In London Arbitration 5/12, the Tribunal considered the relationship between the requirement that a berth must be “always accessible” and the “weather working day” provision in the laytime clause in the context of determining whether Owners were entitled to damages independent of the laytime regime.
The vessel was chartered on an amended Syconamex form. The place of loading was described as:
“I GSB NIKOLAEV SEA PORT AAAA” [1 good safe berth Nikolaev sea port, always afloat, always accessible]
The charterparty also provided as follows:
“Only when the loading and/or discharging berth is unavailable Master may warrant that the Vessel is in all respects ready and may tender notice of readiness to load and/or discharge from any usual waiting place, whether in port or not, whether in free pratique or not, whether customs cleared or not.”
The loading laytime clause provided:
“LRATE: 1500MTS PWWD SSHEX EIU” [Loading rate: 1,500mt per weather working day Saturdays, Sundays and Holidays excepted even if used]
The vessel was delayed prior to berthing at the loadport, and the principal dispute was as to which party should be responsible for that delay. Owners said that the vessel was an arrived ship whilst waiting outside the loadport, indeed this was common ground between the parties. They said that, in addition, they were entitled to pursue a claim for detention independently of the laytime regime due to Charterers’ breach of the “AAAA” provision in the charterparty, which they said was the same as a “reachable on arrival” provision.
Because the vessel was an arrived ship whilst waiting outside the loadport, Owners’ independent claim for damages for detention failed. It is generally accepted that such a claim can only be pursued where a vessel is not an arrived ship.
However, the Tribunal did hold that Charterers were in breach of their obligation to procure a berth that was always accessible. As a result of this breach and following The Laura Prima (the principles set down in which apply whatever the cause of the delay), Charterers could not rely on any laytime exception clauses in the charterparty.
This relationship between “always accessible” / “reachable on arrival” provisions and exceptions clauses has been firmly established by case law. What had not been previously considered was the relationship between an “always accessible” / “reachable on arrival” provision and a laytime clause providing for laytime to be measured in terms of weather working days (as was the case here), where the vessel had become an arrived ship. The difference between such laytime clauses and exceptions clauses was that the latter stopped time running during periods covered by the clause, while under the former time did not run because it was outside the definition of laytime.
The Tribunal had no difficulty in holding that the principles set out in The Laura Primadid not mean that where a charterer failed to meet his obligation to procure a berth that was always accessible / reachable on arrival (as in this case), time which was outside the agreed definition of laytime nevertheless counted against the charterer.
As a result, whilst Owners’ claim for damages failed, they were entitled to demurrage (although in a far smaller amount).
The issues considered by the Tribunal in respect of the relationship between “reachable on arrival” and “weather working day” provisions have not been considered by a court or tribunal before. It is, therefore, likely that this decision may be commented on or refined in future. For the time being, however, clear limits have been placed on the Laura Prima principles. Even if a charterer is in breach of the “reachable on arrival” provision, time which is properly defined as an interruption rather than an exception to laytime will not count against him.