Carboex SA v Louis Dreyfus Commodities Suisse SA [2011] EWHC 1165 (Comm)

The Appellant Charterer had entered into a berth charter with the Respondent Owner on an amended AmWelsh voyage charterparty form. The charterparty provided for the transport of coal by four vessels from Indonesia to Spain.

Under clause 40 of the charterparty, time was to run from 12 hours after the vessel’s arrival at berth once notice of readiness had been tendered. If a berth was not available at that time, provided that this was not due to any fault on the Charterer’s part, laytime commenced 12 hours after the first permissible tide, whether the vessel was in berth or not. Clause 9 of the charterparty provided that time would not count where strikes, or any other causes beyond the Charterer’s control, delayed or prevented discharge, unless the vessel was already on demurrage.

After the vessels arrived at the discharge port and tendered notices of readiness, discharge was delayed by around two weeks due to port congestion. This congestion was caused by a nationwide Spanish haulage strike. The strike ended before each of the vessels berthed, and did not cause any interruption in the actual discharge process.

The Owner brought a claim in arbitration for demurrage, submitting that the effect of the “whether in berth or not” provision in clause 40 was that the Charterer bore the risk of delay due to congestion. The Charterer argued that this provision had no effect on the construction of the exceptions in clause 9.

The tribunal found that the Charterer could not rely on the exception in clause 9, as the strike had ended by the time the vessels berthed. The Charterer appealed.

In allowing the appeal, the Court found that the “whether in berth or not” provision did no more than start the laytime clock ticking. The exceptions clause was to be construed as a free-standing provision. Further, the ordinary meaning of the words in clause 9 covered delay in discharging caused by congestion due to the after-effects of a strike that had ended. They also covered delay in discharging caused by congestion due to a strike where the vessel arrived after the strike had ended. As a result, the tribunal had been wrong to conclude that the Charterer did not have the protection of the exceptions in clause 9 of the charterparty.