Speed Performance

Speed Performance Claims Under Charterparties: What The Divinegate Really Teaches Us.

Most speed and performance disputes under charterparties are resolved in arbitration. Rarely do they reach the courts.
When they do, they offer a clear indication of how tribunals are likely to approach these claims.

In Eastern Pacific Chartering Inc v Pola Maritime Ltd [2022] (“The Divinegate”) EWHC 2095 (Comm), the High Court revisited familiar issues: speed warranties, good weather analysis, and the role of currents.

At first sight, this appears to be a technical dispute.
It is not.
It is a dispute about what the parties agreed and how that agreement is evidenced.
Several points stand out.

- First, the contract prevails over the science.
The court preferred the charterparty definition of “good weather” over competing expert methodologies. Where parties define the benchmark, that definition governs.

- Second, currents are not neutral.
A warranty qualified by “no adverse currents” does not exclude favourable currents. In the absence of clear wording, the benefit remains with Owners.

- Third, methodology is decisive.
Alternative models, however sophisticated, will struggle if they depart from operational reality. Tribunals tend to favour evidence grounded in actual performance rather than theoretical reconstruction.

- Fourth, the case moves beyond pure performance metrics.
Evidence that the vessel was operated at reduced RPM to manage fuel consumption was treated as inconsistent with the obligation of utmost despatch. Operational choices can therefore translate directly into legal exposure.

Finally, the judgment reinforces the dominance of the good weather method.
Once adopted, it becomes a comprehensive mechanism for assessing performance, limiting the ability to isolate separate causes such as hull fouling without risking double recovery.

The underlying lesson is straightforward.
A speed claim is rarely determined by how fast the vessel sailed.
It is determined by how performance is defined, measured, and proven under the contract.

For Owners and Charterers alike, the message is clear:
• Draft performance clauses with precision
• Align methodology with contractual wording
• Treat evidence as the central battleground

From an arbitrator’s perspective, these disputes sit at the intersection of technical analysis and contractual interpretation.
And where the contract leaves room for interpretation, that space will inevitably be filled, by the tribunal.

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