By Prokopios Krikris FCIArb, consultant and arbitrator

Published 26 January 2026

Most speed and performance disputes are decided by tribunals seated in London, but only a small number of decisions are published, and even fewer reach the courts. One recent exception is The Divinegate, which went directly to court under the law and jurisdiction clause of the relevant charterparty. The decision has been widely discussed during claim negotiations and is now often cited in arbitration submissions. It adopts a balanced approach and includes reasoning that can support either party’s position. As a result, both sides frequently rely on the decision, albeit for different purposes.

Historically, the leading authority that reached the Court of Appeal and shaped speed and performance claims is The Didymi,1 a case concerning a long-term time charter. The Didymi has stood unchallenged for decades and many cases were decided or settled on that basis. As discussed in Part I of the "Reflections on Speed and Performance Claims" series:2 "It is plain that the decision has established commercial certainty and predictability (which has been a constant theme of English commercial law) in the parties' negotiations and resolution of disputes". In summary, the decision reflects a logical and common-sense approach: if a vessel underperforms in good weather, it is likely to underperform to a similar extent in bad weather, save where reduced speed is due to safety considerations or charterers' instructions.

More recently, on 10 August 2022 - almost 35 years after Didymi - the judgment in The Divinegate was published.3 The decision brought clarity to the long-debated issue of how positive currents should be treated and reflected an approach that holds the parties to their contractual bargain. The “Reflections on Speed and Performance Claims” series has already considered observations arising from The Divinegate and other issues debated in practice. This article therefore does not revisit those points, but instead examines how the judgment has been applied in more recent arbitration cases.

Before turning to the recent awards, it is worth noting that the latest editions of Carver on Charterparties and Time Charters have expanded their respective chapters on speed and performance claims, including new commentary on The Divinegate and recent arbitration awards.

Paragraph 3.69 of Time Charters, as famously cited in The Ocean Virgo 4 and later in The Divinegate, has been expanded to note that alternative methods have, to date, enjoyed limited success, with The Divinegate cited as an example. In that case, charterers adduced expert evidence from a marine engineer and relied on an alternative method (the RPM method). The charterers did not persuade the court that underperformance during bad weather could be reliably proven. Yet, as mentioned in previous parts of the “Reflections on speed and performance claims” series, this was rejected on the facts of the case. Another point to note is that The Divinegate was determined directly by the court, rather than through arbitration.

In “Reflections on speed and performance claims (Part I)” it was stated:

“Of importance, appeals to arbitrations are limited, which has not assisted the law to develop in some areas. So, the alternative way to establish loss under bad weather may be judicially settled in the distant future. Until then tribunals will strive to appropriately compensate a party for its loss tailored to the facts and circumstances of the case. Expert evidence with its potential limitations may be necessary, as addressed in The Divinegate.”

This approach can be seen in London Arbitration 1/26. 5 It drew market attention as the first published LMAA award after The Divinegate to consider alternative ways of proving a fouling claim, although the summary does not include the detailed calculations. It also addressed the use of expert evidence, unlike London Arbitration 15/23,6 which did not involve expert evidence. In London Arbitration 1/26 the charterers were able to recover time lost on the voyage despite very restrictive contractual wording. The published summary, however, does not set out the full contractual terms.

London Arbitration 1/26

The vessel undertook a lengthy voyage from the East Coast of South America to China. Charterers alleged that the vessel was delivered with fouling, which constituted a defect reducing speed and giving rise to an off-hire claim under clause 15 of the NYPE form. The dispute came before two LMAA Full Members, who did not consider it necessary to appoint a third arbitrator, effectively being aligned on matters of procedure and on the merits. The tribunal ultimately found in favour of the charterers.

Several points can be drawn from this award summary. The charterers were able to inspect the vessel and present evidence to the tribunal, which also allowed their expert to assess the impact of hull fouling. The evidence showed that, on delivery, the vessel’s hull was substantially fouled, not just a minor fouling. However, it remains unclear how the expert reached his conclusions, and on what basis the surveyors determined that the vessel was 90 per cent fouled and that this would generally result in a speed reduction of between 0.5 and 1 knot.

The charterers relied on two reports prepared by their expert, a marine engineer. The owners did not adduce any evidence. As noted in “Reflections on speed and performance claims (Part I)”:

“Commonly, the parties adduce expert opinion evidence in arbitrations concerning breach of the performance warranty or separate breaches related to the vessel’s performance (hull fouling or maintenance). As noted in London Arbitration 7/15: ‘the charterers had relied substantially on expert evidence ... expert evidence must have been expected to be adduced if the owners were seeking seriously to challenge the charterers’ expert case’. When the expert report is controverted, it will be part of the reasoning that might reduce the weight to be attached to the report; requests for clarifications can be useful. So, it is the experts’ reasoning that matters and not the conclusions. The same will be tested for internal consistency and the reasons behind its opinion will be examined, requiring evidence to support it. The tribunal needs to be able to understand not only the experts’ opinions but the materials on which they have based their opinions and the reasons given for them. The procedural rules may affect this process.”

What emerges from the above is that the owners did not instruct an expert, with the result that the charterers’ expert evidence was not challenged and there was no basis on which to reduce the weight to be attached to it. Even where both parties’ experts agree that fouling on delivery affects performance, they may still disagree on the extent of that effect (the quantification), leaving it to the tribunal to assess and weigh the competing opinions. For example, in The Divinegate, both parties relied on expert evidence.

Moreover, the owners relied on The Divinegate and advanced several propositions. However, the tribunal questioned whether, and if so to what extent, those propositions were statements of pure law to be applied rigidly. The issue was therefore treated as one of fact. The tribunal also held that: “If the likely speed reduction and/or consumption increase could be established by calculations made according to well-accepted naval architectural and marine engineering principles (as well as common sense), the evidence could be taken as probative of the effect of the defect ...”

It followed that the charterers’ expert evidence was found to be persuasive but there is limited explanation in the summary on this point. The expert excluded weather conditions, hull distortion and engine underperformance as the causes of the vessel’s underperformance and concluded that at least one knot of speed was lost throughout the performance of the charter due to fouling. It looks like this works by ruling things out (a process of elimination), as was done in The Pearl C,7 to find the possible reason for underperformance. (Another example can be found in The Marina di Cassano,8 where three possible explanations for excessive consumption were examined.)

However, it remains unclear why the charterers’ expert produced two reports and calculated at least a 1 knot speed deficiency, and why the surveyors that inspected the ship at the yard had earlier stated that the vessel was 90 per cent fouled and that this could generally result in a speed reduction of between 0.5 and 1 knot. On a voyage of this length, the difference between a 0.5-knot and a 1-knot deficiency can have a material impact on the quantum of the claim.

The outcome might have been different had the dispute been determined by a sole arbitrator under the SCP9 due to procedural issues and limitations.

London Arbitration 7/25 10

This was an arbitration under the LMAA Fast and Low Cost Arbitration (FALCA) Rules and the parties agreed on the appointment of a sole arbitrator. The charterers relied on a weather routing report to support the deduction from hire. They did not adduce expert evidence.

The arbitrator held that whilst divers did report some growth on the hull, it was very modest in extent. Some barnacles were inevitable after a very short spell of a clean hull in water. What was found would have had no effect on performance. There was no deficiency in performance as a matter of fact when viewed against the warranty for which the charterers contended. The evidence showed, contrary to the charterers’ WRC11 report, that the ship performed in accordance with the warranty.

There appear to be differences from the previous arbitration, including the applicable procedural rules, the absence of expert evidence, the appointment of a sole arbitrator rather than a panel, and the fact that the vessel performed. Where the vessel performs, no loss arises.

London Arbitration 11/25 12

The charterers “made deductions from hire of US$11,859.17 and US$3,158.28 in respect of time lost and bunker consumption for underperformance on the voyage. They relied on a performance evaluation produced by the WRC which calculated a loss of 7.49 hours and overconsumption of 12.474 mt IFO (intermediate fuel oil) on the voyage”.

There was no good weather during the voyage and the WRC applied a weather factor. Owners rejected the claim on the basis that there is no good weather, and charterers had no claim for underperformance. The tribunal found for the owners, and held that: “Under the charterparty, the vessel’s performance was to be assessed in defined good weather periods that were not experienced on the voyage. The charterers had no claim for underperformance and the deductions from hire made by them were wrongful”.

This case was brought under the SCP since disputes arose involving amounts of less than US$100,000. It appears from the summary that likely the bulk of the submissions, which are limited within the SCP, focused on the deviation dispute, rather than the performance claim. There were, at least based on the summary, no arguments about fouling or technical issues. Based on the length of the voyage and the calculated loss, it also appears the speed deficiency was minimal.

Conclusion

The starting point in assessing a vessel’s performance is the contract, whether the issue arises as a breach of the performance warranty or as an off-hire claim under clause 15. While awards based on factual determinations carry limited persuasive value, the recent award suggests that some experienced arbitrators may be prepared to allow losses based on alternative methods if there is credible evidence. Each case, however, will continue to turn on its own facts and circumstances. Therefore, it remains to be seen how other tribunals will address similar issues, but it is likely that further awards on this topic will be reported in Lloyd’s Maritime Law Newsletter, given the ongoing prevalence of such claims in the industry.

Note: the author has published extensively on speed and performance claims and has a commercial, legal, and technical experience, with extensive practice in all charterparty disputes. The above reflects his observations only and does not express an opinion on the matters discussed.

By Prokopios Krikris, FCIArb, consultant and arbitrator