Aconcagua Bay – when is a berth 'always accessible'

August 08 2018

 
Facts

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.

Decision

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.

Comment

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.