Laytime.‘Reachable on arrival’ - The Angelos Lusis. Last updated 31-Aug-2014

If the words "on her arrival" have the meaning for which the charterers contend, the owners have got nothing: the provision might as well not be there.
Per Megaw J in Sociedad Carga Oceanica S.A. v Idolinoele Vertriebsgesellschaft m.b.H. (The Angelos Lusis), [1964] 2 Lloyd’s Rep. 28 at p.33.

The Angelos Lusis [1964] 2 Lloyd’s Rep. 28

First time the effect of ‘Reachable on Arrival’ provision was considered in Sociedad Carga Oceanica S.A. v Idolinoele Vertriebsgesellschaft M.B.H. (The Angelos Lusis)[1964] 2 Lloyd’s Rep. 28. The Angelos Lusis arrived in the roads at Constantza on Jan. 28, 1962 but was not permitted by the port authority to enter the port until Feb. 2, 1962 because there was no berth available for her. Clause 6 of relevant charterparty read:

The Vessel shall load and discharge at a place or at a dock or alongside lighters reachable on her arrival which shall be indicated by Charterers…

and laytime was to begin as per cl.7

… from the time the Vessel is ready to receive or discharge her cargo, the Captain giving six hours’ notice to the Charterers’ Agents, berth or no berth.

From the time of arrival vessel in fact was physically ready to enter the port and commence loading. The owner contended that the charterer was in breach of an absolute obligation to provide a berth ‘reachable on arrival’ and claimed damages in respect of the time for which the vessel was delayed in the roads. The charterer in its turn maintained that obligation to nominate a berth ‘reachable on arrival’ never aroused until Feb. 2, 1962, i.e. the moment when the Angelos Lusis entered commercial area of the port of Constantza.

Megaw J. pointed out, that construction suggested by the charterer is meaningless since gives nothing to the owner because port authorities of Port of Constantza would permit vessel to enter the commercial area of the port only when the berth become available for her. He rejected charterer’s defence on the grounds that incorporation of the words ‘reachable on arrival’ was not merely a ‘surplusage’ in cl. 6 but that these words were intentionally inserted in the shipowner’s favour with the purpose to give the shipowner such contractual right:

… which they would not otherwise have, and to impose on the charterers a contractual obligation of value to the owners.
From the judgement of Megaw J in Sociedad Carga Oceanica S.A. v. Idolinoele Vertriebsgesellschaft m.b.H. (The Angelos Lusis), [1964] 2 Lloyd’s Rep. 28

The judge also found that on true construction of cl. 6 the vessel should arrive physically whether within or outside the commercial limits of the port, but be so positioned that nomination of a particular loading place would become relevant if the vessel is to proceed directly to the berth. When the owner brought the vessel to such position, the charterers become obliged to indicate reachable place which she would be able to reach and occupy. Under the reachable place Megaw J apparently meant a vacant berth since delay in berthing was caused by congestion in port.

The parties, in using the words "on her arrival", did not have in mind, or at least did not have solely and exclusively in mind, the technical meaning of "arrival" in respect of an "arrived vessel" in a port charter-party: they had in mind her physical arrival at the point, wherever it might be, whether within or outside the fiscal or commercial limits of the port, where the indication or nomination of a particular loading place would become relevant if the vessel were to be able to proceed without being held up. At that point the charterers had to nominate a reachable place, which involves that it was the charterers' responsibility to ensure that there was at that point of time a berth which the vessel, proceeding normally, would be able to reach and occupy.
Per Megaw J. in The Angelos Lusis [1964] 2 Lloyd’s Rep. 28 at p.33-34.

Although case report is silent when or whether at all NOR was tendered on vessel’s arrival at Constantza it did not affect the judge’s conclusion. The learned judge agreed with the owners that on the true construction of the charterparty the charterers were in breach of contract in failing to provide a reachable berth for the vessel when she required a berth on her arrival. Accordingly, it was held that the charterers’ breach prevented the owners’ vessel to become ‘arrived’ at the port of Constanza while waiting at the roads for the berth and owners succeeded in their claim for damages for detention at ‘a reasonable rate’.

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