Voyage Charters. Laytime. Arrived Ship. Last updated 25-Feb-2015

(9) If within the port though not for some reason at the usual waiting place, a ship may still be an "arrived ship" if, at the place where she is, she can be effectively placed at the disposal of the charterers.
Per Viscount Dilhoene in E. L. Oldendorff & Co. G.M.B.H. Appellants v Tradax Export S.A. Respondents [1974] A.C. 479 [1977] QB 324 at pp 552-3.

At charterers’ disposal

Second limb of Lord Reid test requires that "arrived" ship must be effectively placed at the charterers’ disposal for loading or unloading. Question whether vessel was at the charterers’ disposal on arrival can, for example, come up in circumstances when vessel being anchored at customary waiting place within port limits is unable, on charterers’ request, proceed to the loading or discharging berth due to low water or fog.

This matter for many years has had a traditional answer that even in a port charter, navigational delays were at the risk of the owners, while the charterers had not been held liable for bad weather in the context of bad weather delaying commencement of laytime.

The Court of Appeal in Bulk Transport Group Shipping Co. Ltd v Seacrystal Shipping Ltd. (The Kyzikos) [1987] 1 W.L.R. 1565 took, however, another view. The Kyzikos was chartered on Gencon form to carry steel and steel products from Italy to Houston in the United States Gulf. Clause 5 of the charterparty provided, inter alia that:

Time to commence at 2 p.m. if notice of readiness to load is given before noon. Time lost in waiting for berth to count as loading time. Time to count as per clause 5 Wibon [whether in berth or not] … and master to have the right to tender notice of readiness by cable, both in the loading and discharging port(s).

The Kyzikos arrived at Houston on 17 December 1984 at 6.45 hours and tendered NOR. She cannot proceed to the berth, which was available, because pilot station was closed due to heavy fog. The owners claimed that under clause 5 of the charterparty the laytime began to run at 14.00 hours on the same day. The arbitrator upheld that view. The judge allowed the charterers’ appeal from that decision.

Lloyd LJ delivering leading judgment said that making commencement of laytime dependent on weather condition in port at the time of vessel’s arrival would lead to necessity "to consider not just the place where the vessel is anchored, waiting to get into berth, but also the circumstances prevailing at the moment of her arrival." He furthermore said:

If the weather is good when she arrives at the ordinary place of waiting, so that she could proceed direct to her berth if a berth were available, she can give a valid notice of readiness. But if the weather is bad, and the pilot station has closed down, she cannot give a valid notice of readiness until the weather improves even though she is anchored in precisely the same place.

I do not believe that the Reid test was intended to introduce a new factor into the equation. It is true that Lord Reid speaks of a vessel’s geographical position being of secondary importance. But it is still a position which he has in mind… But nothing in Lord Reid's speech suggests that if she is where waiting ships usually lie she may nevertheless not be at the immediate and effective disposition of the charterers because of the weather.

When case reached the House of Lords, law lords left untouched "at the immediate and effective disposition of the charterers" issue and decided the case on the basis of "whether in berth or not" construction alone. Therefore, it appears that the Court of Appeal’s decision in The Kyzikos stands in respect of weather delays as related to "at the immediate and effective disposition of the charterers".

Incorporation of WIBON/WIPON provision apparently might be a decisive factor, but when a waiting place is as distant from the berth as in The Adolf Leonhardt [1986] 2 Lloyd’s Rep. 395 (200 miles), such a distance would rise significant doubtы as to how The Oldendorff criteria should be applied, even though the judge was prepared to hold that 200 miles are "sufficiently close" under WIPON construction.

Professor Trond Solvang posed a view, that following "illogical" result of The Oldendorff whereby laytime commences upon berthing if the ship can sail directly to berth, while the loading stage is extended to the waiting place if the ship is prevented from berthing, the industry prefers to adopt the Scandinavian model, which propose that the shipowner should not benefit from the ship being initially prevented from berthing by letting the subsequent sailing time to berth form part of the laytime. This effect achieved by express terms of many modern charterparty forms that purport to deduct from laytime the vessel’s sailing time from the waiting place to berth. Such commercial practice virtually evades results otherwise achieved by application of the English law criterion "at the charterer’s immediate disposal" as was suggested by Lloyd LJ in The Kyzikos.

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