Pesca v Eagle Oil (1939) 65 Ll. Rep 168.
6
See also BPVOY 4 (Clauses 19.3.2 and 19.4) and SHELLVOY 5 ( Part 1 (vii) and Part II Clause 1)

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“…the Vessel shall discharge the cargo at the maximum rate…throughout the bulk discharge…”

© Copyright Richard Williams, 2015. All rights reserved.

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