In London Arbitration 3/08-734 LMLN 3 the charterers sought to rely on the cargo retention clause to entitle them to deduct the CIF value of a quantity of blend crude oil ROB. The tribunal referred to the purpose of cargo retention clauses, namely to allow charterers to make a deduction from freight on a permanent basis, without bringing a formal cargo claim, as a surveyor’s determination is final. In this case, however, it was found that the surveyor’s report, although being an adequate determination of the stated quantity of liquid ROB, was not an unqualified certification that the liquid cargo was pumpable, nor did it certify that the cargo was reachable by the vessel’s fixed pumps. Accordingly the charterers had failed to bring themselves within the strict provisions of the clause and the owners’ claim therefore succeeded.
In the alternative, the charterers counterclaimed with a shortage claim. The report refers to the different measurement systems referred to in the “GEORGE S”, and referred to the evidential burden being upon the owners to demonstrate that the presence of a significant quantity of ROB was not the fault of the vessel. In this case the owners did not discharge that burden, but the charterers did not show to the Tribunal’s satisfaction that the owners were responsible for any shortage in excess of the amount of liquid ROB certified by the surveyor