On 26 March 2018 the Commercial Court ruled, in an extremely succinct decision, that a warranty in a voyage charterparty that a berth is “always accessible” encompasses both entry to and exit from the berth.
This was an appeal under section 69 of the Arbitration Act 1996 by Seatrade Group N.V. as owners of the vessel “Aconcagua Bay”, against an arbitration decision in favour of the vessel’s charterer Hakan Agro D.M.C.C. In granting leave to appeal, Leggatt J was satisfied that the question of law was one of general public importance.
Seatrade Group NV v Hakan Agro DMCC, Re The Aconcagua Bay  EWHC 654 (Comm).
The parties had entered into an amended GENCON 1994 standard form charterparty for carriage from the US Gulf to the Republic of Congo and Angola. The charterparty included a warranty for:
“10. Loading port or place (Cl.1)
1 good safe berth always afloat always accessible….”
Damage to a bridge and lock resulted in the vessel having to remain in its berth for 14 days after the completion of loading. The Owners claimed damages for detention from the Charterers for the period of this delay.
At arbitration it was found that “always accessible” extends only to entry and not to departure, which meant the Charterer was not in breach of warranty. This finding was consistent with other judgments and awards including London Arbitration 11/97 (although in that award the point was non-decisive).
High Court Decision
Mr Justice Robin Knowles CBE referred to various sources to which the 1997 tribunal did not have access, in particular the Baltic Code 2003 (and its 2007 and 2014 versions) which specifies where the charterer “undertakes the berth will be always accessible, he additionally undertakes that the vessel will be able to depart safely from the berth without delay”. He also noted that, while the Umpire in the present case had considered the dictionary definition of “accessible”, a dictionary could not resolve the point of interpretation.
The Charterers accepted that “always afloat” refers to the duration of period alongside or in berth, and “always accessible” refers at least to entry, which led the court to consider whether the omission of departure from berth was deliberate.
Justice Knowles considered that there was no basis that conclude that parties have only addressed entry when considering accessibility, and was persuaded by the Owners’ submission that the reasonable commercial party, looking at the subject of berthing, would “bear all aspects in mind and not confine itself to getting to the berth”.
Some charterparties use the words “reachable on arrival” and it is self-evident that this only applies to arrival. Justice Knowles therefore concluded that if the parties had intended to only refer to arrival they would have done so, meaning that “always accessible” must apply to both entry and departure.
Warranties that berths are “always accessible” are common in charterparties. This case provides important guidance on exactly what this means and should be considered accordingly by parties which have given, or are being asked to give, a warranty in these terms. Should parties intended to only warrant entry to a berth, this should be made clear in the drafting.