August 08 2018
The Aconcagua Bay was
voyage chartered for the carriage of cargo from the US Gulf. The charter
provided as follows: "Loading port or place… 1 good safe berth always
afloat always accessible".
While the vessel was
loading, a bridge and lock were damaged and the vessel could not leave the
berth for 14 days. The owners claimed damages for detention from the charterers
for the period of delay.
The main issue was whether
a warranty in a voyage charter that the berth is 'always accessible' means that
the vessel can always enter and leave the berth.
This question had arisen
once before in a 1997 London arbitration, in which the tribunal said that
'always accessible' meant always reachable. The arbitrator in this case reached
the same conclusion and found that the warranty referred only to entry and not
departure.
The arbitrator's finding
conflicted with the view of the authors of the Baltic and International
Maritime Council Laytime Definitions (2013) and the Baltic Code (2014), who
considered 'always accessible' to be a warranty covering both arrival at and
departure from a berth.
The owners appealed.
There were authorities on
the definition of 'always accessible' regarding a vessel's arrival (eg, The
Kyzikos [1989]), but none concerning departure.
In a short judgment
(three-and-a-half pages), the High Court of Justice held that there had been a
breach of contract. It considered that 'accessible' could sensibly mean
'usable' and not just 'reachable'. The word 'always' was an important
qualifier, particularly in the context of the adjacent clause 'always afloat',
which was a warranty covering the whole time that the vessel was in berth.(1)
The decisive point for the
court was that where commercial parties have addressed the question of a
berth's accessibility, there is no basis for a conclusion that they have
addressed entry alone. A reasonable commercial party looking at the subject of
berthing would consider all aspects and not confine itself to entering the
berth.
It is now clear from this
decision that an 'always accessible' warranty applies to departure as well as
entry, whereas 'reachable on arrival' only applies to entry and arrival.
Consequently, the extent of a charterer's warranty will depend on the choice of
vocabulary used and parties should bear this in mind during charterparty
negotiations.
