The legal side of system design limitations
As the ballast treatment system retrofit programmes are beginning to get underway an issue that may have been overlooked is beginning to be recognised. The 2016 version of the G8 guidelines contains a new concept of system design limitations that will allow systems to obtain type-approval while allowing that they may not be able to perform effectively under all circumstances. For the system makers that permits a degree of leeway in building a system that need only cope with some adverse conditions but not all. However, for shipowners and charterers the consequences may open a whole new can of worms. For almost all standard commercial contracts ships are required to be seaworthy and fit for purpose. These are legal terms and have been interpreted in legal cases in ways that few outside the commercial side of shipping could be aware of. If a ship is incapable of treating ballast water because of a design limitation of its system what will be the consequence? A delay in sailing might affect an owners ability to claim demurrage because the charterer would say that the delay was due to deficiency of the vessel. And what would be the case if a ship needs to ballast or deballast to accommodate tidal movements? Under time charters will the owner be expected to declare the limitations of the ship’s ballast treatment system and if so would a charterer that sends the ship to a port where ballasting operations are compromised be able to put the ship off-hire? If a ship is required to take ballast even if the treatment system cannot handle it, will the charterer be obliged to pay for extra costs involved in discharging untreated ballast to shore facilities? These are all new situations which will never have been tested in courts but there will be a need to establish the legal position at some point and that will undoubtedly make for a few happy lawyers.