About Is Not a Filler Word: What the Recap Actually Warrants

"She was warranted about 14 knots on about 25 tonnes, she made 12.5 on 27, so the claim is arithmetic." That sentence is spoken in chartering departments every week. The arithmetic in it is the last thing that happens, not the first: every load-bearing word is somebody's judgement, and most of those judgements were made months earlier by whoever typed the recap. Even the 12.5 is a judgement, being a speed over the ground, and whether that is the speed the warranty tests is lesson 4's fight, with the physics owned by our course Currents and Water Properties and its lesson "The Current That Adds No Resistance".

The recap this course works from is not invented, even though the voyage the workbook prices is. The trip charter in The Divinegate ([2022] EWHC 2095 (Comm), open on the National Archives) recorded at paragraph 51 a warranty reading "LADEN: ABT 14KT ON ABT 25MT IFO + 0.1 MDO", on a basis of "NO ADVERSE CURRENTS AND VALID UP TO AND INCLUDING DOUGLAS SEA STATE 3 / BEAUFORT FORCE 4". Four things in a recap like that carry the money: the word about on the speed, the same word on the consumption, any qualifier sitting near them, and when the ship has to be capable. All four are decided before she sails, by people who are not on her.

What 'about' buys, and what it costs

The West P&I speed and consumption defence guide (free PDF) puts the margin honestly: it "is a matter of fact and will depend on the configuration of the ship, size, draft, trim etc. (The Al Bida)", and "in practice, the cost of arguing such details may exceed the figure in dispute but it is commonly understood to be 0.5 knots and 5% bunker consumption". The guide's own recommended wording says what that is worth: define the tolerance in the charter so that "about" means "+/-0.5 Knots and +/-5% consumption, both tolerances to apply". Read it as a band around the figure, not as a gift to the owner. When the question is whether the ship broke the warranty, you stand at the end of each band that helps her, so on our warranty of about 14.0 knots on about 25.0 mt the warranted minimum speed is 13.50 knots and the warranted maximum consumption is 26.25 mt/day, five per cent of 25.0 being 1.25. The far end of the same band, 23.75 mt/day, is not decoration: lesson 3 shows it is where any credit for burning less than warranted starts, and a charterer who forgets it nets off from the wrong number.

Whether the owner gets both at once is the "double about" question, and the guide is careful with it. There is "no consensus" (London Arbitrations 12/85 and 2/87), although "for the last 10 to 15 years the trend has been for tribunals (at least in the published awards) to give such the double benefit to owners (London Arbitrations 10/01 and 15/07)". Then comes the sentence neither the market nor most articles quote: "it is arguable whether the tribunal will award the full 5% plus 0.5 knot as this may end up being an over-generous result towards owners, given that a reduction in speed will, of itself, reduce the vessel's actual consumption."

That is the cube law arriving inside a legal argument. A ship making 13.50 knots instead of 14.00 needs roughly ten per cent less power, so on the order of 22.4 mt/day rather than 25, yet the double allowance lets her burn 26.25 and owe nothing. Why speed costs power at the cube belongs to our course Vessel Performance in Practice and its lesson "Where Performance Begins: The Resistance Floor", and to our ISO 19030 course; here it is only the reason West's caveat exists. Note what the guide does not say: not that tribunals refuse the double allowance, only that awarding it in full is arguable. Do not put the stronger sentence in a claim file.

Two more readings sit next to it. "Average" is not "about": the guide reports the thinking that "'average' cannot be substituted for 'about' and no margin of 0.5 knots and 5% bunker consumption will be allowed (London Arbitration 13/97)", and that absent a defined charter period the averages are taken over individual voyages (The Al Bida). And where there is no "about" at all, Dr Arun Kasi's Speed-Consumption Claims: A Guidebook (self-published, January 2022, free PDF) records at chapter 5 that the owner must strictly comply "without any margin in its favour (London Arbitration 4/94), subject only to de minimis rule (London Arbitration 4/12)": warranted 14 knots, performed 13.99, and no tribunal will entertain the 0.01.

That gap is the lesson. The course workbook, whose twenty-day abstract lesson 2 opens, carries a constructed voyage built to teach the method, not a real ship's, and it prices that voyage at USD 37,311 with the customary allowances and USD 72,509 without them. The word "about" is worth USD 35,198, and nothing physical changed: that is the distance between a recap that carries the word and one that does not.

Defining the word is a smaller prize, and price it honestly. Leave "about" to custom and the half knot is safe; what stays open is the "double about" question above, whether the five per cent comes with it. Take the consumption allowance out of the workbook, leaving the speed one, and the same voyage prices at USD 50,871, so that argument is worth USD 13,560 here. It can be settled in one line, because a real fixture did settle it: the charter in The Divinegate provided, at paragraph 51, that "'ABOUT' SHALL MEAN AN ALLOWANCE OF PLUS/MINUS 0.5 KNOTS FOR SPEED AND PLUS/MINUS 5 PER CENT FOR FUEL OIL/DIESEL OIL CONSUMPTION". Twenty seconds of drafting. Thirteen and a half thousand dollars of argument removed.

Capable when, exactly

The second word is not a word but a tense. West's guide: "There are conflicting judgments as to whether the warranty is only given upon delivery (The Al Bida [1987] 1 Lloyd's Rep. 124) or only refers to the vessel's capacity at the date of the charter (The Didymi). In any event, unless the charter specifies that it is 'continuing', the warranty does not apply throughout the duration of the charter." That is "subject to owners' duty to maintain the ship in an efficient state". Kasi reaches the same place from the authorities and adds The Pearl C [2012] EWHC 2595 (Comm) and The Pamphilos [2002] All ER (D) 94 (Nov), and his own reading is that the authorities better support delivery than the date of the fixture. Hold the two halves at different strengths. That the warranty is not a continuing one without clear words is settled. Which single day it speaks from is the better view and no more: West's guide records conflicting judgments, and on Birketts' account (open) the tribunal in London Arbitration 3/26 put it as the date of the charter "or, possibly, delivery".

Two standard forms answer the question for you, and both answer it the same way. In SHELLTIME 4 the warranty is continuing and struck as a yearly average, delivery anniversary to anniversary, with a good-weather period defined as any period that is not an Adverse Weather Period: speed reduced for safety in congested waters, or wind above Beaufort 8 for more than twelve hours in a noon-to-noon report. Kasi notes that the form's weather provision does not refer to the Douglas sea state scale at all. NYPE 2015 gets there by its new clause 12, which makes the warranties continuing: on West's account the most significant difference from NYPE 1993.

The superintendent's consequence is blunt. On an unamended NYPE 1946 or 1993 fixture the warranty is not a continuing one, and on the better view the question is what the ship could do on the day she was delivered. Either way a performance sample taken after three weeks at anchorage in warm water is a bad sample, and saying so is a defence. Lesson 7 builds it.

'Without guarantee': the two words that can delete the rest

Then there is the qualifier that can make all of the above academic. West, as written: where the description is given on a "without guarantee" basis "there will be no warranty and a performance claim will probably fail". That is subject to the statement being given in good faith, and "showing the lack of good faith is generally very difficult unless, for example, the vessel has consistently underperformed on previous voyages prior to delivery".

Kasi's chapter 8 carries the older authorities. In Japy Freres and Co v RWJ Sutherland and Co (1921) 26 Com Cas 227 (CA) a ship was described as capable of carrying 600 tons "without guarantee", and on Kasi's account Scrutton LJ held that the qualification deprived the clause of any effect as a warranty, while acknowledging, not decisively, that untruthfulness might let the charterer rescind. In The Lendoudis Evangelos II [1997] 1 Lloyd's Rep 404 a trip duration was stated as "about 70/80 days without guarantee" and the charterer redelivered in about 113 days; Longmore J held that the owners had no claim for late redelivery, the qualification having deprived the clause of contractual effect, and pointed out that there will be an action if, and only if, the statement was made in bad faith.

Kasi's own conclusion is the one to carry away, because it is a warning and not a rule: section 2(1) of the Misrepresentation Act 1967 (open) has never been considered against a "without guarantee" vessel description, so the value of such a description as a representation of fact "is yet to be tested". Untested. Stop there. And note the flag for lesson 6: on the Lester Aldridge note (open), the tribunal in London Arbitration 7/25 read "in good faith" as going to the accuracy of the information supplied rather than to the enforceability of the warranty. That is the commentary's account of one award, and lesson 6 works it end to end.

The obligation next door

Even a defeated warranty may not end the matter, because utmost despatch is a separate route to the same money. Its operational and laytime life belongs to our course Vessel Performance in Practice and its lesson "Just-in-Time Arrival: The Savings Waiting at the Anchorage"; here it is a liability. In The Divinegate the court recorded, at paragraph 66, that Popplewell J in The Pearl C explained that there is a breach of the utmost despatch obligation "if there is an unjustifiable decision not to operate the vessel's engine at an RPM at which she was capable of meeting her warranted speed". At paragraphs 109 and 110 the court found the logbook evidence "firmly suggested that the engine was unjustifiably being operated at lower engine speeds to maintain her consumption below the Charterparty warranty rather than in response to weather conditions", and that no evidence from the master or crew had been produced to explain it.

The charterer pays for the fuel and the owner owns the asset, a split our course Compliance Calculations & Life-Cycle Emissions traces through the EU ETS and FuelEU Maritime. So a bridge team quietly protecting the consumption figure is generating the claim that figure was meant to avoid, at night, on a ship whose crew have never seen the recap.

Four questions for the recap on your desk

1. Is "about" in the recap at all, and is it defined in words or left to custom? The word itself was worth USD 35,198 on lesson 2's voyage, and leaving it undefined put USD 13,560 of that in dispute. Defining it costs a line.
2. Is the warranty continuing, or given once at the outset? The answer decides whether a sample from week four is evidence or noise.
3. Is "without guarantee" anywhere near the figures? If it is, most of what follows in this course may be unavailable to the charterer, and available to you.
4. Does anyone on the ship know that running slow to protect the consumption figure creates the claim it was meant to avoid?

Twenty minutes with the recap, and no money at all. Lesson 2 opens the course workbook on a twenty-day abstract and asks the next question: on which of those days does the charter even let you measure?