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Duty to procure the berth ‘reachable on arrival’

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When valid Notice of Readiness tendered in compliance with charterparty requirements it starts running of laytime. Several examples given above consider situation when owner’s failure to comply with charterparty provisions regarding tender of NOR invalidates otherwise valid notice. But what should happen if the notice of readiness becomes invalid either due to the charterer’s breach of contract or without fault from either side?

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									Duty	to	procure	the	berth	‘reachable	on	
                                                Duty to procure the berth ‘reachable on arrival’




arrival’
                                                            Igor Sterzhantov©2011




By Igor Sterzhantov©2011
www.lawandsea.net

Introduction ..................................................................................................................................................1
The Angelos Lusis ..........................................................................................................................................1
The President Brand......................................................................................................................................2
The Delian Spirit ............................................................................................. Error! Bookmark not defined.
Damages for detention and demurrage......................................................... Error! Bookmark not defined.
The Laura Prima ............................................................................................. Error! Bookmark not defined.
Conclusions .................................................................................................... Error! Bookmark not defined.




Introduction
When valid Notice of Readiness tendered in compliance with charterparty requirements it starts running
of laytime. Several examples given above consider situation when owner’s failure to comply with
charterparty provisions regarding tender of NOR invalidates otherwise valid notice. But what should
happen if the notice of readiness becomes invalid either due to the charterer’s breach of contract or
without fault from either side?

In such situation laytime and demurrage regime will not start at all and instead of liquidated damages by
way of demurrage, damages for detention will be available to the owners. From the first sign it may
appear that, if damages for detention are calculated at the demurrage rate for the period of delay, then
there is little difference between demurrage and damages for detention. The crucial character of this
distinction becomes evident from litigation concerned to ASBATANKVOY form and ‘reachable on arrival’
provision in cl.6.


The Angelos Lusis
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

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                                  Duty to procure the berth ‘reachable on arrival’
                                              Igor Sterzhantov©2011

nominate a berth ‘reachable on arrival’ never aroused until Feb. 2, 1962, i.e. the moment when the
Angelos Lusis entered the commercial area of the port of Constantza1.

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’2 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’3. 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 President Brand
         Few years later in Inca Compaina Naviera S.A. and Commercial and Maritime Enterprises
Evanghelos P.Nomikos S.A. v Mofinol, Inc (The President Brand) [1967] 2 Lloyd's Rep 338, a dispute arose
over charterparty with identical cll.6 and 7 when the vessel arrived off Lourenco Marques, anchored at
pilot station outside port and served NOR but was unable to cross bar and enter the port due to her
draught for almost 4 days. When the tanker eventually crossed the bar she have had to drop anchor and
wait for the berth to become free and after that for daylight for pilotage and berthing, which all
together amounted to 5 days and 8 hours.

See full text on www.lawandsea.net




1
  This case has been decided on the law as stated in The Aello [1961] A.C. 135 and therefore both parties agreed
that the vessel became an "arrived vessel" for the purpose of laytime only when she reached the actual berth
nominated by the charterers. Decision of the House of Lords in The Johanna Oldendorff [1974] A.C. 479 was yet ten
years away.
2
  As it has been argued by the charterer on the ground that the charterparty was a port charter and therefore
laytime would have begun to run as soon as the vessel became an "arrived vessel".
3
  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

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