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Arrived Ship

Berth and Port Voyage Charters

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Law and Sea.
Laytime.Arrived Ship.WIPON/WIBON

usual waiting place shall be within port, however, parties can and often do provide for an option that in case of congestion inside the port or in case the berth is occupied on arrival vessel can tender NOR "at the usual waiting place, whether in berth or not, whether in port or not"

WIBON (Whether In Berth Or Not)
Last updated: 06-Oct-2014

In Northfield Steamship Co. v Compagnie L’Union des Gaz [1912] 1 K.B. 434 Farwell LJ said, at p. 440:

There was no berth vacant at Savona at which the steamer could be unloaded until four days after her arrival, and accordingly she did not get a berth until the fifth day In my opinion the words "whether in berth or not" were inserted to meet this very case.

In Federal Commerce and Navigation Co Ltd v Tradax Export SA (The Maratha Envoy) [1977] 2 All ER 849 at p.857, per Lord Diplock:

The form of charterparty used incorporated as one of the printed clauses dealing with time for discharge:

Time to count from the first working period on the next day following receipt … of written notice of readiness to discharge, whether in berth or not.

The words italicised are surplusage in a port charter. Their presence, however, is readily explicable. The parties took a printed form appropriate to a berth charter as respects both loading and carrying voyages, and used it for an adventure in which the destination of the carrying, though not the loading voyage, was a range of named ports, not berths. The effect of this well-known phrase in berth charters has been settled for more than half a century. Under it time starts to run when the vessel is waiting within the named port of destination for a berth there to become vacant. In effect it makes the Reid test applicable to a berth charter. It has no effect in a port charter; the Reid test is applicable anyway.

Per Lord Brandon of Oakbrook in Bulk Transport Ltd. v Seacrystal Ltd. (The Kyzikos) [1989] AC 1265 at p.1278-9:

First, as to the absence of any words of qualification. I accept, of course, that the phrase "in berth or not" does not of itself indicate that being in berth or not is related to the availability or unavailability of a berth. I do not, however, think it possible, when interpreting a phrase which has been regularly included in berth charterparties over a long period, to disregard long-established authority as to the purpose intended to be served by it. The authorities to which I referred earlier show that, since 1912 at least, it has been recognised that the purpose of the phrase was to deal with the problem of a ship chartered under a berth charterparty arriving at her port of destination and finding no berth available for her. There is further no reported case prior to this one in which it has ever been suggested that the phrase was intended to deal with the problem of a ship chartered under a berth charterparty arriving at a port where a berth is available for her but being prevented by bad weather from proceeding to it. As I indicated earlier, the phrase has been treated as shorthand for what, if set out in longhand, would be "whether in berth (a berth being available) or not in berth (a berth not being available)." The phrase has been interpreted and applied in that way for so long that I think that it should continue to be so interpreted and applied.

Secondly, the traditional view of the effect of the phrase. Lloyd LJ said that this view had always been that the phrase became operative so as to enable a valid notice of readiness to be given as soon as the vessel has arrived in the port provided that the other conditions of a valid notice are satisfied. I cannot accept this generalisation as correct. So far as cases where no berth is available when the ship arrives are concerned, that has certainly been the traditional view. But, so far as cases where a berth is available for the ship on arrival but unreachable by reason of bad weather are concerned, no traditional view has ever been established, for the simple reason that the question of the effect of the phrase in that situation has never previously arisen for decision by any court. As I said earlier, Roskill LJ’s statement in E. L. Oldendorff & Co. G.m.b.H. v. Tradax Export S.A. [1974] A.C. 479, 515, that the effect of the phrase was to convert a berth charterparty into a port charterparty was made, and made only, in relation to a case where a berth was not available for the ship on her arrival, and I can see no good reason for applying that statement to the wholly different kind of case where a berth is available for the ship on her arrival but she is prevented by bad weather from proceeding to it.

Thirdly, the need for certainty. I accept that certainty of interpretation is a most desirable characteristic of any contract, especially a commercial contract containing expressions commonly in use. I cannot see, however, that a decision that the phrase "whether in berth or not" only takes effect when a berth is not available provides any less certainty than a decision that it also takes effect when a berth is available but is unreachable by reason of bad weather.

the acronym "wibon" is to be found in the charterparty here concerned, that the phrase "whether in berth or not" should be interpreted as applying only to cases where a berth is not available and not also to cases where a berth is available but is unreachable by reason of bad weather.

In Suek AG v Glencore International AG [2011] EWHC 1361 (Comm) per Burton J at para 13-14:

13. … In The Kyzikos it was important that the presence … of the acronym Wibon established the significance of the requirement for causation in that case, so that the Court should decide by reference to the delay which was causative, as opposed to that which was not causative, there being in that case an available berth.

14. I can see that there may be some inconvenience to the Buyer if an NoR is given at a time when both causes are in place at the time of the vessel’s arrival at the port and the berth becomes available before the weather conditions lift, but, as Mr Edey points out, it is for the Buyer to provide a berth, and if a berth was available when, …, the vessel arrived at the port, then, irrespective of weather or tide, The Kyzikos would protect the Buyer and prevent the service of an NoR.

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