FACTORES CLIMÁTICOS

the charterparty laytime exceptions should be applied to the time spent waiting for a berth where the printed words ‘‘discharging time’’ had been replaced by ‘‘count in full’’.

The relevant charterparty clauses stipulated:

‘‘4. Time to commence at 2 p.m. if NOR to discharge is given before noon and 8 a.m. next working day if notice given during office hours after noon unless commenced earlier . . . Any time lost in waiting for berth whether in free pratique or not to count in full.’’

(The last two words had been inserted in place of the printed words ‘‘as discharging time’’, which had been deleted.)

‘‘29. . . . Cargo to be discharged at the rate of . . . weather permitting, and time from Saturday noon to 8 a.m. on Monday and holidays excluded, even if used, unless vessel already on demurrage. Laytime reversible at loading/discharging port.’’

The owners argued that the words ‘‘time lost in waiting for berth whether in free pratique or not to count in full’’ had the effect of ensuring that all time spent by the vessel in waiting for a berth at the discharge port should count without the applica- tion of any charterparty exceptions. They place heavy reliance on the words ‘‘in full’’. The charterers contended that ‘‘time’’ meant laytime. Therefore, clause 4 had to be construed as meaning that any laytime lost in waiting for berth was to count in full. Charterers also argued that the exceptions should apply to the time lost waiting for a berth unless it was abundantly clear that the position should be otherwise.

It was held that the charterers’ construction was correct. The first two words of the sentence ‘‘Any time lost in waiting for a berth . . . to count in full’’ were most important in giving meaning to the later words in the same sentence. There was no doubt that the words ‘‘any time lost’’ meant any laytime lost.44_{The parties had} therefore intended, by way of the first words in that sentence, that laytime was the all-important aspect. There was an onus on the owners to show why the words ‘‘to count in full’’ should derogate from laytime so that every minute of time that the vessel was waiting for a berth should score in full for the owners’ benefit. The owners had not satisfied that burden. If the owners’ intention had been to derogate from the opening words of the sentence so as to strike at the core of established laytime computations, they should have ensured that sufficiently cogent language was used in the all-important sentence so that it was clear that all time waiting for a berth should score up without the application of the laytime exceptions. (For example, wording such as: ‘‘Any time lost in waiting for berth to count in full, with all exceptions excluded.’’) The owners’ claim for balance of demurrage therefore failed.

References have been made earlier to the counting of laytime with a ‘‘time lost waiting for a berth’’ provision and to the favoured view that the time should be applied moment to moment as it occurs. There is some judicial support for this, see The ‘‘Loucas N’’ (already referred to earlier in paragraph 35 on the principal argu- ment) where Mr Justice Donaldson (as he then was) decided that the time lost should be brought into the account as and when the delay occurs and this view appears to be adopted by London arbitrators. Of course, the position may be different if the parties have expressly agreed as to how the time lost waiting is to count, as in the North American Grain Charterparty 1989 (referred to earlier in paragraph 31) where clause 17(b) of the form provides for time waiting for a berth to be added to laytime or time on demurrage. An issue came up in LMLN 230—27 August 1988 where clause 17(b) of the Norgrain form read:—

‘‘If the vessel is prevented from entering the commercial limits of the . . . port . . . on the order of the charterers . . . and the Master warrants that the vessel is physically ready in all respects to . . . discharge, the time spent waiting at a usual waiting place outside the commer- cial limits of the port or off the port shall count from vessel’s arrival at such waiting place and will continue to run as per clause 18 until . . .

Time so used is to be added to laytime (or time on demurrage) used for . . . discharging the entire cargo if clause 18(b) and 18(c) apply . . . [Lines 149/150] . . . ’’

The vessel was chartered for a voyage from Holland to Saudi Arabian Red Sea. Because of problems they had with their receivers the charterers did not want the ship to enter Saudi territorial waters immediately, and accordingly they gave orders that the ship was to wait outside until they said otherwise. The ship anchored off Jeddah on 26 April and gave notice of arrival. She moved into port, pursuant to the charterers’ instructions, on 7 May when she anchored in the roads. She berthed on 13 May and commenced discharging on 14 May.

It was held, that clause 17(b) applied to the facts of the present case. Accordingly, under the first sentence of clause 17(b), the time spent waiting outside the port’s commercial limits was to ‘‘count against laytime’’.

If the clause stopped there, one would readily be tempted to the conclusion that, as in the case of a ‘‘time lost waiting for berth’’ provision, the waiting time in the present case should be counted against the available laytime as and when it occurred. That view might seem to be reinforced by the reference in the following sentence of clause 17(b) to the time continuing ‘‘to run as per clause 18’’, i.e. subject to the exceptions relating to weather, Fridays and holidays.

That initial impression was, however, disturbed by the provisions of lines 149/152. There, the Norgrain form provided that time ‘‘so used’’ (in this case waiting off Jeddah pursuant to the charterers’ orders) was ‘‘to be added to laytime (or time on demurrage) used for . . . discharging the entire cargo’’. If time was to be added it could not already have been counted against laytime as and when it occurred, and more so since it was to be added to laytime which had been used, thus suggesting that it was brought in at the end of the calculation.

The conclusion that, under lines 149/150 waiting time was to be brought into account after ‘‘ordinary’’ laytime, was reinforced by the reference to ‘‘time on demurrage’’ and ‘‘the entire cargo’’. The latter certainly suggested an ‘‘end of the day’’ calculation, but the former made anything else inconceivable. By definition, where there was separate laytime for loading and discharging operations (as in the present case) a ship that was prevented from entering her discharging port could not arrive on demurrage, and so waiting time could not be added to demurrage time unless it was treated separately and account of it was only taken at the end of the ordinary laytime/demurrage calculation.

The proper way to read lines 142/3 was as though they only provided for waiting time to be calculated as if it were laytime. So, once the ship entered the port and gave notice of readiness, ‘‘ordinary’’ laytime started to count and run until its expiry, whatever might have happened earlier. A laytime/demurrage statement was then prepared starting with the calculation of time used within the port, and there was added to that the out-of-port waiting time.

The calculation of that waiting time was a simple matter. It started from the arrival at the usual waiting place (line 143) and then counted subject to laytime exceptions (‘‘as per clause 18’’—line 143). If whatever laytime was permitted by clause 18 was consumed in the process, thereafter the exceptions did not apply. That would give a period of time which would then be brought into account at the end of the ‘‘ordinary’’ laytime/demurrage calculation. If that calculation had resulted in some of the available laytime being left unused, then the waiting time would simply be applied against that amount of unused time. If the waiting time exceeded that time, demurrage would be due for the difference. If the unused laytime exceeded the waiting time, dispatch would be due for the difference, and if the two were the same neither dispatch nor demurrage would be due.

OT H E R S P E C I A L C L AU S E S