1. Sources and mechanisms for water to be found in crude oil cargo tanks
The oil production and stabilization process
The starting point when considering sources and mechanisms is the origin of the oil and the production or extraction process. Oil is produced using different methods, with these methods varying depending on the geology of the region being exploited.
In broad terms, crude oil is extracted by creating pressure gradients within the target reservoir which serves to propel the liquid to the oil well. Oil recovery takes places over two phases: primary recovery and secondary recovery. Primary recovery can take a number of forms, one of which is known as a “water drive,” where the oil reservoir is fueled by a water drive, or an aquifer, that interacts with the oil and provides the drive energy. Another primary recovery mechanism is gravity drainage, which relies on density differences between oil, gas, and water. Axiomatically, these represent various mechanisms for introducing water into crude oil.
Following primary recovery, many oil wells will be subject to secondary recovery. Secondary recovery commonly involves waterflooding and gas injection of the oil reservoir.
While water can be introduced into the crude oil column in these ways, it is normal for crude oil to have a degree of retention or stabilization time in terminal tanks (shore side or FPSO) where gas is liberated and free water has time to coalesce into droplet sizes sufficient to descend through the oil column and be removed prior to export to a tanker. It follows that if the retention time is insufficient, or the viscosity of the oil is incorrectly calculated, water may be trapped in the oil column and be loaded onto the export ship.
Human error and structural failure
While the oil production and stabilization process is one mechanism for introducing water into a ship’s tanks, another means is human error. Human error can manifest itself in a number of ways. These include:
i. Terminal valve alignment error – permitting water to be drawn or educted into a loading line.
ii. Terminal line contamination – where a loading line already contains water which is displaced into one or more ship tanks prior to first oil being received by the ship.
iii. Steam heating coil failure or damage and leaking – where condensed water from a ship’s cargo heating system drains into a cargo tank, or steam escapes and condenses in the cargo tank.
iv. Ballast tank or ballast line leakage.
v. Crude oil washing system valve leakage or misalignment – permitting water to enter a cargo oil tank.
vi. Hull failure – seawater ingress.
2. Water detection and record keeping
There are a number of opportunities for a ship to detect water in oil during the loading and post loading phases.
The first opportunity is the manifold. Owners should be alert to the fact that an oil line may have been flushed with water (salt or fresh) following loading of the previous export ship, and the potential for this water to be loaded as the first parcel in advance of the nominated grade. Means to guard this are through first flow manifold samples, initially restricting loading to a single ship tank and taking first meter samples of this tank.
During the loading process, time interval samples should be taken. These can be manually taken if automatic in-line sampling is not arranged. If manual samples are drawn, these should be taken under the supervision of a deck officer, drawn directly into a clean and dry sample bottle and the bottle then sealed with a record of the time, date and place of the sample, together with the names of the persons involved in taking the sample. These details, and the sample serial number, should be recorded in the ship’s cargo operations book.
The next opportunity to sample for water is the first few meters sounding in each tank. It is recommended that this takes place by way of both a sounding stick with water finding paste and use of an ullage temperature interface (UTI) device. Both devices have advantages and disadvantages. Any water reading, or suspected water reading, should be repeated to guard against measurement error.
At either the initial loading or intermediate stages, if free water (being water present that is not in suspension) is detected, or if it is suspected that there is free water or a detectable quantity of water in the as-loaded oil column, the master should record this observation in the ship’s cargo operations book, issue a Letter of Protest, notify the terminal, and inform his principals. If a considerable volume of free water is found, consideration should be given to suspending loading while the source of the free water is identified.
The next opportunity is on completion of loading. In addition to taking the usual measurements for ullage and temperature, water finding paste should be used to check for free water, and the UTI should be lowered through the oil column to gauge any detectable concentrations of water. Again, if free water is detected, the gauging process should be repeated to guard against sampling error.
It is also considered good practice to check for free water on departure from the load port, and, if there are multiple load ports, between such load ports. Otherwise, a check for free water should be done about three days after departure from the load port. Any free water detected, whether consistent with the load port records or not, should be recorded and the results communicated to the ship’s owners and charterers.
In all instances, the following should be considered if free water is detected in the cargo tanks:
- Any gauging which detects free water beyond trace detection should be confirmed with a second gauging.
- Where possible, any free water detected should be confirmed by both sounding stick, water finding paste and UTI measurement.
- The terminal representative should be notified and a record of the notice should be recorded in the ship’s cargo operations book. If free water is confirmed, a Letter of Protest should be issued by the ship to the terminal.
- The terminal representative should be invited to participate in confirmation gauging. If the invitation is declined, or a terminal representative is not available, this fact should be recorded in the ship’s cargo operations book.
- Samples of the free water should be obtained. The samples should be taken into a clean and dry receptacle. Sampling should be performed under supervision of a deck officer, witnessed, and sealed on taking the sample.
- In addition to samples of the free water, samples of the oil column in each tank should be taken, including top, middle, and bottom samples (to capture evidence of emulsion or otherwise water in suspension).
- Sample seal numbers should be recorded in the cargo operations book and in a seal record, which forms part of the load port documentation bundle.
- Samples should be securely stored on board the ship in a cool, dry place which is away from direct sunlight.
- Samples should always be stored in accordance with the ship’s safety management system (SMS) procedures to guard against any inadvertent disposal of samples.
- If ballast operations are in progress, samples of the ballast water should be taken. If ballast was loaded in different regions, representative samples of each ballast water region should be taken. If materially significant volumes of free water are detected, the master should consider suspending ballast operations.
- A sample of the load port water should be taken. This sample should be taken remote from the ballast discharge (and preferably when ballast is not being discharged) and any engine room heat exchange points. A sample should also be taken from both sides of the ship.
- All sampling should be witnessed and a contemporaneous note made of the sampling performed, including recording the date and time of sampling, where the sample was taken, and who took the sample.
- Samples should be taken in duplicate wherever possible.
3. Legal considerations
There are a number of legal issues to be considered in the event of free water detection.
If free water is suspected or detected, prompt notification of the same to the terminal, owners, and charterers may provide an opportunity to properly describe the cargo in the bill of lading.
If the bill of lading purports to exclude free water, when it is considered or known that free water exists, the master (or in practice those authorized to sign the bill of lading on his behalf and/or the supplying entity) should not sign the bill of lading until the owners’ instructions have been obtained. Failure to properly describe the cargo may constitute a breach of the Hague-Visby Rules (H-V Rules) Article III rule 3(c): the apparent order and condition of the goods.
Determining the source of the free water is critical. If the free water source is alleged to be the ship, owners may be in breach of H-V Rules Article III rule 1(c) in failing to exercise due diligence to make the holds fit and safe for the cargo. In a worst-case scenario, the ship may be found to be unseaworthy. Further, or alternatively, the ship may be exposed to a claim that it did not properly and carefully load, handle, stow, carry, keep, care for, and discharge the cargo as required under H-V Rules Article III rule 2. At the discharge port, free water present in the cargo but not detected at the load port may give rise to quality and/or quantity claims against the ship by the receivers and/or the charterers.
The underlying sales contact for the crude oil may state that the quality of the oil supplied thereunder shall be the production quality of the oil being supplied at the time and place of loading. More usually, however, the sales contract will state that the quality of the oil delivered shall be the quality of the oil as usually made available at the time and delivery point as specified in the contract. This is commonly evidenced by the terminal presenting sample evidence drawn from the terminal tanks, and not from manifold samples or the ship’s tanks. It is therefore crucial that free water is detected and proper sampling of the oil received is performed. Further, any complaint of variation of quality shall commonly be admissible only if made within a defined number of days, common limits being 30, 45 and 60 days after discharge. It is not uncommon for sales contracts to contain a requirement that independent survey or expert evidence be produced within such a time frame in support of the claim, which is commonly a difficult hurdle to overcome unless the affected parties act quickly and decisively. It follows that the evidence that the affected parties are able to obtain (and the evidence trail) and the speed at which it may be obtained may be crucial in determining any quantity and/or quality claim made under the underlying sales contract, or potentially claims under the relevant bills of lading.
4. Conclusion
Water in oil cargoes is not uncommon and may originate from a number of potential sources, including production, terminal operations, and the ship.
It should be possible to detect free water at various points throughout a voyage and owners should take steps to ensure that they are not exposed through a lack or absence of appropriate testing.
It is critical that any water found be notified to the relevant parties as soon as possible, and appropriate action (such as clausing bills of lading, correctly describing the cargo, and issuing Letters of Protest) should be promptly taken.
The source of water should be quickly and thoroughly investigated. Gathering best, and preferably independent, evidence is critical to the prospects of successful claim or defense management.
If the water itself contains other potentially harmful (to the environment, equipment, or machinery) elements such as microbial growth, additional steps should be taken to segregate and correctly treat and/or dispose of the water and contaminants.
Be wary of contractual time bars and what must be presented within the time frame.
Client Alert 2020-538