Voyage charterparties sometimes contain a promise on the part of charterers that, upon arrival at the loading or discharging port, the vessel will be able to proceed directly to berth. The promise usually takes the form of the stipulation "reachable on arrival" or "always accessible". Can owners claim damages if charterers break their promise, and how does such a breach impact on the laytime and demurrage provisions in the charterparty?
As to damages, once the vessel has tendered notice of readiness ("NOR"), and so become an "arrived ship", no question of damages can arise in relation to the broken promise.1 Simply, laytime will start running and, if it expires before loading/discharging is completed, owners will be entitled to demurrage.
Where laytime starts running, and the charterers are still in breach of an "always accessible"/"reachable on arrival" warranty, the charterers will, however, not be entitled to rely on any exceptions to laytime whilst the breach persists2, even where the exception is "traditionally" an owners' risk 3.
In London Arbitration 5/124, owners sought to test the limits of these principles. The vessel was chartered on an amended Synacomex form, for the carriage of sunflower seed meal in bulk, from Nikolaev, Ukraine, to Tarragona, Spain. The charterparty contained the notation "AAAA" ("always afloat, always accessible"). The vessel arrived at Nikolaev on 6 March 2012, and tendered NOR. There was then a delay of 11 days before berthing. Owners sought damages for detention and demurrage.
The claim for damages for detention failed, because the vessel had arrived, and so the charterers were entitled to use the laytime that they had paid for with the freight (i.e. a straightforward application of The "DELIAN SPIRIT" [1972]).
However, the calculation of laytime gave rise to difficulty because laytime was not expressed as a period of days/hours, but in "weather working days" which did not run when the weather prevented working, Saturdays, Sundays and holidays. Owners argued that charterers were not entitled to discount these days because they were an exception to laytime, to which charterers were not entitled, because they were in breach of the "always accessible" warranty.
The Tribunal disagreed, and found that the difference between such laytime clauses and exception clauses was that exception clauses stopped time running during periods covered by the clause, whereas with the laytime clauses, time did not run because it was outside the definition of such laytime. In the present case, therefore, time when the weather prevented working, Saturdays, Sundays and Holidays, were all outside the definition of the laytime allowed, such disallowed time being referred to as interruptions to laytime, rather than exceptions to laytime. So, where a charterer failed to meet his obligations to procure a berth that was always accessible/reachable on arrival, time which was outside the agreed definition of laytime, nevertheless, did not count against the charterers.
The distinction between "exceptions" and "interruptions" is not always obvious, and so, the Tribunal's decision reinforces the need for practitioners to draft charterparties clearly to ensure that proper distinction is made between items that are intended to be interruptions to laytime, and items which are intended to be exceptions.
Footnotes
1 The "DELIAN SPIRIT" [1972] 1 QB 103
2 The "LAURA PRIMA" [1982] 1 Lloyd's Rep 1
3 The "FJORDAAS" [1988] 1 Lloyd's Rep 336, The "SEA QUEEN" [1988] 1 Lloyd's Rep 500 but cf The "KYZIKOS" [1987] 2 Lloyd's Rep 122
4 Reported in Lloyd's Maritime Law Newsletter in October 2012.
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