Voyage Charters. Laytime. WIPON/WIBON. Last updated 29-Aug-2014

There was no berth vacant at Savona at which the steamer could be unloaded until four days after her arrival, and accordingly she did not get a berth until the fifth day. In my opinion the words "whether in berth or not" were inserted to meet this very case.
Northfield Steamship Co. v Compagnie L’Union des Gaz [1912] 1 K.B. 434 Farwell LJ said, at p. 440.

The authorities to which I referred earlier show that, …, it has been recognised that the purpose of the phrase was to deal with the problem of a ship chartered under a berth charterparty arriving at her port of destination and finding no berth available for her.
Per Lord Brandon of Oakbrook in Bulk Transport Ltd. v Seacrystal Ltd. (The Kyzikos) [1989] AC 1265 at p.1278

Whether in port/berth or not

As it can be seen from decisions in both The Johanna Oldendorff and The Maratha Envoy usual waiting place shall be within port, however, parties can and often do provide for an option that in case of congestion inside the port or in case the berth is occupied on arrival vessel can tender NOR "at the usual waiting place, whether in berth or not, whether in port or not". By introducing a "whether in port or not" clause, the owner, when in doubt about the port limits and boundaries of customary waiting places, is given some flexibility and his tender of notice of readiness will be effective with greater degree of certainness.

In case of berth charter, it was stressed by Lord Brandon of Oakbrook in Bulk Transport Ltd. v Seacrystal Ltd. (The Kyzikos)[1989] AC 1264 at p.1279 that WIBON clause operates only in instances where a berth is not available and not also to cases where a berth is available but is unreachable by reason of bad weather.

In case of port charter, necessary attribute for WIPON wording to be applicable is, obviously, congestion inside the port or at usual waiting place. The reason of such congestion is probably irrelevant as long as the cause why vessel is unable to reach port limits is outside of the owners’ control. It was held in a sale contract case Suek AG v Glencore International AG [2011] EWHC 1361 that WIBON and WIPON exceptions shall not be read as applyin only if the unavailability of a berth were the only reason why the vessel cannot access it.

In an arbitration case the vessel was chartered on the Vegoil form to carry a cargo from one safe port/one safe berth Dumai to or Lubuk Gaung, Indonesia, to one safe port/one safe berth Chittagong, Bangladesh. On arrival at Morong Pilot Station, the usual place where sea pilot for port of Dumai can board vessel, the vessel tendered notice of readiness but came alongside only two days later. The tribunal decided that Morong pilot station could not be regarded as the point where the carrying voyage came to an end only because the Dumai Port Authority had authority over the pilot station.

When the charterers under a duty to procure certain documents necessary for the vessel to become an arrived ship, then the charterers impliedly bound to act with reasonable dispatch and in accordance with the ordinary practice of the port in question in doing those acts which had to be done by them to enable the vessel to become an arrived ship.

Although an agreement that the vessel could give notice of readiness "whether in berth or not" transfers the general risk of congestion from the owner to the charterer, the charterers free to make exceptions to that general position by excluding certain periods of time from the running of laytime and thus transfer the risk back to the owner. Whether the said certain periods, e.g. strikes, were the effective cause of delay is a question of fact. It is for the charterers to establish that the event on which they rely falls within the clause and was the effective cause of delay to the vessel.

On the other hand any universal rule must be of general nature by implication, otherwise such rule will produce deadlock each time when some particular case would fall outside its precise limits.

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