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'About 5%' - a singular tolerance or it applies to both speed & consumption?

Tolerances for ‘about’ - underperformance claim - effect of current were some of the many interesting issues that came up in London Arbitration 21/18.

Will focus on performance warranty clause in this post. The relevant speed & consumption clause stated “ABT 14K on ABT 29T IFO……above speed and consumption warranties…with a tolerance of 5% about”. Charterers claimed that vessel lost 31 hrs and overconsumed 91 tonnes and were relying on reports from three weather routeing companies. Point of contention was whether the +/- 5% tolerance applied to both speed and consumption or one of them. In the view of charterers, the words ‘a tolerance’ imposed a singular tolerance. Owners contended that it applied to both – in which case clause is to be read as 13.3 knots (14 knots -5 per cent) on 30.5 mt IFO (29 mt +5 per cent) or 12.35 knots (13 knots -5 per cent) on 27.3 mt IFO (26 mt +5 per cent).


Decision: In the view of the Tribunal, interpretation of Charterers ignored the express mention of ‘ABT’ before the speed and consumption warranties. If the tolerance was indeed intended to refer to only one of the speed or consumption figures warranted it was far from clear which of the figures it would refer to and how it would to be applied.



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